28556 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations

ENVIRONMENTAL PROTECTION standards which are more technically questions on land disposal restrictions AGENCY and environmentally appropriate to (LDR) treatment standards for mineral contaminated soils than those which processing , radioactive mixed 40 CFR Parts 148, 261, 266, 268, and currently apply. wastes, and grab versus composite 271 Finally, this rule excludes from the sampling methods, contact Anita definition of solid certain Cummings at (703) 308–8303. For [EPA±F±98±2P4F±FFFFF; FRL±6010±5] shredded circuit boards in information on treatment standards for RIN 2050 AE05 operations, as well as certain materials manufactured gas plant wastes, contact reused in wood preserving operations. Rita Chow at (703) 308–6158. Contact Land Disposal Restrictions Phase IV: EFFECTIVE DATES: This final rule is Rhonda Minnick at (703) 308–8771 for Final Rule Promulgating Treatment effective on August 24, 1998. information on improvements and Standards for Metal Wastes and Compliance dates: corrections to the Land Disposal Mineral Processing Wastes; Mineral —For prohibition on underground Restrictions. For information on Processing Secondary Materials and injection of certain wastes at 40 CFR secondary mineral processing materials Bevill Exclusion Issues; Treatment 148.18: May 26, 2000; and Bevill issues, call Ashley Allen at Standards for Hazardous Soils, and —For definition of solid waste 703–308–8419 or Stephen Hoffman of Exclusion of Recycled Wood provisions at 40 CFR 261.2, the Industrial and Extractive Wastes Preserving Wastewaters 261.4(a)(15), and 261.4(b): November Branch at (703) 308–8413. For questions AGENCY: Environmental Protection 27, 1998; on treatment standards for hazardous Agency. —For exclusion of recycled wood soil, contact Elizabeth McManus of the preserving wastewaters at 40 CFR Permits and State Programs Division at ACTION: Final rule. 261.4(a)(9): May 26, 1998; (703) 308–8657. Contact Stephen SUMMARY: This rule promulgates Land —For prohibition on land disposal of Bergman of the Disposal Restrictions treatment wastes from elemental phosphorus Identification Division at (703) 308– standards for metal-bearing wastes, processing and on mixed radioactive 7262 for questions on the exclusion for including toxicity characteristic metal wastes at 40 CFR 268.34(b): May 26, wood preserving wastewaters. For wastes, and hazardous wastes from 2000; and information on the capacity analyses, mineral processing. The set of standards —For land Disposal Restrictions contact Bill Kline at (703) 308–8440 or being applied to these wastes is the treatment standards at 40 CFR 268.49 C. Pan Lee at (703) 308–8478. For universal treatment standards. These for soil contaminated with previously questions on the regulatory impact standards are based upon the prohibited wastes: May 26, 1998. analyses, contact Paul Borst at (703) performance of the Best Demonstrated ADDRESSES: Supporting materials are 308–0481. For other questions, call Sue Available technologies for treating available for viewing in the RCRA Slotnick at (703) 308–8462. these, or similar, wastes. This rule also Information Center (RIC), located at SUPPLEMENTARY INFORMATION: revises the universal treatment Crystal Gateway I, First Floor, 1235 Availability of Rule on the Internet: standards for twelve metal constituents, Jefferson Davis Highway, Arlington, Please follow these instructions to which means that listed and Virginia. The docket information access the rule: From the World Wide characteristic wastes containing one or number is F–98–2P4F–FFFFF. The RIC Web (WWW), type http://www.epa.gov/ more of these constituents may have to is open from 9 a.m. to 4 p.m., Monday rules and regulations. In addition, meet different standards than they through Friday, excluding federal several technical background currently do. holidays. To review docket materials, it documents contained in the docket In a related section regarding wastes is recommended that the public make supporting this rule will be available on and secondary materials from mineral an appointment by calling (703) 603– the Internet at http://www.epa.gov/ processing, EPA is amending the rules 9230. The public may copy a maximum offices and regions/oswer. to define which secondary materials of 100 pages from any regulatory docket Table of Contents from mineral processing are considered at no charge. Additional copies cost $0.15/page. The index and some I. Introduction to the Phase IV Rule to be wastes and potentially subject to II. Potentially Regulated Entities Land Disposal Restrictions. The supporting materials are available III. Revised Land Disposal Restrictions (i.e., intended effect is to encourage safe electronically. See the ‘‘Supplementary Universal Treatment Standards) for recycling of mineral processing Information’’ section for information on Metal Constituents in all Hazardous secondary materials by reducing accessing them. Wastes, Including Toxic Characteristic regulatory obstacles to recycling, while FOR FURTHER INFORMATION CONTACT: For Metals ensuring that hazardous wastes are general information, contact the RCRA A. History of Metal Treatment Standards properly treated and disposed. EPA also Hotline at (800) 424–9346 or TDD (800) B. Applicability of Metal Treatment Standards is finalizing decisions on a set of 553–7672 (hearing impaired). In the C. Development of New Treatment mineral processing issues wastes which Washington, D.C. metropolitan area, call Standards for Hazardous Wastes courts have been remanded to EPA. (703) 412–9810 or TDD (703) 412–3323. Containing Metals These include retaining the Toxicity For more detailed information on 1. Measuring Compliance by Grab or Characteristic Leaching Procedure as the specific aspects of this rulemaking, Composite Sampling test for identifying the toxicity contact the Branch 2. Development of Treatment Standards for characteristic for mineral processing (5302W), Office of Solid Waste (OSW), Metal Wastes wastes, and readdressing the regulatory U.S. Environmental Protection Agency, a. Final Universal Treatment Standard for status of a number of miscellaneous 401 M Street S.W., Washington, D.C. Nonwastewater Forms of Antimony b. Treatment Standard for Wastewater mineral processing wastes. 20460; phone (703) 308–8434. For Forms of Arsenic Waste This rule also amends the LDR information on the issue of treatment c. Treatment Standards for Barium Waste treatment standards for soil standards for metal-bearing wastes, d. Final Universal Treatment Standard for contaminated with hazardous waste. contact Elaine Eby (703) 308–8449 or Nonwastewater Forms of Beryllium The purpose of this revision is to create Anita Cummings at (703) 308–8303. For Waste Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28557

e. Treatment Standards for Cadmium d. Response to Court Remands Dealing J. Clarification Regarding Point of Wastes with Other Issues Relating to Mineral Generation of Boiler Cleanout Rinses f. Treatment Standards for Chromium Processing and to Scope of Bevill IX. Capacity Determination for Phase IV Land Wastes Exclusion Disposal Restrictions g. Final Treatment Standards for Lead e. Reexamination of Bevill Exempt Wastes A. Introduction Wastes C. Analysis of and Response to Public B. Available Capacity for Surface Disposed h. Treatment Standards for Wastewater and Comments Wastes Nonwastewater Forms of Mercury Waste 1. Jurisdiction 1. Stabilization i. Final Universal Treatment Standard for a. EPA Authority to Regulate Mineral 2. Vitrification Nonwastewater Forms of Nickel Processing Secondary Materials 3. Metal Recovery j. Final Treatment Standards for Selenium Reclaimed Within the Industry 4. Thermal Treatment Wastes b. Are There Limits on Jurisdiction? C. Required Capacity and Variance k. Final Treatment Standards for Silver (Response to Public Interest Group Determination for Surface Disposed TC Wastes Position) Metal Wastes l. Final Universal Treatment Standard for D. Required Capacity and Variance c. Immediate Reuse Nonwastewater Forms of Thallium Determination for Surface Disposed d. Relation to the Current Regulatory m. Final Treatment Standard for Mineral Processing Wastes Definition of Solid Waste Nonwastewater Forms of Vanadium in E. Phase IV Mineral Processing and TC e. Otherwise Excluded Mineral Processing P119 and P120 Wastes Metal Wastes Injected Into Underground n. Final Treatment Standard for Units Which Serve as Disposal Units Injection Control (UIC) Class I Wells Nonwastewater Forms of Zinc in K061 2. Scope of This Rule F. Mixed Radioactive Wastes Waste a. Mineral Processing Wastes Covered by G. Summary D. Use of TCLP to Evaluate Performance of This Rule X. Change to Definition of Solid Waste to Treatment Technology for Treating b. Wastewater Treatment Surface Exclude Wood Preserving Wastewaters Hazardous Metal Constituents Impoundments and Spent Wood Preserving Solutions IV. Application of Land Disposal Restrictions c. Materials Outside the Scope From RCRA Jurisdiction to Characteristic Mineral Processing 3. Mineral Processing Secondary Material A. Summary of the Proposal Wastes Volumes and Environmental Damages B. Modifications to the Proposal A. Proposal, Comments, and Responses a. Volume of Secondary Materials and 1. Notification B. Clarification That Universal Treatment Large Volume Exemption 2. Conditions Under Which the Exclusion Standards Apply to Ignitable, Corrosive, b. Reliability of Damage and Would No Longer Apply and Reactive Characteristic Mineral Environmental Release Reports C. Other Comments Processing Wastes 4. Conditions to the Exclusion 1. Oil Borne Facilities C. Use of TCLP to Evaluate Performance of a. Legitimacy 2. Application of the Conditions to Units Treatment Technology for Treating b. Design and Construction Standards Other Than the Drip Pad Hazardous Metal Constituents in Mineral c. Units Eligible for Conditional Exclusion 3. Relationship of Today’s Exclusion to Processing Wastes and Conditions Attached to Such Units Previous Industry Exclusions V. Other LDR Issues That May Affect Both d. Speculative Accumulation 4. Units That May Be Visually or Toxic Characteristic Metal Wastes and e. One Time Notification Otherwise Determined to Prevent Characteristic Mineral Processing Wastes 5. Bevill Related Issues Release A. Treatment Standards for Soil a. Uniquely Associated 5. CESQG Status Contaminated with TC Metal Wastes or b. Addition of Mineral Processing D. State Authorization Characteristic Mineral Processing Wastes Secondary Materials to Units Processing XI. Clarification of the RCRA Exclusion of 1. Summary Bevill Raw Materials Shredded Circuit Boards 2. Discussion of Today’s Approach c. Bevill Mixture Rule and Disposal XII. Regulatory Requirements B. LDR Treatment Standards for d. Remining A. Regulatory Impact Analysis Pursuant to Manufactured Gas Plant Waste (MGP) 6. Responses to Court Remands Executive Order 12866 1. Summary a. Applicability of the Toxicity 1. Methodology Section 2. Background Characteristic Leaching Procedure 2. Results 3. Public Comments and EPA Responses (TCLP) to Mineral Processing Wastes B. Regulatory Flexibility C. Treatment Standards for Debris b. Remanded Mineral Processing Wastes C. Unfunded Mandates Reform Act Contaminated with Phase IV wastes c. Lightweight Aggregate Mineral D. Paperwork Reduction Act D. Treatment Standards for Radioactive Processing Wastes XIII. Environmental Justice Mixed Waste d. Mineral Processing Wastes From the A. Applicability of Executive Order 12898 1. Background B. Potential Effects 2. Proposal and Issues Discussed by Production of Titanium Tetrachloride VII. LDR Treatment Standards for Soil XIV. State Authority Comments A. Statutory Authority E. Underlying Hazardous Constituents in VIII. Improvements and Corrections to LDR Regulations B. Effect on State Authorization TC Metal Wastes and Characteristic C. Authorization Procedures Mineral Processing Wastes A. Typographical Error in § 261.1(c)(10) B. Typographical Error in § 268.4(a)(2)(ii) D. Streamlined Authorization Procedures 1. Background XV. Submission to Congress and General and (a)(2)(iii) 2. Discussion of Today’s Approach Accounting Office C. Clarifying Language Added to § 268.7 VI. Issues Relating to Newly-Identified XVI. Executive Order 13045: Protection of D. Correction to Section 268.40— Mineral Processing Wastes Children from Environmental Health Treatment Standards for Hazardous A. Introduction Risks and Safety Risks Waste B. Overview of Today’s Rule XVII. National Technology Transfer and 1. Issues Related to Which Mineral E. Removal of California List Requirements Advancement Act Processing Secondary Materials are and de minimis Provision from § 268.42 Subject to LDRs F. Typographical Errors and Outdated I. Introduction to the Phase IV Rule Cross-references in § 268.45 2. Issues Related to Whether Materials are In the 1984 Hazardous and Solid Within the Scope of the Bevill Exclusion G. Correction to § 268.48 to Explain That a. Use of Non-Bevill Materials as Sulfides are not Regulated as Underlying Waste Amendments (HSWA) to the Feedstocks to Operations Whose Waste Hazardous Constituents in Characteristic Resource Conservation and Recovery is Bevill Exempt Wastes Act (RCRA), Congress specified that b. Uniquely Associated H. Cross References in § 268.50(e) land disposal of hazardous waste is c. Bevill Mixtures I. Mistakes in Appendices VII and VIII prohibited unless the waste first meets 28558 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations treatment standards established by EPA in Phase IV proposals and NODAs. The section amends the rules defining when or is disposed in units from which there table at the end of this introduction lists secondary materials being recycled are will be no migration of hazardous references for all the Phase IV Notices, solid wastes. It states that secondary constituents for as long as the waste plus others cited frequently in the materials from mineral processing remains hazardous. The HSWA preamble. which are generated and reclaimed amendments require that treatment This final Phase IV preamble contains within that industry are not solid wastes standards must substantially diminish five major, interrelated sections. The unless they are managed in land the toxicity or mobility of hazardous first section explains the new land disposal units before being reclaimed. waste, so that short- and long-term disposal restrictions treatment standards Such materials are not subject to threats to human health and the for wastes identified as hazardous regulation as hazardous wastes. That environment are minimized. because they exhibit the toxicity part of the preamble also addresses Today’s Phase IV final rule is the characteristic for metals (referred to as other issues related to mineral latest in a series of LDR rules that ‘‘TC metal wastes’’). The section also processing. The final major preamble establish treatment standards for wastes revises the universal treatment section promulgates amended treatment identified or listed as hazardous after standards (UTS) for 12 metal standards for soil that contains the date of the 1984 amendments. (See constituents in all hazardous wastes. hazardous waste or which exhibits a RCRA § 3004(g)(4)). EPA proposed the The TC metal wastes will now be characteristic of hazardous waste. Phase IV rule in four Federal Register required to meet the universal treatment Today’s rule also includes two brief notices, and issued three NODAs setting standards as do most other hazardous sections on hazardous waste issues out additional data relevant to this wastes. The second major preamble unrelated to the major sections. One proceeding. In two Federal Register section establishes the prohibition on clarifies that a previously-promulgated notices prior to today’s, EPA land disposal plus treatment standards exclusion from hazardous waste promulgated various rules proposed in for a particular type of newly identified regulation for recycled shredded circuit the Phase IV proposals: treatment hazardous waste: mineral processing boards also applies to whole circuit standards for wood preserving wastes, waste that exhibits a characteristic of boards under certain conditions. The paperwork reduction, and clarification hazardous waste. The third section other section promulgates an exclusion of treatability variances. Today’s final addresses additional issues affecting from RCRA jurisdiction for certain wood rule promulgates regulations addressing both TC metal wastes and characteristic preserving wastewaters and spent wood most of the remaining issues discussed mineral processing wastes. The fourth preserving solutions when recycled.

TABLE OF SELECTED LDR FEDERAL REGISTER NOTICES

Common name Title of rule in FEDERAL REGISTER Date Citation

Third Third LDR Final Rule ..... Land Disposal Restrictions for Third Third Scheduled Wastes; June 1, 1990 ...... 55 FR 22520. Rule. Phase II LDR Proposal ...... Land Disposal Restrictions for Newly Identified and Listed September 14, 1993 ...... 58 FR 48092. hazardous Waste and hazardous soil; Proposed Rule. Phase III LDR Proposal ...... Land Disposal Restrictions Phase III: Decharacterized March 2, 1995 ...... 60 FR 11702. Wastewaters, Carbamate and Organobromine Wastes, and Spent Potliners; Proposed Rule. Phase IV Original Proposal ..... Land Disposal RestrictionsÐPhase IV: Issues Associated August 22, 1995 ...... 60 FR 43654. With Clean Water Act Treatment Equivalency, and Treat- ment Standards for Wood Preserving Wastes and Toxicity Characteristic Metal Wastes; Proposed Rule. Phase IV First Supplemental Land Disposal RestrictionsÐClarification of Bevill Exclusion January 25, 1996 ...... 61 FR 2338. Proposal. for Mining Wastes, to the Definition of Solid Waste for Min- eral Processing Wastes, Treatment Standards for Char- acteristic Mineral Processing Wastes, and Associated Issues. HWIR Media Proposal ...... Requirements for Management of Hazardous Contaminated April 29, 1996 ...... 61 FR 11804. Media. Phase IV NODA #1 ...... Land Disposal Restrictions Phase IV Proposed RuleÐIssues May 10, 1996 ...... 61 FR 21417. Associated With Clean Water Act Treatment Equivalency, and Treatment Standards for Wood Preserving Wastes and Toxicity Characteristic Metal Wastes; Notice of Data Avail- ability. Phase IV NODA #2 ...... Land Disposal RestrictionsÐPhase IV: Treatment Standards March 5, 1997 ...... FR 62 10004. for Characteristic Metal Wastes; Notice of Data Availability. Phase IV LDR Wood Preserv- Land Disposal Restrictions Phase IV: Treatment Standards for May 12, 1997 ...... 62 FR 25998. ing Final Rule. Wood Preserving Waste, Paperwork Reduction and Stream- lining, Exemptions from RCRA for Certain Processed Mate- rials; and Miscellaneous Hazardous Waste Provisions; Final Rule. Phase IV Second Supple- Land Disposal Restrictions Phase IV: Second Supplemental May 12, 1997 ...... 62 FR 26041. mental Proposal. Proposal on Treatment Standards for Metal Wastes and Mineral Processing Wastes, Mineral Processing and Bevill Exclusion Issues, and the Use of Hazardous Waste as Fill. Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28559

TABLE OF SELECTED LDR FEDERAL REGISTER NOTICESÐContinued

Common name Title of rule in FEDERAL REGISTER Date Citation

Phase IV NODA #3 ...... Land Disposal Restrictions Phase IV: Second Supplemental November 10, 1997 ...... 62 FR 60465. Proposal on Treatment Standards for Metal Wastes and Mineral Processing Wastes, Mineral Processing and Bevill Exclusion Issues, and the Use of Hazardous Waste as Fill; Notice of Data Availability. Treatability Variance Final Rule Clarification of Standards for Hazardous Waste Land Disposal December 5, 1997 ...... 62 FR 64504. Restriction Treatment Variances.

II. Potentially Regulated Entities Entities potentially regulated by this final rule vary according to the section of the rule. The following table shows the industry categories that may be regulated according to each major section of the rule. The table is not intended to be exhaustive or definitive with respect to every case-specific circumstance. Rather, it is a general guide for readers regarding entities that EPA is now aware could potentially be regulated by this action. Other types of entities not listed in the table could also be regulated, and failure to mention them in the table should not be taken as any type of regulatory determination on the part of the Agency.

TABLE OF ENTITIES POTENTIALLY AFFECTED BY THE PHASE IV FINAL RULE

Section of the rule Category Examples of entities potentially affected

LDR treatment standards for TC metal Generators of Toxicity Characteristic (TC) metal hazardous Facilities in the following industries: pri- hazardous wastes, characteristic min- wastes (D004ÐD011), characteristic mineral processing mary mineral processing, chemical eral processing wastes, and other waste, or any hazardous waste required to meet the LDR manufacturers, pharmaceutical pro- metal-bearing wastes. treatment standard for antimony, barium, beryllium, cad- ducers, paint producers, manufactur- mium, chromium, lead, nickel, selenium, silver, thallium, ers of motor vehicle parts, blast fur- vanadium, or zinc. naces and steel mills, metal plating and polishing, and aircraft parts and equipment. Facilities that treat and/or dispose of TC metal hazardous Hazardous waste treatment and dis- wastes, characteristic mineral processing wastes, and posal facilities. other metal-bearing hazardous wastes. LDR treatment standards for hazardous Entities managing hazardous soil ...... Private or public parties remediating soil. sites containing hazardous soil Mineral Processing Secondary Materials Facilities that generate, store, and/or recycle secondary ma- Copper smelters, gold refiners, and terials from primary mineral processing. other primary metals producers that return wastestreams to units for addi- tional recovery Exclusion for Recycled Wood Preserv- Wood Preserving Facilities ...... Facilities that generate and reclaim ing Process Wastewaters. drippage and wastewaters on-site from the wood processing industry.

III. Revised Land Disposal Restrictions The numerical standards that EPA is characteristic because of high toxic (i.e., Universal Treatment Standards) revising are the universal treatment metal content. By today’s rule, that key for Metal Constituents in all Hazardous standards (UTS) for 12 metal metal must be treated to the UTS for Wastes, Including Toxic Characteristic constituents. The new UTS will apply to that metal. Furthermore, any underlying Metals nonwastewater forms of any listed or hazardous constituents (UHCs) must be characteristic hazardous waste that is treated to UTS levels as well, whether Summary already required to meet the UTS for these UHCs are organics or metals. Both There are two purposes to today’s those constituents in the waste. The wastewater and nonwastewater forms of new treatment standards for metal- revised UTS are less stringent for 7 the TC metal wastes are affected by containing wastes. First, EPA is revising constituents, and more stringent for 5. today’s rule, except for arsenic, for the numerical standards because new The rule does not affect the UTS for which only the wastewater forms are data are available on which to base more wastewater forms of these wastes, and affected. accurate standards. Second, EPA is does not change the UTS for any other Hazardous wastes that exhibit both including a new set of wastes in the constituents, including any of the the TC for metals and the predecessor current treatment standard regime, organics. characteristic based on the Extraction continuing EPA’s efforts to apply the The new set of wastes that EPA is Procedure (EP) are presently only same LDR treatment standards when bringing into the current LDR regime is required to be treated to reduce metal technically and legally possible. (In a the group of 8 wastes known as TC levels to below the characteristic level. subsequent section of this rule, EPA is metal wastes—wastes identified as Today’s rule, for the most part, will expanding the treatment standard hazardous because they exhibit the require additional treatment of these regime to include yet another set of toxicity characteristic due to the metal constituents before land disposal wastes. These are characteristic mineral presence of the metals enumerated in can occur. processing wastes that are not currently 261.24 (Waste codes D004–D011). These The Agency also finds that the subject to land disposal restrictions.) are wastes that exhibit the toxicity treatment standards established in 28560 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations today’s rule are not established below exhibited a characteristic of hazardous achievable when waste streams with levels at which threats to human health waste—were subject to treatment multiple toxic metals were being and the environment are minimized. standards at levels equal to the TC treated. In light of these concerns, the See Hazardous Waste Treatment levels (55 FR 22520, June 1, 1990). (Note commenters urged the Agency to obtain Council v. EPA, 886 F.2d 355, 362 (D.C. that wastes that were characteristic additional data that would demonstrate Cir. 1990). That case held that the according to the TCLP but did not fail the effectiveness of stabilization on TC statute can be read to allow either the EP were considered, until metal waste streams and more fully technology-based or risk-based LDR promulgation of today’s rule, to be characterize the diversity of treatment of treatment standards, and further held newly identified wastes, and were not these nonwastewaters. The following that technology-based standards are subject to the LDR requirements. commenters provided the Agency with permissible so long as they are not Today’s rule makes these wastes subject stabilization performance data: Battery established ‘‘beyond the point at which to LDR). However, the TC levels are Council International, American there is no ‘threat’ to human health or typically higher than those treatment Foundrymen’s Association, Chemical the environment.’’ Id. at 362. EPA’s levels for which threats posed by land , and the finding that today’s standards are not disposal of the wastes are minimized. Environmental Treatment Council. below a ‘‘minimize threat’’ level is (Waste Management v. EPA, 976 F.2d 2, While extensive, the data unfortunately based on the Agency’s inability at the 13–14, 26–27, 32 (D.C. Cir. 1992). was based on composite samples and present time to establish concentration Consequently, treatment to levels lower could not be used as the basis for levels for hazardous constituents which than the characteristic levels normally is treatment standards (see USEPA, Final represent levels at which threats to required. Id. Best Demonstrated Available human health and the environment are In an effort to make treatment Technology (BDAT) Background minimized. As the Agency has standards as uniform as possible while Document for Quality Assurance/ explained a number of times, adhering to the fundamental Quality Control Procedures and determining these levels on a national requirement that the standards must Methodology, Office of Solid Waste, basis—which requires determination of minimize threats to human health and October 23, 1991 and 62 FR 26041 for relevant exposure pathways and the environment, EPA developed the a discussion of grab and composite potential receptors for all hazardous UTS. Under the UTS, whenever sampling). constituents in hazardous wastes, with technically and legally possible, the The Agency, however, was convinced all the attendant uncertainties involved Agency adopts the same technology- that additional data were needed to in such a national determination—has based numerical limit for a hazardous further assess the treatment of TC metal not yet proven possible. See, e.g., 55 FR constituent regardless of the type of nonwastewaters. During September at 6642 (February 26, 1990). Thus, the hazardous waste in which the 1996, EPA conducted site visits at three Agency continues to find that constituent is present (see 40 CFR hazardous waste treatment facilities and technology-based standards remain the 268.40; and 59 FR 47982, September 19, collected additional treatment best approach for the national treatment 1994). In the original Phase IV proposal, performance data. One facility was a standards since such standards EPA proposed to apply the metal UTS, large commercial TSDF that employed eliminate as much of the inherent as measured by the TCLP (60 FR 43582, conventional stabilization techniques to uncertainty of hazardous waste land August 22, 1995; see 40 CFR 261.24), to treat a wide array of inorganic metal disposal and so fulfill the Congressional all TC metal wastes. The TCLP measures wastes. Another was an on-site intent in promulgating the land disposal the possibility that a waste may leach treatment facility that focused on the restrictions provisions. Id. However, the toxic metals above a designated stabilization of inorganic metal slag. A Agency believes that it may be possible concentration level under certain third facility was commercial and to make valid determinations that assumed disposal conditions, and so is focused on stabilization of inorganic threats to human health and the a measure of the potential mobility of materials using non-conventional environment are minimized on an toxic metals in a waste. stabilization techniques. During these individualized basis in the context of Commenters in response to the site visits, the Agency either gathered certain site-specific remediations, and original proposal took issue with the performance data from company records accordingly has provided in this rule a Agency’s use of data previously used to or requested the collection of actual variance from technology-based establish metal UTS as a basis for treatment performance data through treatment requirements for establishing the treatment standards for sampling and analysis. contaminated soils generated in certain characteristic metal wastes. The Treatment data were collected for the remediations. See section VII below. commenters raised three basic issues following types of hazardous waste: with regard to the data transfer. First, mineral processing waste, baghouse A. History of Metal Treatment they said that characteristic metal dust, battery slag, soils, pot solids, Standards wastes are extremely variable and the recycling by-products, and sludge. See Land disposal of hazardous wastes is data used to calculate the treatment the memorandum, Final Revised largely prohibited by statute, unless the standards were not representative of the Calculation of Treatment Standards wastes meet the applicable treatment diversity of TC metal wastes. Second, Using Data Obtained From Rollins standards established by EPA prior to the commenters said that although two Environmental’s Highway 36 land disposal. See RCRA sections treatment technologies—high Commercial Waste Treatment Facility 3004(d)–(g), (m); (the exception for no- temperature metals recovery (HTMR) and GNB’s Frisco, Texas Waste migration units is not relevant to today’s and stabilization—were determined to Treatment Facility, March 10, 1997 and rule). Until today’s rule, metals that be Best Demonstrated Available the memorandum, Transferability of were characteristic because they failed Technology (BDAT), the current metals UTS to Mineral Processing Wastes, the Toxicity Characteristic Leaching UTS were based solely on HTMR, a January 28, 1997 for a complete Procedure (TCLP) and also failed the technology not commercially available description of the waste constituents Extraction Procedure (EP)—which for many TC metal wastes. Finally, and concentrations. Most of the wastes preceded the use of the TCLP as a commenters asserted that individual contained multiple metals in various means of identifying whether a waste metal UTS values were not uniformly concentrations while some had Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28561 significant concentrations of typically When applying the methodology cadmium, chromium, lead, nickel, two metal combinations, including lead presented in USEPA, ‘‘Final Best selenium, silver, and thallium. These and cadmium, barium and lead, and Demonstrated Technology (BDAT) treatment standards will replace the chromium and antimony. In addition, Background Document for Quality existing UTS values. In addition, EPA is between October 1994 and December Assurance/Quality Control Procedures applying UTS for the first time to 8 TC 1995, the Agency obtained performance and Methodology,’’ dated October 23, metal wastes: arsenic, barium, data from one HTMR facility; (other 1991, it was discovered that the Agency cadmium, chromium, lead, mercury, HTMR data became available very late failed to conduct a ‘‘Z-score test’’ to selenium, and silver. The UTS apply to in 1997). The assessment of the new remove any outliers—data that is either both wastewater and nonwastewater data sets began with the calculation of so high or so low that it is not forms of the wastes (except for TC treatment standards for each of the two considered to be representative of the arsenic wastes, for which the UTS apply data sets representing stabilization and population from which the data are to wastewater forms only), and to both HTMR. The same methodology, drawn. EPA uses this statistical method organic and metal underlying hazardous sometimes called ‘‘C 99,’’ and used in to confirm that certain data do not constituents in them. No TC metal past LDR rulemakings, was used to represent treatment by a well-operated wastes have had to meet standards for calculate the treatment levels (see 56 FR system, or reflect anomalously low underlying hazardous constituents 41164, August 18, 1991, and the BDAT levels which are not typically before today, and wastes exhibiting only Background Document for K061, dated achievable. This error was found to have the TC and not the EP were not yet August, 1991). Next, the Agency occurred only in the calculation of the prohibited. (Note, some subcategories of compared the treatment levels for treatment standards based on the mercury and arsenic TC metal wastes stabilization verses HTMR. Based on performance of HTMR; the treatment have treatment methods requiring use of this comparison, the Agency selected standards based on the performance of a specified technology, and are not the highest level for each metal as the stabilization were properly calculated. affected by today’s rule.) The Agency is proposed UTS to allow for waste and The proposed treatment standards for also adjusting the treatment standards process variability and detection limit cadmium, chromium, nickel, and silver for vanadium in P019 and P020 difficulties. This approach is consistent were affected. The application of the Z- nonwastewaters as well as zinc in K061 with the legislative goal of providing score outlier test resulted in 2 data nonwastewaters. substantial treatment through standards points out of 40 being eliminated as The metal treatment standards being that are achievable by an array of well- outliers for both cadmium and promulgated today have broad performing, available treatment chromium. For nickel, 5 out of 122 data applicability. They apply to the technologies. See 130 Cong. Rec. S 9184 points were identified as outliers. following metal-containing hazardous (Daily ed., July 25, 1984) (statement of For silver, 3 out of 114 data points wastes: (1) characteristic metal wastes, Senator Chafee). were identified as outliers. Three of the including both the newly identified As a result, the Agency issued a resulting, calculated treatment wastes that, heretofore, were not Second Supplemental Proposal on May standards changed slightly and are prohibited from land disposal; and 12, 1997 (62 FR 26041). In it, EPA slightly more stringent than the metal wastes that were identified as proposed to change the numerical limits proposed standards: cadmium from hazardous under the predecessor for all nonwastewater wastes containing proposed 0.20 to corrected 0.11 mg/L leaching protocol, the Extraction the following metal constituents: TCLP; chromium from proposed 0.85 to Procedure (EP), which remain antimony, barium, beryllium, cadmium, corrected 0.60 mg/L TCLP; and nickel hazardous because they also exhibit the chromium, lead, nickel, selenium, from proposed 13.6 to corrected 11 TC by the TCLP; (2) mineral processing silver, and thallium. (62 FR at 26047, mg/L TCLP. Silver, on the other hand, wastes which exhibit the toxicity May 12, 1997). The Agency also changed from the proposed 0.11 mg/L characteristic for metal (this is actually reproposed to change the numerical TCLP to a corrected, slightly less a subset of wastes in (1) above); (3) limits for vanadium in P119 and P120 stringent 0.14 mg/L TCLP. (Note: In re- listed hazardous wastes which have nonwastewaters, and for zinc in K061 calculating this standard, the Agency metal constituents; (4) underlying nonwastewaters. (62 FR at 26047, May added an additional 74 data points hazardous constituents (UHCs) that are 12, 1997). EPA also proposed these which were submitted by the INMETCO metals in any characteristic hazardous same UTS treatment standards for TC Company (a high temperature metal waste (including mineral processing metal wastes identified as hazardous reclaimer) in their comments to the May waste which exhibit a characteristic) due to concentrations of barium, 12 supplemental proposal.) The Agency that is disposed in other than a Clean cadmium, chromium, lead, selenium believes that these re-calculations are Water Act (CWA) or CWA-equivalent and silver. not significant because these four wastewater treatment system (see 40 The Agency would like to correct in revised standards are each still CFR 268.2(i); 59 FR 47982, September today’s rule a prior error that was achievable. See Memorandum, 19, 1994); and (5) radioactive wastes discovered in calculating the metals ‘‘Calculation of Universal Treatment mixed with the wastes mentioned in treatment levels using the HTMR Standard (UTS) for HTMR Residues (1)–(4) above. treatment data. As previously stated, in Using Data Submitted by Horsehead the Second Supplemental and in today’s Research Development (HRD) Co., Inc. C. Development of New Treatment preamble, in determining the treatment And INMETCO,’’ December 17, 1997. Standards for Hazardous Wastes levels for each metal constituent, the Containing Metals Agency compared the treatment B. Applicability of Metal Treatment standards calculated with data from Standards 1. Measuring Compliance by Grab or HTMR and stabilization. Based on this As noted earlier, today’s rule finalizes Composite Sampling comparison, the highest level for each LDR treatment standards in two ways. As explained in the May 12, 1997 metal was chosen as the treatment First, it revises the UTS levels for 10 Second Supplemental Phase IV standard. In reviewing the calculations metal constituents in nonwastewater proposal, EPA establishes treatment from the HTMR data set, the Agency forms of hazardous wastes. The 10 standards using data obtained by grab discovered an error in the calculations. include antimony, barium, beryllium, sampling, not composite sampling, and 28562 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations likewise assesses compliance with these techniques, including furnace ash, for wastewater forms of toxicity standards using grab sampling. 62 FR at incinerator ash, scrubber brine sludge, characteristic arsenic (D004) waste from 26047. This approach was sustained by furnace baghouse dust, and stripper the characteristic level of 5.0 mg/L the D.C. Circuit Court of Appeals in rinse waters, would meet the proposed established in the Third Third rule (55 Management v. EPA, standard. The commenter submitted 48 FR 22520 June 1, 1990) to the previously 976 F. 2d at 34, and EPA did not and data points supporting its claim. A third promulgated UTS for arsenic is not reopening the issue in this commenter stated that meeting the wastewaters of 1.4 mg/L. The Agency proceeding. The Agency has now standard would significantly increase did not propose to change the treatment obtained requisite grab sampling data. their compliance costs. Another stated standard for nonwastewater forms of As a result, the treatment standards that commercial stabilization techniques toxicity characteristic arsenic (D004) promulgated in this rule are all based were not capable of meeting the waste in that the UTS of 5.0 mg/L TCLP upon treatment performance that was proposed UTS for antimony. In general, was the same as the TC level. The measured through the use of grab these commenters suggested a higher Agency received no comment on the sampling. All compliance likewise will UTS for antimony in the range of 1.3 proposed change to D004 wastewaters. be based on grab sampling. mg/L TCLP to 2.98 mg/L TCLP. Therefore, the Agency is today In response to the commenters’ promulgating as proposed the UTS 2. Development of Treatment Standards concerns regarding the difficulty in standard of 1.4 mg/L for D004 for Metal Wastes treating antimony wastes, the Agency wastewaters. All of the metals described below are has conducted a thorough review of its c. Treatment Standards for Barium on the UTS list and some are also TC BDAT data set and has determined that Waste. (i) Treatment standards for TC metals. This section discusses while it represents a diverse collection Barium (D005) Waste. In 60 FR 43684 development of both the TC and UTS of waste streams containing metals, the (August 22, 1995), EPA proposed to treatment standard levels. The Agency concentration of antimony in the 9 data change the treatment standards for is presenting the metal treatment points used to calculate the proposed wastewater forms of TC metal barium standards alphabetically by constituent. standard may not be representative of waste (D005) from the characteristic Depending on the constituent, one or the most difficult to treat antimony level of 100 mg/L (established in the more treatment standards is discussed. waste. The data used by the Agency to Third Third rule, 55 FR 22520, June 1, For example in the section entitled, calculate the proposed UTS of 0.07 mg/ 1990) to the previously promulgated ‘‘Treatment Standards for Barium L TCLP, showed a range of antimony UTS for barium of 1.2 mg/L. Likewise, Waste,’’ the Agency discusses the concentrations in the untreated waste of EPA proposed for D005 nonwastewaters promulgation of three treatment between 0.2440 mg/L TCLP and 16.1 a change from the characteristic level of standards: (1) 21 mg/L TCLP for mg/L TCLP. While the Agency, at the 100 mg/L TCLP (55 FR 22520, June 1, nonwastewater forms of D005 waste time, believed that these data were 1990) to the previously promulgated (based on the UTS); (2) 1.2 mg/L for sufficient to establish a treatment UTS of 7.6 mg/L TCLP. In support of wastewater forms of D005 waste (also standard, new data submitted by a these revised treatment standards, the based on the UTS); and (3) a revised commercial hazardous waste treatment Agency had performed a comprehensive UTS of 21 mg/L TCLP for barium facility provide a compelling argument re-evaluation of the available treatment nonwastewaters. If a metal constituent to amend this standard. The new data performance data from wastes is not one of the TC metals, its presence consist of 48 additional data points containing significant concentrations of cannot be the basis for determining if a representing various multiple metal barium. waste exhibits the toxicity waste streams, including incinerator or For D005 wastewaters, the Agency characteristic—but it could be an furnace ash, scrubber brine sludge, lab determined that the existing UTS level underlying hazardous constituent in the pack waste, stripper rinse water and for barium (1.2 mg/L) was appropriate, waste, in which case that constituent baghouse dust. These wastes have all based on the performance of lime would need to meet the standard for been treated with conventional conditioning followed by sedimentation that metal in today’s rule before the stabilization techniques and meet the and filtration as BDAT. For D005 waste could be land disposed. proposed UTS values for all metal nonwastewaters, the Agency determined a. Final Universal Treatment Standard constituents except for antimony. The that the existing UTS level of 7.6 mg/L for Nonwastewater Forms of Antimony. Agency has reviewed the data, the TCLP, based on treatment of barium in The Agency proposed in the Second treatment technology, and the QA/QC K061 (electric arc furnace dust) using Supplemental (62 FR 26041, May 12, information submitted by the HTMR was also appropriate. The 1997), to change the UTS for commenter and believes that the data Agency believed that these treatment nonwastewaters containing antimony should be incorporated into the existing standards could be routinely met by from 2.1 mg/L TCLP to 0.07 mg/L TCLP. BDAT data set. After doing so, the industry. Additionally, the Agency This proposed change was a result of Agency recalculated the treatment reviewed stabilization data and new data collection efforts conducted by standard for antimony nonwastewaters determined that the treatment standards the Agency to gather performance data and is today promulgating a revised for barium could be achieved by that was representative of the diversity standard of 1.15 mg/L TCLP. All data stabilization for a wide variety of waste of metal-containing wastes. available to the Agency indicate that the matrices. (See Proposed Best In response, the Agency received revised treatment standard for antimony Demonstrated Available Technology several comments. Two commenters nonwastewaters can be achieved by (BDAT) Background Document for supported the proposed change; either stabilization or HTMR processes Toxicity Characteristic Metal Wastes however the remaining commenters and addresses the commenter’s D004–D011, July 26, 1995.) argued against the proposed level for concerns. The Agency received no significant antimony of 0.07 mg/L TCLP for a b. Treatment Standard for Wastewater comment on the proposed change to the number of reasons. One commercial Forms of Arsenic Waste.The Agency wastewater standard for D005. However, waste management facility stated that proposed in the original Phase IV as previously discussed in Section III.A very few of the waste streams they treat proposal (60 FR 43683, August 22, of today’s rule, new data collection using conventional stabilization 1995), to change the treatment standard efforts and new analysis of BDAT data Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28563 for nonwastewaters resulted in a they could not support the treatment from wastes containing significant reproposal of the barium treatment standards because EPA has not concentrations of cadmium. standard in the Phase IV Second demonstrated that existing commercial For D006 wastewaters, the Agency Supplement (62 FR 26047) . In this technologies were capable of achieving determined that the existing UTS for notice, the Agency proposed to revise the proposed standards or that cadmium (0.69 mg/L) based on a BDAT the treatment standard for barium technologies were otherwise available. of lime conditioning followed by nonwastewaters to 21 mg/L TCLP based In light of the comments received, the sedimentation was appropriate. The on stabilization. The Agency received Agency conducted a review of the data treatment standard for nonwastewater no comments in response to the set used to calculate the proposed forms of D006 wastes was based on a reproposal. Therefore, the Agency today standard. The review indicated that, transfer from the UTS for cadmium of is promulgating a nonwastewater consistent with the commenter’s 0.19 mg/L TCLP based on the K061– treatment standard of 21 mg/L TCLP as concerns, the data used by the Agency HTMR treatment standard data. The proposed in 62 FR 26041. In addition, to calculate the standard were based on Agency chose to use these data because the treatment standard of 1.2 mg/L for wastes containing low concentrations of they represented performance of an wastewater forms of D005 is beryllium (between 0.0050 and 0.5 mg/ HTMR treatment unit. The UTS based promulgated as proposed in 60 FR L TCLP). These concentration levels and on K061–HTMR could be routinely met 43654. the subsequent treatment standard by industry. Additionally the Agency (ii) Universal Treatment Standard developed from them does not appear to reviewed stabilization performance data (UTS) for Barium Nonwastewaters. adequately account for the difficulty in and determined that the UTS for (Please refer to the discussion above treating wastes containing higher cadmium could be achieved by about the development of the treatment concentrations of beryllium. Data stabilization for a wide variety of waste standard for D005 for additional generated and submitted by Brush matrices. See Proposed Best information on the development of the Wellman, Inc., consisting of seven data Demonstrated Available Technology barium UTS levels.) The Agency points, showed characteristic wastes (BDAT) Background Document for proposed to change the UTS for barium (D008) with concentrations of beryllium Toxicity Characteristic Metal Waste nonwastewaters from 7.6 mg/L to 21 ranging from 32 to 95 mg/L TCLP. When D004–D011 ( July 26, 1995). The Agency received no comments on mg/L TCLP (see 62 FR 26041). It was treated with conventional stabilization the proposed change to the wastewater proposed that such a treatment standard techniques, treatment resulted in standard for D006. However, for reasons would better reflect the diversity of beryllium levels ranging from 0.05 mg/ metal-containing waste streams and previously discussed in Section III.A of L to 0.31 mg/L TCLP. As a result of their treatment. today’s preamble, the Agency in the these data, the proposed UTS for The Agency received no significant Phase IV Second Supplemental comment in response to the reproposal. beryllium must be revised to reflect a proposed to revise the treatment Therefore, the Agency is today more difficult-to-treat or high- standard for cadmium nonwastewaters promulgating a nonwastewater UTS of concentration beryllium waste. to 0.20 mg/L TCLP based on HTMR. 21 mg/L TCLP, as proposed. Accordingly, the Agency is today All comments received in response to d. Final Universal Treatment promulgating a revised UTS for the revised standard for cadmium Standard for Nonwastewater Forms of beryllium nonwastewaters of 1.22 mg/L supported the change. However, as Beryllium Waste. The Agency proposed based on this newly acquired data. All discussed earlier in Section III.A of in the original Phase IV proposal (60 FR treatment performance data available to today’s preamble, the Agency 43683, August 22, 1995), to revise the the Agency indicates that this revised discovered an error in the calculation of UTS for nonwastewaters containing treatment standard can be met, thereby the treatment standard. In applying the beryllium from 0.014 mg/L TCLP to 0.04 addressing concerns raised by the LDR methodology for calculating a mg/L TCLP. As previously discussed, commenters to the proposal. It should treatment standard, the Agency failed to new data collection efforts and new be noted that the UTS for beryllium conduct a ‘‘Z-score’’ outlier test. With analysis of BDAT data resulted in a wastewaters remains unchanged at 0.82 the application of this test, 2 out of the reproposal of the beryllium treatment mg/L. 40 data points were determined to be standard to 0.02 mg/L TCLP in the e. Treatment Standards for Cadmium outliers, resulting in a revised treatment Phase IV Second Supplemental (62 FR Wastes. (i) Treatment standards for TC standard for cadmium nonwastewaters 26041, May 12, 1997). Cadmium (D006) Waste. The Agency of 0.11 mg/L TCLP. (The proposed The Agency received numerous proposed to change the treatment treatment standard of 0.20 mg/L TCLP comments on the proposed revision. standards for wastewater forms of TC was based on all 40 data points.) The One commenter supported the proposed cadmium (D006) waste from the Agency has reviewed the comments in treatment level for beryllium, but stated characteristic level of 1.0 mg/L light of this amended treatment that current stabilization technologies (established in the Third Third rule (55 standard and believes that it can be could achieve lower treatment levels. FR 22520. June 1, 1990) to the achieved by both HTMR and Several other commenters stated that previously promulgated UTS for stabilization treatment. Data submitted while the proposed standard for cadmium wastewaters of 0.69 mg/L. by commenters in support of this rule beryllium was consistent with the data EPA also proposed to change the does clearly indicate that the standard considered by the Agency, the treatment standard for D006 can be achieved. See supporting stabilization data for beryllium were nonwastewaters from the characteristic information contained in docket for this quite limited and reflected the treatment level of 1.0 mg/L TCLP (55 FR 22520 rule. Therefore, the Agency is today of wastes having very low beryllium (June 1,1990)) to the previously promulgating a nonwastewater content. Commenters further questioned promulgated UTS for cadmium treatment standard of 0.11 mg/L TCLP whether the proposed standard of 0.02 nonwastewaters of 0.19 mg/L TCLP. In for D006. In addition, the treatment mg/L TCLP could be met by support of these revised treatment standard of 0.69 mg/L for wastewater conventional stabilization techniques if standards, the Agency had performed a forms of D006 waste is being higher concentrations of beryllium were comprehensive re-evaluation of the promulgated as proposed in 60 FR treated. Other commenters stated that available treatment performance data 43654. 28564 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations

(ii) Universal Treatment Standard 0.85 mg/L TCLP based on a BDAT of standard for D008 nonwastewaters from (UTS) for Nonwastewaters Containing stabilization (62 FR 26041). the characteristic level of 5.0 mg/L Cadmium. The reader is referred to the In response to the reproposal, the TCLP (55 FR 22520, June 1, 1990) (a above discussion about the development Agency received no significant standard remanded by the D.C. Circuit of the treatment standard for D006 comments. However, as discussed as insufficiently stringent in Chemical nonwastewaters for additional earlier in Section III.A of today’s Waste Management v. EPA, 976 F. 2d at information of the development of the preamble, the Agency discovered an 27) to the previously promulgated UTS UTS level for cadmium nonwastewaters. error in the calculation of the treatment for lead nonwastewaters of 0.37 mg/L EPA is promulgating an UTS of 0.11 mg/ standard. In applying the LDR TCLP. In support of these revised L TCLP for nonwastewaters containing methodology for calculating a treatment treatment standards, the Agency had cadmium. No change was proposed for standard, the Agency failed to conduct performed a comprehensive re- the cadmium wastewater UTS; therefore a ‘‘Z-score’’ outlier test. With the evaluation of the available treatment it remains at 0.69 mg/L. application of this test, 2 out of the 40 performance data from wastes f. Treatment Standards for Chromium data points, originally used to calculate containing significant concentrations of Wastes. (i) Treatment Standards for TC the standard, were determined to be lead. Chromium Wastes (D007). In 60 FR outliers, resulting in a revised treatment For D008 wastewaters, the Agency 43654 (August 22, 1995), the Agency standard for chromium nonwastewaters determined that the existing UTS for proposed to change the treatment of 0.60 mg/L TCLP. The Agency has lead (0.69 mg/L) based on a BDAT of standards for wastewater forms of reviewed the comments in light of this lime conditioning followed by toxicity characteristic chromium (D007) amended standard and believes that it sedimentation was appropriate. The waste from the characteristic level of 5.0 can be achieved by both HTMR and treatment standard for nonwastewater mg/L (established in the Third Third stabilization technologies. Data forms of D008 waste was based on a rule (55 FR 22520. June 1, 1990) to the submitted by commenters in response to transfer from the UTS for lead of 0.37 previously promulgated UTS for this proposal also support this mg/L TCLP, which in turn, was based chromium (total) wastewaters of 2.77 conclusion. See supporting information on K061–HTMR treatment standard mg/L. EPA also proposed to change the contained in the docket for this rule. data. The Agency believed that the UTS treatment standards for D007 Therefore, the Agency is today could be routinely met by industry nonwastewaters from the characteristic promulgating an amended using HTMR. Additionally, the Agency level of 5.0 mg/L TCLP (55 FR 22520, nonwastewater treatment standard of reviewed stabilization performance data June 1,1990) (a standard remanded by 0.60 mg/L TCLP. In addition, EPA is and determined that the UTS for lead the D.C. Circuit as insufficiently also promulgating a treatment standard could also be achieved by stabilization stringent in Chemical Waste of 2.77 mg/L for wastewater forms of for a wide variety of waste matrices. See Management v. EPA, 976 F. 2d at 32) to D007 as proposed in 60 FR 43654. Proposed Best Demonstrated Available the previously promulgated UTS for (ii) Universal Treatment Standard Technology (BDAT) Background nonwastewater forms of chromium (UTS) for Chromium Nonwastewaters. Document for Toxicity Characteristic (total) of 0.86 mg/L TCLP. In support of (Please refer to the discussion above Metal Wastes D004–D011, July 26, 1995. these revised standards, the Agency had about the development of the treatment The Agency did not receive any performed a comprehensive re- standard for D007 for additional comments on the proposed change for evaluation of the available treatment information on the development of the D008 wastewaters. However as performance data from wastes chromium UTS levels.) The Agency previously discussed in today’s containing significant concentrations of proposed to change the UTS for preamble, numerous comments on the chromium. chromium (total) nonwastewaters to proposed nonwastewater treatment For D007 wastewaters, the Agency 0.85 mg/L TCLP to better reflect the standard were submitted. As a result, determined that the existing UTS (2.77 diversity of metal-containing waste the Agency in the Phase IV Second mg/L) based on a BDAT of lime streams and their treatment (see 62 FR Supplemental proposed to change the conditioning followed by sedimentation 26041). No change was proposed for the D008 nonwastewater standard to 0.75 was appropriate. The treatment standard chromium wastewater UTS. mg/L TCLP based on new BDAT for D007 nonwastewaters was based on The Agency received no significant stabilization data (62 FR 26047) a transfer from the UTS for chromium comments on the reproposal. However, collected by the Agency. The Agency (total) of 0.86 mg/L TCLP based on the as a result of an error in the calculation felt that these data better reflected the K061–HTMR treatment standard data. In of the proposed treatment standard, as diversity of lead-containing waste addition, the Agency reviewed previously discussed, the Agency is streams and their treatment. stabilization performance data and today promulgating a revised chromium Numerous commenters concurred determined that the UTS for chromium nonwastewater UTS of 0.60 mg/L TCLP. with the Agency’s reproposal. However, (total) could be achieved by stabilization The chromium wastewater UTS remains other commenters, specifically those for a wide variety of waste matrices. See unchanged at 2.77 mg/L. representing various sectors of the Proposed Best Demonstrated Available g. Final Treatment Standards for Lead secondary lead industry, argued that Technology (BDAT) Background Wastes. (i) Treatment standards for TC EPA’s proposed treatment standard for Document for Toxicity Characteristic Lead Wastes (D008). In 60 FR 43654 lead was not achievable. In particular, Wastes D004–D011, July 26, 1995. (August 22, 1995), the Agency proposed comments from Battery Council The Agency received no comments on to change the treatment standards for International (BCI) and the Association the proposed change to the wastewater wastewater forms of toxicity of Battery Recyclers (ABR) argued that standard for D007. However, as characteristic lead (D008) waste from new data developed by their association previously discussed in Section III.A of the characteristic level of 5.0 mg/L members showed that no facility in the today’s preamble, new data collection established in the Third Third rule (55 secondary lead industry could meet efforts and further analysis of BDAT FR 22520, June 1, 1990) to the EPA’s proposed treatment standard for data, resulted in a proposed revision to previously promulgated UTS for lead lead. Instead, they supported setting a the treatment standard for wastewaters of 0.69 mg/L. EPA also treatment standard of 8.39 mg/L TCLP nonwastewater containing chromium to proposed to change the treatment for D008 nonwastewaters based on Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28565 stabilization. The commenters argued sampling, but there were no specifics on promulgating as proposed a treatment that smelter slag has chemical and the type of stabilization treatment standard of 0.75 mg/L TCLP for D008 physical characteristics distinctly conducted on the waste. The data does nonwastewaters and a standard of 0.69 different from the wastes used to indicate that secondary smelter slags mg/L for D008 wastewaters. The Agency develop the treatment standard and that can be treated to meet today’s treatment notes that if a particular waste is unique because of its physical variability, standards for all metals except lead and or possesses properties making it treatment of secondary smelter slag thallium. With respect to lead, unusually difficult to treat by the through stabilization was much less approximately 24 out of 83 samples treatment technologies whose effective than other types of D008 have treated lead values greater than performance was used to develop the wastes. The commenter further 0.75 mg/L TCLP, but less than the treatment standard, the affected party questioned EPA’s decision to ignore characteristic level of 5.0 mg/L TCLP. may petition the Agency, on a case-by- data submitted by BCI, ABR and others No information was provided for the case basis, for a treatment variance as in response to the original Phase IV majority of the thallium data sets. Based provided in 40 CFR 268.44. proposal, stating that these data were on these data, the commenter proposed (ii) Final Universal Treatment much more comprehensive and a treatment standard of 8.39 mg/L TCLP Standard (UTS) for Nonwastewaters representative. The commenter stated for lead nonwastewaters and 0.79 mg/L Containing Lead. (Please refer to the that these data contained 276 composite TCLP for thallium nonwastewaters. discussion above about the development data points for lead from secondary However, these data failed to show of the treatment standard for D008 for smelter slag, with a 99th percentile effective treatment of the thallium and additional information on the confidence interval for stabilized slag of lead constituents. (In the docket for this development of the lead UTS levels.) 2.97 mg/L TCLP. Another commenter, rule, see memorandum to Nick Vizzone, The Agency proposed to change the which uses a chemical fixation process USEPA from Howard Finkel of ICF, UTS for lead nonwastewaters from 0.37 on the generated blast furnace slag, ‘‘Calculation of Universal Treatment mg/L TCLP to 0.75 mg/L TCLP to better argued that they could only meet a 2.0 Standard (UTS) for Stabilized reflect the diversity of metal-containing mg/L TCLP for lead, based on composite Secondary Lead Slag Using Data waste streams and their treatment (see rather than grab sampling. Submitted by the Battery Council 62 FR 26041). In response to the In response to the commenters’ International and Association of Battery proposed revision, the Agency did concerns, the Agency would first like to Recyclers,’’ December 5, 1997). receive a number of comments on the respond to the commenters’ statement nonwastewater level, discussed above. that data previously submitted to the Commenters have failed to provide For reasons also discussed above, the Agency was ignored. The Agency is reliable and convincing data or Agency is today promulgating a lead careful to review and analyze all data information to persuade the Agency that nonwastewater UTS of 0.75 mg/L TCLP that are submitted in support or stabilization can not meet the proposed as proposed. response to its rulemakings. In fact, the treatment standard of 0.75 mg/L TCLP (iii) Secondary Smelter Battery Slag— referenced data were analyzed for lead slags. While the physical Additional Issue. EPA published a extensively, but were found to be so variability of the slag may indeed affect Notice of Data Availability (NODA) on seriously lacking in form and quality treatment performance, the Agency is May 10, 1996 (61 FR 21419) that assurance/quality control prerequisites unconvinced that the commenter’s data discussed, among other things, an issue that it was impossible to use them for were the result of optimized treatment regarding application of the LDR BDAT development. (In the docket for conditions and, therefore, are not standards to slags resulting from the this rule see the documents, ‘‘Draft— indicative of true treatment difficulties. smelting of lead acid batteries. The LDR Overview of Five Data Sets Submitted in EPA’s own performance data from treatment standard, established in the Response to the Land Disposal treatment of D008 battery slags (which Third Third Rule in 1990, for lead acid Restrictions Phase IV Proposed Rule: were used in part for the calculation of batteries is RLEAD (see 40 CFR 268.40 Treatment of Metals,’’ November 1996; the treatment standard) clearly support and 268.42, Table 1), which means and correspondence from Michael the view that slags from secondary recovery of lead. The NODA stated that Petruska, USEPA to David B. Weinberg, battery recyclers can be treated to meet ‘‘[o]nce the batteries are smelted, the Battery Council International Re: the nonwastewater standard of 0.75 mg/ LDR requirements have been satisfied, Request for Additional Data in Support L TCLP. These data indicate that slags and, therefore, the slag resulting from of the Previous Submitted Data in with lead concentrations ranging from 5 this smelting need not be treated Response to the Land Disposal to 846 mg/L TCLP (a range similar to further. The standards proposed under Restriction Phase IV,’’ July 22, 1996). that associated with the data submitted Phase IV (i.e., compliance with UTS) Specifically, the data submitted to the in response to the May 12 Second would not apply to this slag, even if the Agency were (1) based on composite Supplemental proposal and which are slag exhibits a characteristic of samples rather than grab samples, the discussed above) can be treated with hazardous waste (i.e., contains lead in latter being the only type used to stabilization techniques to levels less amounts greater than 5.0 mg/L).’’ This develop treatment standards; (2) lacking than 0.01 mg/L to 0.3 mg/L TCLP. position was based on EPA’s usual in any quality assurance/quality control Furthermore, data and information interpretation that ‘‘when EPA specifies (QA/QC) documentation; and (3) not available to the Agency suggest that a treatment method as the treatment accompanied with specific treatment with optimized treatment these standard, residues resulting from the information, or any indication that standards should be achievable required treatment method are no longer performance of the treatment process regardless of the waste matrix. (See prohibited from land disposal unless was in fact optimized. As such, the ‘‘Treatment Technology Background EPA should otherwise specify.’’ Agency was unable to utilize these data. Document’’, January 1991, for a (emphasis added) 55 FR at 22538 (June Other additional data were discussion of Waste Characteristics 1, 1990). subsequently submitted by the Affecting Performance (WCAPS and After the publication of the May 10, commenter in response to the ‘‘Second other pertinent material). As such, the 1996 NODA, EPA realized that it had, in Supplemental’’ and analyzed by the Agency is unpersuaded by the fact, ‘‘otherwise specified’’ that lead Agency. These data were based on grab commenter’s arguments and is today slags resulting from the smelting of lead 28566 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations acid batteries would be a separate IV second supplemental rule regarding waste, and proposed to clarify that treatability group in the Third Third lead slag residuals took issue with the waste management practice as rule, and they would indeed require treatment standard for lead and the data ‘‘impermissible dilution’’ under 40 CFR further treatment if the slags exceeded used to develop the standard, but did 268.3. the TC for lead (5.0 mg/L) as generated. not question that the slags could be In response to the proposal, the See 55 FR at 22568 (June 1, 1990). The required to be treated further. Agency received numerous comments. Third Third rule states that ‘‘The Commenters appeared to clearly Commenters in support of the residuals from the recovery process are understand that slags are covered by the ‘‘impermissible dilution’’ designation a new treatability group (i.e., the Phase IV rule establishing standards for agreed with EPA’s discussion in the residues are not lead acid batteries) and, TC lead wastes. preamble that no chemical or therefore, their status as prohibited or Therefore, lead slag residuals pozzolanic reaction was possible from nonprohibited is determined at the resulting from the smelting of lead acid iron dust or filings and that standard point the residues are generated. Such batteries are included under today’s chemistry showed that metals such as residues would thus only be prohibited rulemaking. If such residuals exhibit a lead were not bound in a non-leachable and therefore require further treatment lead toxicity characteristic (i.e., have matrix when using iron dust or filings if they exhibit a characteristic.’’ This lead levels exceeding 5.0 mg/L) after as a stabilizing agent. One commenter point was clarified both in person and RLEAD is employed, they would have to further mentioned many instances in a letter, dated July 31, 1996, sent to be treated again for lead and any other where generators have avoided representatives of Battery Council underlying hazardous constituents treatment costs by adding iron to their International. The letter explained that present in waste until the treatment metal and cyanide-bearing waste the Agency had mischaracterized the standards are achieved. For a discussion streams, thus providing the short-term status of lead slags in the May 10, 1996 on the development of these numerical ability to, as the commenter stated, NODA and requested comment on the standards being promulgated today; see ‘‘fool’’ the test for both amenable appropriate treatment standard for these the discussion in section (i) above. cyanide and leachable metals. The lead slags. (iv) Addition of Iron Filings to commenter pointed out that EPA’s EPA published the Phase IV Second Stabilize Lead-Containing Wastes. adoption of a total cyanide treatment Supplemental Proposed Rule on May Today, the Agency is codifying the standard had essentially solved the 12, 1997, and among other things, used principle that the addition of iron metal, issue of ineffective treatment of cyanide new data from the treatment of lead in the form of fines, filings, or dust, for using iron, but the issue of metals slags in revising the treatment standards the purpose of ostensibly achieving a treatment still remained. The for lead. In response to this issue, one treatment standard for lead is commenter concluded that the commenter stated that EPA was ‘‘impermissible dilution’’ under 40 CFR prohibition on the use of iron dust and prohibited under RCRA 3004(m) from 268.3. The Agency has determined that filings would promote more treatment of requiring further treatment for residuals this waste management practice does toxic metal-bearing wastes. that resulted from a treatment process not minimize threats posed by land Other commenters discussed that was determined to be BDAT (such disposal of lead-containing hazardous analytical concerns with the TCLP test as RLEAD). The commenter believes waste because the practice essentially when used on iron-treated wastes. One RCRA 3004(m) states that once threats ‘‘blinds’’ the analytic method but would commenter stated that the addition of are minimized, EPA cannot require not in fact prevent lead from leaching iron to D008 waste sand may mask the further treatment of the residuals after under actual disposal conditions. presence of lead in two ways: first, iron the specified BDAT treatment has been Affected wastes include: toxic is more easily oxidized than lead so that performed on the waste, or the BDAT characteristic lead wastes (D008), any under the conditions of the TCLP test, numerical level has been achieved. characteristic waste containing lead as iron may be preferentially leached out Because the Agency’s data on lead slag an underlying hazardous constituent, into solution, leaving the lead in an residuals show concentrations of 283 and listed wastes for which lead is insoluble, undetectable state. A second mg/L TCLP lead are not uncommon, regulated. problem with the presence of iron in the potential threats from treated lead slag On March 2, 1995, EPA published the TCLP test is spectral interference with (using RLEAD only) are clearly not LDR Phase III proposal (60 FR 11702). the analysis of lead, which could result minimized. In fact, the concentrations of Among other things EPA proposed that in positive interference and a raised lead in these residuals resulting from the addition of iron dust to stabilize detection limit for lead. RLEAD of lead acid batteries are among lead in characteristic hazardous waste Numerous commenters representing the most concentrated TC lead wastes constituted impermissible dilution, the foundry industry, however, argued for which the Agency has data. The rather than treatment legitimately extensively against the ‘‘impermissible Agency only is requiring further meeting the LDR treatment standards dilution’’ designation for iron treatment treatment of slag residuals which (60 FR 11731). In the proposal, the of characteristic metal wastes. The exhibit the characteristic for lead (i.e., Agency stated that certain industries commenters stated that EPA’s position contain lead in amounts greater than the were adding iron dust or iron fines to was neither justified nor supported by TC level of 5.0 mg/l). Those residuals, some characteristic hazardous waste any technical documentation. The by definition, are still hazardous and (nonwastewaters) as an ostensible form commenters further stated that: (1) iron potential threats posed by their land of treatment for lead. As an example, the added to lead bearing waste foundry disposal have not been minimized. Agency noted that foundries were sand effectively immobilizes the lead Another commenter raised the issue known to mix iron dust or filings with and yields a treatment residue that of whether there had been adequate the D008 sand generated from their consistently passes the TCLP; (2) TCLP notice and comment given regarding the spent casting molds, viewing this tests, run on foundry sand that was status of lead slag residuals. The Agency practice as a form of stabilization. In the treated with iron and landfilled 8–10 believes that adequate notice and proposal, the Agency stated that such years ago, yielded lead results below the opportunity to comment were given in stabilization practices were inadequate 5 ppm level; (3) analytical results for light of the facts recited. We note also to minimize threats posed by land total iron from samples clearly that all comments received on the Phase disposal of metal-containing hazardous show the iron has not oxidized after Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28567 several years; and (4) iron treatment has that these ‘‘treated’’ wastes maintain a sampling of only ‘‘hot spots’’ in the long-term stability. The commenters high bioavailability of lead. landfill and disregard for SW–846 further stated that no evidence either Dr. Kendall’s study concluded that statistical analysis, EPA should from leaching tests or from real-world the addition of iron is not a permanent reconsider its view on the treatment of experience showed that iron treatment way to treat lead-contaminated waste. foundry sands with iron filings. (The is not a successful long-term treatment Specifically, he concluded that: (1) no reader is referred to the ‘‘Comment for brass foundry sand when the reaction occurs when metallic iron is Response Document’’ for this final rule treatment is conducted in an mixed with lead-contaminated foundry for a more complete discussion of the appropriate manner. On March 5, 1997, sand (D008); (2) during the TCLP comments received on this issue.) the Agency addressed the issue and process, lead begins to leach into the EPA has evaluated all the comments industry arguments in Land Disposal solution and if metallic iron is present, on the subject studies and on the issue Restriction—Phase IV Treatment the lead concentration in solution will of iron filings as a treatment method for Standards for Characteristic Metal decrease by an oxidation/reduction lead nonwastewaters. The regulatory Wastes; Notice of Data Availability reaction to levels below the lead issue at hand—and the focus of the (NODA) (62 FR 10004). In this NODA, characteristic; (3) only if fresh metallic studies—is whether or not adding iron new studies and data were presented on iron is regularly introduced into the metal is adequate treatment for LDR the issue of the treatment adequacy of mixture, can soluble lead be kept at low purposes. Several commenters have adding iron to characteristic metal levels; and (4) upon placement of the elected to take issue with points that are wastes as a method of treatment. As waste in a landfill and left alone, the not the central focus of the two studies. explained in the Phase III proposed rule iron will oxidize, losing its ability to While a statistical evaluation is used to (60 FR 11702), and again in the NODA reduce lead ions. determine if a waste is hazardous, all of March 5, 1997, the addition of iron Peer review of the studies concurred parts of the waste must be treated to seems to temporarily retard the with the findings that the addition of meet the applicable standards, not just leachability of lead in spent foundry iron filings to spent foundry sand is not a representative sample. Thus, if results sand, thus allowing the waste to pass treatment of hazardous waste and that show that ‘‘hot spots’’ remain, this is the TCLP test, but not to be permanently the scientific data presented in the presumptive evidence that treatment treated. At the time of the Phase III final studies were based on sound scientific was not effective and there is rule, EPA decided not to finalize a research and support the conclusions noncompliance with the LDR treatment determination that the practice was a made. (See ‘‘Peer Review Report, requirements. In the preceding form of impermissible dilution in the September 3, 1996, submitted by A.T. determination of whether a waste is Phase III final rule without studying the Kearney, Inc., Dallas, Texas to Rena hazardous, the Agency guidance in SW– issue further. See 61 FR 15569, April 8, McClurg, Regional Project Officer, 846 provides basic sampling strategies 1996. In the March 5, 1997 NODA, two USEPA, Dallas, Texas.) for simple and stratified random studies were noticed that had recently The Agency received several sampling of the waste as a whole. been completed. comments in response to the NODA. However, in application of the land One study was developed by Dr. John One State agency commented that based disposal treatment standards, all Drexler of the University of Colorado on the evidence gathered by the EPA, portions of the waste must meet the and the other by Dr. Douglas Kendall of the addition of iron fines as treatment of applicable treatment standards, i.e., no the National Enforcement Investigation lead containing wastes appears to be portion may exceed the regulatory limit. Center (NEIC). The results of these unacceptable under most disposal See 40 CFR 268.40. Hence, commenters studies indicated that the addition of criteria. Furthermore, it was the that focused on the SW–846 sampling iron filings or iron dust to spent foundry commenter’s contention that the method issue largely misconstrued the central sands (D008) did not constitute in question should be rejected where findings of the studies. adequate treatment of the waste because disposal of wastes so treated may be In response to comments pointing to high concentrations of lead remained subjected to acid leaching and chemical the disposal of a waste in a monofill, available to the environment and indeed oxidation, in particular disposing of while data may suggest that disposal of have been shown to leach in actual field wastes in a iron treated waste in this type of testing of units receiving the spent landfill. The commenter did note controlled environment may be foundry wastes. (The reader is referred however that data exist to support the protective in some scenarios, RCRA to 62 FR 10004, March 5, 1997 for a full contention that the treatment may be section 3004(m)(1) requires treatment to discussion of the studies). acceptable for brass foundries under substantially diminish the toxicity of Specifically, Dr. Drexler’s study specified monofill disposal criteria. the waste or substantially reduce the concluded: (1) the spent foundry wastes Another commenter requested likelihood of migration of hazardous placed in Nacodoches Municipal clarification as to whether iron-bearing constituents from the waste so that Landfill remained hazardous; (2) the lead waste products, i.e., from the steel short-term and long-term threats to addition of iron filings to spent foundry bridge blast cleaning and painting human health and the environment are sand does not cause chemical reduction industry, would be impacted. The minimized. This statutory requirement (i.e., the hazardous lead remains commenter recommended that all waste has not been met with iron addition oxidized); (3) the addition of iron filings debris from any lead abatement project plus placement in a monofill since to the spent foundry sand promoted a be deemed hazardous and treated ultimate placement of the waste in a physicochemical dilution of the sample appropriately regardless of the type of monofill is not germane to the key issue during the TCLP by producing abrasive blast media used. at hand—is the treatment prior to land significant increases in surface area Two commenters argued that the placement effective. sorption sites; (4) the addition of iron conclusions drawn from the studies With respect to this key issue, the filings to the waste artificially altered conducted by Drs. Kendall and Drexler Agency’s determination that the the environmental character of the TCLP were erroneous or misplaced from a addition of elemental iron in the form test by increasing pH and lowering Eh regulatory standpoint. In particular the of fines, filings, etc., constitutes (redox potential) and DO (dissolved commenters argued, among other things, impermissible dilution is predicated on oxygen); and (5) in-vitro testing shows that given the biased sampling, i.e., the fact that the adsorption of soluble 28568 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations lead on to the iron surface is a reversible notes that the dilution prohibition does As a final matter, it has been argued reaction and once the iron surfaces not apply to processes which generate a to the Agency that the proposed (and oxidize (which naturally occurs when waste, only to processes that treat a now final) action regarding addition of the treated waste is exposed to air), the waste which already has been iron filings is analogous to treatment of ability of the additive (iron) to scavenge generated. See S. Rep. No. 284, 98th fluoride in a process for treating soluble metals is diminished. Therefore, Cong. 2d Sess. 17 (1984). As such, it aluminum spent potliner waste (K088) the treatment is not permanent. In would not appear that abrasive blasting operated by Reynolds Metals Company. addition, adsorption alone is not a is impermissible dilution since it is part See generally Docket P33F–S0069 p. 6 reliable method of permanently of the process generating the waste, i.e., (July 7, 1997) and 62 FR 37694, 37697 immobilizing lead which both studies the removed paint. If generators added (July 14, 1997) (responding to comment conclude. The authors have also iron filings/dust or discarded, off and establishing October 8, 1997 as the concluded, and the Agency agrees, that specification steel shots to lead-based date prohibition of land disposal of the prohibition should apply to any paint waste (similar to the current K088 wastes takes effect). The argument lead-containing waste. As stated by Dr. foundry practices), it is analogous to goes that in the Reynolds treatment Kendall in his response to comments, impermissible dilution and this rule process, reagents are added to the ‘‘Lead-contaminated foundry sand is no bans such practice. However, addition process that only allow the fluoride to different from any other waste which of iron filing/dust to a hazardous waste meet the LDR treatment standard by fails the TCLP test because of excessive (before the hazardous waste blinding the analytical method (the amount of extractable lead. The addition determination) is a lot different from TCLP), but do not result in permanent of iron metal (zero valence iron) is not using steel pellets/shots, silica- reduction of fluoride mobility in the a permanent treatment because iron containing products, and other abrasive treated wastes. See 62 FR at 37695, oxidizes. Since iron addition is not a materials for paint removal. noting that levels of fluoride in the permanent treatment, it should not be The Agency has been pursuing several leachate from actual disposal are well in allowed for hazardous wastes which are specific efforts to evaluate the excess of the levels established in the to be land disposed, regardless of their environmental hazards caused by treatment standard (as measured by the origin.’’ (See memorandum from Samuel disposal of lead-containing wastes, TCLP). Hence, it is asserted, this process Coleman, USEPA to James R. Berlow, including evaluation of damage case must be an example of impermissible USEPA Re: ‘‘Reply to Comments information included in the 1996 dilution. The Agency disagrees. First, EPA Concerning Prohibition of Land Hazardous Waste Characteristic Scoping calculated that the process did reduce Disposal of Iron Treated Lead Study, re-examination of the risk fluoride mobility on the order of 28%. Contaminated Wastes’’. November 17, modeling used for the 1995-proposed Docket P33F–S0064. This estimate may 1997.) Hazardous Waste Identification rule, As indicated above, the addition of in fact understate the extent of and evaluation of fate and transport in iron metal is not a permanent treatment treatment. The maximum amount of other environmental media from because the iron inevitably oxidizes and fluoride detected in actual leachate from industrial nonhazardous solid waste loses its adsorptivity for soluble lead the disposed treatment residue is 2228 disposal facilities. Upon completion of ions. After oxidation of the iron mg/L. 62 FR 37695. However, untreated these activities, the Agency will be in a surfaces, surface adsorption of lead ions potliners leached fluoride at better position to decide whether ceases and the lead-bearing waste concentrations ranging from 7730–8860 returns to its original state; all pretext of disposal of lead-containing waste is a mg/L when exposed to the same type of treatment is lost. Since iron addition is health and environmental concern leaching medium (simulated monofill not effective, it cannot be allowed for warranting listing or whether revising leaching medium). Docket P33F–S0049 hazardous lead-containing hazardous the TC regulatory limit would be more data set J. Thus, EPA finds that the wastes that are to be land disposed, appropriate. process is resulting in non-dilutive regardless of their origin (i.e., all lead- In addition, the Agency notes that a treatment of fluoride. In addition, the bearing wastes, not just foundry sands). determination that a waste is not reagent used for fluoride treatment The Agency concludes that addition hazardous (here because addition of serves another legitimate function in the of iron metal, in the form of fines, iron during a generating process results process—as a fluxing agent to prevent filings, or dust, fails to provide long- in a determination that paint waste does agglomeration of material in the rotary term treatment for lead-containing not exhibit a characteristic) may not be kiln. 62 FR at 37695. Dilution which is hazardous wastes. EPA is codifying this a shield against future liability, if the a necessary part of a treatment process determination by calling the practice disposal results in environmental is normally permissible. 51 FR at 40592 impermissible dilution, and so damage. Note that under CERCLA, not (November 7, 1986); 62 FR at 37697. invalidating it as a means of treating just generators are liable for any Consequently, EPA does not regard the lead in lead-containing hazardous environmental damage caused by the treatment of fluoride in the Reynolds wastes. It can also be simply viewed as release of hazardous material into the K088 treatment process to be a form of a type of treatment that fails to environment. CERCLA liability is impermissible dilution. minimize the threats to human health independent of any hazardous waste h. Treatment Standards for and the environment posed by disposal determination that previously may have Wastewater and Nonwastewater Forms of lead-containing hazardous wastes, been made. EPA believes that in light of of Mercury Waste. The Agency, in the because lead mobility is not CERCLA liability and the available original Phase IV rule, proposed to substantially reduced when the waste is environmental contamination data, it change the treatment standard for one disposed. would be prudent for generators to subcategory of TC mercury wastewaters In response to comments whether use examine their waste generation and (D009—All Others) from the of iron-containing abrasives to remove management practices with an eye characteristic level of 0.20 mg/L lead-based paint, for example from the toward segregation of lead-based paint (established in the Third Third rule (55 steel bridge blast cleaning and painting waste and iron dust/flakes or steel shots, FR 22520. June 1, 1990) to the industry, may be a type of and potential re-smelting of the lead- previously promulgated UTS for impermissible dilution, the Agency bearing residuals. mercury wastewaters (Mercury—All Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28569

Others) of 0.15 mg/L. (60 FR 43654, determined that all the treatment data establish a treatment standard for August 22, 1995.) The Agency received for nickel is below 11.0 mg/L TCLP. selenium nonwastewaters of either 77.0 no comments on this proposed change. Accordingly, the Agency is today mg/L or 261 mg/L TCLP on a national As such, the Agency is promulgating a promulgating a final UTS for nickel level. Earlier data suggest and treatment standard of 0.15 mg/L for nonwastewaters of 11.0 mg/L TCLP. No commenters concur that for the majority wastewater forms of D009—All Others. change was proposed for nickel of selenium wastes the proposed The Agency also proposed to revise wastewater; therefore, the UTS remains standard of 5.7 mg/L TCLP for selenium the treatment standard for TC mercury at 3.98 mg/L for these wastes. nonwastewaters is appropriate. nonwastewaters (D009—All Others) j. Final Treatment Standards for Furthermore, only three high selenium from the characteristic level of 0.20 mg/ Selenium Wastes. (i) Treatment concentration waste streams that could L TCLP to 0.025 mg/L TCLP. The standards for TC Selenium Wastes apparently not be treated to this level. nonwastewater UTS for mercury is (D010). The majority of commenters Therefore, there is little reason to pool based on the mercury standard supported the Agency proposal to all treatment data or to engage in developed from K071 waste treatment maintain the 5.7 mg/L TCLP level for bifurcation of the selenium standard. data. The only comments received on D010 nonwastewaters. They strongly Accordingly, the Agency is the achievability of this proposed agreed with the Agency’s reasoning, and promulgating a treatment standard of change were regarding the application urged EPA to adopt the proposed 5.7 mg/L TCLP for nonwastewaters of this treatment standard to TC treatment standard. containing selenium. The Agency, mercury soil. TC soils are subject to One commenter, however, maintains however, is convinced that the high- specific treatment standards being that the Agency should establish a level selenium waste streams for which finalized elsewhere in today’s rule. ‘‘High Selenium Greater Than 200 ppm’’ data were submitted to EPA will be More detail can be found on the subcategory for nonwastewaters, with a unable to be treated to achieve the 5.7 mercury soil comments in the Response corresponding treatment standard of 10 mg/L TCLP standard. Therefore, in a to Comments Background Document. mg/L TCLP. The commenter has cited Federal Register notice that will be Therefore, the Agency is promulgating a technical problems in achieving the published shortly, the Agency will be treatment standard of 0.025 mg/L TCLP proposed treatment standard level for requesting comment on a proposal to for nonwastewater forms of D009—All highly contaminated selenium wastes. grant a site-specific treatment variance Others in today’s rule. The commenter states that, since 1995, for Waste Management, Inc. for the With respect to the broader issue of they have consistently experienced treatment of some D010 wastes mercury treatment, the Agency plans to problems treating waste streams from containing high concentrations of conduct an intensive review of glass manufacturing companies with selenium. traditional and innovative technologies wastes that contain high concentrations The Agency also is promulgating as over the next year or so. Outreach to of selenium. The commenter provided proposed a wastewater treatment various industry, academic, and other treatability testing data from a selenium standard of 0.82 mg/L for D010 groups is also being investigated as to its waste stream, containing 80 mg/L TCLP, wastewaters. No comments were feasibility. Key information, when which showed that 16 different received on this issue. available, on this effort can be obtained treatment recipes were tested prior to (ii) Universal Treatment Standard from the RCRA Hotline, and notices of finding one that would treat a selenium (UTS) for Selenium. As noted above, in significant public events will be placed waste to below 5.7 mg/L TCLP. The the May 12, l997 reproposal of the Phase in the Federal Register and on EPA’s other data, from three different IV rule, the Agency proposed to change Internet home page. generators of selenium waste, suggest the UTS for selenium nonwastewaters i. Final Universal Treatment Standard TCLP values of untreated waste of from 0.16 mg/L to 5.7 mg/L TCLP. For for Nonwastewater Forms of Nickel. The between 465–1064 ppm TCLP, with the reasons discussed above for D010 Agency proposed in the Phase IV treated wastes achieving between 2.5 nonwastewaters, 5.7 mg/L TCLP is a Second Supplemental to change the and 45.6 mg/L TCLP. better reflection of treatability of UTS for nonwastewaters containing The Agency has reviewed all the difficult-to-treat selenium waste streams nickel from 5.0 mg/L TCLP to 13.6 mg/ treatment data and, for the most part, than 0.16 mg/L TCLP. This is the level L TCLP. This revision to the UTS was waste streams containing selenium exist being promulgated today for the based on new performance data either in relatively low concentrations selenium nonwastewater UTS. (It obtained by the Agency and presented (0.1–0.13 mg/L TCLP) or in extremely should be noted that because the UTS in that notice. The Agency did not high concentrations (greater than 450 is above the TC level for selenium, receive any significant comments on mg/L TCLP). Because of the highly selenium is not considered an this issue. However, as discussed in an divergent nature of these wastes and the ‘‘underlying hazardous constituent’’ earlier section of today’s preamble, the difficulty in treating selenium with (UHC) in characteristic waste, according Agency discovered an error in the multiple metals at almost any to the definition at 268.2(i)). The calculation of the treatment standard. In concentration, it seems unreasonable to wastewater UTS for selenium remains applying the LDR methodology for mandate that one treatment standard unchanged at 0.82 mg/L. calculation of a treatment standard, the could be applicable to both. k. Final Treatment Standards for Agency failed to conduct a ‘‘Z-score’’ Calculations of a revised treatment Silver Wastes. (i) Treatment standards outlier test. With the application of this standard, based only on the newly for TC Silver Wastes (D011). In today’s test, 5 out of the 122 data points submitted treatment data for the high final rule, EPA is promulgating a originally used in the calculation of the selenium concentration wastes, would nonwastewater treatment standard of standard, were determined to be yield a standard of 77.0 mg/L TCLP for 0.14 mg/L TCLP for characteristic silver outliers. This error resulted in a revised selenium nonwastewaters. If a (D011). For wastewaters, EPA is treatment standard for nickel calculation is done after pooling all promulgating a treatment standard of nonwastewaters of 11.0 mg/L TCLP. In selenium data (including low 0.43 mg/L as proposed in the original light of this amended standard, the concentration selenium data), a Phase IV proposal on August 22, 1995 Agency has reviewed all of the standard of 261 mg/L TCLP would (60 FR 43684). EPA is in the process of comments and data submittals, and has result. The Agency is reluctant to determining whether silver should 28570 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations remain on the TC list at 40 CFR Universal Treatment Standards (UTS) addition to potential adverse human 261.24(b) Table 1 or whether the current for HTMR Residues Using Data health effects, uncertainties and TC level should be altered. If EPA alters Submitted by Horsehead Research concerns also remain for potential the status of silver on that TC list, EPA Development Company, Inc. and adverse environmental effects. Although will revisit the treatment standards for INMETCO,’’ December 17, 1997.) The EPA removed the Maximum silver. Agency used INMETCO data for the Contaminant Level (MCL) for silver in (ii) Proposals, Comments, and calculation of the proposed treatment drinking water, the Ambient Water Responses. Until today’s notice, the standard and determined that this Quality Criteria remain in effect due to treatment standards for wastewater and additional data should be included in potential aquatic toxicity. Further areas nonwastewater forms of D011 have both the data pool. As previously discussed of uncertainty are how silver speciates been 5.0 mg/L TCLP, which is the TC in Section III.A. of today’s preamble, the after release (i.e. which valence state of level. In 1995, EPA proposed a Agency discovered an error in the silver would be present). The issue treatment standard of 0.43 for calculation of the treatment standard. In could be important since potential toxic wastewaters and 0.30 mg/L for applying the LDR methodology for effects differ depending on the species nonwastewater, based on the best calculating a treatment standard, the of silver present. In short, EPA’s work treatment data in EPA’s possession at Agency failed to conduct a ‘‘Z-score’’ on understanding risks from disposal of that time (60 FR 43684). EPA received outlier test. With the application of this silver-containing hazardous wastes is comments urging the Agency to refrain test and the inclusion of the 74 ongoing, and it would be premature to from setting a treatment standard lower additional data points, 3 out of the 114 establish a treatment standard based on than the TC level and instead suggesting data points, were determined to be risk at this time. that EPA remove silver from the TC list outliers, resulting in a revised treatment In the absence of such ‘‘minimize altogether due to new information on standard for silver nonwastewaters of threat’’ levels for hazardous the low risk of silver to human health. 0.14 mg/L TCLP. The Agency has constituents, the Agency establishes In a 1996 Notice of Data Availability reviewed the comments in light of this standards based on Best Demonstrated (NODA), EPA presented the option of amended standard and believes that it Available Technology (BDAT). (See full retaining the 5.0 mg/L treatment can be achieved by both HTMR and explanation in the preamble of the standard for D011 wastes (61 FR 21420, stabilization technologies. Data Phase II Final LDR rule at 59 FR 47986, May 10, 1996). Comments were divided submitted by commenters in response to September 19, 1994.) The fact that the in two groups: those which supported this proposal also support this UTS for nonwastewater forms of silver the option, and those which stated that conclusion. See supporting information is being lowered (made more stringent) EPA had no firm basis for such a contained in the docket for this rule. from the existing level of 0.30mg/L to decision, given the potential toxicity of The Agency does not have an 0.14 mg/L is due to new data on what silver to aquatic life. adequate basis for taking the actions treatment technology achieves. As Since receipt of the comments on the recommended by some commenters, i.e. explained in the summary of this NODA, EPA acquired more recent to remove silver from the TC list, or preamble section (Section III: Revised treatment data on TC metals, including regulate it at a less stringent level than Land Disposal Restrictions for Metal silver. Based on these data, EPA learned the proposed technology-based Constituents in All Hazardous Wastes, that D011 nonwastewaters could be treatment standard. EPA is in the Including Toxic Characteristic Metals), successfully treated to a level of 0.11 process of determining whether silver technology-based standards are the best mg/L using HTMR, and EPA proposed should remain on the TC list at 40 CFR assurance that threat is minimized, revising the UTS for silver in its Phase 261.24(b) Table 1, or whether the given the uncertainty as to the level at IV Second Supplemental proposal. The current TC level should be altered. In which threats of hazardous waste grab data used to establish this addition, EPA continues its work on the disposal are minimized. treatment standard was submitted to the Hazardous Waste Identification Rule EPA expects that the new treatment Agency by an HTMR facility (62 FR (HWIR) to establish risk-based exit standard for silver wastes will have 26041) (Background Documents from levels for hazardous wastes. The Agency little, if any impact on the regulated Second Supplemental proposal). is not yet able to establish a nationally- community. As stated by commenters, Commenters on the Second applicable risk-based level for silver that high-silver wastes are generally recycled Supplemental reiterated that silver fulfills the statutory charge of due to their economic value and are should not be on the TC list. However, minimizing threats of hazardous waste covered by the special streamlined the commenters continued, if silver to human health and the environment. standards for recyclable materials remains on the list for now, EPA should The process of establishing such a utilized for precious metal recovery at not set a more stringent standard than level is technically complex; EPA is 40 CFR Part 266.70 Subpart F. the current one of 5.0 mg/L, but rather currently modeling the ecological and Moreover, the Regulatory Impact it should choose a risk-based standard. human health effects of exposure to Analysis for this rule estimated that the Commenters explained further that little silver through numerous pathways. new, more stringent UTS levels for D011 is disposed, because silver is Several issues remain unresolved metal constituents, including silver, will generally recovered from silver wastes. concerning human health and not increase compliance costs. This is In response to the reproposal, the environmental risk. EPA is continuing because the current treatment methods Agency received no significant to investigate these issues. The Agency already achieve the new standard of comment on the technical aspects of recently acquired studies indicating that 0.14 mg/L in silver nonwastewaters. achieving the proposed treatment silver may be connected to central (Achievability of the UTS for TC silver standard; however the Agency did nervous system and other non-cancer wastewaters is not an issue; EPA receive from International Metals effects in humans. The draft Reference received no comments nor data on its Company (INMETCO) an additional 74 Dose for these effects have not been proposal to apply the existing UTS of grab data points on the treatment of finalized by the Agency for use in risk 0.43 mg/L.) silver using HTMR. (See memorandum assessments. (A Reference Dose is a Thus, the Agency is promulgating the from Howard Finkel, ICF, Inc., to Nick benchmark level for chronic toxicity wastewater standard of 0.43 mg/L as Vizzone, USEPA Re: ‘‘Calculation of that is protective of human health.) In proposed and the nonwastewater Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28571 standard of 0.14 mg/L. If EPA changes supplied no treatment data in support of Second Supplemental Proposed rule to the status of silver on the TC list, EPA their contentions. Accordingly, the change the treatment standard for zinc will revisit the treatment standards for Agency is today promulgating as nonwastewaters in K061 waste from 5.3 silver wastes. proposed a revised UTS for mg/L to 4.3 mg/L . This proposal was (iii) Universal Treatment Standard nonwastewaters containing thallium of based on new data obtained by the (UTS) for Silver Nonwastewaters. 0.20 mg/L TCLP. No change was Agency and presented in that notice. (Please refer to the discussion above proposed for wastewater containing One commenter was supportive of the about the development of the treatment thallium; therefore the UTS remains 1.4 change, while two other commenters standard for characteristic silver for mg/L. were concerned with zinc being information on the development of the m. Final Treatment Standard for identified as an UHC. Still another UTS levels.) In today’s final rule, EPA Nonwastewater Forms of Vanadium in commenter, a major HTMR facility, is promulgating a nonwastewater UTS P119 and P120 Wastes. The Agency submitted data (152 data points) of 0.14 mg/L TCLP for silver. proposed in the Second Supplemental showing 100% compliance with the l. Final Universal Treatment Standard Proposed rule to change the UTS for standard after 6 high statistical outliers for Nonwastewater Forms of Thallium. nonwastewaters containing vanadium in were removed. Indeed, the great The Agency proposed in the Second P119 and P120 wastes from 0.23 mg/L majority of these data showed zinc at Supplemental Proposed Rule to change TCLP to 1.6 mg/L TCLP. This proposal levels an order of magnitude below the the UTS for thallium-containing was based on new data obtained by the promulgated standards. EPA believes nonwastewaters from 0.078 mg/L TCLP Agency and presented in that notice. these data confirm the achievability of to 0.20 mg/L. (The original standard was Commenters were supportive of the today’s standard. Therefore, the Agency based on composite sampling from an change. The treatment standard of 1.6 is today promulgating a revised HTMR facility). This proposal was mg/L TCLP is being promulgated as nonwastewater treatment standard of based on new data obtained by the proposed. No change was proposed for 4.3 mg/L TCLP for K061 waste. No Agency and presented in that notice. wastewater containing vanadium in change was proposed for wastewater Several commenters supported the P119 and P120 wastes, therefore, the containing zinc in K061; therefore the change. However, two commenters UTS remains 4.3 mg/L. The Agency UTS remains 2.61 mg/L. In response to argued that EPA had not demonstrated would like to point out that vanadium the comments regarding zinc as an UHC, that existing commercial technologies is not an ‘‘underlying hazardous the Agency would like to point out that were capable of achieving the proposed constituent’’ in characteristic waste, zinc is only regulated in K061 waste; it standards or that technologies were according to the definition at 268.2(i). is not defined as an ‘‘underlying otherwise available. The Agency n. Final Treatment Standard for hazardous constituent’’ in characteristic remains unconvinced by the arguments Nonwastewater Forms of Zinc in K061 waste, according to the definition at of the commenters and notes that they Waste. The Agency proposed in the 268.(i).

UNIVERSAL TREATMENT STANDARDS FOR TWELVE METAL CONSTITUENTS [Affecting Nonwastewater TC Metal Wastes and Nonwastewater Metal Constituents in All Wastes]

2nd supple- Existing UTS mental pro- Final UTS Waste code Constituent TC level (mg/ level (mg/L posed UTS level (mg/L L) TCLP) level (mg/L TCLP) TCLP)

D005 ...... Barium ...... 100 7.6 21.0 21.0 D006 ...... Cadmium ...... 1.0 0.19 0.20 0.11 D007 ...... Chromium ...... 5.0 0.86 0.85 0.60 D008 ...... Lead ...... 5.0 0.37 0.75 0.75 D009- all others ...... Mercury ...... 0.2 0.025 0.025 0.025 D010 ...... Selenium ...... 1.0 0.16 5.7 5.7 D011 ...... Silver ...... 5.0 0.30 0.11 0.14 Antimony ...... 2.1 * 0.07 1.15 Beryllium ...... 0.014 * 0.02 1.22 Nickel ...... 5.0 13.6 11.0 Thallium ...... 0.078 0.20 0.20 Vanadium ** ...... 0.23 1.6 1.6 Zinc ** ...... 5.3 4.3 4.3 * The proposed UTS levels for antimony and beryllium were rounded up to the nearest 0.01 mg/L TCLP. ** Vanadium and zinc are not underlying hazardous constituents. Note: Treatment standards for TC metal wastewaters have also been revised in today's rule, but are not reflected in this table.

D. Use of TCLP to Evaluate Performance issue sua sponte to set out why the used the TCLP to measure performance of Treatment Technology for Treating recent opinion of the D.C. Circuit in of the treatment technology for several Hazardous Metal Constituents Columbia Falls Aluminum Co. v. EPA hazardous constituents, including (No. 96–1234, April 3, 1998) does not arsenic and fluoride. All of the Commenters did not question the affect use of the TCLP for this purpose. commercial treatment capacity for this appropriateness of using the TCLP as a waste was provided by a single facility, means of evaluating the performance of Columbia Falls presented an unusual and all of the treatment residue from the treatment technology used to treat set of facts. EPA had established this single process was disposed at a metal hazardous constituents in treatment standards for spent aluminum hazardous wastes. EPA is addressing the liners (waste K088), which standards single location. Slip op. at p. 6; 62 FR 28572 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations at 1993 (Jan. 14, 1997). Notwithstanding wastes are hazardous, the TCLP is not the newly identified mineral processing that the treatment process was able to principally serving a predictive function wastes, i.e., mineral processing wastes achieve the treatment standards for when it is used as a component of an that exhibit a characteristic and do not arsenic and fluoride as measured by the LDR treatment standard. The test is have Bevill status and are not excluded TCLP (i.e., the treatment residue, when normally a good measure of evaluating from being a solid wastes due to tested with the TCLP, never exceeded the performance of treatment technology recycling. The Agency stated in this the regulatory levels), actual leachate both because it is a widely-available test proposal that existing data showed that from the disposal site contained for metal mobility, and also because it these ‘‘newly identified’’ mineral significantly higher levels of these is typically somewhat aggressive processing wastes were similar to those constituents. Id. EPA also had not (Edison Electric, 2 F.3d at 445). Thus, it wastes for which the UTS was offered any substantive explanation for is a useful tool for measuring whether achievable, and consequently the UTS continued use of the TCLP to measure metal mobility has been substantially fairly reflected the performance of Best performance of the treatment process for reduced in order that threats posed by Demonstrated Available Technology these constituents after the extreme land disposal be minimized (as required (BDAT) for these wastes. (See 61 FR disparities in actual performance in the by section 3004 (m)). In the Agency’s 2338 for a complete discussion of the field became known. Id. p. 18. Under view, therefore, questions as to the Agency’s rationale for extending the these circumstances, the court held that validity of the TCLP as a component of UTS to both wastewater and it was arbitrary and capricious to LDR treatment standards are raised only nonwastewater forms of ‘‘newly continue to use the TCLP because it under the extreme circumstances identified’’ mineral processing wastes.) bore no rational relationship to what present in Columbia Falls, where, for all Many commenters in response to this was actually occurring. Id. p. 19. wastes and all disposal scenarios proposal took issue with the Agency’s None of these circumstances are affected by the standard, large conclusions that the existing data present here. The TCLP has not been disparities between actual demonstrated that the UTS was shown here to be underpredictive of environmental field results and the achievable for the newly identified performance of treatment technology for treatment standard raise significant mineral processing wastes and stated key hazardous constituents for any questions as to whether treatment is that the record for the rulemaking wastes, much less, as in Columbia Falls, minimizing threats. These questions are reflected no such showing. The to be drastically underpredictive (for not present for the metal-containing commenters further argued that to two constituents) for 100 % of the wastes here. develop representative treatment wastes to which the test applied. standards for mineral processing wastes, Moreover, the wastes affected by the IV. Application of Land Disposal the Agency must: (1) Collect and standard in today’s rule will not Restrictions to Characteristic Mineral analyze a representative mineral uniformly be going to a single disposal Processing Wastes processing waste characterization and environment where actual leaching of Summary treatability data set; (2) analyze that data key constituents is shown to be higher using well-reasoned and documented than the regulatory level. Rather, the EPA is today finalizing its proposal to methods for determining the treatability wastes will be decharacterized and so apply the Universal Treatment of the subject wastes; (3) make a can be disposed in any landfill: Standards (UTS), as revised in part determination as to whether the UTS or municipal, subtitle D or subtitle C. today, to the newly identified some other LDR treatment standards are Given the enormous diversity of characteristic mineral processing appropriately applied to mineral characteristic wastes and the diversity wastes. In earlier rules and a Report to processing wastes; and (4) provide of likely disposal environments, the Congress, EPA has determined which notice and an opportunity to comment TCLP will not pervasively underpredict mineral processing wastes are not on that determination prior to imposing as was the case with spent potliners. excluded in the Bevill Amendment and any LDR treatment standards on such Unlike the situation in Columbia Falls, are thus considered ‘‘newly identified’’ wastes. Several other commenters took therefore, there is no argument that wastes subject to RCRA regulations. (See issue with the Agency’s use of only application of the TCLP to measure 54 FR 36592, September 1, 1989; 55 FR HTMR data to develop the treatment treatment performance will fail to 2322, January 23, 1990; and Report to standards. minimize threats posed by these wastes’ Congress on Special Wastes from As a result of these comments and land disposal.1 Mineral Processing, USEPA, July 31, others received in response to the EPA also emphasizes that the LDR 1990.) The treatment standards being original Phase IV rule, the Agency treatment standards are technology- promulgated today are located in the decided to further assess the treatment based, not risk-based. A key role of the table ‘‘Treatment Standards for of TC metal wastes and mineral TCLP in the treatment standard is to Hazardous Wastes’’ at 268.40 in the processing wastes. As previously measure whether the best demonstrated regulatory language for today’s rule. The discussed in today’s preamble, the treatment technology has been properly wastes are identified by characteristic Agency collected actual stabilization applied to the waste. Thus, unlike the waste code (e.g. D002 corrosive waste, performance data during three site visits situation when the test is used as a or D008 TC lead waste); there is no conducted in September 1997. In means of identifying whether or not separate section in that table for particular, treatment data were collected characteristic mineral processing for the following primary mineral 1Nor is there a legitimate argument that the TCLP wastes. processing wastes: cadmium sponge is impermissibly overpredictive. Indeed, since the residue, cupel and crucibles from fire TCLP has already been upheld as a means of A. Proposal, Comments, and Responses identifying many of these metal-containing wastes assay laboratories, slag from fire assay as hazardous, Edison Electric Inst. v. EPA, 2 F.3d In the original Phase IV, EPA laboratory, soil and debris contaminated 438, 444–45 (D.C. Cir. 1993), and since the proposed to apply the metal UTS, as with sulfuric acid, blast furnace slag, ‘minimize threat’ requirement in section 3004(m) is measured by the TCLP (60 FR 43582, baghouse dust, lead/bromide residue, a more stringent test, HWTC III, 886 F.2d at 363, a fortiorari it is reasonable to use the TCLP as part August 22, 1995) to all TC metal wastes. and gold ore leach . In addition, of the process of assuring that threats posed by land On January 25, 1996, EPA further treatment data from the following disposal of these wastes are minimized. proposed to apply the existing UTS to secondary mineral processing wastes Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28573 were also collected: lead slag waste, achievable. No data was submitted to Agency feels that addressing it is lead-bearing assay laboratory wastes, support the commenters’ position. appropriate in light of the D.C. Circuit’s lead contaminated wastes, cupels, and Conversely, the data in hand (some of recent decision in Columbia Falls debris; blast furnace slag, lead recycling which reflect successful treatment of Aluminum Co. v. EPA (No. 96–1234, by-products, lead contaminated soils, hard-to-treat mineral processing wastes) April 3, 1998). and lead battery recycling slag waste. show that the treatment standards are The critical component in making Many of these wastes were particularly achievable using either stabilization or waste identification determinations (i.e., difficult to treat due to high total and HTMR for mineral processing wastes. to determine whether a waste should be leachable levels of metals, extreme Ph, As a result, the Agency is today regulated) is ascertaining a plausible and presence of multiple hazardous finalizing the applicability of the mismanagement scenario for the waste metal constituents. existing UTS to the newly identified if unregulated, and finding a predictive As previously discussed in an earlier mineral processing wastes. model that can reasonably evaluate section of today’s preamble, the Agency The reader is referred to an earlier whether the waste is capable of posing assessed two data sets representing section of today’s preamble for a substantial present or potential harm to performance of stabilization and HTMR complete discussion of treatment human health and the environment for the treatment of metal-containing standards for metal wastes being under those conditions. Edison Electric waste streams. This assessment began promulgated today. Inst., 2 F. 3d at 444. This issue simply with the calculation of treatment does not arise in the LDR context since B. Clarification That Universal standards for each of the two data sets. the wastes subject to LDR are regulated Treatment Standards Apply to Ignitable, Next, the Agency compared the hazardous wastes, and the issue of Corrosive, and Reactive Characteristic treatment levels for stabilization versus where and how they would have been Mineral Processing Wastes HTMR. Based on this comparison, the managed absent Subtitle C regulation is Agency selected the highest level for As discussed above, the treatment irrelevant. each metal as the proposed UTS to standards promulgated in this rule will In the LDR context, all land disposal allow for process variability and apply to all the newly identified (except that occurring in no-migration detection limit difficulties. As noted characteristic wastes from mineral units) is defined as being unprotective earlier, this approach is consistent with processing operations. This includes not (see, e.g. RCRA section 3004(d)(1)), the legislative goal of providing only the mineral processing wastes largely due to the ‘‘long-term substantial treatment through standards exhibiting the toxicity characteristic uncertainties associated with land that are achievable by an array of well- (TC), but also wastes that exhibit the disposal’’ (id.). For this reason, performing available treatment characteristic of ignitability (D001); treatment standards reflecting technologies. corrosivity (D002); or reactivity (D003). performance of Best Demonstrated On May 12, 1997, the Agency issued (See definitions of these characteristics Available Technology provide an a Second Supplemental Proposal (62 FR at 40 CFR 261.20 through 261.23.) The objective means of removing as much of 26041). In it, EPA proposed to change treatment standards found in 40 CFR this inherent ‘‘long-term uncertainty’’ as the numerical limits for all 268.40 require removal of the possible, and so permissibly achieve the nonwastewater wastes containing the characteristic as well as meeting the ultimate requirement of minimizing following metal constituents: antimony, treatment standards for all underlying threats posed by land disposal of arsenic, barium, beryllium, cadmium, hazardous constituents (UHCs) hazardous wastes. HWTC III, 886 F. 2d chromium, lead, mercury, nickel, reasonably expected to be present at at 362–65; 55 FR at 6642 (Feb. 26, 1990). selenium, silver, thallium, vanadium, levels above the UTS. The Agency The principal role of the TCLP in these and zinc. EPA also proposed these same received no comment on this issue at treatment standards is assuring the UTS treatment standards for TC metal proposal (see 61 FR 2338, January 25, performance levels achievable from use wastes identified as hazardous due to 1996). Therefore, the Agency has no of these best treatment technologies, not the concentration of barium, cadmium, reason to believe that the UTS are not predicting environmental fate in the chromium, lead, selenium, or silver. achievable for mineral processing disposal environment. Based on the data collection efforts, the wastes also exhibiting the characteristic As discussed earlier, the TCLP is methodology used to develop these of ignitability, corrosivity and/or historically accepted as being well- revised standards, and the reactivity. As such, the Agency is today suited for evaluating performance of preponderance of mineral processing promulgating the application of UTS to treatment technology for metals given treatment data used to calculate the D001, D002, and D003 mineral its availability and general standards, the Agency was convinced processing wastes. aggressiveness for mobilizing metals. that the transferability of the universal Also, we note that since the TCLP serves C. Use of TCLP to Evaluate Performance treatment standards to mineral a different purpose in the LDR treatment processing wastes was well supported. of Treatment Technology for Treating standards than it serves for identifying In response to these revised treatment Hazardous Metal Constituents in wastes as hazardous, and since it is standards and their application to Mineral Processing Wastes well-suited for that purpose, there mineral processing wastes, the Agency Part of this rulemaking involves would be no contradiction in using it as received few comments. Several consideration of what the appropriate part of the LDR standard even if a commenters supported the Agency’s regulatory test is to determine if mineral different test were to be used decision to apply the LDR treatment processing wastes exhibit the toxicity (presumably in the future) for waste standards to mineral processing wastes. characteristic. The Agency addresses identification. A limited few, however, continued to this issue in detail later in this preamble Nor does the Columbia Falls opinion argue that EPA’s application of the LDR when discussing retention of the TCLP undercut use of the TCLP as a program to mineral processing wastes for this purpose. Here, we confirm that component of treatment standards for was not supported by the record. The the Agency will also continue to use the mineral processing wastes. As noted commenters’ position is TCLP as part of the LDR treatment earlier with respect to other toxic metal- unsubstantiated, relying entirely upon standard for these wastes. Although containing wastes, EPA does not view assertions that the standards are not commenters did not raise this issue, the Columbia Falls as requiring a change in 28574 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations use of the TCLP as part of the LDR 2. Discussion of Today’s Approach disposal unit (See 61 FR 18805, April treatment standards. The TCLP has not In the Phase IV proposed rule (60 FR 29, 1996.) The LDRs would require that been shown generally to be 43682, August 22, 1995), the Agency did actively managed MGP wastes be treated underpredictive of performance of not specifically exempt soil to eliminate any characteristics and to treatment technology for key hazardous contaminated with TC metal wastes achieve the UTS for any underlying constituents for any wastes, much less, from the newly proposed LDR hazardous constituents prior to land as in Columbia Falls, to be drastically standards; thus, the UTS standards for disposal. Today’s rule finalizes the UTS underpredictive (for two constituents) metals would have applied to TC metal for MGP wastes that exhibit the toxicity for 100% of the wastes to which the test soils. In the Phase IV First characteristic. However, for soils applied. For all mineral processing Supplemental Proposal (61 FR 2338, contaminated with MGP wastes, EPA is wastes to which it was applied, the January 25, 1996), the Agency proposed today promulgating treatment standards TCLP test has not been shown to be applying existing universal treatment specifically for hazardous soil. These underpredictive either, and so would be standards to newly identified mineral soil standards, generally, require part of the mechanism for assuring that processing wastes, i.e., to mineral treatment to achieve 90 percent treatment minimizes threats posed by processing wastes that exhibit a reduction of hazardous constituent land disposal of these wastes. Moreover, characteristic, do not have Bevill status, levels, or 10 times the UTS levels. See it should be noted that mineral and are not excluded from being solid Section VII of this preamble. processing wastes can be and are treated wastes due to recycling. As a Today’s rule does not alter the commercially, and the treatment consequence, soils contaminated with Agency’s 1993 memorandum that residues are then disposed along with these newly identified mineral interpreted existing rules to say that the other wastes in different types of processing wastes would also have been ash that results from burning MGP disposal units. See, e.g. the document subject to UTS. remediation wastes along with coal in entitled, ‘‘Background Documents In today’s rule, the Agency is utility boilers remains covered by the Supporting the Phase IV Final Rule: finalizing alternative treatment Bevill amendment and hence is not Metal Treatment Standards’’ in the standards for contaminated soil regulated under Subtitle C rules. (See RCRA Docket (commercial treatment reproposed in the HWIR-Media memorandum, dated April 26, 1993, company treating mineral processing rulemaking. (See the section of this entitled ‘‘Remediation of Historic wastes along with other metal- preamble on treatment standards for Manufactured Gas Plant Sites’’, from containing wastes and disposing of contaminated soil.) These treatment Sylvia K. Lowrance, Director of the commingled treatment residues). These standards for hazardous contaminated Office of Solid Waste, to EPA Regional units certainly can generate mildly soils are being finalized for all Waste Management Division Directors. acidic leachate. 51 FR at 40594 (Nov. 7, hazardous wastes, including TC metal The memorandum is located in the 1986). Given these circumstances, the and newly identified mineral processing RCRA docket for the Phase IV TCLP is an appropriate part of a wastes. Supplemental Proposal dated January standard which minimizes threats posed B. LDR Treatment Standards for 25, 1996; 61 FR 2338.) Such residuals by land disposal of these wastes. Manufactured Gas Plant Waste (MGP) are considered to be covered by the V. Other LDR Issues That May Affect Bevill amendment because they result 1. Summary Both Toxic Characteristic Metal Wastes primarily from the combustion of coal and Characteristic Mineral Processing Today, the Agency is promulgating (assuming, if the MGP remediation Wastes treatment standards for hazardous MGP wastes that are co-burned are hazardous, wastes and soils, i.e., wastes and the residues are not significantly A. Treatment Standards for Soil contaminated soils that resulted from affected by burning the MGP wastes, Contaminated With TC Metal Wastes or processing coal to produce gas and that within the meaning of 40 CFR section Characteristic Mineral Processing exhibit a characteristic of hazardous 266.112). Wastes waste. Typically these operations were 2. Background 1. Summary conducted at manufactured gas plants until the 1950s, and wastes remain at Manufactured gas plants were EPA has decided that the LDR those closed MGP sites. MGP wastes are designed to generate gas from coal. The treatment standards (i.e., UTS) for among the mineral processing wastes coal tar residuals generated from the toxicity characteristic metals (D004– which the Agency determined in 1989 process remain at these historic MGP D011) and newly identified mineral and 1990 to be subject to RCRA sites. Many of these sites have soils processing wastes being promulgated in jurisdiction because they are not contaminated with these coal tar today’s rulemaking will not apply to excluded from RCRA by the Bevill residuals. The majority of these soils contaminated with these Amendment. See 54 FR 36592 contaminated soils will come from the hazardous wastes. Instead, these (September 1, 1989). Hence, they are a cleanup of historic MGP sites. A contaminated soils will be subject to the subset of the newly identified mineral significant portion of the soil is treatment standards for soil originally processing wastes covered by the nonhazardous, but approximately 15 proposed in a separate rulemaking prohibitions and treatment standards percent of the soils fail the toxicity entitled the Hazardous Waste promulgated in this rule. characteristic leaching procedure test Identification Rule for Contaminated On January 25, 1996, EPA proposed to for benzene. These toxicity Media (‘‘HWIR-Media’’) (61 FR 11804, apply LDR treatment standards to MGP characteristic (TC) soils also typically April 29, 1996). These treatment wastes (61 FR 2360). MGP wastes are no contain PAHs, heavy metals, inorganics, standards are being finalized in a longer being produced, since volatile aromatics, and phenolics. At separate section of today’s rule. manufactured gas plants are no longer certain closed MGP sites, there can be However, because of their impacts on in operation. The Agency notes that the non-soil hazardous wastes, e.g., coal tars TC metal and mineral processing LDRs only apply at closed MGP sites in tar holders, which may need to be wastes, a brief introductory discussion that are excavated and managed in a treated to UTS levels if they are actively is warranted at this point. way that constitutes placement in a land managed and land disposed. Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28575

3. Public Comments and EPA Responses hazardous waste to determine whether currently have a method of treatment Commenters expressed several major these waste-derived products minimize (i.e. HLVIT) specified as BDAT. concerns about the Phase IV proposal to threats posed by land disposal of MGP Treatment standards for mixed with metal-bearing waste apply UTS to MGP wastes. First, they wastes. (See also response to USWAG #00035 were first promulgated in the Third urged the Agency to delay comment in ‘‘Phase IV Response Third rule at 55 FR 22626 (June 1, implementing the soil standards until to Comments’’ in the docket to this 1990). That rule established a the final HWIR-media rule becomes rule.) Until the Agency can further subcategory of mixed wastes for a effective. In addition, commenters study the issue, it is not designating specific high level wastestream at the requested that EPA re-affirm the production of these materials from MGP Savannah River site, for which a Agency’s 1993 co-burning memorandum soils as a specified method of treatment. specified method of treatment is for MGP wastes. Finally, commenters Existing 266.23 (a) continues to apply. currently required. This method is urged the Agency to establish specified And, as noted earlier, for MGP sites in particular, the Bevill exclusion still HLVIT (vitrification of high-level treatment methods for those MGP radioactive waste) for radioactive high- wastes that will not be managed applies for MGP wastes co-burned in coal-fired utility boilers. level wastes generated during the according to the Agency’s 1993 co- reprocessing of fuel rods mixed with burning memorandum, rather than EPA is aware that the regulated community has requested various types characteristic metal wastes. This was making the wastes subject to the UTS done because of the human health concentration levels as proposed. One of flexibility from LDR treatment standards in managing their site-specific hazards associated with sampling that commenter identified several methods would be required if numerical of management that could be specified: cleanup, remediation, and/or removal activities of these wastes and standards were applied. The Third ‘‘recycling technologies including the Third rule stated that all the use of coal tar residuals to manufacture contaminated soils. With the possible exception of use consituting disposal promulgated treatment standards in that asphalt, bricks, and cement; and rule for RCRA listed and characteristic combustion technologies that include scenarios, the Agency continues to believe that more complete relief for wastes apply to the RCRA hazardous utility boiler co-burning, portion of mixed radioactive (high-level, and thermal desorption.’’ The remediation wastes is needed, particularly with respect to the land TRU, and low-level) wastes, unless EPA commenter stated that specified has specifically established a separate methods would preserve flexibility for disposal restrictions and is best provided by targeted statutory change. treatability group for a specific category managing MGP site remediations and of mixed waste. Thus, that rule required remove regulatory barriers to Thus, the Agency will continue to participate in discussion of potential that radioactive waste mixed with metal expeditious site cleanups. characteristic waste would have to Regarding the commenter’s concern legislative solutions on this important issue. comply with the LDR treatment about the coordination of Phase IV standard for the metal characteristic standards and the HWIR-media rule, the Please refer to the Phase IV response to comments document that is available waste, as well as any requirements set Agency is finalizing treatment standards forth by the NRC for the radioactive for hazardous contaminated soils in a at the RCRA docket for responses to other issues raised by commenters. component of the mixed waste. separate section of today’s rule. Also, Because today’s rule revises the although the Agency did not reopen the C. Treatment Standards for Debris treatment standards for metal issue, the Agency confirms that the 1993 Contaminated With Phase IV wastes characteristic wastes (i.e., revising co-burning interpretation remains in The Agency is clarifying that debris certain metal numeric treatment effect. contaminated with TC metal or standards, and applying UTS levels to The Agency has studied carefully the underlying hazardous constituents in comment urging the Agency to specify characteristic mineral processing wastes can be disposed if it meets the treatment the characteristic waste), the treatment incorporation of MGP waste into standards for radioactive waste mixed asphalt, bricks, or concrete as a standards established in this rule, but also can be disposed if it meets the with metal characteristic waste that designated method of treatment, which were not specifically subcategorized in would have the effect of making wastes standards for debris set out at 40 CFR 268.45. the Third Third rule are also affected. so treated not subject to meeting Today’s rule also revises treatment numerical treatment standards for D. Treatment Standards for Radioactive standards for twelve metal constituents hazardous constituents. The recycling of Mixed Waste in all wastes, including radioactive hazardous waste-contaminated soil in 1. Background mixed wastes. In conclusion, unless asphalt, brick, or cement manufacturing specifically noted in Section 268, the produces products that potentially Radioactive mixed wastes are wastes treatment standards promulgated today could be applied or placed on the land. which satisfy the definition of apply to all mixed wastes. These recycling practices incorporate radioactive waste subject to the Atomic the contaminated soils into the Energy Act (AEA) 10 CFR Part 61 and 2. Proposal and Issues Discussed by products, and, thus, are considered to be also contain waste that is either listed as Comments a ‘‘use constituting disposal’’ (see a hazardous waste in Subpart D of 40 In addition to revising metal section 261.2 (c) (1)). The use CFR Part 261, or that exhibits any of the characteristic treatment standards that constituting disposal practice (assuming hazardous characteristics identified in apply to mixed waste, the Phase IV legitimate recycling is occurring) is Subpart C of 40 CFR Part 261. Since the proposal also discussed mixed regulated per the provisions of 40 CFR hazardous portions of the mixed waste radioactive and characteristic metal sections 266.20 through 266.23. This are subject to RCRA, the land disposal wastes which have been previously issue is discussed in more detail in restrictions apply to the mixed waste. stabilized to meet the LDR section VII of the preamble. Today’s rule promulgates revised requirements, and are now being stored At this time, the Agency does not treatment standards for radioactive until disposal capacity becomes have adequate information on asphalt, wastes that are mixed with metal available. The rule proposed to allow brick, or cement produced from MGP characteristic wastes and do not this particular category of stabilized 28576 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations characteristic metal mixed wastes to of treatment, and the only reason they E. Underlying Hazardous Constituents comply with the LDR metal standards have not already been land disposed is in TC Metal Wastes and Characteristic that were in effect at the time the waste that capacity has not been available. The Mineral Processing Wastes was stabilized. More simply, they would one commenter who disagreed with the Summary: As with other require no further treatment to comply proposal stated that neither retreatment characteristic wastes, TC metal wastes with the newly promulgated TC metal nor an exemption from the new (D004—D011) and newly identified standards. The proposal stated that standards are reasonable options, but mineral processing wastes cannot be mixed radioactive/characteristic metal prefers retreatment. The commenter did land disposed until the characteristic is wastes that are stabilized after the not provide support, and the Agency is removed and any underlying hazardous effective date of Phase IV would be not persuaded that retreatment is constituents (UHCs) are below universal subject to the metal treatment standards environmentally preferable. Thus, the treatment standards. promulgated in the Phase IV Agency is promulgating the exemption rulemaking. 1. Background The majority of commenters agreed as proposed. In response to comments, In 1993, EPA began requiring that, in with this approach. The Agency EPA is also indicating that the same addition to removing the characteristic believes that requiring facilities to re- principle applies with regard to listed in the characteristic wastes, treatment treat the wastes could pose significant wastes stabilized to meet a previous must ensure that UHCs are below their threats to human health and the treatment standard, which standard is environment (worker exposure, affected by this rule because the metal UTS levels. (58 FR 29860; see also 59 FR environmental releases). Essentially, UTS have changed. Again, retreating 47982. See also Chemical Waste Management v. EPA, 976 F. 2d at 13– requiring these wastes to meet the these wastes would likely create new 14, 16–18 (treatment standards may be newly promulgated treatment standards threats, not minimize them. lower than the level at which waste is could necessitate treaters opening One DOE facility requested that the sealed drums of stabilized mixed waste, identified as hazardous, and underlying Agency clarify whether a waste required grinding the stabilized material, and re- hazardous constituents must be treated to be treated by a specific technology treating to comply with the treatment to minimize threats posed by land standards for the few constituents for (i.e., HLVIT) would be required to be disposal)). UHCs are any constituents in which EPA is lowering the standards. further treated for any UHCs present in 40 CFR 268.48 that are reasonably One commenter wanted the exemption the waste above UTS levels. The Agency expected to be present at levels above to be broadened to include wastes that is not imposing additional treatment the UTS at the point of generation of the were treated by methods other than requirements on those wastes for which characteristic waste. See 40 CFR stabilization. Because the exposure a method of treatment (HLVIT) is 268.2(i). EPA’s review of the treatment concerns of re-treating the previously specified. data on TC metal and mineral processing wastes shows that these stabilized waste primarily center around Four facilities are concerned that wastes often contain underlying the idea of first grinding up the uranium mills tailings will not remain stabilized material to retreat it and the hazardous constituents, and that UTS exempt under RCRA. These wastes are are achievable for the UHCs. potential added radiological exposures by-product materials from uranium attendant thereto, the broadening of this mining (i.e., waste acids from solvent 2. Discussion of Today’s Approach exemption without more specific extractions, barren lixiviants, slimes information is not warranted at this In the August 22, 1995 Phase IV from solvent extraction and waste point. Of course, if any wastes already proposed rule, EPA proposed to apply meet the applicable treatment standards, solvents generated in the beneficiation treatment standards to all TC metal for example macroencapsulation, then process during the extraction of wastes, and on January 25, 1996, EPA there is no need to initiate further uranium ore) and, therefore, are further proposed the same for treatment. It is important to emphasize excluded from the treatment standards characteristic mineral processing that the Agency does not want any more being promulgated today for TC metal wastes. See 60 FR 43654 and 61 FR handling of this material than is wastes. With respect to the radioactive 2338. Furthermore, EPA proposed that necessary, and we will entertain site- mineral processing wastes, RCRA when the new treatment standards were specific treatment variances to ensure Section 1004 (27) as codified in 40 CFR promulgated, all of those newly that the appropriate balance is struck to 261.4(a)(4) states that ‘‘...source, special identified wastes would have to be ensure minimization of threats. nuclear or by-product material as treated not only to meet the proposed As noted, the majority of commenters defined by the Atomic Energy Act of treatment standards, but also to meet agreed that hazards from added worker 1954 as amended, 42 U.S.C. 2100 et treatment standards for any UHCs radiation exposure associated with re- seq...’’ are not solid wastes. Therefore, reasonably expected to be present (at treatment (i.e., opening drums, grinding such excluded materials are not subject levels above UTS) in those wastes at the already treated masses of mixed waste) to this rule. However, all other wastes wastes’ point of generation. See 60 FR 43654. would probably offset any gain in not excluded under 40 CFR 261.4 are One commenter disagreed with the protection of human health and the subject to today’s rulemaking (assuming environment resulting from compliance Agency’s proposal, stating that the TC the waste is otherwise subject to today’s with the new metal treatment standards metal wastes that also contain organic rule). proposed in Phase IV. It was pointed out UHCs would have to be treated by by one commenter that this is consistent Therefore, the Agency is today combustion technologies to achieve the with the Storage Prohibition (40 CFR finalizing as proposed numerical organic UTS levels. The Agency 268.50(e) ), where wastes that have met treatment standards for radioactive disagrees. The organic UTS levels were the applicable treatment standards are waste mixed with metal-bearing based on the performance of combustion excluded from the storage prohibition. characteristic waste for which no as well as other removal and destruction In addition, one commenter stated that method of treatment has been technologies. These other removal and these wastes have been treated to meet established as the treatment standard. destruction technologies can be used to the LDR standards in place at the time treat organic UHCs to UTS levels in TC Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28577 metal wastes. Thus, pretreatment of the from subtitle C regulation under the with these high volume/low toxicity waste can be used to achieve the organic Bevill exclusion (see RCRA 3001 criteria and thus were eligible for the UTS levels. In addition, the commenter (b)(3)(A)(ii)). exclusion provided by RCRA believed there would be difficulties in In this rulemaking, EPA also is 3001(b)(3)(A)(ii) (the ‘‘Bevill stabilizing incinerator ash to meet the addressing certain sub-issues that are exclusion’’). finalized UTS levels for the metals. The related to determining whether a These rules were promulgated on Agency does not agree. In determining particular mining waste is subject to the September 1, 1989 (54 FR 36592) and on the UTS numbers for each metal, the Bevill exclusion, including whether a January 23, 1990 (55 FR 2322). EPA was wastes with the most difficult to treat waste is ‘‘uniquely associated’’ with required to prepare a Report to Congress metal constituents were treated by mining, how the introduction of non- which further studied mineral HTMR and stabilization technologies. exempt, mineral processing feedstocks processing wastes identified in the 1990 The higher value between the two into a Bevill process may affect the rule to determine their regulatory status technologies was selected as the Bevill status of the waste generated from under the Bevill exclusion. This report treatment standard. Thus, treatment the process, and how the mixture of was issued on July 31, 1990 (Report to using either HTMR or stabilization is Bevill wastes with other hazardous Congress on Wastes from Mineral expected to achieve the final metal UTS wastes affects the Bevill status of the Processing). EPA fully considered levels. It should be noted that selenium resulting wastes when disposed. information from, and comments on, the is not being regarded as a UHC since its As stated in the January 1996 Report to Congress in a regulatory treatment standard is above its proposal, EPA is not reopening in any determination published on June 13, characteristic level. Thus, a selenium respect the Bevill determinations 1991(56 FR 27300). The list of Bevill characteristic waste will always be previously made by the Agency, exempt activities and wastes is set out hazardous unless the selenium including the Agency’s articulation in at 40 CFR 261.4(b)(7). concentration is below the characteristic 1989 of the functional distinctions Many mineral processing wastes that level of 1 mg/L TCLP. Fluoride, between beneficiation and mineral EPA determined did not fall within the vanadium, and zinc are other metals not processing. See 61 Fed. Reg. 2354. Some Bevill exclusion as a result of the 1991 considered UHCs in characteristic commenters misinterpreted EPA’s rule appear to exhibit the toxicity wastes because these three metals are statements in the proposal generally characteristic due to metal content not on the Hazardous Constituents describing the beneficiation/processing (D004–D011), and also exhibit Table, 40 CFR 261 Appendix VIII (i.e., distinction as somehow reinterpreting corrosivity (D002), and/or reactivity they are not ‘‘hazardous constituents’’). the scope of the Bevill amendment. That (D003). For purposes of LDR (See Background Document for Phase IV discussion was intended, however, applicability, these wastes are ‘‘newly Second Supplemental Proposed Rule.) merely to restate principles articulated identified’’ because they were brought by EPA in 1989 (see 54 Fed. Reg. into the RCRA Subtitle C system after VI. Issues Relating to Newly-Identified 36619), not to reopen in any way the Mineral Processing Wastes the date of enactment of the Hazardous distinctions as articulated previously by and Solid Waste Act Amendments on As explained above, EPA considers the Agency. Whether a particular waste November 8, 1984. (See 55 FR at 22667 mineral processing hazardous wastes to is from beneficiation or mineral (June 1, 1990). Hence, their land be newly identified or listed for processing will continue to be disposal has not been prohibited until purposes of determining when LDR determined based on 40 CFR 261.4(b)(7) today’s rule. prohibitions apply, since their status as and criteria articulated by EPA in the The Agency is currently required by hazardous wastes was not established 1989 preamble. a court approved consent decree (EDF v. until after 1984. Today’s rule establishes The following sections of the Browner, No. 89–0598 (D.D.C.)) to prohibitions and treatment standards for preamble discuss these threshold issues. promulgate LDR restrictions for these wastes, pursuant to RCRA section A. Introduction characteristic and listed mineral 3004(g)(4). processing wastes, and metal wastes However, there are a series of In July of 1988, the U.S. Court of hazardous under the revised toxicity important threshold issues in Appeals, for the D.C. Circuit in determining what these prohibitions Environmental Defense Fund v. EPA characteristic, by April 15, 1998. On and treatment standards apply to, (EDF II), 852 F.2d 1316 (D.C. Cir. 1988), April 14, 1998, EPA filed an unopposed generally involving the issues of cert. denied, 489 U.S. 1011(1989), motion requesting the Court to extend whether primary mineral processing ordered EPA to restrict the scope of the the deadline to April 30, 1998 to secondary materials are solid and Bevill mining waste exclusion, as it establish Land Disposal Restrictions for hazardous wastes. There are three main applied to mineral processing wastes, to newly identified mineral processing issues. A fundamental first issue is include only ‘‘large volume, low wastes by April, 1998. The legal whether, if a mineral processing hazard’’ wastes. In response, the Agency obligation to establish prohibitions on secondary material (which would promulgated several rules that land disposal and treatment standards otherwise be a hazardous waste) is delineated the scope of the Bevill for newly identified mineral processing recycled within the mineral processing exemption for extraction/beneficiation wastes is established by statute. RCRA industry sector, it is a solid waste. Of and mineral processing wastes. In these section 3004(g)(4). particular importance in assessing rulemakings, the Agency applied high- B. Overview of Today’s Rule applicability of the LDR program, is a volume/low toxicity criteria for second issue: whether there is land determining whether a particular waste 1. Issues Related to Which Mineral placement of the mineral processing was subject to the Bevill exemption. The Processing Secondary Materials are secondary material before recycling, or Agency also described the general Subject to LDRs during the recycling process. If the characteristics that would distinguish As noted above, a threshold question material is a waste, a third issue is extraction/beneficiation wastes from when considering whether wastes are relevant: is the waste a beneficiation/ mineral processing wastes. The rules prohibited from land disposal is extraction waste or one of 20 mineral also evaluated which specific mineral whether the mineral processing processing wastes that are excluded processing wastes were in conformance secondary materials are ‘‘solid wastes’’ 28578 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations under RCRA. The issue is of importance tanks, containers, buildings, or does not believe that the use of the with respect to land disposal approved piles resting on pads; ‘‘significantly affected’’ test would prohibitions for the mineral processing (b) Mineral processing secondary appreciably reduce risks posed by the industry because this industry recycles materials must be legitimately recycled resulting wastes, and the Agency is mineral processing secondary materials to recover metal, acid, cyanide, water, or concerned that it would severely disrupt that exhibit hazardous waste other values: legitimate recycling practices within characteristics, and sometimes uses (c) Mineral processing secondary beneficiation and mineral processing land-based units—piles and materials cannot be accumulated industries. Even in situations where a impoundments—to store these materials speculatively; and constituent may increase due to before recycling. Thus, there is an issue (d) Facilities utilizing this conditional recycling, the increase may not be as to whether such materials are solid exclusion must submit a one-time environmentally significant, may be wastes subject to the land disposal notification of their recycling activities balanced by the lowering of other prohibition (as well as to the rest of to EPA or the authorized State constituents, or may be off-set by having Subtitle C). The Agency issued two describing: the materials being recycled to dispose of the material and utilize proposals (61 FR 2338, January 25, and the processes into which they are additional raw material feedstocks. 1996, and 62 FR 26041, May 12, 1997) recycled; where storage units are located b. Uniquely Associated. The Bevill which discussed potential RCRA and their design. Facilities must update exclusion for the primary metal sector is jurisdiction over secondary materials the notification if their recycling limited to extraction/beneficiation from mineral processing that are activities change. wastes and 20 mineral processing reclaimed within the industry sector EPA is thus essentially disclaiming wastes. Under Section 3001(b)(3)(A)(ii) and sought comment on a proposed authority over mineral processing of RCRA, the Bevill exclusion is conditional exclusion from the secondary materials that are reclaimed available for ‘‘solid waste from the definition of solid waste. within the mineral processing or extraction, beneficiation and processing We now further summarize how mining/beneficiation industry sector, so of ores and minerals.’’ Under the today’s rule deals with issues raised by long as there is no land-based storage Agency’s longstanding interpretation, a whether and when mineral processing preceding reclamation. Further, waste must be ‘‘uniquely associated’’ secondary materials, when placed in potential jurisdiction affects only with mining and processing of ores and land-based storage units, are subject to storage. EPA is not asserting authority minerals to be subject to the Bevill the LDR standards and other Subtitle C over any mineral processing production exclusion. The Agency currently uses a controls. The rationale for the Agency’s unit, even if the unit is land-based. qualitative approach (see 45 FR 76619 decisions are described below. 2. Issues Related to Whether Materials and 54 FR 36623) to determine if a To be a hazardous waste, a material are Within the Scope of the Bevill waste is uniquely associated. Because of must first be a solid waste. RCRA Exclusion public interest in how the Agency section 1004 (5). To be a ‘‘solid waste’’ makes these determinations, the Agency a material must in some sense be a. Use of Non-Bevill Materials as sought comment on alternative ‘‘discarded.’’ RCRA section 1004 (27). A Feedstocks to Operations Whose Waste approaches for making ‘‘uniquely material is not ‘‘discarded’’ if it is is Bevill Exempt. Today’s rule also associated’’ determinations. ‘‘destined for immediate reuse in allows secondary materials from The Agency is retaining and clarifying another phase of the industry’s ongoing mineral processing to be co-processed in this rule its use of its qualitative production process and [has] not yet with normal raw materials in approach. The Agency recognizes that become part of the waste disposal beneficiation operations which generate determining whether a particular waste problem.’’ American Mining Congress v. Bevill exempt wastes, without changing is uniquely associated with extraction, EPA, 907 F. 2d 1179, 1186 (D.C. Cir. the exempt status of the resulting Bevill beneficiation, and processing involves 1990). waste, provided that legitimate recovery an evaluation of the specific facts of This rule amends the current RCRA of the mineral processing secondary each case. While the Agency discussed, rules (existing 40 CFR 261.2(c)(3)) material is occurring, and provided that in the May 1997 proposal, several defining which ‘‘secondary materials’’— primary ores and minerals account for at options that would establish a bright sludges, by-products and spent least 50 percent of the feedstock. The line for making this determination, the materials—being generated by and Agency voiced concern at proposal that Agency is concerned that any of these reclaimed by mineral processing or the addition of mineral processing tests could potentially be either over- or beneficiation facilities are solid wastes. secondary materials into a Bevill under-inclusive of the wastes that, in The rule does so by creating a exempt extraction/beneficiation process EPA’s view, are best viewed as uniquely conditional exclusion to the regulatory could have the potential to increase the associated. definition of solid waste, so that: risk of the resulting wastes. The Agency In the Agency’s view the following (a) Mineral processing secondary proposed adding a condition—the use of qualitative criteria should be used to materials may not be stored on the land a significantly affected test (similar to make such determinations on a case-by- before they are reclaimed. The rule the existing test used in the Burning in case basis: provides a partial exception to this Industrial Furnaces (BIF) Rule (see 40 (1) Any waste from ancillary principle: if the pile is placed on a pad CFR 266.112))—as a means of assuring operations are not ‘‘uniquely which has been approved as protective that resultant Bevill wastes were not associated’’ because they are not by an EPA Region or a State with an adversely impacted by co-processing. properly viewed as being ‘‘from’’ mining authorized program, the pile would not EPA also considered simply limiting or mineral processing. be considered to be storing solid or eligibility for Bevill status to situations (2) In evaluating wastes from non- hazardous waste, and so would be where Bevill raw materials comprised ancillary operations, one must consider outside RCRA jurisdiction. Thus, if the sole feedstock to the process. the extent to which the waste originates storage is used prior to reentry into a After considering public comments, or derives from processes that serve to mineral processing reclamation process, the Agency has decided to adopt the remove mineral values from the ground, to be excluded, all mineral processing general approach proposed in January concentrate or otherwise enhance their secondary materials must be placed in 1996, with one change. The Agency now characteristics to remove impurities, Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28579 and the extent to which the mineral media’’. 2 F. 3d at 447. EPA prepared a streams (K064, K065, K066, K090, K091) recovery process imparts its chemical technical background document in did not adequately address certain characteristics to the waste. support of the January, 1996 proposal, issues raised in comments. EPA c. Bevill Mixtures. EPA first addressed which presented data on this issue. This indicated its intent not to list these five mixing of hazardous wastes with Bevill report concluded that mineral waste streams in the January, 1996 wastes in 1989 (see 54 FR 36622–23). processing wastes had in the past been proposal and placed a technical That rule provided that mixtures of co-disposed with municipal wastes, and background document in the docket Bevill wastes and listed wastes would due to the location of mineral enumerating the reasons for those be considered a hazardous waste unless processing plants near large urban areas, decisions. Many of these wastes are and until the mixture was delisted. A it was plausible that these wastes could either no longer generated, or managed mixture of Bevill waste and non- be mismanaged with municipal wastes. in a fashion not warranting listing. EPA excluded characteristic hazardous EPA also solicited information from the did not receive any comments waste, however, would be considered public that would help the Agency challenging those proposed decisions. hazardous if it exhibited a characteristic evaluate industry comments that the Therefore, in this rule, EPA is not listing of the non-excluded waste, but not if it Synthetic Precipitation Leaching these five smelting wastes as hazardous exhibited a characteristic imparted to it Procedure (SPLP) would provide a more wastes. Instead, EPA will rely on the by the Bevill waste. As explained in the accurate measure of how mineral RCRA hazardous waste characteristics proposal, this Bevill mixture rule was processing wastes behave in the to identify those portions of the wastes remanded to the Agency in Solite Corp environment. EPA received extremely requiring management as hazardous v. EPA, 952 F.2d 472, 493–94 (D.C. Cir. limited data from the public on this wastes. 1991), and an emergency reinstatement issue. (iii) Titanium Tetrachloride. In 1989, of that rule was vacated on procedural EPA has concluded, based on the EPA determined that wastes from the grounds in Mobil Oil v. EPA, 35 F.3d information available to the Agency and production of titanium tetrachloride 579 (D.C. Cir. 1994). Today EPA is review of public comments, that co- were mineral processing wastes. DuPont reinstating the 1989 Bevill mixture rule. disposal of mineral processing wastes challenged this decision, and the Court Under this 1989 rule, a mixture of a with municipal wastes is a plausible remanded EPA’s decision for further Bevill-exempt waste and a characteristic mismanagement scenario and that, consideration on grounds that the hazardous waste (or a waste listed solely therefore, application of the TCLP to Agency’s decision was unclear (see because it exhibits a hazardous these wastes continues to be Solite Corporation v. EPA, 952 F.2d at characteristic) is a hazardous waste if it appropriate. Moreover, comments from 494–95 (D.C. Cir. 1991)). EPA continues to exhibit the characteristic of industry during the rulemaking stated reevaluated data on wastes from the the non-excluded waste. Mixtures of that certain facilities co-manage mineral production of titanium tetrachloride, Bevill wastes and other listed wastes are processing wastes with extraction and and placed results of this reevaluation hazardous wastes unless and until beneficiation wastes. Given the well- in the docket in support of the January delisted. In addition, the act of mixing documented, acidic nature of some 1996 proposal. EPA also has met with Bevill and and non-Bevill wastes is extraction and beneficiation wastes, representatives of DuPont to discuss subject to all normal Subtitle C mineral processing wastes disposed of their process further. Based on the consequences (i.e., requires a permit if in this manner may be subject to the Agency’s reevaluation of this issue, it constitutes treatment, storage of kinds of low pH conditions that are EPA, in this rule, concludes that iron disposal of hazardous wastes). EPA is reflected in the TCLP. For this chloride waste acid generated from the adopting this approach because it additional reason, EPA finds that, under chloride-ilmenite process of titanium preserves the Bevill exclusion for the plausible mismanagement standard tetrachloride production should be mixtures that are characteristically articulated in Edison Electric, classified as a mineral processing waste. hazardous due to Bevill wastes, but application of the TCLP to mineral The Agency has reached this decision nonetheless ensures that the Bevill processing wastes is appropriate in light because this process significantly affects Amendment is not used to allow Bevill of the information at the Agency’s the physical/chemical structure of the wastes to shield/immunize non-Bevill disposal. While the Agency has received raw feedstock through chlorination and hazardous wastes from regulatory comments seeking to compare the TCLP this reaction creates new chemicals controls that would otherwise apply to and the SPLP, the Agency has (iron chloride and titanium those wastes. concluded, for reasons discussed later tetrachloride gases). This meets the d. Response to Court Remands in this preamble, that this information is definition of mineral processing rather Dealing with Other Issues Relating to not sufficient to support adopting the than beneficiation. Mineral Processing and to Scope of SPLP as the appropriate test for mineral (iv) Air Pollution Control Dust and Bevill Exclusion. (i) Toxicity processing wastes at this time. Sludges Generated From Lightweight Characteristic Leaching Procedure The Agency recognizes that the Aggregate Production. Finally, since (TCLP) The applicability of the TCLP methodology underlying the TCLP may 1995, the Agency has conducted test to mineral processing wastes was not reflect the variety of conditions reviews of air pollution control dust and challenged in Edison Electric Institute v. under which some types of mineral sludges generated from lightweight EPA, 2 F.3d 438 (D.C. Cir. 1993). In that processing wastes are disposed. As a aggregate production, and has met with case the Court held that the Agency result, the Agency will undertake, and representatives of this industry sector. must provide at least some factual within three to five years, conclude a The Agency also has issued a Report to support that the mismanagement review of the appropriateness of using Congress and a regulatory determination scenario assumed in developing the the TCLP and other leaching protocols on Cement Kiln Dust (CKD) (59 FR at TCLP is plausible when applied to in this and other contexts. 709, January 6, 1994 and 60 FR at 7366, mineral processing wastes or, (ii) Listed Hazardous Wastes. In February 7, 1995). EPA has found that alternatively, that mining wastes are American Mining Congress v. EPA, 907 some aggregate kilns and cement kilns exposed to conditions similar to those F.2d 1179 (D.C. Cir. 1990), the Court use hazardous waste fuels to fire their simulated by the TCLP, namely ‘‘contact found that the Agency’s record units. Both types of facilities generate with some form of acidic leaching regarding the listings of five waste dusts which may be either reintroduced 28580 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations into the kiln or blended into the final these materials are part of an on-going before being reclaimed at mineral product. While these dusts rarely production process within the processing or beneficiation facilities— exhibit any of the RCRA hazardous generating industry, and so cannot be i.e. that are not being immediately waste characteristics, the resultant ‘‘discarded.’’ reused—the Agency has established a product could be classified as hazardous EPA disagrees that there is an conditional exclusion from the waste due to the ‘‘derived from’’ rule if absolute jurisdictional barrier to definition of solid waste, the conditions listed hazardous wastes are combusted. regulating any management of mineral being designed to assure that The Agency is seeking a way to processing secondary materials which management of these materials are not encourage the legitimate and are reclaimed within the industry. ‘‘part of the waste disposal problem.’’ environmentally sound reuse of dusts, Although the AMC I court found that, in The main condition is that mineral from both cement and lightweight some respects EPA’s 1985 rules processing secondary materials not be aggregate manufacture. In an effort to exceeded the statutory grant of stored on the land (except for storage on develop a consistent regulatory authority, subsequent judicial opinions approved pads) and not be stored in approach, EPA, therefore, has decided have sharply limited the scope of AMC disposal units. to defer any decision on the Bevill I. The only absolute bar on the Agency’s In considering the question of scope status of air pollution control dust and authority to define recycled mineral of jurisdiction, it is useful to remember sludges generated from lightweight processing secondary materials as solid that this rule applies to a continuum of aggregate production until evaluation of wastes is for ‘‘materials that are potential recovery practices. At the one issues related to CKD and lightweight ‘destined for immediate reuse in another end of the continuum, where EPA’s aggregate dust handling, use, and phase of the industry’s ongoing authority is most certain, would be the disposal can be completed. production process’ and that ‘have not situation where mineral processing e. Reexamination of Bevill Exempt yet become part of the waste disposal company A sends its secondary Wastes. The May 12 proposal sought problem.’’’ American Mining Congress materials to unrelated mineral general comment on whether a v. EPA, 907 F. 2d 1179, 1186 (D.C. Cir. processing company B processing a reexamination of some Bevill waste is 1990) (‘‘AMC II’’) quoting AMC I, 824 F. different metal than company A. The warranted given that additional risk 2d at 1186.2) The case law likewise case law indicates that EPA retains assessment techniques and additional makes clear that ‘‘discarded’’ is an discretion to classify the material as a information are available since making ambiguous term, within EPA’s solid waste. API, 906 F.2d at 741 the 1986 Bevill regulatory determination discretion to interpret, consistent with (transfer of steel industry dust to a metal (51 FR at 24496, July 3, 1986) on mining RCRA’s overall goals and purposes. reclaimer processing exclusively steel and the 1991 Bevill regulatory AMC II, 907 F.2d at 1179; American industry secondary materials can determination on mineral processing (56 Petroleum Inst. v. EPA, 906 F.2d 726, involve a RCRA solid waste). It should FR 27300, June 13, 1991). EPA 741(D.C. Cir. 1990). be remembered that EPA views presented information from Superfund Applying this test, today’s rule states ‘‘mineral processing’’ broadly in this sites and other sources which indicate that any mineral processing secondary rule to include all primary mineral that some Bevill wastes continue to materials which are being reclaimed processing sectors (see, e.g., the cause environmental damage (see immediately within the mineral Agency’s 1996 Identification and environmental damage and risk processing industry (or within Description of Mineral Processing technical background documents placed beneficiation) are not a solid waste. Sectors and Waste Streams). This in the January 1996, and April, 1997 However, as explained below, EPA does document identified 41 different sectors dockets). The Agency also posed the not view mineral processing secondary involved in primary mineral processing. question of whether some waste streams materials which have been removed Primary mineral processing involves require additional study or regulatory from a production process for storage as changing the physical and chemical controls. Today’s rule is not making any being ‘‘immediately reused,’’ and so structure of ores and minerals. For changes to the status of Bevill exempt such materials are not automatically example, mineral processing includes extraction and beneficiation wastes or excluded from jurisdiction. EPA the production of steel and the the 20 exempt mineral processing reiterates that there is a jurisdictional production of gold. These sectors wastes. bar against regulating the actual generate very different types of wastes production process (see Steel C. Analysis of and Response to Public and recycle them under different Manufacturers Association v. EPA, 27 Comments conditions. Thus, the API principle of F.3d 642, 647 (D.C. Cir. 1994); EPA also no absolute jurisdictional bar applies. 1. Jurisdiction interprets the holding of AMC I to Points further in on the continuum a. EPA Authority to Regulate Mineral mandate this result), so today’s rule would be if companies A and B process Processing Secondary Materials does not assert authority over mineral the same metal but are unrelated Reclaimed Within the Industry. Many processing production units. However, companies (also potentially within the industry commenters maintained that if production units are also used to API framework), and where companies EPA lacks jurisdiction over mineral dispose of hazardous wastes, those units A and B are under common ownership processing secondary materials are subject to RCRA Subtitle C. but not at the same site. The point on reclaimed within the industry because With respect to mineral processing the continuum closest to on-going such materials cannot be ‘‘solid wastes.’’ secondary materials which are stored production is where secondary The argument is straight-forward: a materials are reclaimed at the generating 2The other cases which have similarly stressed solid waste regulated under RCRA must this narrow reading of AMC I are American site, but where the process is non- be a ‘‘discarded material,’’ RCRA section Petroleum Inst. v. EPA, 906 F. 2d 726, 741 (D.C. Cir. continuous due to storage of materials. 1004 (27), and these materials are not 1990); Shell Oil v. EPA, 950 F. 2d 741, 755–56 (D.C. Immediate recovery on-site without discarded. The comments suggest that, Cir. 1991); Chemical Waste Management v. EPA, storage would then mark the other end 976 F. 2d 2, 14 (D.C. Cir. 1992); United States v. under the case law, (in particular Ilco, Inc., 996 F. 2d 1126, 1131 (5th Cir. 1993); and of the continuum, and would illustrate American Mining Congress v. EPA, 824 Owen Electric Steel Co. v. Browner. 37 F. 3d 146, when materials are immediately reused F. 2d 1177 (D.C. Cir. 1987) (‘‘AMC I’’)), 149–50 (4th Cir. 1994). within a continuous process, and so Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28581 absolutely outside Subtitle C particular, have certain inherent indicia precisely, the storage which precedes jurisdiction.3 of discard due to their inability to reclamation, is part of the waste EPA believes that it has discretion to prevent releases of contained materials. disposal problem because it involves consider whether any of these situations RCRA section 1002(b)(7); AMC II, 907 storage which can be and has been part short of immediate reuse involve solid F.2d at 1187; 53 FR at 521, 525 (Jan. 8, of that problem. wastes, this discretion being limited by 1988). Surface impoundments pose b. Are There Limits on Jurisdiction? the second part of the Court’s essentially inherent risks of (Response to Public Interest Group articulated test: is the non-continuous groundwater contamination due to the Position). In contrast, representatives of management of the mineral processing hydraulic pressure created by the public interest groups argued that the secondary materials part of the waste contained liquids. Chemical Waste Agency’s authority was essentially disposal problem. Thus, EPA in today’s Management v. EPA, 919 F. 2d 158, 166 unlimited. They believe that the rule has focused on the storage of these (D.C. Cir. 1992). There are many damage authority should be extended, at a materials. The leading authority for this incidents which involve storage of minimum, to all land-based units approach is AMC II, where the Court mineral processing wastes in piles and because such units are a type of disposal found that secondary materials surface impoundments, some of which unit. With respect to mineral processing generated and reclaimed on-site could involve mineral processing secondary secondary materials that are managed in be classified as solid wastes because materials stored in land-based units tanks, containers, or buildings (i.e. in they were stored in surface before eventual reclamation. These other than land-based units), EPA sees impoundments. 907 F. 2d at 1186. The damage incidents confirm that this no principle that compels the materials case involved a single plant which potential harm is not hypothetical. to be designated as solid wastes. As stored its secondary materials It should be noted that there is explained above, case law indicates that —sludges—in an impoundment before Agency precedent for the limitation on EPA has discretion to interpret which reclaiming all of the accumulated land based storage as part of within- materials are ‘‘discarded’’ consistent sludges in its own smelting process. 50 industry recycling practices. The with the overall statutory objective, API, FR at 40292, 40296 (October 1985). Agency established the principle of 906 F.2d at 742. These objectives Several comenters argued that AMC II encouraging recycling without allowing include not only assuring safe involved only specutlative land-based storage at 40 CFR management of hazardous wastes, but accumulation. This is not the case. The 261.4(a)(10). Any wastes from coke by- also ‘‘encouraging . . . materials wastes generated in the impoundment product production are not solid wastes recovery, [and] properly conducted were actually recycled 100 percent, not if recycled to coke ovens conditioned on recycling and reuse . . . .’’ RCRA stored with expectation of recycling. 50 there being no land disposal from the section 1003(a)(6). EPA’s construction FR at 40292, 40296; Brief of Petitioner point of generation to the point of in today’s rule, which rests largely on Amercian Mining Congress in AMC II recycling. The Agency also has the distinction between land-based (filed March 30, 1990) pp. 18, 29. The promulgated a rule where recovered oil storage and more environmentally Court nonetheless held that the sludges generated by any facet of petroleum protective storage of secondary were discarded, stressing the special exploration, production, and retailing is materials, is consistent with this object sensitivity in RCRA to land-based units not a solid waste conditioned on no by encouraging ‘‘properly conducted such as surface impoundments, and management of these materials in land- recycling. . . .’’ In addition, EPA reads explaining how storage of secondary based units (see 59 FR 58936, July 28, the case law as allowing the Agency to materials in such units can be part of 1994). The Agency has also proposed to make reasonable distinctions among the waste disposal problem (907 F. 2d extend this principle to a wider range of secondary material handling practices at 1186–87). Thus, EPA believes that oil-bearing secondary materials (see 60 in determining when a particular mineral processing secondary materials FR 57747, 57753, November 20, 1995). recycling practice may be considered to stored on the land are discarded. The condition likewise appears in be ‘‘part of the waste disposal problem.’’ Land-based storage of mineral current rules at 40 CFR 261.2(e)(iii) Finally, as EPA explained at proposal, processing sludges, spent materials, and where it qualifies the exclusion for there are potential jurisdictional by-products can be viewed by EPA as materials returned for reclamation in the constraints given that the mineral being part of the waste disposal process from which they are generated. processing industry exists to recover problem. There is no dispute that a The application of a no land placement mineral values from an initial raw considerable amount of mineral condition in today’s rule is, therefore, material, and some aspects of recovery processing secondary materials contain building on an established policy of of mineral values from secondary hazardous constituents that can threaten encouraging recycling conditioned on materials can be like sequential human health and the environment (see no land placement. processing of an initial raw material. 61 U.S. EPA, Office of Solid Waste, Human Putting this together, the Agency FR at 2342. Where there is no obvious Health and Environmental Damages reads the statute as creating an absolute element of discard present, such as from Mining and Mineral Processing jurisdictional bar in two situations: land-based storage, the Agency does not Wastes, 1995, and Damage Cases and where mineral processing or believe that it should exercise its Environmental Releases, 1997). Land- beneficiation is occurring, and where interpretive discretion to assert based units, and impoundments in reclamation is continuous in the sense authority. that there is no interdiction in time—i.e. With respect to intra-industry 3 The Agency indicated in its January 1996 materials moving from one step of a reclamation practices involving land- proposal that some lower value mineral processing recovery process to another without a based units, EPA largely is asserting secondary materials are from ancillary production operations and that those materials were often break in the process, as for storage. As authority. EPA proposed a series of placed in land-based storage units. 61 FR at 2340. one moves back along the continuum, conditions that would have allowed Industry comments challenged this discussion as EPA has discretion to interpret whether land-based storage units on the idea that over broad and misplaced. Upon review, the secondary materials may be considered there were certain unique necessities Agency acknowledges that mineral processing facilities generate a wide range of secondary discarded. The Agency is exercising that within this industry compelling use of materials, which also have a wide range of values discretion here by putting its focus on such units. 61 FR at 2341. However, as to the facility owner. whether the reclamation, or more the rulemaking progressed, it became 28582 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations apparent that there are no such defined as hazardous wastes in today’s of defining absolute jurisdictional production-related necessities. Agency rule), they would no longer be solid and limits, namely to say that secondary reevaluation of mineral processing hazardous wastes. EPA believes it minerals generated by and secondary material volumes indicated would be counterproductive to retain ‘‘immediately reused’’ within the that, in addition to volumes being lower the hazardous waste status for mineral mineral processing industry, were not than EPA initially believed, comparison processing secondary materials entering solid wastes. The reference to to volumes of other industrial hazardous reclamation. If the materials remain ‘‘immediate’’ was suggested as a means wastes indicated that these wastes were hazardous wastes, for example, the of interpreting the ‘‘immediate reuse in often higher in volume than mineral smelting process itself could be subject another phase of the industry’s ongoing processing secondary materials and to Subtitle C regulation. EPA believes process’’ standard articulated in the case were being stored off the land. that it retains discretion to classify the law. AMC I, at 824 F. 2d at 1185. The Consequently, the Agency is claiming removed materials as no longer being Agency proposed that secondary authority over most land-based storage solid and hazardous wastes. materials that were legitimately recycled units. The Agency believes it has discretion within 48 hours would be outside RCRA The Agency is not, however, asserting to adopt this classification jurisdiction, regardless of whether they authority over piles resting on pads notwithstanding the court’s decision in were stored between process steps determined by a state or EPA to be American Petroleum Institute. v. EPA, (including storage in land-based units). protective. The reasoning is similar to 906 F.2d 726 (D.C. Cir. 1990). In that See 62 FR at 26051. that for not claiming authority over case, the Court held that EPA had Industry and public interest groups within-industry secondary materials adopted the so-called indigenous both opposed the use of the 48-hour stored in tanks, containers or buildings. principle, whereby secondary materials time limit included in the January 1996 Such materials need not be viewed as stopped being wastes at the point they proposal to define immediate reuse. ‘‘part of the waste disposal problem,’’ Industry renewed its categorical were utilized as feedstock in a and so, given the intra-industry objections based on AMC I, and noted production process related to the one recycling, need not be considered that many secondary materials are that generated it, without sufficient ‘‘discarded.’’ The practice also can be legitimately reclaimed long after they justification. 906 F.2d at 741–42. viewed as a type of ‘‘properly conducted are generated and the time period However, in that case, EPA had made no recycling’’ which should be encouraged. between generation and reclamation in attempt to determine which materials Again, EPA views this determination to no way affected their value. For were part of the waste disposal problem, be within its interpretive discretion. example, commenters stated that the and which were not. Here, the Agency EPA also disagrees that it is gold industry generates retort slags is making clear that storage on the land compelled to assert control over land- which contain gold values. Comments based units that are actual production of mineral processing secondary stated that these slags are stored off the units, i.e. that actually recover product. materials is the environmental concern, ground for periods up to six months The Agency is aware of only two land- and that reclaiming mineral processing after which they are reintroduced into based units which recover metals: gold secondary materials within the industry their recovery process.5 heap leach piles and copper dump leach is ordinarily a form of proper recycling Public interest groups objected to the piles. Under prior rulemakings (54 FR which may permissibly be encouraged. 48-hour limit on the basis that an 36592 and 55 FR 2322), the Agency has RCRA section 1003(a)(6). absolute waiver of RCRA jurisdiction defined these land-based units as EPA also notes that it is possible that based on time does not translate to any extraction/beneficiation activities. The no mineral processing secondary reduction of environmental risk. Public Agency is unaware of any other land materials will be placed in interest groups also noted that the Court based process units which actually impoundments or in unapproved piles. in AMC II granted jurisdiction to units recover metals. The Agency believes Under today’s rule, if a facility wishes holding secondary materials with the that regulating such units could pose to use a pile for storage (assuming the propensity to leak, and that the Court’s the possibility of interdicting actual pile has not been adjudicated to be opinion would extend to all land production steps which was the protective), the wastes would first have placement, since the continuous particular focus of the AMC I court. EPA to be treated to meet Land Disposal placement of materials on piles or other notes, however, that storage units which Restrictions standards, probably land-based units would result in the also make secondary materials more rendering them unrecoverable. If an same ‘‘discard’’ underlying the Court’s suitable for actual recovery, such as impoundment is utilized, wastes need opinion. equalization basins, can remain within not be pretreated, but the impoundment Although the Agency necessarily Subtitle C jurisdiction. These units, in would have to meet minimum accepts that materials immediately the Agency’s view, are not the part of technology design standards and be reused in another phase of the the process which actually produces an dredged annually (RCRA section industry’s ongoing production process end product (such as the smelter at a 3005(j)(11) and 40 CFR section 268.5) are beyond EPA’s jurisdiction, AMC I, smelting facility). At most, they and, of course, ultimately obtain a 824 F.2d at 1185, the Agency is not facilitate eventual recovery. The Agency RCRA permit. The Agency anticipates adopting in today’s rule the proposed does not read the case law to say that that facilities will use a non land-based 48-hour approach to define immediate such storage units are in all cases form of storage instead. reuse. The Agency is defining outside the authority of Subtitle C. c. Immediate Reuse.4 In the May 1997 ‘‘immediate reuse’’ as the continuous EPA also is not asserting authority proposal, EPA suggested a different way recirculation of secondary materials over mineral processing secondary materials once they are removed from 4 It should be noted that EPA is not using ‘‘reuse’’ interpret the phrase ‘‘continuous process’’ used in approved storage for reclamation. Thus, as a term of art in this section of the preamble (i.e. the case law. should a mineral processing plant is not using the term as defined in 40 CFR 5 It should be noted that since no land-based 261.1(a)(5)), but rather is referring to immediate storage is involved, these gold slags are not solid reclaim mineral processing secondary reclamation of materials (i.e. material recovery) at wastes under the final rule in any case (assuming materials after those materials are stored a mineral processing facility. The key concept here that the recovery is legitimate and that the other in land-based units (i.e. the materials is actually ‘‘immediate,’’ which EPA is using to conditions in the rule are satisfied). Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28583 back into recovery processes without recycled. Flue dusts not meeting the (ii) Other existing regulatory prior storage. The plain reading of the immediate reuse definition are defined exclusions. The existing regulatory words ‘‘continuous,’’ 824 F.2d at 1193, as mineral processing secondary definition of solid waste also contains a and ‘‘immediate’’ preclude storage. materials (usually a sludge, since these series of exclusions in 40 CFR 261.2(e), Storage by its very nature means that dusts are usually air pollution control two of which could apply to the mineral processes are not continuous; rather, residue) and would be eligible for the processing industry. Section 261.2(e)(1) storage means that materials are conditional exclusion to the definition (ii) excludes from the definition of solid generated which must be held apart for of solid waste. waste sludges, by-products and spent some period of time prior to reentry into d. Relation to the Current Regulatory materials (i.e. secondary materials) a process. Storage, therefore, breaks the Definition of Solid Waste. (i) which are ‘‘used or reused as effective continuous and immediate nature of Distinctions among Sludges, By- substitutes for commercial products.’’ production and reentry. In addition, products, and Spent Materials. The An example could be mineral land-based storage units have inherent existing regulatory definition of solid processing acid plant blowdown elements of discard. AMC II, 907 F. 2d waste classifies metal recovery substituting for commercial acid in at 1186–87. operations as a type of reclamation another process (either mineral The definition of ‘‘immediate reuse’’ activity, and then states that certain processing or a process in a different in today’s rule does not bar storage prior secondary materials being reclaimed industrial category).8 Commenters from to recycling. Mineral processing are, or are not, solid wastes depending industry questioned whether this industries will be able to store and on the type of material being reclaimed. provision is affected by the amendments recycle their mineral processing Spent materials being reclaimed are relating to mineral processing secondary secondary materials outside RCRA solid wastes, while characteristic materials being reclaimed. The answer Subtitle C requirements if they do so sludges and by-products being is that the provision remains as an while meeting the conditions of the reclaimed are not solid wastes. See, independent basis for excluding exclusion from the definition of solid generally, 40 CFR 261.2(c)(3) and 50 FR secondary materials from Subtitle C. waste contained in today’s rule. at 633–34, 639–41 (January 4, 1985). EPA did not propose to change it, and In the May 1997 proposal, the Agency As EPA noted at proposal, these the issues involved, in any case, would discussed the possibility that some distinctions among types of secondary be broader than the present proceeding molten metals that spill onto the ground materials being reclaimed are not since the basis for the exclusion does could be classified as materials needed because they are not directly not rest on the notion of a continued undergoing immediate reuse (see 62 FR based on environmental distinctions. 61 process within an industry, but on at 26051). The Agency noted that copper FR at 2342. In this industry, at least, the comparability of secondary and virgin reverts (refined copper material) can be distinctions do not relate to which of materials (see 50 FR at 619–20 and 637– spilled in the process of being these materials may be part of the waste 41 (Jan. 4, 1985)). transferred from one part of the smelting disposal problem.6 The more The second existing exclusion, found process to another. Such reverts are environmentally meaningful distinction, at 261.2(e)(1)(iii), does overlap with the picked up as soon as they can be safely and the one adopted here, is between present rule. The exclusion is for handled and are placed directly back land-based storage and storage in tanks, secondary materials ‘‘returned [as a into the smelting process. The Agency containers, and buildings. substitute for feedstock materials] to the has reviewed smelting processes in In this rule, the Agency is, therefore, original process from which they are other metal sectors and finds that eliminating the regulatory distinctions generated, without first being reclaimed spillage from ladles is common and that between by-products, sludges and spent or land disposed.’’ An example could be these materials are routinely picked up materials from mineral processing when an emission control dust from primary within a short time and placed back into these materials are reclaimed. Thus, smelting which is returned directly to the process. The Agency thus concludes under the amended rule, if any the smelter for metal recovery without that molten metal spilled onto smelter secondary material—sludge, by-product, any interim land disposal. floors is not a solid waste if it is picked or spent material—is legitimately This provision is essentially up as practical (given heat and worker reclaimed within the mineral processing consistent with, but also subsumed by, safety factors) and is then placed back industry, it is not a solid waste as long today’s final rule (with respect to the into the smelting process. Such a as all other conditions to the exclusion mineral processing industry). It is material is not a secondary material (i.e. to the definition of solid waste are subsumed because the activity involved, sludge, by-product, or spent material), satisfied. EPA believes that this return as a feedstock to a smelter, is a but rather remains in process. This principle not only should encourage type of reclamation activity (see 50 FR interpretation parallels existing rules, properly conducted recycling within the at 639–40), the subject of this final rule.9 which say that a spilled commercial industry, but also fulfills an Agency The existing rule also contains a ‘‘no chemical product is not a solid waste if objective of reducing some of the it is recycled within a reasonable complexity in the existing regulatory land-based units before reclamation without being amount of time (see 40 CFR 261.33 and 7 solid wastes. EPA has chosen, however, to address definition of solid waste. the broader issues regarding the regulatory 55 FR at 22671). definition of solid waste in a different rulemaking Industry commenters stated that spent 6 Put another way, the fact that a mineral effort, which is proceeding on a different schedule smelter brick was similar to reverts processing secondary material is a sludge, rather from this rule. EPA believes that if may legitimately since they are often returned back into than a spent material or by-product, does not proceed one step at a time on these issues, and so recovery processes. If such spent bricks convey any meaningful information as to the types is not precluded from making needed changes to of risks the material might pose if reclaimed. the regulatory definition that affect only discrete are stored before being recycled, they 7 EPA does note the potential anomaly that non- industry segments, in this case, the mineral are not being immediately reused (nor mineral processing secondary materials, at least for processing industry. are they still in process, since they are the moment, will be regulated in some cases 8 This example assumes that legitimate recycling spent and physically removed). As stringently than those generated and reclaimed is occurring. within the mineral processing industry. This could 9 The exclusion for return of secondary materials noted in the Agency’s May 1997 come about because non-mineral processing as feedstock was in fact adopted largely in order to proposal, copper flue dusts, also are industry sludges and by-products would still not be exclude certain direct reclamation practices in the stored sometimes and not immediately solid wastes if reclaimed, and so could be stored in mineral processing industry. 50 FR at 639–40. 28584 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations land disposal’’ condition similar to the accumulate in piles or impoundments, from extraction/beneficiation versus conditions in this final rule (although if those wastes are hazardous (i.e. are mineral processing (see 54 FR 36592, today’s rule excludes storage in piles in listed or exhibit a characteristic of 36616–20). The Agency has not and is some circumstances, and so is more hazardous waste), and the wastes are not reopening this standard. However, flexible than the current 261.2(e)(1)(iii) not legitimately recycled, then the units EPA prepared and noticed a report— in this respect). are Subtitle C regulated units because Identification and Description of In light of this overlap, EPA is adding they are being used to store or dispose Mineral Processing Sectors and Waste language to 261.2(e)(1)(iii) to indicate of hazardous waste. The Agency is not Streams—which tentatively applied this that there are special provisions relating altering this long-standing principle in existing test on a waste-by-waste basis to reclamation within the mineral the present rule (particularly given the to wastes from 41 mineral sectors (62 FR processing industry (namely those central statutory finding that land-based at 2354). adopted in today’s final rule), and that units, and especially surface There are two principal issues raised these provisions define the scope of the impoundments, ‘‘should be the least by this report: its legal status and its exclusion for mineral processing favored method for managing hazardous accuracy. First, the Agency has decided secondary materials generated and wastes’; RCRA section 1002(b)(7)). that the Identification and Description reclaimed within the industry, Consequently, any process of Mineral Processing Sectors and Waste including those which are returned to a impoundment that holds un-recycled Streams report should be a guidance mineral processing operation from hazardous accumulated solids, the document. Thus, the Report is not a which they are generated without first impoundment is a regulated unit (i.e. rule, and it, therefore, cannot be being reclaimed. subject to Subtitle C) because it is invoked as a definitive determination as Today’s rule also does not alter the disposing of a hazardous waste. In to whether or not a particular waste is regulatory status of recyclable materials addition, the same principle would to be classified as being from mineral that are reclaimed to recover apply to storage or process piles, which processing or from extraction/ economically significant amounts of likewise are ineligible for the 261.4(c) beneficiation. In addition, this report gold, silver, platinum, iridium, osmium, exemption. should not be viewed as an exclusive rhodium, ruthenium, or any list of mineral processing and associated combination of them. 40 CFR 266.70. 2. Scope of This Rule waste streams: other mineral processing This rule was established to encourage This section of the preamble waste streams may exist. Mineral recycling of precious metals. addresses the issue of which secondary processing facilities are obligated to Commenters from the gold industry materials come from ‘‘mineral determine the Bevill status of their questioned whether this provision is processing’’ operations, and so are wastes by utilizing applicable regulatory affected by the amendments relating to potentially within the scope of the provisions, as clarified by the criteria mineral processing secondary materials conditional exclusion for mineral articulated in 1989 in the Federal being reclaimed. The answer is that processing wastes being reclaimed Register preamble cited above. Thus, today’s rule redefines which secondary within the mineral processing industry because the document is guidance, no materials generated and reclaimed sector or in extraction/beneficiation party could rely upon that document as within the mineral processing industry operations. Newly identified wastes the definitive basis for a regulatory are wastes, and so could exclude certain from mineral processing also are subject determination. materials reclaimed within the precious to the LDR prohibitions and treatment The Agency has fully evaluated metal industry which are now defined standards adopted today, and so this comments suggesting that the report as solid wastes. However, to the extent preamble section also clarifies the contains factual inaccuracies, and any precious metal recovery operations applicability of these LDR provisions. believes that the Report, as now revised remain subject to regulation after a. Mineral Processing Wastes Covered after review of public comments, is today’s rule, the tailored regulatory by This Rule. The Agency’s 1989 rule accurate and should therefore, provide provisions in 266.70 continue to apply. (see 54 FR 36592) applied the high useful guidance to the public. EPA e. Otherwise Excluded Mineral volume/low toxicity criteria to disagrees with comments contenting Processing Units Which Serve as determine which primary mineral that the Agency adopted new criteria in Disposal Units. As the Agency noted in processing wastes would retain the reaching the tentative conclusions set the original proposal, land-based units Bevill exclusion. This rule also clarified out in the Report. This is not the case— in the mineral processing industry not the Bevill status of beneficiation the same general approach used in 1989 only can be related to a recovery process operations. Those mineral processing was applied in the Report, and would but also can serve as repositories of waste streams not meeting the high have to be applied in making any actual conventional wastes. 61 FR at 2340, volume/low toxicity criteria are no regulatory determination. 2342, 2347. That is, unusable solids longer Bevill exempt wastes and are One commenter argued that settle in surface impoundments or are subject to regulation under Subtitle C considering these determinations to be left in piles and in many cases these (except 20 mineral processing waste advisory would violate EPA’s duty units become the ultimate repositories streams noted at 40 CFR 261.4). Non- under section 3001(b)(3) of RCRA, as for these wastes. Id. exempt Bevill mineral processing construed by the Court in EDF V. EPA, Under current rules, when an wastes are ‘‘newly identified,’’ and are 852 F.2d 1316, 1331 (D.C. CIR 1988) to operating product storage unit that is a now subject to the Land Disposal have made final determinations as to tank also contains a hazardous waste, Restrictions, when land disposed. which mining wastes are subject to the the waste is not subject to regulation Therefore, only ‘‘newly identified’’ Bevill exclusion. According to this until it exits the unit. 40 CFR section characteristic hazardous mineral commenter, reaching one conclusion at 261.4 (c). An example would be a listed processing wastes are potentially headquarters and a potentially different distillation column bottom remaining eligible for the conditional exclusion conclusion at EPA regions or States within the distillation column. from the definition of solid waste. would undermine the intent of the Section 261.4(c) does not apply to EPA established in the 1989 Court’s order in EDF. This commenter hazardous wastes which accumulate in rulemaking the factors it would use to also asserted that such an approach land-based units. Thus, if wastes determine whether a waste is generated would effectively allow States to Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28585 regulate less stringently than EPA, in for exclusion. As the Agency noted at addressed under a different rulemaking. violation of sections 3006 and 3009 of proposal, the essential purpose of these While metal-bearing wastes generated RCRA. units is waste management rather than outside of primary mineral processing, EPA believes that these comments are production. 62 FR at 2348. See also and listed hazardous wastes are not erroneous. EPA fulfilled some time ago AMC II, where the D.C. Circuit held that within the scope of this rule, the Agency its obligations under section 3001(b)(3) wastewater treatment surface will continue to assess how best to generally, and under the EDF decision impoundments can be classified as encourage their legitimate recycling. in particular, to define the scope of the waste management units, Commenters indicated they were Bevill exclusion as it applied to mining notwithstanding that all of the entrained unsure how this rule would affect the wastes. See 51 Fed. Reg. 24496 (July 3, solids in the unit were eventually application of 40 CFR 261.2 to 1986); 54 Fed. Reg. 36592 (Sept. 1, recycled as feedstock at the generating secondary materials generated from 1989); 55 Fed. Reg. 2322 (Jan. 23, 1990); plant. 907 F. 2d at 1186–87.18 10 outside the mineral processing industry 56 Fed. Reg. 27300 (June 13, 1991). As c. Materials Outside the Scope. This sector. As discussed earlier in the discussed in those notices and rules, rule limits the use of the conditional preamble, today’s rule does not amend EPA’s regulatory determination did not exclusion to the definition of solid § 261.2 for any secondary materials obviate the need to evaluate whether a waste to only those secondary mineral other than those generated within the particular waste was from mineral processing materials generated within mineral processing sector. Thus, when processing which, unless one of the 20 primary mineral processing. The fully implemented, a mineral processing identified special mineral processing Agency identified over 40 mineral facility can use the conditional wastes, would not be exempt from sectors which potentially generate exclusion to the definition of solid Subtitle C under Bevill. Indeed, the mineral processing secondary materials wastes and can utilize § 261.2 to recycle Agency has extensively discussed the subject to this rule. The scope of this other wastes. distinctions between beneficiation and rule is therefore quite broad. The 3. Mineral Processing Secondary mineral processing precisely to assist Agency did not receive comments Material Volumes and Environmental industry, EPA and the States in making opposed to the Agency including them Damages such case-specific determinations. See in this rule. 54 Fed. Reg. 36618–36619 (Sept. 1, This rule also restricts the use of the a. Volume of Secondary Materials and 1989). Issuance of the Identification conditional exclusion from the Large Volume Exemption. In the document in the record for this definition of solid waste to Agency’s May 1997 proposal, land rulemaking is simply intended to aid characteristically hazardous mineral placement of secondary mineral the industry and regulators in making processing materials. Thus, no listed processing materials would be prohibited except for materials these decisions. hazardous wastes can qualify for the exceeding the high volume criteria EPA acknowledges that the potential conditional exclusion. for inconsistent determinations exist; for The National Mining Association (45,000 tons per facility waste stream this reason, EPA headquarters has (NMA) and the Metals Industry per year for solid wastes and one assisted regional offices and States in Recycling Coalition submitted million tons per facility per waste stream per year for liquids). The May making these determinations over the comments urging the Agency to broaden 1997 proposal would have allowed high past decade. Section 3001(b)(3) does the scope of the rule to include metal- volume secondary materials to be not, however, require the Agency to use bearing wastes generated outside of placed in land-based units if those units rulemaking to make each and every primary mineral processing as well as meet the integrity standards noted in the decision. Those decisions that are very allowing the reprocessing of listed January proposal and meet other fact-specific may need to be made on a hazardous wastes. The Agency is not proposed conditions. In today’s rule, the case-by-case basis using general criteria extending the exclusion contained in Agency is adopting a no land placement articulated nationally by EPA. It is this rule because the Agency did not condition for mineral processing precisely because of the fact-specific propose addressing wastes generated nature of such inquiries that EPA secondary materials without any outside of primary mineral processing, volume exemption. believes adopting the guidance since at the time of proposal the Agency document as ‘‘binding’’ would not be As noted in the May 1997 proposal indicated that these wastes would be appropriate. Finally, nothing in EPA’s (see 62 FR at 26049), the Agency approach is inconsistent with the RCRA reevaluated the volumes of mineral 10 Waters in these impoundments are often requirement that authorized State recycled back into processes for their value as processing secondary materials as a programs be at least equivalent to and water. Recycling of wastewaters may be currently result of comments submitted by public no less stringent than the federal allowed under the effective substitute clause in the interest groups which asserted that program (see RCRA 3006 (b)). regulatory definition of solid waste (see 40 CFR volumes of these materials were 261.2(e)(1)(ii)), a provision unaffected by today’s b. Wastewater Treatment Surface amendments. However, EPA reads AMC II and its considerably less than EPA originally Impoundments. EPA indicated at regulations to state that impoundments where some believed (see Characterization of proposal that wastes managed in wastewaters are returned to a process as an effective Mineral Processing Wastes and wastewater treatment surface substitute for a commercial product, but which also Materials, U.S. EPA, 1998). Based on function as wastewater treatment impoundments, impoundments would never be eligible would be regulated units (assuming there are this reevaluation, the Agency finds that for a conditional exclusion from the hazardous wastes in the unit). This is because the mineral processing wastes are not definition of solid waste. 62 FR at 2348. unit would necessarily be functioning at least generated in the high volumes that we (A wastewater treatment surface partially as a disposal unit (since wastewaters are previously believed to be the case. EPA ultimately discharged). In addition, the product impoundment is one whose ultimate storage regulatory exemption at 40 CFR 261.4(c) found that of the 119 hazardous wastes discharge is regulated by the Clean does not apply to surface impoundments. streams it studied, 117 were generated Water Act, and can include zero Notwithstanding industry comments that recycling in volumes lower than the proposed discharge facilities.) This remains EPA’s of wastewater should be encouraged, the Agency high volume cutoff. Further, comments notes the stronger policy in RCRA to assure that position, although the issue is no longer surface impoundments managing hazardous waste from public interest groups on the directly relevant to the final rule are managed so as to operate protectively. AMC II, Agency’s May 1997 proposal indicate because no impoundments are eligible 907 F.2d at 1187 and sources there cited. that two remaining waste streams that 28586 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations the Agency had classified as high (1) information that illustrates that materials stored in them are secondary volume may not in fact meet the high environmental damages have occurred, materials awaiting recycling rather than volume cutoff. The Agency reassessed and (2) information that discusses the wastes. Rather, the risk comes from the how it estimated the volumes of these types and magnitude of mineral nature of the storage unit. waste streams and acknowledges that it processing materials that have been The Agency compared the toxic and used very conservative approaches to released into the environment. In some hazardous properties of newly estimate these volumes. It is, therefore, cases, a combination of feedstock, in- identified mineral processing wastes possible that none of the 119 waste process materials, secondary materials, with a limited number of RCRA listed streams studied meet the high volume and wastes contribute to ground water, hazardous wastes in the 1997 technical cutoff. The Agency proposed using the surface water, or soil contamination. background document, Characterization high volume cutoff as an indicator that Also, in some cases, contamination of Mineral Processing Wastes and land storage may be an economic occurred through episodic or continuing Materials. This report was used to necessity because when volumes are mismanagement of hazardous and other support the May 1997 proposal. In order high, alternatives to land placement are solid wastes (e.g., commercial chemical to easily compare the listed waste costly and not practical. In fact, the spills). Industry commenters objected to leachate concentrations with the Agency now finds that mineral the use of these damage cases leachate concentrations of the newly processing secondary materials are contending that they reflect historic identified mineral processing wastes, a generated at volumes where there is no practices and not current operations. combined mean and maximum range of reason that they cannot be managed in The Agency disagrees that storage of chromium, cadmium, and lead non-land based units (except for solids mineral processing wastes, and in some concentrations for the seven listed placed on approved pads). cases secondary materials, on the wastes were calculated. The mean Industry comments maintained that it ground, which was reflected in these leachate concentrations for chromium, is impractical to place mineral reports, no longer occurs. After careful cadmium, and lead range from 6.03 mg/ processing secondary materials in tanks, reevaluation, the Agency finds that the l to 273.23 mg/l, <0.01 mg/l to 117.5 containers, and buildings. Based on the record and, in particular, these reports, mg/l, and 1.47 mg/l to 259.83 mg/l, storage of similar volumes and types of clearly indicate that the storage on the respectively. Likewise, the maximum hazardous wastes generated in other ground of mineral processing wastes leachate concentrations for chromium, industries, the Agency does not agree. and secondary materials continues as a cadmium, and lead range from 12 mg/ The Agency presented its analyses of management practice and has caused l to 4250 mg/l, <0.01 mg/l to 268 mg/ volumes in its report entitled, environmental damage or has the l, and 2.10 mg/l to 1550 mg/l, Characterization of Mineral Processing potential to do so. These reports identify respectively. The report then compared Wastes and Materials, 1997. This report cases where mineral processing wastes the ranges in constituent concentrations noted that listed hazardous wastes, such and secondary materials were eroded by exhibited by the listed wastes and the as spent potliners, and electric arc rain, were carried by wind, or, in the newly identified mineral processing furnace dusts, are generated at volumes case of surface impoundments, migrated wastes. The report states that 15 of the which generally exceed that of mineral to contaminate ground water. The vast 23 mineral processing wastes exhibit processing secondary materials yet are majority of newly identified mineral leachate concentrations of chromium, stored in tanks and buildings. Further, processing wastes are liquids and their cadmium, and lead at levels that are this report noted that the volumes placement in impoundments presents equal to or greater than those levels generated by other industries that use actual or potential threats to the exhibited by the seven listed wastes. tanks, containers, and buildings to store environment. The Agency concludes Therefore, the Agency has concluded hazardous wastes are not substantially that placement of secondary mineral that some mineral processing secondary different than volumes generated by the processing materials in impoundments materials exhibit hazardous properties mineral processing industry. may contribute to the waste similar to listed hazardous wastes, and b. Reliability of Damage and management problem.11 have the same or greater potential of Environmental Release Reports. EPA is also not impressed by leaching metals into the environment Industry commenters to the May 12, comments stating that most of the when they are improperly placed on the 1997 proposal sought to refute or damage incidents involved wastes no land. minimize the degree of contamination longer utilized within a process, not In addition, mineral processing caused by the land storage of mineral secondary materials awaiting secondary materials often contain metal processing secondary materials. Despite reclamation, and therefore are irrelevant compounds and other constituents these objections, the Agency still finds to this rule. The damage incidents which, due to processing steps, become that land-based storage and management certainly show that when hazardous more mobile in the environment (see 54 practices of mineral processing mining and mineral processing wastes FR 36614–36619, September 1, 1989). secondary materials and wastes can or and mineral processing secondary By the very nature of mineral may create or exacerbate soil and materials are stored in piles or in processing, heavy metals are ground water contamination. surface impoundments, hazardous continuously concentrated and waste The Agency issued two separate constituent releases and consequent streams tend to contain higher metal reports in 1995 and 1997 (Office of damage has occurred in this industry. loadings than those found in raw ore. Solid Waste, U.S. EPA, Human Health Piles and impoundments do not Since the resultant wastes have higher and Environmental Damages from automatically become safer if the concentrations of metals, they likewise Mining and Mineral Processing Wastes have a higher potential to leach higher (1995), and Office of Solid Waste, U.S. 11 Of course, those mineral processing facilities concentrations of metals into the EPA, Damage Cases and Environmental that have in fact improved their storage practices for environment if they are not adequately Releases (1997)) which presented mineral processing secondary materials being stored. Finally, the record also shows information on damage cases and reclaimed by using tanks, containers, or buildings that a wide range of mineral processing instead of impoundments to store secondary environmental releases of mineral materials would be essentially unaffected by this secondary materials are released into processing and mining wastes. The data rule, since such units would be excluded from the environment. Such releases do not tended to fall into two general classes: regulations. necessarily mean that environmental Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28587 damage has occurred; however, the recycling rather than treatment or be difficult to implement since Agency believes it must take disposal was emphatically sustained by operating parameters at large mineral appropriate steps to minimize such the Court in Marine Shale Processors v. processing facilities change often related releases to reduce the potential for EPA, 81 F. 3d 1371, 1381–83 (5th Cir. to differences in feed. There also was damage to occur, just as the Agency 1996) and United States v. Marine Shale little support from industry for the does with other hazardous wastes. Processors, 81 F. 3d 1361, 1366(5th Cir. proposed efficiency test because such RCRA is a preventive statute, designed 1996). facilities may be recovering a specific to assure safe management of hazardous The main issue in this rulemaking metal at one recovery rate while they are waste from cradle to grave to prevent was whether the Agency should develop recovering other metals at a different the need for remediating releases. Based quantified criteria for use in assessing rates. Industry commenters also rejected on the information noted above, the legitimacy of reclamation activities the proposed use of an economic test Agency therefore has finalized in within the mineral processing industry. because recycling need not be profitable today’s rule a ‘‘no land placement’’ The Agency proposed quantitative to be legitimate. They specifically condition for the storage of mineral criteria including the potential use of an pointed out the cases where recycling processing secondary materials. ore grade cut-off, normal operating was economical only relative to Comments from public interest groups range, efficiency standard, and an disposal, and yet, the company was pointed out that a considerable amount economic test. 62 FR at 2342–44. In legitimately reusing the recycled of information shows that releases result addition to metal values, the Agency materials. from fugitive dusts and that control of also solicited comment on legitimate For these reasons the Agency has dusts was not adequately addressed in recycling of acid, water, and other declined to adopt any of the proposed the proposals. The Agency agrees that values. quantitative tests. In today’s rule, the the release of fugitive dust should be The mineral processing industry Agency is not adopting quantitative addressed and believes that placement noted in their comments that their criteria and will continue to use the in tanks, containers or buildings will products must meet international qualitative approach for evaluating adequately address this concern. quality standards and they would not whether an activity is legitimate Mineral processing secondary materials risk affecting product quality by recycling. In addition, the Agency stored in tanks or containers must be introducing materials which would believes that legitimate recycling may stored in a manner which effectively adversely affect that quality, and occur for reasons other than to recover manages fugitive emissions. Moreover, therefore that legitimacy can be metal values— recovery of acids, as at proposal, if the site-specific pile assumed in essentially all cases. They cyanide, or water, for example. With no approval process is utilized, the also opposed the proposed quantified quantitative tests for such recycling, the possibility of harm via an air exposure criteria. Agency believes the qualitative criteria must be considered, and, if necessary, While the Agency agrees that market best cover the broad array of situations controlled. See 62 FR at 2372 (proposed forces generally may limit the being addressed. Situations most likely 261.4(a)(15)(iv)(A)(3)). introduction of materials which could to be deemed sham recycling would, adversely affect product quality, mineral thus, be those involving low amounts of 4. Conditions to the Exclusion processing facilities by their nature recoverable material plus the presence In the January 1996 and May 1997 process large volumes of materials, EPA of non-contributing hazardous proposals, the Agency sought comment is concerned that small volumes of constituents in the waste (particularly on how to establish a conditional wastes could be placed into processes hazardous constituents not otherwise exclusion to the definition of solid without contributing mineral values in present in the normal feedstock of the waste which would encourage recycling order to treat or dispose of them. process). See generally, 53 FR at of mineral processing secondary Obviously, this is not recycling, as 522(January 8, 1988). materials and be protective. In today’s noted by the Court in U.S. v. Marine b. Design and Construction rule the Agency is establishing a Shale Processors, 81 F. 3d at 1366. The Standards. In the January 1996 conditional exclusion to the definition Agency, therefore, does not agree that proposal, the Agency assumed that of solid waste. The conditions relate to there is no need to apply some type of land-based storage of mineral processing legitimacy of recycling, land placement, reasonable legitimacy criteria. secondary materials was a necessity speculative accumulation, and Industry commenters also noted that within the mineral processing sector, notification, and are discussed below. application of quantitative criteria and proposed three different types of a. Legitimacy. It goes virtually would be burdensome, are not conditional mechanisms whereby these without saying that only mineral necessary, and could not be effectively land-based units could be deemed processing secondary materials which implemented. The Agency agrees that ‘‘process units’’ that would be excluded are reclaimed legitimately would be implementation of the proposed from Subtitle C jurisdiction. 62 FR at excluded under today’s rule. This is quantitative tests would have required 2345–48. More specifically, these because sham recycling is simply waste significant testing of materials (and alternative conditions were an treatment or disposal conducted under resultant costs) and that due to environmental performance standard, a the guise of recycling. See U.S. v. Self, uncertainty in evaluating test results, design and operating standard, or an ad 2 F. 3d 1071, 1079 (10th Cir. 1993). companies may decide not to recycle hoc, site-specific standard developed by The Agency currently uses a any materials to protect the Bevill status an EPA Region or authorized State. The qualitative approach for determining of their resultant wastes. Application of environmental performance standard whether a material is being legitimately an ore grade cutoff criteria could restrict would have used a ground water recycled. Factors the Agency considers the gold industry’s ability to recover protection standard as a determinant of typically relevant in making such gold values from secondary materials whether a land-based unit was involved determinations are found at 50 FR 638 that contain gold at levels below those in discard. If ground water monitoring (Jan. 4, 1985); 53 FR 522(Jan. 8, 1988); found in ore. Such recovery could determined that there was an 56 FR 7145, 7185 (Feb. 21. 1991). Use nevertheless be cost effective. Industry exceedance of the MCL (background of these factors to assess whether a commenters stated that the application levels if background exceeded the MCL) particular activity is to be viewed as of a normal operating range test would at a designated point of compliance, 28588 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations then the unit would be required to (May 12, 1997) and 60 FR 57753 As set out in the final rule, a building implement unit-specific corrective (November 20, 1995)). Tanks, is a structure with four walls, a roof, and action. 62 FR at 2345–46. containers, building, and approved pads floor constructed of non-earthen The Agency also proposed, in lieu of do not have to meet the design and materials. Smelter and refinery compliance with the ground water operating standards for units storing buildings are quite large and include standard, design and construction RCRA Subtitle C wastes. floor areas which, in part, use earthen standards. EPA proposed that surface EPA also is adopting certain minimal materials. As long as mineral processing impoundments be constructed with a conditions on these units’ design to secondary materials (i.e. those sludges, transmissivity equivalent to a 40 mil assure basic unit integrity and so assure by-products, and spent materials which geomembrane liner placed on top of 12 that tanks, containers, and buildings do would otherwise be identified as inches of a material with a 10–5 not serve as conduits for massive hazardous wastes) are stored in those hydraulic conductivity. Piles could be material release (i.e. disposal units). An sections of the smelter and refinery constructed on concrete, asphalt, or soil acceptable tank must be free standing building that do have floors constructed any of which would have to have the and not be a surface impoundment, and of non-earthen materials, these equivalent transmissivity of three feet of be manufactured of a material suitable structures would qualify for the clay with 10–7 cm/sec hydraulic for containment of its contents. An exclusion included in today’s rule as conductivity. Id. at 2346. acceptable container must be free non-RCRA buildings. The final alternative allowed for an standing and be manufactured of a Industry commenters also noted that authorized State or EPA Region to make material suitable for containment of its the Agency made reference to tanks and a site-specific determination that the contents. An acceptable building must containers having to meet applicable unit can be operated in a manner that be a man-made structure and have floors industry standards for their construction is protective. The Agency proposed this constructed from non-earthen materials, and operation, such as those established option to allow for flexibility because have walls, and have a roof suitable for by the American Society of Testing there are a range of site-specific diverting rainwater away from the Materials (ASTM) or the American characteristics, such as depth to foundation. A building may also have Petroleum Institute (API)(See 62 FR at groundwater and rainfall, which can doors or removable sections to enable 26050). They pointed out that API affect the design of a unit and affect the trucks or machines access. The Agency’s standards deal specifically with tanks, risks posed by such units. Id. at 2347. technical report Non-RCRA Tanks, while ASTM standards relate more EPA finds now, however, that the Containers, and Buildings, U.S. EPA, specifically to testing procedures. The premise of volumetric necessity was 1998, provides examples of acceptable commenters argued that units storing mistaken (see the earlier section of this units for the storage of mineral mineral processing secondary materials preamble). As such, the Agency is processing secondary materials. do not need to comply with these adopting its traditional jurisdictional EPA disagrees with comments from standards to be safe. The Agency agrees demarcation point of not allowing public interest groups stating that that the references to applicable exclusions for land-based storage units. nothing short of RCRA Subtitle C industry standards such as ASTM and As discussed earlier, land-based storage standards could assure protectiveness API were overly broad and has not units are so fraught with indicia of and so demonstrate that these non-land- included them in today’s rule. Industry discard—including elements of outright based storage units were not part of the commenters requested clarification on disposal via both air and groundwater waste management problem. The whether tanks and containers needed exposure pathways (borne out by plenary conditions urged by the public covers to meet the condition of ‘‘no land damage cases as well), plus no longer interest group commenters are indeed placement.’’ The Agency expects that being part of the actual production those necessary for protective the storage of mineral processing operation—that EPA views this management of hazardous wastes, but secondary materials will prevent demarcation as strongly justified once it the Agency’s task here is different. It is uncontrolled fugitive emissions. Tanks is clear that there is no necessity to use to delineate discard from non-discard and containers do not need covers as such units. The sole exception in the (i.e. wastes from non-wastes), and, as long as the materials stored in them are final rule which allows for conditional noted at proposal, not only is this a managed to reduce fugitive emissions. exclusion for a land-based storage unit different test than determining The facility operator will therefore need is for piles resting on pads which are protective waste management to determine if covers are needed to approved by an authorized State or EPA conditions, but there are jurisdictional effectively control fugitive emissions. Region, as discussed in the section constraints on the types of conditions For example, tanks and containers below. EPA can impose when considering the placed inside buildings may not need c. Units Eligible for Conditional situation presented here, i.e., secondary covers. Exclusion and Conditions Attached to materials generated and reclaimed The gold and copper industries stated Such Units. (i) Tanks, Containers and within a single industry sector. 62 FR at that their secondary materials would Buildings. Today’s rule states that 2342. Thus, the conditions EPA is meet legitimacy conditions and that mineral processing secondary materials adopting are designed to assure that they do not need to store these materials reclaimed within the industry can be these units are not essentially sieves prior to placement back onto gold heap excluded if they are stored in any of the functioning as means of disposal. leaches or copper dump leaches. The following: tanks, containers, buildings, The Agency discussed its definition of final rule indicates that process units, as or piles resting on pads when such piles non-RCRA tanks, containers and opposed to storage units, are excluded are evaluated and approved on a site- buildings in its Technical Background from RCRA Subtitle C. EPA believes that specific basis by an authorized State or Document (See 62 FR at 26050, Non- the heap and dump leach units are EPA Region. (As noted in the May 12, RCRA Tanks Containers, and Buildings, process units, notwithstanding the fact 1997 proposal, this is conceptually the 1997). Industry commenters requested that they are land-based. This is because same as the rule EPA proposed for the clarification on whether their smelter or dump and heap leach piles oil-bearing secondary materials refiner buildings would meet the simultaneously produce products and generated by and recycled within the definition of ‘‘building’’ if tanks, waste. The issue is also academic with petroleum industry. See 62 FR at 26048 containers or buildings were required. respect to these units. This is because Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28589 the Agency determined that these units existing piles used by this industry —The volume and physical and are extraction/beneficiation activities in which conceivably could be upgraded to chemical properties of the secondary 1986 and reiterated that position in operate protectively and for which a material, including its potential for 1989 (see 51 FR 24496 and 54 FR more flexible approach could be migration off the pad; 36592), and their Bevill regulatory warranted.12 —The potential for human or status is unchanged by today’s rule. In today’s rule EPA is adopting a environmental exposure to hazardous Thus, if the heap leach pile becomes a provision whereby persons storing only constituents migrating from the pad disposal unit because wastes remain solid mineral processing secondary via each exposure pathway, and the there permanently, those wastes materials (those mineral processing possibility and extent of harm to presently have Bevill status. The secondary materials containing no free human and environmental receptors Agency continues to be concerned that liquids) on pads prior to legitimate via each exposure pathway.13 there may be environmental risks reclamation in a mineral processing Thus, under this regime, a State could related to dump and heap leaching, but process may seek a determination from approve placement of solid mineral has determined that this rule is not the an authorized State or (if the pile is processing secondary materials (those appropriate means to address those located in an unauthorized State) EPA materials containing no free liquids) on concerns. Region such that the unit is approved as a pad where, after consideration of Industry commenters also raised protective and materials stored in the relevant exposure pathways, a concern that under the ‘‘no land unit are conditionally excluded from the determination is made that the mode of placement’’ option, described in the regulatory definition of solid waste storage will not adversely affect human May 1997 proposal, they would no provided that the pad is not serving as health and the environment, and where longer be able to place slags on the a mode of discard. the operator has demonstrated ground. This is an incorrect reading of Minimum design criteria for pads are compliance with the minimum design the regulations and the proposals since as follows; (1) Pads must be designed of and operating criteria. Approval would at 40 CFR 261.4(b)(7), iron and steel, non-earthen materials which are be more problematic if a pad was copper, lead, zinc, and elemental compatible with the chemical nature of located in an area which experiences phosphorus slags are all classified as the mineral processing secondary flooding, or in an area where ground Bevill exempt mineral processing material being stored, (2) Pads must be water was close to the surface and used wastes and would not be affected by this capable of withstanding physical for drinking water purposes. rule. The management of these slags on stresses associated with placement and The Agency is confident that site- the ground can continue as long as they removal, (3) Pads must have run on/ specific determinations can be meet other applicable federal and state runoff controls, (4) Pads must be accomplished as part of existing State regulations. operated in a manner which controls regulatory programs. The situations (ii) Solid Mineral Processing fugitive dust, and (5) Owner/operators eligible for this variance are Secondary Materials Resting On Pads. must conduct inspections and considerably more circumscribed than As noted, EPA proposed at 61 FR 2346 maintenance programs to ensure the at proposal, and the decision criteria to allow land-based units which had integrity of the pads. consequently more focused, meeting been approved as protective on a site- The decision-maker would evaluate some of the objections in comments specific basis by an authorized State or the application for storage on pads from public interest groups on the EPA Region. The Agency is retaining a against a general environmental proposals. Today’s rule only allows the portion of that proposal in the final rule performance standard: whether the pad placement of mineral processing in order to allow solid mineral is located, designed, constructed and secondary materials that are physical processing secondary materials resting operated so as to be protective of human solids, and the rule also specifies certain on pads to be used for storage of mineral health and the environment and is not minimum conditions such pads must processing secondary materials being used for disposal. A broad benchmark of meet to be approved. Further, the rule reclaimed within the industry. The performance would be that the identifies the factors a State must Agency defines ‘‘solid mineral approved pad must afford the same consider prior to making such processing secondary materials’’ as degree of protectiveness as non-RCRA determinations. The Agency will review those mineral processing secondary tanks, containers and buildings eligible a State’s regulatory authorities it intends materials containing no free liquids. The for exclusion. to use in implementing this The decision-maker would have to provision functions effectively as a determination to assure that an consider potential releases via variance to allow conditionally authorized state can effectively groundwater, surface water, and air excluded storage using pads to occur. implement this element of the rule. Industry comments pointed out that exposure pathways. Factors to be As proposed, EPA is requiring that considered for assessing the there are materials which can be placed there be opportunity for public groundwater, surface water, air on concrete or asphalt pads in a manner participation in the evaluation and exposure pathways are: that provides the equivalent protection approval process of pads storing solid of a tank, container, or building. The mineral processing secondary materials. 12 EPA has not provided for this type of site- Agency is aware that in the arid 62 FR at 2366. The Agency believes it Southwest, the copper industry places specific approval of land-based storage units in other rules providing for conditioned exclusion is important that those citizens who materials on pads to dry them prior to from the regulatory definition of solid waste. In may be directly affected by these their reentry into processes. The Agency some cases, this is because management of solids determinations be notified of them and agrees with industry comments that a was not at issue (proposed petroleum listing rule degree of flexibility is needed regarding and rules on recovered oil), or the industry sector did not use piles for solids management (steel 13 As proposed, these general decision factors are the storage of solid mineral processing industry coke-byproducts listing rule). As noted in drawn from the environmental performance secondary materials in this sector, the text above, EPA believes that there are certain standard in the row-revoked 40 CFR 267.10.62 FR particularly given the number of such factors peculiar to the mineral processing industry at 2347. Commenters noted correctly that Part 267 that have persuaded EPA to allow for a site-specific is no longer codified, so that these requirements storage units presently used in arid authorization process, but this provision should not should not be placed in regulatory language (or conditions, and (to a lesser degree of be considered to be a precedent for any other preamble) by means of a cross-reference to the importance) given the number of industry sector. revoked provisions. 28590 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations participate in the process, and notes of solid waste provide EPA (or an section 2002(a)) likewise provides further that this requirement is fully authorized State) with a one-time authority to adopt this condition. consistent with RCRA’s strong notification which describes the mineral In the January 1996 proposal, the preference for public participation. See processing materials to be recycled and Agency solicited comment on whether a RCRA section 7004(b). the recycling processes being used. (See Facility Operating Plan should be On the other hand, EPA is not 61 FR at 2345). The Agency is finalizing required for facilities that generate, adopting any site-specific approval this provision in today’s rule. It applies store, or process hazardous mineral process for storage of mineral processing to any facility utilizing the conditional processing secondary materials. (See 61 secondary materials in surface exclusion. FR at 2345) Under this approach, a impoundments. The Agency has Today’s rule requires that the one Facility Operating Plan would include: concluded that storage in time notification must specify the types a spill prevention plan and procedures; impoundments would likely lead to and amounts of mineral processing types, quantities, and analysis of their contributing to the waste secondary materials to be recycled and recycled materials; product management problem. Many damage the location and type of unit storing specifications; speculative accumulation incidents in this industry involve the mineral processing secondary material. and storage requirements; closure plan; use of impoundments (see damage case The notice should be submitted to the and record keeping and reporting for on phosphorus impoundments in appropriate EPA regional office or off-site shipments. In today’s rule, the Idaho). Furthermore, the Agency has authorized State. An amended Agency is not requiring the preparation determined that there are no notification would not be required of such a plan. This requirement is not engineering or economic constraints on unless the facility has significant necessary given the burden of proof requiring liquid mineral processing process changes affecting the under existing 40 CFR section 261.2(f) secondary materials to be placed in generation, location, or recovery of that a facility must meet to comply with tanks. mineral processing secondary materials. the conditions of legitimacy, d. Speculative Accumulation. In this The reason the provision is needed is containment, and speculative rule, the Agency is establishing a to assure that the conditioned-exclusion accumulation. The Agency does, condition that mineral processing approach in today’s rule can be feasibly however, strongly encourage facilities to secondary materials cannot be implemented. To do so, EPA or States develop a plan or at least components accumulated speculatively as defined in must know what secondary materials of a plan as part of responsible 40 CFR 261.1(c)(8). EPA proposed this are being stored, and where storage is environmental management. condition, 61 FR at 2372, and indeed, occurring, in order to determine this condition already applies to every whether the other conditions in the rule 5. Bevill Related Issues other secondary material being recycled are being satisfied. As described above, a. Uniquely Associated. Under the which is excluded from being a solid these other conditions are necessary to Agency’s longstanding interpretation of waste. See, e.g., 261.2 (e). Industry assure that secondary material storage the Act, the Bevill amendment applies comments noted that the 12-month limit within the industry does not become to special wastes that are uniquely on speculative accumulation was overly part of the waste management problem. associated with extraction/beneficiation restrictive and that many mineral In this very real sense, the notification and certain mineral processing processing secondary materials need to condition is likewise necessary to assure activities. Because the decision whether be stored until economic conditions that the storage is not part of the waste a particular waste is uniquely associated warrant their recycling. The Agency management problem, since notification may determine whether a particular rejects these comments because no data is necessary to successfully implement waste is subject to Subtitle C controls, were presented that would indicate that the other conditions. the Agency believed that it was the volumes of materials being Industry comments opposed this important and useful to receive public generated could not be efficiently condition, not so much on grounds of input regarding the manner in which recycled within a 12-month period. In unreasonable burden, but based on the EPA and authorized States apply this the 12 years the speculative argument that the Agency lacks legal principle and solicited comment accumulation provision has been in authority over non-waste activities. regarding the criterion for determining effect, the Agency is unaware of other Since EPA finds that the notification whether a waste is uniquely associated industries suffering economic burdens condition is an integral part of a group with mineral operations. The Agency by complying with the limits placed on of conditions necessary to assure that has described non-uniquely associated speculative accumulation. Nor is EPA storage of these hazardous secondary wastes at 45 FR 76619, November 19, aware of any mineral processing facility materials does not become part of the 1980 and 54 FR 36623, September 1, which has applied, pursuant to the waste management problem, EPA has 1989. In the May 1997 proposal, the variance provision in 40 CFR 260.30(a) legal authority to adopt it. In addition, Agency noted examples of non-uniquely and 260.31(a) (which allow an extension the Agency notes that RCRA section associated wastes, which include spent of the 12-month speculative 3007(a) provides authority to enter solvents, pesticide wastes, and accumulation period), to extend the facilities and obtain information needed discarded commercial chemicals. As existing 12-month requirement for to assist in the enforcing of provisions stated in the May 1997 proposal, in the currently excluded mineral processing of Subtitle C. This provision can Agency’s view, these wastes are secondary materials (like unlisted reasonably be read to apply to gathering logically viewed as not being ‘‘from’’ sludges and by-products). The Agency information to determine whether or not extraction, beneficiation, or mineral infers that the existing 12-month a particular hazardous secondary processing, and, therefore, are not requirement is not imposing any type of material is a waste. The notification subject to the Bevill exclusion. (See 62 significant constraint on this industry. condition obtains this same type of FR 26054–56, May 12, 1997). e. One Time Notification. EPA information by regulatory condition. In May 1997, the Agency proposed proposed that mineral processing plants The Agency thus believes that section several alternative approaches to generating mineral processing 3007(a) (implemented here by rule, determining whether a waste was secondary materials and utilizing the pursuant to the Agency’s general uniquely associated. One option to conditional exclusion to the definition rulemaking authority under RCRA determine if a waste is uniquely Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28591 associated was the simple application of volume criterion to determine whether Commenters pointed out that the the high volume threshold used in the a waste is uniquely associated. Agency had never before proposed to Agency’s 1989 rulemaking. Under this The Agency also proposed an option use the hazardous characteristic to option, the volume criterion would where a waste would be uniquely determine whether a waste was obviate the need to consider the associated if it came into direct contact uniquely associated, nor had the Agency uniquely associated principle further. with an ore or mineral or wastes from used this criterion in making uniquely The Agency based this option on the the extraction, beneficiation, or associated determinations since 1980. fact that Congress and the courts have processing of ores and minerals. Several They also pointed out that the Agency established that only large volume commenters expressed the view that, had already studied the hazardous special wastes should be eligible for the while contact can be one useful characteristics of uniquely associated Bevill exclusion (62 FR 26041, May 12, indicator of whether a waste is uniquely wastes but nevertheless stated that these 1991; Environmental Defense Fund v. associated with mining, such contact wastes should not be subject to RCRA EPA, 852 F.2d 1316 (D.C. Cir 1988), cert. should not be required in all cases. Subtitle C (51 FR 24496). denied 489 U.S. 1011, Solite These commenters believed that the test Some commenters also contended Corporation v. EPA, 952 F.2d 473, 494– should be whether the conduct of that the real issue is whether the waste 495 (D.C. Cir 1991)). The Agency mining and mineral processing is indigenous to the mining and mineral reasoned that a large volume criterion is necessitates the generation of a recovery process—i.e., whether it is simple to apply and is consistent with particular waste; if so, then the waste necessary to generate the waste in order the broad parameters of Congressional should be considered uniquely to conduct the process—and that the intent. Further, this approach would associated. Other commenters believed hazardousness of a material prior to its help prevent additional toxic that the ‘‘contact’’ principle was use in the process is, therefore, constituents from being disposed with potentially overly broad, since it would irrelevant. Bevill wastes, potentially encouraging have the potential to sweep into Bevill EPA agrees, in part, with these recycling, and may result in reduction wastes that typically would not be commenters that the characteristics of a material (i.e., whether it is hazardous) of cleanup costs. considered uniquely associated. As prior to use in mineral recovery Industry commenters voiced strong proposed, however, the contact option processes should not be solely would consider only contact that opposition to the use of a volume determinative of whether the wastes are occurred as part of a processing criterion to determine whether a waste ‘‘uniquely associated.’’ As a general operation. was uniquely associated. Commenters matter, the closer the nexus between a stated that the Bevill exclusion was After consideration of public particular waste and the mineral intended to exempt all mining wastes, comments, the Agency has concluded recovery process, the more likely it is regardless of their volume or toxicity. that a strict application of the ‘‘contact’’ ‘‘uniquely associated’’ within the As the regulatory history of EPA’s principle, while appealing because of its meaning of Bevill. The Agency implementation of the Bevill exemption simplicity, would not provide the best recognizes, however, that one fact that makes clear, however, this is not the means of determining whether a waste might help evaluate the relationship case. (see 54 FR 36592, September 1, is uniquely associated with mining or between a particular waste and the 1989). mineral processing. The Agency is mineral recovery process is the extent to Nonetheless, while the Agency has concerned that, while contact may be which the properties of a particular used volume to make certain Bevill one indicator of when a waste is waste can be attributed to the process determinations, it has not in the past associated with the mineral recovery itself. Thus, while the Agency does not used the high volume criterion to make process where, for example, the contact believe that hazardousness of a material uniquely associated determinations. The with the process imparts chemical prior to use in the mineral recovery Agency assessed the impact of applying characteristics to the waste, EPA agrees process should be determinative of its a high volume criteria in making with commenters that simple Bevill status after use, the extent to uniquely associated determinations and application of the contact principle has which the material has acquired found that such an application would the potential to be over-inclusive of attributes through its involvement in make virtually all such wastes non- wastes that are properly viewed as that process is relevant. uniquely associated and subject to ‘‘uniquely associated.’’ The Agency has Based on consideration of all the Subtitle C controls, regardless of the not, therefore, adopted that criterion as public comments, the Agency believes extent to which the waste was, in fact, being determinative of whether a waste that it is appropriate to evaluate associated with mining and mineral is uniquely associated. whether a particular waste is uniquely processing. EPA does not believe that it The other option in the May 1997 associated with mining and mineral would be appropriate to ignore proposal would modify the contact processing as follows. First, any waste altogether the extent to which a principle to exclude, as non-uniquely from ancillary operations are not particular waste is associated with associated, wastes that only exhibit the ‘‘uniquely associated’’ because they are mining and mineral processing same hazardous characteristic both not properly viewed as being ‘‘from’’ activities that are subject to the Bevill before and after contact with the Bevill mining or mineral processing. In exclusion, since that exclusion on its waste, feedstock, or product. This evaluating wastes from non-ancillary face applies to wastes from those ‘‘modified contact’’ approach may operations, one must consider the extent processes. In addition, the Agency reduce the potential for Bevill wastes to to which the waste originates or derives believes that a certain degree of be dumping grounds for non-Bevill from processes that serve to remove flexibility is needed for making hazardous wastes. Under this approach, mineral values from the ground, uniquely associated determinations due wastes that are inherently hazardous concentrate or otherwise enhance their to the complex and varied mineral prior to contact with a Bevill waste, and characteristics or remove impurities, operations and site-specific factors that which retain the same hazardous and the extent to which the mineral must be considered in making these characteristic after contact, would be recovery process imparts its chemical decisions. In today’s rule, the Agency is, subject to Subtitle C regulation when characteristics to the waste. Under this therefore, not adopting the use of a discarded. test, the greater the extent to which the 28592 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations waste results from the mineral recovery unjustifiably rigid, consideration of the associated. All of the wastes just noted process itself, and the more the process extent to which the mineral recovery are generated as a result of imparts to the waste its chemical imparts to the waste its chemical beneficiation. It should be noted that all characteristics, the more likely the characteristics provides a useful means wastes generated after the waste is ‘‘uniquely associated.’’ of evaluating whether a waste is commencement of mineral processing The Agency believes that this uniquely associated. The greater the are mineral processing wastes. As a approach provides a reasonable basis to extent to which the waste acquires its result of the Agency’s 1989 rule (54 FR determine whether a waste is ‘‘uniquely chemical characteristics from the 2322), all mineral processing wastes, associated.’’ The Agency believes that process from the processing of an ore or except those noted in 40 CFR these factors touch on the full range of mineral, the more likely that waste 261.4(b)(7), are subject to RCRA Subtitle facts that are likely to be relevant in any would be uniquely associated with the C, if they exhibit a hazardous particular case. As is evident from the Bevill process. Conversely, the less a characteristic. Therefore, the effect of criteria summarized above, judgment particular waste originated from or the uniquely associated principle is of must be exercised where the question is acquired its characteristics from such less import than at beneficiation whether a waste from a non-ancillary processes, the less likely it is uniquely facilities. operation is uniquely associated. EPA associated. The Agency received numerous believes that this is appropriate because Some commenters asserted that the comments challenging the Agency’s of the fact-specific nature of this Agency’s proposal represented a sharp position that these wastes were not determination and the myriad departure from past Agency practice uniquely associated. Comments from circumstances that can arise. However, under the uniquely associated principle the copper industry noted that slimes/ as noted above, the Agency believes that and would constitute, in effect, a muds, crud, and spent kerosene wastes generated from ancillary revision of prior Bevill regulatory generated from copper solvent operations (such as truck maintenance determinations. Neither contention is extraction and electrowinning were shops at a mine and not from the mining correct. While the Agency has uniquely associated because these or mineral recovery process itself), are articulated here its approach to the wastes had been determined by the not uniquely associated. Such uniquely associated principle in more Agency in 1989 (see 54 FR 36592) to be circumstances would likely present the detail than previously, the Agency wastes from extraction and most readily identifiable cases of non- believes that the approach is beneficiation. Based on these comments, uniquely associated wastes. fundamentally the same as how the the Agency has reassessed its prior The approach noted above reflects the Agency has applied the uniquely conclusions regarding these wastes and longstanding principle, based on the associated principle in the past. Second, agrees with the copper industry that clear language in Section 3001 of RCRA, the Agency is not, through the uniquely slimes/muds, crud, and spent kerosene that uniquely associated wastes must associated principle, seeking to revise generated from copper solvent result from mining and mineral past regulatory determinations that extraction and electrowinning are processes themselves. This approach exempted extraction and beneficiation uniquely associated. 40 CFR 261.4 states also is generally consistent with wastes and certain mineral processing that wastes from solvent extraction and industry’s underlying contention that wastes from Subtitle C regulation. The electrowinning are extraction/ the uniquely associated concept should list of exempt extraction/beneficiation beneficiation wastes and are not subject exempt wastes that are ‘‘indigenous’’ to processes and mineral processing to regulation under Subtitle C. Applying mining. EPA disagrees, however, with wastes in section 261.4(b)(7) is not the approach described above, it is clear industry’s contention that uniquely altered by this approach. Even under that solvent extraction and associated wastes are any wastes that these existing regulatory provisions, it electrowinning are clearly not ancillary are unavoidably generated by mining was necessary to determine in certain activities since their sole purpose is to operations. For example, arguably, it is cases whether a particular waste stream concentrate copper values out of unavoidably necessary to conduct was, in fact, ‘‘from’’ (i.e., ‘‘uniquely pregnant leach solution. The ‘‘uniquely maintenance on machinery that associated’’ with) one of the enumerated associated’’ nature of these wastes is supports mining at a site (e.g., used to Bevill processes. EPA’s past regulatory also supported by the degree to which transport ores and minerals among determinations did not, therefore, the wastes originate and derive from the processes); however, such maintenance obviate the need for determining the mineral recovery process. Thus, the is not necessarily part of the mining or applicability of Bevill to particular Agency’s view is that these wastes are mineral recovery process itself. EPA waste streams. In this rule, EPA is ‘‘uniquely associated’’ with believes that the proper focus should be simply ensuring that the uniquely beneficiation. the extent to which a waste is generated associated criteria have the benefit of Comments received from the gold as part of the mining and mineral full public notice and comment; we industry noted that acid wash solutions recovery process, not the extent to have not, however, altered the scope of are generated solely from processes used which a facility must conduct an prior regulatory determinations through to concentrate gold values from cyanide activity as part of its operation. this process. leach solutions. Again, the Agency has The elements of the ‘‘contact’’ options Industry commenters nonetheless had reassessed its earlier interpretation and discussed in the preamble to the concerns about certain applications of now believes that acid wash solutions proposal, as well as regulatory language the uniquely associated principle from gold heap leaching are uniquely contained in the May 1997 proposed articulated in the mineral processing associated. The Agency came to this rule (see proposed 40 CFR 261.4(b)(7) identification document contained in conclusion in light of the non-ancillary (stating that exempt extraction and the docket at proposal. In particular, nature of the process generating these beneficiation wastes must ‘‘originate commenters expressed concerns that the wastes (carbon columns must be kept from the extracted ore or mineral’’)) may document concluded that spent ‘‘clean’’ for the gold to be effectively affect uniquely associated kerosene in copper solvent extraction, recovered), the extent to which the determinations. While, as discussed crud from electrowinning, crucibles and wastes originate and derive from this above, the Agency believes that sole cupels, and acid cleaning solutions from mineral recovery process, as well as the reliance on a contact principle would be gold heap leaches are not uniquely fact that the process imparts some Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28593 chemical characteristics to the waste processing waste would retain the Bevill that the resulting wastes reflecting co- (i.e., the ore material that is cleaned exclusion. The uniquely associated processing were statistically different from the carbon). inquiry is somewhat different. The over the non-waste baseline, or that Based on the approach articulated question here is the threshold issue there was an environmentally above, the Agency now believes that whether a particular waste is ‘‘from’’ significant increase in hazardous other wastes are best viewed as non- extraction, beneficiation or mineral constituents over the non-waste uniquely associated. For example, the processing in the first place. The baseline. Id. Agency believes that lead anodes used Agency does not believe that the The May 1997 proposal would have in the electrowinning process are not decision in EDF II spoke to that inquiry. gone further and interpreted the Bevill non-uniquely associated wastes. While Rather, EDF II was concerned solely amendment narrowly (a common rule of lead anodes are used in the mineral with the circumstances under which a construction when construing recovery process and thus could be waste that is ‘‘from’’ these processes exceptions to plenary protective viewed as uniquely associated based on qualifies for the Bevill exclusion. Stated regulatory schemes to apply only to this consideration in isolation, a another way, a waste is only subject to situations when extraction/beneficiation countervailing consideration is that the the Bevill exclusion if it is, in fact, raw material feedstocks are utilized) to mineral recovery process imparts ‘‘uniquely associated’’ with extraction/ apply only to situations when virtually no characteristics to these beneficiation or one of the 20 exempt extraction/beneficiation raw material materials. Lead anodes are virtually mineral processing wastes. Thus, the feedstocks are utilized (see 62 FR at identical both before and after being uniquely associated principle does not 26052). used in the process. On balance, the expand the scope of the Bevill After reviewing the public comments, Agency concludes that lead anodes are exemption, and the Agency’s approach the Agency has decided not to adopt not uniquely associated with mining is, therefore, entirely consistent with the either of these alternatives. As and mineral processing. decision in EDF II. explained below, EPA ultimately has The Agency also reassessed the status b. Addition of Mineral Processing decided that the likely result of either of cupels and crucibles and finds that Secondary Materials to Units Processing proposal would be unwarranted they remain non-uniquely associated Bevill Raw Materials. The question disruption to legitimate (and desirable) wastes. These wastes are the result of addressed in this section is: if a Bevill recovery practices within the industry. laboratory testing. Cupels and crucibles extraction/beneficiation process uses as Nonetheless, as discussed in the final are also used in other industries (e.g., feedstock a mineral processing subsection of this part of the preamble, jewelry companies test the precious secondary material which otherwise the Agency retains concerns that the metal content of metals using cupels). would be a hazardous waste, would the Bevill amendment not be used as a These wastes are from an ancillary resulting wastes still be considered to be means of shielding disposal of non- operation, laboratory analyses, and are from extraction/beneficiation and hence Bevill hazardous wastes, and therefore not generated due to the direct recovery Bevill exempt? cautions that the Agency intends to of gold and, therefore, fail to meet the There are two bases for potential scrutinize especially carefully claims of Agency’s uniquely associated criteria. It environmental concern prompting this legitimate recycling when hazardous should also be noted that the Agency question. The narrower issue is that if secondary materials are co-processed in has consistently found that laboratory otherwise-hazardous wastes are used as extraction/beneficiation operations. wastes are generally non-uniquely partial feedstocks, could they change (i) Should the Bevill amendment associated. the resulting wastes’ character in a apply only when virgin materials are As stated previously, the applications manner such that the existing exclusion processed in extraction/beneficiation of the ‘‘uniquely associated’’ principle should no longer apply, or, put another operations? In the Agency’s May 1997 articulated here reflect the Agency’s way, is the Bevill exemption being used proposal, EPA sought comment on interpretation of the criteria as applied to shield disposal of non-exempt whether a narrow reading of the Bevill to those particular wastes based on the hazardous wastes? The broader issue is exclusion should be implemented best current information available to whether the Bevill amendment, which which would limit the availability of the EPA. Like the positions articulated in creates an exemption from rules Bevill exemption to wastes generated the Identification Document, these calls designed to protect the public and the exclusively from the use of Bevill raw represent the Agency’s current best environment from unsafe hazardous materials, namely ores and minerals. evaluation of whether these wastes are waste disposal practices, should be Under this approach only virgin ores ‘‘uniquely associated,’’ based on interpreted any more broadly than used as a feedstock to a beneficiation available information. However, the necessary given that the effect is to operation and only concentrates derived discussion above and in the exempt more waste from protective from beneficiation and then used as a Identification Document simply controls. feedstock to mineral processing would provides guidance on these issues, and EPA proposed two different answers be eligible for the Bevill exclusion. If therefore, the determinations are not to these questions. In the January 1996 any alternative materials were used as legally binding on decisionmakers, the proposal, the Agency proposed to apply feedstocks, the resulting waste would public, or the courts. the same ‘‘significantly affected’’ test not be eligible for the Bevill exclusion. Finally, one commenter argued that used in the partially analogous context 62 FR at 26052. the uniquely associated principle as of a Bevill device which co-processes In today’s rule, the Agency is discussed by EPA is an impermissible hazardous waste along with normal raw declining to pursue this option. Industry reading of the Act to the extent it would material feedstock. 61 FR at 2351 and 40 comments were uniformly opposed. authorize EPA to consider factors other CFR section 266.112. So long as Industry noted that since 1989, the than high volume/low toxicity in resulting wastes from the extraction/ Agency has established a clear use of making Bevill determinations. The beneficiation process were not the 50 percent rule and was well aware Agency disagrees with this position. ‘‘significantly affected’’ by the addition that the co-processing of a range of The Court in EDF II directed the Agency of hazardous secondary materials, materials was occurring at both to apply a high volume/low toxicity resulting wastes would remain exempt. extraction/beneficiation and mineral criteria to determine if a mineral Id. Significantly affected meant either processing facilities when it finalized its 28594 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations

1989 rulemaking (see 54 FR 33620, implemented, since affected extraction/ EPA originally viewed the situation September 1, 1989). Industry further beneficiation operations would not presented here as analogous to when pointed out that in the 1989 rulemaking recycle secondary materials if the result hazardous wastes are co-processed in the Agency found that 20 mineral is to lose Bevill status of the resulting Bevill units, and so proposed the processing wastes (see 40 CFR wastes. It makes little sense for the identical test for resulting residues. 61 261.4(b)(7)) would retain their Bevill Agency to implement a program which FR at 2351. On reflection, there are exempt status even though co- may reduce recycling where its important distinctions between the two processing was occurring. Industry also knowledge of the environmental benefit fact patterns. EPA applies the noted that the Agency had not presented of the approach is limited. ‘‘significantly affected’’ tests when what any data to confirm that the co- (ii) Significantly Affected. Under the are admittedly hazardous wastes are co- processing of virgin and non-virgin Agency’s January 1996 proposal, processed. The usual case is when a materials would actually increase risks mineral processing secondary materials hazardous waste fuel is burned in a to the environment. Public interest could be introduced into beneficiation Bevill unit (like a cement kiln) which groups on the other hand indicated that units generating Bevill-exempt wastes also processes normal raw materials. the proposed option more closely (without affecting the wastes’ Bevill The hazardous wastes can contribute follows the intent of Congress to limit status) if they were legitimately more and different hazardous the Bevill exemption to high volume, recycled, secondary materials constituents not normally found in the low toxicity wastes. comprised less than 50% of the total raw materials. In the extraction/ The Agency has reviewed the data on feed to the unit, and the resulting wastes beneficiation example, however, the co-processing of non-virgin and virgin were not ‘‘significantly affected’’ by the mineral processing secondary materials material and finds that it did evaluate recycling practice. are being used as feedstock precisely co-processing issues in its 1990 Report EPA has decided to adopt the because those materials share attributes to Congress on Wastes from Mineral proposed approach except the Agency found in raw materials (i.e., recoverable Processing (EPA Office of Solid Waste, has decided not to adopt the proposed amounts of metals). Because the rule July 31, 1990). This review, as it relates ‘‘significantly affected’’ test in today’s limits co-processing to mineral to the 20 mineral processing waste final rule. It should be pointed out that processing secondary materials, such streams that are still exempt, found that small volumes of mineral processing materials would typically be similar in co-processing had not significantly secondary materials likely to be nature to the raw materials being changed the hazardous properties of the recycled at beneficiation facilities processed, making it far less likely that resultant wastes. would be processed along with co-processing would significantly alter The Agency noted in its proposal that enormous quantities of raw ore. the attributes of resulting wastes. In it was unaware of the extent of co- Therefore, the probability that the addition, unlike the burning in furnaces processing at extraction/beneficiation introduction of such materials would example noted above, the mineral facilities, particularly after 1985. affect the characteristic of the resultant processing secondary materials being Industry comments noted that wastes is very low. recycled are not hazardous wastes. background reports to the Agency’s Given the likelihood of minimal Although they are secondary materials, 1985 ‘‘Report to Congress on Extraction environmental effect, the Agency must the Agency has decided to exclude them and Beneficiation Wastes’’ (EPA Office therefore judge whether the benefits of from the regulatory definition of solid of Solid Waste, December 31, 1985) encouraging recycling these materials waste (assuming legitimate recycling) discussed this co-processing issue. outweigh the potential additive risks because the activity resembles normal Agency review of these documents that, however unlikely, could reclamation practices within the indicates that while some references to potentially occur in unusual cases. The feedstocks are discussed, the Agency Agency has decided that, from both an industry. Put another way, since the was not aware of the extent of this implementation and an overall mineral processing secondary materials practice until it began to restudy mining environmental perspective, not are from the same industry sector and and mineral waste management requiring a ‘‘significantly affected’’ are being reclaimed within the same practices in 1989 and initiated a series evaluation makes sense. While it is industry, they can be viewed as of visits to mines and mineral possible that adoption of a secondary materials which are not processing facilities in 1991–92. ‘‘significantly affected’’ test might catch wastes. It is, thus, less appropriate to Industry also submitted comments the unusual circumstance where apply a significantly affected test to indicating that implementing this addition of secondary materials these non-waste feedstocks. option would have significant adverse substantially changes the characteristics EPA also was unable to apply the impacts on the mining and mineral of the resultant wastes, imposing such a ‘‘significantly affected’’ test in a manner processing industries. The Agency requirement could potentially have a that would focus on those secondary assessed industry comments and chilling effect on the amount of materials that actually could cause conducted its own economic analysis. secondary material that the industry significantly increased environmental The Agency found that implementation recycles. This is because industry would risks. The proposed test was the of this option may reduce current not risk imperilling Bevill status, since Burning in Furnaces (BIF) 2-part test, recycling in the copper and lead sectors, a consequence could be RCRA which would function in a different and could cause potentially serious permitting and facility-wide corrective manner in this rule. Under the BIF rule, economic disruption to industry. (See action potentially affecting areas of the concern was with the use of EPA’s Regulatory Risk Impact historic contamination. From an hazardous wastes from outside Analyses.) Both the gold and copper environmental perspective, EPA industries, and residuals rarely fail the sectors pointed out that they routinely believes that the benefits of recycling second part of the test, exceeding the reintroduce mineral-bearing streams such materials are substantial, and far hazardous characteristic. Here, we are from their processing activities into outweigh the largely marginal benefits dealing with materials from within the their beneficiation plants to further that could be associated with requiring industry, metal values are reclaimed, recover metal values. Such practices a ‘‘significantly affected’’ analysis on a and wastes typically exhibit a hazardous would diminish if this option were waste stream by waste stream basis. characteristic. Since mineral processing Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28595 secondary materials often contain other the Agency in Solite Corp v. EPA, 952 wastes. The Agency is simply stating metals in them, the resultant wastes F.2d 473, 493–94 (D.C. Cir. 1991). EPA that mixtures of Bevill and non-Bevill from co-processing may show statistical reinstated the mixture rule in 1992; wastes can, depending upon the increases or decreases in the metals however, this reinstatement was found particular facts, constitute treatment, content of the resultant wastes. The to be procedurally defective in Mobil Oil storage or disposal under the existing increases or decreases in metal v. EPA, 35 F. 3d 579 (D.C. Cir. 1994). regulatory program. constituents, however, does not In the January 1996 proposal, the Industry commenters generally necessarily mean that risk has Agency proposed that if any mineral opposed the proposed mixture rule. increased. An increase in one processing hazardous waste, or indeed Several commenters argued that the constituent may be offset by a decrease any hazardous waste, is mixed with and proposed rule was contrary to the Act in another constituent or by additional disposed with a Bevill waste, the because it undermined the protection volumes of raw material feedstocks that resulting waste is, under certain that the Bevill amendment was intended would be needed to replace the mineral circumstances, regulated under RCRA to provide the industry. These processing secondary materials. The Subtitle C. The Agency further stated commenters argued that the legislative application of the proposed test that the mixture of Bevill wastes and history indicates Congress intended the therefore could not be effectively used hazardous wastes would normally be Bevill amendment to be read broadly, to to determine if risks would increase if regulated as a form of treatment subject incorporate waste products generated in secondary materials are co-processed at to regulation under Subtitle C. The the ‘‘real world,’’ and that Congress beneficiation facilities. Agency stated its concern about the recognized co-management of wastes (iii) Conclusion. For these reasons, the potential human health and practiced by the industry occurred in Agency has decided to retain as a environmental risks due to increased the ‘‘real world.’’ According to these condition for retaining Bevill status the hazardous constituents resulting from commenters, integrated facilities standard requirement that an extraction/ the disposal of mixtures of hazardous conducting extraction, beneficiation and beneficiation unit processes at least 50 waste with Bevill-exempt wastes. The processing operations at a single percent raw material. 54 FR at 33620 Agency based the proposal on the policy location have historically co-managed (Sept. 1, 1989); 50 FR at 49190 (Nov. 25, that Bevill wastes not be allowed to wastes from these operations, including 1985); and 56 FR at 7198 (Feb. 21, 1991) serve as an unregulated dumping certain newly identified mineral (previous instances where EPA has used ground for hazardous wastes. Cf. processing wastes, and the proposed this test); 61 FR at 2351 (proposal of that Horsehead Resource Development Co. v. rule would effectively undermine the test here). If the 50 percent criterion is Browner, 16 F. 3d at 1258. protections of the Bevill amendment for met, the resulting waste would still be The rule being adopted today is a these operations. One commenter from extraction/beneficiation and hence reinstatement of the mixture rule contended that the mixture rule would exempt. Raw materials can be mineral promulgated in 1989. The Agency subject ‘‘high volume/low hazard’’ processing secondary materials and be continues to believe that the approach waste mixtures from the mining and placed into units generating Bevill- adopted in 1989 is sound, and properly mineral processing industry to Subtitle exempt wastes provided that the facility balances the objectives of the Bevill C regulation without having conducted legitimately recycles these materials. amendment with those of RCRA as a the special study and regulatory The proviso is important. EPA repeats whole. While commenters criticized determination process set forth in that the Bevill amendment is not to EPA on the grounds that the prior section 3001 of RCRA. Since such serve as a means of disposing of non- mixture rule has twice been struck mixtures of wastes are ‘‘high volume/ Bevill hazardous wastes. As explained down by the courts, those decisions did low hazard,’’ these commenters argued later in the preamble, if a hazardous not address the merits of the Bevill that section 3001, as construed by the waste is mixed with a Bevill waste, the mixture rule. Court in EDF v. EPA, 852 F.2d 1316 mixing is regulated under RCRA One clarification of statements in the (D.C. Cir. 1988), mandates exclusion of Subtitle C, and the mixed wastes may be 1996 proposal is in order. The Agency those wastes from regulation under Subtitle C hazardous wastes. While the stated that the proposed rule differed Subtitle C. mixture rule does not apply when from the 1989 Bevill mixture rule in that After careful consideration of these materials are placed in a beneficiation the earlier rule had exempted mixtures comments, EPA has concluded that they unit for legitimate recycling, it would of Bevill wastes and characteristic misconstrue the scope of the Bevill apply if a hazardous secondary material hazardous wastes from requirements amendment, and that the proposed is not being recycled legitimately. See pertaining to treatment. See 61 Fed. Reg. approach to Bevill mixtures is a U.S. v. Self, 2 F.3d at 1071, 1079 (10th 2352. This statement was, however, in reasonable one. First, the Agency Cir. 1993)(sham recycling is simply error. The Agency stated in the 1989 disagrees with these commenters’ hazardous waste disposal or treatment). rulemaking that such mixing would, in interpretation of the Bevill amendment It should also be pointed out that fact, constitute treatment of a hazardous as applying to not only to ‘‘special today’s rule prohibits the storage on the waste, and would be subject to the wastes’’ themselves, but also to any ground of any characteristically appropriate regulation for treatment other hazardous waste that may be co- hazardous mineral processing secondary storage and disposal of hazardous managed with them. Congress simply material. Should a beneficiation facility wastes, including obtaining a permit. 54 provided that ‘‘solid waste from wish to legitimately reclaim such Fed. Reg. 36622. Thus, the Agency is extraction, beneficiation and processing materials, it should be aware that not taking a more stringent approach to of ores and minerals’’ are not subject to placement of these materials in raw regulating mixtures than was taken in Subtitle C. RCRA § 3001(b)(3)(A). material piles may change the RCRA 1989. As in 1989, moreover, the Agency Congress did not, as these commenters status of the pile. is not amending in any way the suggested, apply this exclusion to such c. Bevill Mixture Rule and Disposal. definition of treatment, storage, or wastes ‘‘and other hazardous wastes that Disposal of waste mixtures is the focus disposal of hazardous wastes; nor is the may be co-managed’’ with them. Rather, of this section. The Agency promulgated Agency promulgating any specific Congress endorsed EPA’s conclusion the Bevill mixture rule in 1989 (see 54 provisions related to how those that high volume/low toxicity ‘‘special FR 36592). That rule was remanded to definitions apply to mineral processing wastes’’ deserved special treatment 28596 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations under the Act by virtue of the these determinations based upon how option because the mixture of hazardous difficulties that would be associated facilities happen to manage their wastes. secondary materials with feedstocks with managing these wastes under the Stated another way, EPA reasonably does not appear to adversely affect risk. Subtitle C program. Moreover, EPA’s based its Bevill regulatory This is so because the mixtures are decade-long effort to demarcate the line determinations on the volumes of each destined for legitimate recovery of between special wastes and non- type of mineral processing waste metal, acid, water or cyanide, or other excluded wastes was premised on the generated within the industry; the values. Mixtures destined for disposal notion that the line between them is of Agency does not believe it is reasonable will not have any of their hazardous some significance. If any hazardous to interpret section 3001 as mandating constituents removed or other values waste can come within the scope of the that EPA disregard the volumes in utilized and may contribute to the waste Bevill amendment simply by being which wastes are generated and instead disposal problem. Nor is there the mixed with Bevill waste, that line base its determinations on the vagaries slightest indication in law that normal becomes blurred, potentially creating a of how those waste streams may be Subtitle C rules should not apply to universe of excluded wastes far beyond aggregated through industry’s disposal disposal of normal Subtitle C hazardous that envisioned by Congress when it practices. Such a result would be wastes. enacted the Bevill amendment. counter to EPA’s special waste concept, Commenters did point out several The Court in EDF II indicated that and ignore the fact that mineral errors made by EPA in the proposed those mineral processing wastes which processing wastes streams that are not rule language. Many commenters noted did not meet the high volume/low generated above Bevill’s high volume/ that there was an inconsistency between toxicity criteria should be fully subject low toxicity threshold would, in fact, be the preamble of the January proposal to Subtitle C. The Agency, in today’s amenable to management under Subtitle and its proposed regulatory language. rule, has taken prudent steps to C. Thus, the commenter’s interpretation The proposed regulatory language encourage the legitimate recycling of would effectively allow the mining and inadvertently omitted language in the hazardous secondary materials. If mineral processing industry to general mixture rule stating that mixture hazardous mineral processing wastes ‘‘bootstrap’’ smaller volume wastes into of a solid waste with a hazardous can not be recycled and must be Bevill simply by co-disposing them with wasted listed solely because it exhibits disposed, the Agency finds nothing in Bevill wastes. The Agency and the a characteristic identified in Part 261 EDF II which precludes the Agency from courts have never interpreted Bevill in subpart C is a hazardous waste ‘‘unless such an awkward fashion, and the the resultant mixture no longer exhibits treating these hazardous wastes like any Agency declines to follow such an any characteristic of hazardous other hazardous wastes. It should also approach here. waste. . . ‘‘ 40 C.F.R. 261.3(a)(2)(iii). It be pointed out that today’s rule does not The Agency does not agree with was not EPA’s intent to propose deleting affect the disposal of extraction/ comments that any change to the Bevill this language, and it therefore is beneficiation wastes as long as there is mixture rule would effectively eliminate included in the final rule. no mixing of non-exempt hazardous Bevill for integrated facilities. Today’s In addition, as pointed out by wastes with them. EPA believes that this rule does not change the Bevill status of commenters, the proposed language rule is consistent with the scope of the extraction/beneficiation wastes nor does failed to track the preamble discussion Bevill amendment because it maintains it alter the Bevill status of 20 mineral of mixtures of Bevill wastes and the Bevill exclusion for mixtures that processing wastes (see 40 CFR 261.4). characteristic hazardous wastes (as well are hazardous due solely to any Since a large number of ‘‘newly as wastes that are listed because they hazardous constituents of the Bevill identified’’ mineral processing waste exhibit a hazardous characteristic). waste. The fact that these resulting streams become subject to the LDR, the Under the proposed rule language, wastes retain their Bevill status does not Agency took steps to clarify the status mixtures of Bevill wastes and hazardous mean, however, that the act of storing, of non-exempt ‘‘Bevill’’ wastes (i.e. wastes would be a hazardous waste treating, or disposing of hazardous mineral processing wastes not within whenever it exhibited a hazardous wastes with Bevill wastes should be the scope of the Bevill amendment) in waste characteristic, even where that exempted from normal Subtitle C this rulemaking. The Identification characteristic was imparted to it solely controls. report, placed in the docket in January from the Bevill waste. (See proposed EPA also disagrees with the notion 1996, was developed by the Agency to section 261.3(i).) As shown by the advanced by some commenters that EPA assist companies in determining if preamble, this was clearly not EPA’s is required by section 3001 to conduct wastes were or were not exempt. The intent, which was to preserve the Bevill a study to determine whether mixtures Agency sought comment on the draft exclusion for mixtures that are of Bevill and other wastes meet the high Identification document and has hazardous solely because of the Bevill volume/low toxicity test and thereby finalized this report. This report is, component of the mixture. See 61 FR merit being covered by the Bevill however, guidance. Mineral processing 2352–53. amendment. EPA reads section 3001 as companies now have the ability to Conversely, the preamble, although mandating that EPA study wastes identify the status of each waste stream ambiguous in spots on this issue, did generated by the mining and mineral and to cease mixing non-exempt say at one point that mixtures of processing industry for purposes of hazardous wastes with exempt waste characteristic hazardous waste and determining whether particular waste streams. Bevill wastes would be considered streams are subject to the Bevill Regarding commenters’ critique of the hazardous waste only if the mixture amendment. EPA has done so and concerns expressed by EPA in the continued to be hazardous due to determined that mineral processing proposal justifying the proposed characteristics imparted to it by the non- wastes that do not meet the high mixture rule, the Agency continues to Bevill waste. 61 FR at 2352. If the volume/low toxicity threshold are not be concerned about the mixture of mixture exhibited a hazardous subject to Bevill. EPA’s orderly hazardous wastes with Bevill exempt characteristic due solely to the Bevill decision-making (see 54 FR 36592 and wastes for treatment, storage or disposal. waste, the Agency did not intend to 55 FR 2322), would be undermined if The Agency has noted earlier that it is designate the mixture as a hazardous the Agency were then required to revisit not imposing the significantly affected waste. Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28597

Consistent with that discussion, satisfied.) In addition, all of the wastes with disposed mineral processing secondary under today’s rule, the Agency has which the F 001 wastes are mixed are materials with other feedstocks. decided that if Subtitle C hazardous hazardous wastes carrying the F 001 waste 6. Responses to Court Remands waste exhibiting a characteristic is code by application of the mixture rule. Example 1a. Same facts as in example 1, mixed with Bevill-exempt waste a. Applicability of the Toxicity except that the waste being mixed is F 003 Characteristic Leaching Procedure exhibiting the same characteristic and spent solvent, a waste listed only because it the mixture continues to exhibit that exhibits a characteristic of hazardous waste. (TCLP) to Mineral Processing Wastes. In common characteristic, then the entire The landfill becomes a regulated unit for the January 1996 proposal, the Agency mixture should be considered to be non- the same reason as in example 1. (See proposed to continue using the TCLP exempt hazardous waste. This result is Chemical Waste Management v. EPA, 976 (SW–846 Test Method 1311) as the basis consistent with normal rules on when F.2d at 20 n.4 and 24 n. 10 (placement of for determining whether mineral wastes are hazardous, which state that waste which is hazardous for any amount of processing wastes and manufactured gas if a waste exhibits a hazardous waste time in a unit subject that unit to Subtitle C plant wastes exhibit the toxicity regulation); 61 FR at 2352 (same). However, characteristic (TC) of hazardous wastes, characteristic, it remains a hazardous the status of the resulting waste mixture is waste unless and until it no longer and developed a record supporting this determined by the principles for position. When the Agency promulgated exhibits a characteristic. 40 CFR characteristic hazardous wastes, illustrated 261.3(d)(1). In addition, such a principle below. the TCLP method for testing whether will make this rule easier to administer Example 2. Facility B generates a wastes exhibit the toxicity (should this situation actually occur), characteristic ignitable solvent which it adds characteristic, the applicability of the since enforcement officials will not have to a surface impoundment containing a TCLP test to mineral processing wastes to parse out which portion of the waste Bevill-exempt waste that would exhibit the was challenged in Edison Electric mixture is imparting the characteristic TC for lead. The resulting mixture exhibits Institute v. EPA, 2 F.3d 438 (D.C. Cir. TC for lead but is no longer ignitable. property. Finally, the result is consistent 1993) (‘‘Edison’’). The Court held that The surface impoundment is a regulated the information in the record at the time with the overall object of today’s rule: unit, since it is engaged in treatment not to let Bevill wastes be used as a was insufficient to show a rational (elimination of the ignitability characteristic) relationship between the TCLP and a means of allowing unregulated and disposal (the placement of the ignitable management of normal Subtitle C waste). The remaining wastes in the unit likely mismanagement scenario for hazardous wastes. retain their Bevill-exempt status because they mineral processing wastes. Several commenters noted concern do not exhibit the characteristic property of Under the Court’s holding, the Agency must at least provide some that existing exemptions to the Agency’s the non-Bevill hazardous waste. Thus, if the factual support that such a mixture rule, such as that given to waste were to be removed from the impoundment and disposed elsewhere, mismanagement scenario is plausible (2 totally enclosed treatment facilities and disposal need not occur in a regulated unit. F.3d at 446–47). The Agency is elementary neutralization units, would Example 3. Facility C generates a addressing this remand in today’s final be eliminated under this rule. The characteristic hazardous waste exhibiting TC rule because any applicable land Agency reiterates that this rule does not for lead which it mixes in a tank with Bevill- disposal restrictions would have little alter in any way the current Agency exempt wastes which also would exhibit the meaning unless the Agency has a basis mixture rule. The purpose of this TC for lead. The resulting mixture continues for determining whether these mineral rulemaking is to place the mixing of to be TC for lead. processing wastes are hazardous, and, hazardous wastes that may occur at The tank is engaged at least in storage of hazardous waste, and possibly treatment therefore, subject to the restrictions. mineral processing plants on the same Under the Court’s ruling in Edison, status as all other hazardous waste (depending on how the D008 hazardous waste is affected by the mixing). If waste is the application of the TCLP test to management. removed from the tank, it remains subject to mineral processing wastes is (i) Illustrations of how today’s rule Subtitle C because it continues to exhibit the appropriate if the evidence available to operates. Although the regulatory characteristic of the non-exempt hazardous EPA shows that disposal of such wastes parlance for today’s rule has always waste. in municipal solid waste been the ‘‘Bevill mixture rule’’, the d. Remining. The Agency clarified in (MSWLF) is a ‘‘plausible’’ greatest practical consequence of the its January 1996 proposal that the mismanagement scenario (not rule is probably on the units where removal of historically land placed necessarily requiring that it be typical or mixing occurs. This is because units (i.e. mineral processing wastes for the common) 2 F.3d at 446. Moreover, it is tanks, impoundments, piles, landfills, purposes of mineral recovery would not sufficient if there is ‘‘evidence or etc.) where hazardous wastes are placed constitute disposal for purposes of explanation on the record to justify a will (absent some exemption or triggering Subtitle C. Moreover, removal conclusion that mineral wastes ever exclusion other than that provided by of wastes would not render the historic come into contact with any form of the Bevill amendment) be regulated disposal unit subject to RCRA acidic leaching medium.’’ Id. at 447. units, i.e. units subject to Subtitle C hazardous waste requirements (see 53 In considering the plausibility of this standards for treatment, storage, and/or FR at 51444, December 21, 1988). The mismanagement scenario, the Agency disposal. This point is illustrated by the Agency is today again clarifying that has first carefully evaluated those following examples, which also removal of waste from a unit does not circumstances that industry has argued illustrate the effect of the rule on the constitute disposal for the purposes of make such mismanagement implausible. resulting mixtures: triggering Subtitle C regulation. Industry has argued that co-disposal Example 1. Facility A generates F 001 Commenters noted that the proposed with municipal solid waste is not listed spent solvents which it mixes with a mixture rule would in effect eliminate plausible because the huge volumes in solid waste that has Bevill exempt-status. opportunities for remining. The Agency which the wastes are generated could The mixing occurs in a landfill. disagrees. As noted previously, the simply not be handled by an MSWLF. The landfill is a regulated unit because hazardous waste—F 001—is being disposed mixture restrictions in today’s rule deals EPA has, however, conducted a in it. (Among other things, this means that primarily with disposal of mixtures. The comprehensive review of such wastes the F 001 wastes could not be placed in the mixture rule therefore, will not affect and concluded that many wastestreams landfill until the LDR treatment standard is the co-processing of historically are generated at low volumes. (See 28598 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations

Characterization of Mining and Mineral found that some mineral processing however, been upheld as a reasonable Processing Wastestreams, USEPA, wastes are placed in dumpsters, or exercise of the Agency’s discretion. Id. 1998.) Thus, the volumes in which similar containers, and shipped off-site Industry commenters supplied data mineral processing wastes are generated for commercial disposal. indicating that the TCLP is more do not render disposal in an MSWLF These cases include, but are not aggressive than the SPLP for most implausible. limited to, co-disposal of mineral metals and especially lead. Certain Industry comments also indicated that processing wastes from the refining of states supported use of the test under all the location of its facilities were remote alumina, copper, gold, ferrous metals, or limited circumstances. EPA received and not close to municipal landfills. lead, silver, and zinc. Such wastes have very limited data comparing the leach Based on physical location alone, been disposed in MSWLFs in various tests. Because these data were extremely industry suggested that disposal of their states throughout the United States. The limited, the Agency still does not have wastes in municipal landfills was very Agency also found several cases where data broadly comparing TCLP results to unlikely. This contention is not, manufactured gas plant wastes were SPLP results for a range of mineral however, supported by the facts. The disposed in MSWLFs. (See Applicability processing waste streams. Industry- Agency evaluated the location of of the Toxicity Characteristic Leaching supplied data appear to indicate that the mineral processing facilities and found Procedure to Mineral Processing Waste, SPLP test generates results which show that a considerable number of them are U.S. EPA, 1998.) lower levels of lead than comparable located east of the Mississippi River and EPA acknowledges that the results using the TCLP. Thus, due to the some are located in or near urban areas. information obtained by the Agency limited amount of data, the Agency is (see Population Studies of Mines and does not show that the mismanagement unable to determine if the SPLP would Mineral Processing Sites, 1998, U.S. scenario is either typical or common, routinely show lower levels of lead, or EPA.) This report indicates that there is but such a level of proof is not required. how the two tests compare when factual information which rebuts the Edison, 2 F.3d at 446. It is, moreover, analyzing other metals or whether such industry’s position that the location of not surprising that the practice does not lower levels would, in fact, better reflect mineral processing facilities is routinely appear to be widespread because, since actual field conditions than would the so remote so as to make co-disposal 1989, disposal of any non-Bevill TCLP. At bottom, the fundamental issue with municipal solid waste implausible. hazardous mineral processing wastes in is not whether one test is more Thus, based on the Agency’s population a municipal solid waste landfill has conservative than the other. Rather, the study noted above, the Agency been illegal. Nonetheless, since some issue is whether it is plausible that concludes that some mineral processing mineral processing facilities are located mineral processing wastes may be facilities are in fact located in or near near urban areas and generate low disposed of in environments reflected urban areas and their location in such volume wastes, and some of these by the conditions mimicked in the urban areas means that it is plausible facilities appear to have, in fact, co- TCLP. that their wastes could be disposed of in disposed of these wastes in this manner, Aside from the plausibility of the urban landfills. EPA believes it is reasonable to Agency’s mismanagement scenario, Factual information collected by the conclude that application of its application of the TCLP to mineral Agency (made available for public mismanagement scenario to mineral processing wastes is supported by comment) supports the conclusion that processing wastes is reasonable; that is, comments from industry submitted mineral processing wastes may if these wastes were no longer identified during the rulemaking regarding plausibly be disposed of with municipal as hazardous by means of the TCLP, disposal practices that are taking place solid wastes. Industry comments then the type of improper disposal or advantageous at integrated mineral contested EPA’s factual basis for the which occurred in the past could processing/beneficiation facilities in the landfill disposal cases found in resume. industry. The proposed (and now final) Applicability of the Toxicity Industry commenters further contend rule regarding mixtures of Bevill wastes Characteristic Leaching Procedure to that an alternative test, the Synthetic with non-Bevill hazardous wastes Mineral Processing Waste, U.S. EPA, Precipitation Leaching Procedure (including mineral processing 1998. Industry commenters contended (SPLP), is more appropriate for mineral hazardous wastes) effectively prohibits that the cases presented by the Agency processing wastes. The National Mining such mixing. Some commenters do not reflect current waste Association (NMA) noted in its opposed the proposed mixture rule on management practices (which primarily comments that the leach solution used the grounds that integrated facilities involve on-site disposal). Industry in the SPLP test protocol would more typically co-dispose of hazardous commenters also argued that the facts of accurately reflect the environmental mineral processing wastes (including particular cases did not, in fact, support exposure of mineral processing wastes. those exhibiting the TC) with extraction the conclusion that co-disposal had The SPLP test uses a leach solution and beneficiation wastes, and desired to occurred. EPA has reviewed the which mimics acid rain, while the TCLP continue this practice or to have mixing information and concluded some of uses a leach solution which mimics available as a management option for these comments had merit, and EPA has acids formed in municipal landfills. The these mineral processing hazardous deleted from the final document those TCLP test therefore uses a leach solution wastes. It is well-documented that cases for which there was not sufficient which is more acidic that the SPLP test. extraction and beneficiation wastes can information to be relied upon by the However, ‘‘[n]othing in [RCRA] requires often generate highly acidic Agency. However, even after a careful EPA to tailor the TCLP to the conditions environments. (See Acid Rock Drainage sifting of the case studies, there to which mineral wastes are typically Prediction, U.S. EPA, 1994) Disposal of continues to be evidence to support the exposed.’’ Edison, 2 F.3d at 443. If that mineral processing wastes with such conclusion that co-disposal of mineral were the case, it would not have been wastes means that the mineral processing wastes with municipal solid appropriate for EPA to even have processing wastes would be subject to waste is plausible. While most mineral adopted a generic mismanagement acidic conditions that, in some cases, processing wastes are generated in large scenario as the basis for establishing its may be comparable to the acidic volumes and disposed on-site as approach for testing for the hazardous leacheate medium utilized in the TCLP industry contends, the Agency has characteristic. This approach has, (if not somewhat more aggressive). This Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28599 is because water contacting the acidic The final rule seeks to encourage behavior of the substance to which this waste would thereupon become acidic properly conducted recycling of mineral methodology was applied’’). EPA has itself (an example being acid mine processing secondary materials, and the rectified the record deficiencies noted in drainage). EPA’s concern is that if the scheme in the final rule (whereby Edison, showing how the TCLP ‘‘bears mineral processing wastes are no longer recovery can occur provided facilities a rational relationship to the reality it identified as hazardous because a test do not utilize land-based storage units) purports to represent.’’ Columbia Falls, other than the TCLP is used, then these can be implemented at reasonable cost. slip op. at 18. Today’s action is thus wastes could be disposed with the (See the Regulatory Impact Analysis for consistent with both Edison and acidic extraction/beneficiation wastes the final rule, summarized later in this Columbia Falls. and be exposed to metal-mobilizing preamble.) However, the Agency is EPA is making the decision to retain acidic leaching conditions as water concerned that if integrated facilities the TCLP as the test for identifying percolates through the mixture. Given have a lower cost option of simply mineral processing wastes effective the evident economies noted in the disposing these mineral processing within 90 days, co-extensive with the public comments in disposing of secondary materials with extraction/ LDR prohibition effective date. This mineral processing wastes along with beneficiation wastes, facilities will effective date can be complied with extraction/beneficiation wastes, such a choose this alternative. Thus, not only feasibly within 90 days since the TCLP scenario is at least plausible. Such a will the mineral processing wastes be is already the applicable test for mineral disposal scenario, which industry states potentially exposed to acidic leaching processing wastes (since it was is not only plausible, but is typical of conditions, but properly conducted remanded, not vacated, by the Edison some facilities, provides an additional metal recovery will be foregone. (See ruling). Thus, the regulated community justification for the application of the RCRA section 1003 (a) (6) noting the does not need six months to come into acidic leachate approach reflected in the statutory goal to encourage properly compliance. See RCRA section TCLP. conducted recycling of hazardous 3010(b)(1). EPA recognizes that the TCLP utilizes wastes.) b. Remanded Mineral Processing organic acids, while the disposal In addition to questioning the choice Wastes. In the January 1996 proposal, scenario discussed above would involve of a leaching medium, commenters the Agency proposed to revoke the exposure to mineral acids. In part questioned certain other features of the current hazardous waste listings for five because of this difference, EPA utilized test, notably a particle size feature court-remanded smelting wastes. The the SPLP in screening low hazard which mirrors freeze/thaw cycles, and a Agency also proposed not to re-list them wastes as part of its 1989 Bevill dilution/attenuation factor which is as hazardous stating that these wastes determination. See 54 FR 36592 (Sept 1, premised on human receptors would be regulated as hazardous wastes 1989). Commenters have pointed to this potentially living relatively proximate to if they exhibit a characteristic of a statement as undercutting any the disposal site. These issues are hazardous waste. application of TCLP to mineral addressed in greater detail in responses In 1980, the Agency listed as processing wastes. to comments and technical background hazardous eight wastes generated by EPA made clear in 1989, however, documents. However, the Agency has primary metal smelters (45 FR 33066, that the TCLP was still the appropriate documented in the record that many 33124, 47832–34, (1980)). The Agency test for determining whether a particular mineral processing facilities are located listed the wastes pursuant to 40 CFR mineral processing waste is a hazardous in parts of the country where freeze/ 261.11(a)(3) because they contained one waste subject to Subtitle C. Morever, thaw cycles which reduce particle size or more of the hazardous constituents EPA believes that the general statement occur, and are also located near listed in 40 CFR 261, Appendix VIII. contained in the 1989 preamble populations reflecting the degree of The eight wastes are described as arguably swept too broadly in its dilution and attenuation used in the follows: conclusions. Notwithstanding that model. (See Population Studies of Mines statement, standard chemistry texts and Mineral Processing Sites, 1998, U.S. K064—Acid plant blowdown slurry/sludge resulting from the thickening of establish that certain metals are highly EPA) blowdown slurry from primary copper soluble in acidic environments, Finally, EPA notes that nothing in the production. including inorganic acids. Numerous recent decision Columbia Falls K065—Surface impoundment solids factors can affect the precise solubility Aluminum Co. v. EPA (no. 96–1234) contained in and dredged from surface of a particular metal, and it is generally (April 3, 1998) is contrary to this impoundments at primary lead smelting not possible to generalize whether determination. Columbia Falls does not facilities. organic or inorganic acids would cause stand for the proposition that EPA must K066—Sludge from treatment of process more or less of a particular metal customize a test for particular wastes to wastewater and/or acid plant blowdown compound to solubilize. Based on reflect individual or even typical from primary zinc production. generally accepted chemistry principles, disposal circumstances, a proposition K067—Electrolytic anode slimes/sludges from primary zinc production. however, a highly acidic environment, expressly rejected in Edison, 2 F. 3d at K068—Cadmium plant leach residue (from whether organic or mineral in nature, 445. Rather, Columbia Falls approvingly oxide) from primary zinc production. can be aggressive towards certain metals cites Edison for the proposition that K088—Spent potliners from primary typically found in mineral processing ‘‘the TCLP must bear some rational aluminum reduction. wastes. Given that acidic leaching relationship to mineral wastes in order K090—Emission control dust or sludge from media can result when mineral for the Agency to justify the application ferrochromium-silicon production. processing wastes are co-disposed with of the toxicity test to those wastes.’ ’’ K091—Emission control dust or sludge from extraction/beneficiation wastes, EPA Columbia Falls, slip op. at 18; see also ferrochromium production. believes that the acidic leachate Huls America Inc. v. Browner, 83 F. 3d In October of 1980, in response to procedure utilized in the TCLP can be 445, 454 (Edison involved an instance Congressional enactment of the Bevill appropriate for characterizing mineral ‘‘where the record was barren of any Exclusion, the Agency suspended its processing wastes. rational relationship between the listing of the eight wastes (46 FR 4614– EPA also notes a further policy methodology used by the EPA to set 15, 27473 October, 1980). In 1985, EPA justification in its choice of the TCLP. regulatory levels and the known proposed a new rule that would relist 28600 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations six of the eight wastes (50 FR 40292, a characteristic of a hazardous waste, control (APC) dust and sludge is 40295, October 2, 1985). (The Agency they will be subject to hazardous waste generated in volumes that meet the high chose not to propose to re-list two of the regulations, including the hazardous volume cutoff. However, Solite original eight waste streams (electrolytic waste mixture rule. requested that the Agency delay making anode slimes/sludges, K067, and c. Lightweight Aggregate Mineral a final determination on the Bevill cadmium plant leach residue, K068, Processing Wastes. In the January 1996 status of its wastes due to other Agency from primary zinc production) because proposal, the Agency proposed that air rulemaking activities dealing with it found that industry was routinely pollution control dust and sludge from cement kiln dusts, which Solite recycling these secondary materials in the production of lightweight aggregate contends would be addressing similar an environmentally sound manner.) be classified as a mineral processing issues to those posed by lightweight However, the Agency withdrew its 1985 waste that is no longer eligible for the aggregate air pollution control (APC) proposal on October 9, 1986 (51 FR Bevill exemption. Lightweight aggregate dust and sludge. 36233). air pollution control (APC) dust and The Agency is aware that both cement In Environmental Defense Fund v. sludge were among the many mineral kiln and aggregate kilns may both burn EPA, 852 F.2d 1316 (D.C. Cir. 1988) EPA processing wastes made conditionally hazardous wastes fuels and that the was ordered to make a final decision exempt from RCRA Subtitle C dusts from air pollution control devices regarding whether to re-list the six metal requirements under the 1980 Bevill are often blended into final products. smelting wastes that it had proposed to Amendment to RCRA. In 1990, Under existing regulations, if these list in 1985, and to reduce the scope of following more detailed study of the dusts resulting from burning listed the Bevill exemption as it applies to generation rates for this waste, the hazardous waste fuels are blended into mineral processing wastes. The Agency Agency determined that it did not products that are used on the land, the complied with this order when it re- qualify for the Bevill exemption (55 FR product would be subject to RCRA’s listed the six wastes. 2322, 2340, January 23, 1990). In 1991, ‘‘derived from’’ rules which would The American Mining Congress the D.C. Circuit directed the Agency to render the product a hazardous waste. (AMC) challenged these listings. In reconsider, after providing notice and Since both cement and light weight American Mining Congress v. EPA, 907 soliciting comments, whether these aggregate products are usually placed on F.2d 1179 (D.C. Cir., 1990) the Court wastes qualify for the Bevill exemption. the land, the potential impacts on their upheld the Agency’s decision to re-list (Solite Corporation v. EPA, 952 F.2d at use could be significant. The Agency waste K088, spent potliners from 500 (D.C. Cir. 1991)). noted in its 1993 Report to Congress on primary aluminum reduction, but found In the January 1996 proposal, the Cement Kiln Dust (CKD) that it did not that the Agency’s record for the five Agency stated that the wastes from have evidence that CKD was materially remaining waste streams did not lightweight aggregate production do not different when generated from kilns adequately address certain issues raised meet the high volume criterion for burning hazardous wastes as fuel and in comments during the rulemaking. excluded mineral processing wastes. For those which did not. The Agency does Since the Court did not vacate the purposes of EPA’s 1989 and 1990 rules not have similar comparable analysis of listings, they technically remain in concerning Bevill eligibility for mineral light weight aggregate dusts and effect. processing wastes, high volume is sludges, and can not at this point in In today’s rule, the Agency is revoking defined as greater than 45,000 metric time conclude that there is no difference the five remanded waste listings. The tons per year per facility, for a solid between dusts and sludges from units Agency has found that several of these waste, or 1,000,000 metric tons per year burning hazardous waste fuels and wastes are still generated and in some per facility, for a liquid waste, averaged those that do not. The Agency wants to cases land disposed, but there is a lack across all facilities generating a encourage the sound recycling of these of information demonstrating threats to particular waste. dusts and requires additional time to human health or the environment that To determine whether APC dust and assess how to ensure that aggregate and would justify a listing at this time. The sludge from lightweight aggregate cement kiln dusts are managed to Agency believe that some wastes, production satisfied the high volume ensure protection of human health and specifically copper acid plant criterion, the Agency analyzed data the environment. The Agency is blowdown (K064) and surface from its 1989 National Survey of Solid currently developing a regulatory impoundment solids at primary lead Wastes from Mineral Processing program for the safe management of smelters (K065), are inherently Facilities (SWMPF Survey) and data cement kiln dusts and anticipates hazardous due to the presence of arsenic from public comments submitted by issuing a proposed rule in 1998. The and lead, respectively. These wastes can affected companies. The Agency finds Agency further anticipates that it will be effectively regulated under RCRA that the lightweight aggregate wastes do seek comment on how to best manage Subtitle C if they exhibit a hazardous not meet the high volume criterion. both wastes in this proposal and will characteristic. None of the methods used resulted in seek information it needs to make a final The Agency received no comments a volume estimate that is greater than determination on the status of opposing the proposed rule. To 45,000 metric tons per year per facility, lightweight aggregate wastes. The summarize, the Agency is revoking the the high volume criterion for mineral Agency is not finalizing its technical listing for, and is not re-listing: copper processing wastes. SWMPF survey data, background document, Lightweight acid plant blowdown (K064); surface which includes Confidential Business Aggregate Production and Air Pollution impoundment solids at primary lead Information (CBI) from two facilities Control Wastes (1995), at this time. smelters (K065); acid plant blowdown have been included in a separate d. Mineral Processing Wastes From from primary zinc production (K066); analysis. The results, which remain the Production of Titanium emission control dust and sludge from confidential, are not substantially Tetrachloride. (i) Summary. In 1989, ferrochromium-silicon production different from the results presented following a study of this waste’s (K090); and emission control dust or previously. circumstances of generation, the Agency sludge from ferrochromium production Solite acknowledged in comments determined that titanium tetrachloride (K091). However, as explained that data do not support a determination waste acid did not qualify for the Bevill previously, should these wastes exhibit that lightweight aggregate air pollution exemption because it was a mineral Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28601 processing waste, not an extraction/ feedstocks entering the operation, which chemical form and change the chemical beneficiation waste, and did not meet is indicative that mineral processing has composition of the waste. In contrast to the high volume/low hazard criteria for occurred. beneficiation operations, processing determining eligibility for the Bevill (iii) Response to Comments. One activities often destroy the physical exemption. (See 54 FR 36592, commenter agreed with EPA’s proposed structure of the incoming ore or mineral September 1, 1989.) One producer of conclusion that Du Pont’s process is feedstock such that the materials leaving titanium tetrachloride, DuPont, properly classified as mineral the operation do not closely resemble requested a determination that waste processing because the reaction of those that entered the operation. from its production process be ilmenite ore with chlorine gas forms Typically, beneficiation wastes are categorized as beneficiation waste on new chemical compounds, namely earthen in character, whereas mineral the ground that, unlike processes used titanium tetrachloride and ferric or processing wastes are derived from by other manufacturers, their process ferrous chloride. The commenter melting or other chemical changes. included a beneficiation step which remarked that such a reaction is a Today, the Agency again finds that generated the wastes at issue. However, chemical processing step that DuPont’s chloride-ilmenite operation is EPA determined that DuPont’s waste fundamentally alters the make-up of the mineral processing. In DuPont’s process, acids were mineral processing wastes. feedstock ore. The commenter said that chlorine gas is reacted with the iron in DuPont challenged this decision, and EPA correctly drew the analogy between the ore in the first step to produce a new the Court remanded EPA’s decision for the mineral processing that occurs in and significantly different chemical further consideration on the grounds the chloride-ilmenite operation and the compound than the feedstock ore, that the Agency’s explanation for its mineral processing that occurs in other namely liquid waste iron chloride acid. decision was unclear. Solite Corporation metallurgical operations. The iron is more than simply removed; v. EPA, 952 F.2d 473,494–95 (D.C. Cir. One commenter noted that no the solid iron in the ore undergoes a 1991). beneficiation occurs in the chloride- chemical reaction with the chlorine gas DuPont submitted comments on the ilmenite process at all and that the iron to form a new compound that is highly January 1996 proposal that contend its chloride waste stream is not eligible for reactive and non-earthen in character, processes do not destroy the structure of the Bevill exemption. The commenter namely iron chloride gas. This reaction the mineral as it is placed into its said that it too produces a waste iron is the beginning of a significant change processes. The Agency does not accept chloride acid in the production of to the physical and chemical structure this contention, and, as described titanium tetrachloride but its waste acid of the ore. This change is similar to the below, finds that the waste iron chloride is neutralized in a waste treatment unit. reaction of chlorine gas with solid acid is a mineral processing wastes. The commenter provided data showing titanium to form titanium tetrachloride There are four sequential steps in that its treatment of waste iron chloride gas. The Agency finds that the net result DuPont’s chloride-ilmenite process, the acid meets all proposed Land Disposal of the reaction of chlorine gas with both first two of which occur within the same Restrictions (LDR) treatment standards iron and titanium, which occur in the vessel: (1) chlorine gas reacts with iron for underlying hazardous same vessel, destroys the physical and from the ilmenite ore to form iron characteristics. chemical nature of the ore. chloride gas; (2) chlorine gas reacts with DuPont objected to the Agency’s DuPont contends that the formation of titanium in the ilmenite ore to form proposed classification. DuPont claims iron chloride gas is simply a process to titanium tetrachloride gas; (3) the iron that the removal of iron from the remove an impurity from the ore. chloride is condensed and separated to ilmenite ore is more appropriately DuPont noted in its comments that form a waste iron chloride acid; and classified as beneficiation. DuPont activities which remove impurities from finally (4) the titanium tetrachloride is remarked that the separation of the iron ores and minerals are classified as condensed and processed to form chloride from the titanium ore grains beneficiation and all wastes from titanium oxide pigment, the saleable results in a beneficiated ore, similar in beneficiation are exempt from product. The issue remanded in Solite is nature to commercially available regulation under RCRA Subtitle C (see whether the iron chloride acid waste, beneficiated ores that EPA has 40 CFR 261.4). DuPont therefore which is produced in gaseous form at determined are Bevill exempt. The contends that their processes are in fact step (1) but removed from the vessel as Agency disagrees with this beneficiation and should not be a liquid at step (3), is a mineral characterization, and concludes that classified as mineral processing. processing waste that does not qualify since the ore is chlorinated, that As noted earlier, the Agency clarified for the Bevill exemption, or is a chlorination step changes the physical the definition of beneficiation and beneficiation waste covered by the and chemical structure of ore. The mineral processing in its 1989 Bevill exclusion under 40 CFR Agency’s rationale for this decision is rulemaking. That rule clearly indicated 261.4(b)(7). discussed below. that beneficiation serves to remove (ii) Proposal. In the January 1996 The Agency reiterates its broad impurities as long as the resultant proposal, the Agency proposed that iron standard for making mineral processing materials remained earthen in nature chloride waste acid from the production determinations described in 54 Fed. and had not undergone a physical/ of titanium tetrachloride be classified as Reg. 36592, 36616, September 1, 1989. chemical change. The Agency studied a mineral processing waste that is not Specifically, beneficiation operations the DuPont process numerous times and eligible for the Bevill exemption. In the typically serve to separate and met with the company several times to chloride-ilmenite production of concentrate the mineral values from assure that the Agency fully understood titanium tetrachloride, the Agency waste material, remove impurities, or DuPont process. The Agency concludes found that mineral processing began prepare the ore for further refinement. that chlorination of the ore causes a with the chlorination of the iron in the Beneficiation activities do not, however, significant physical/chemical change to ilmenite ore and the resulting acid is a change the chemical structure of the ore. the ore, and therefore the process is waste from mineral processing. Mineral processing operations, in more indicative of mineral processing Specifically, the Agency found that the contrast, generally follow beneficiation than beneficiation. Further, in the acid wastes from this process are not and serve to change the concentrated DuPont case, the removal of impurities physically or chemically similar to the mineral value into a more useful is taking place simultaneously with 28602 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations other reactions generating titanium EPA first proposed tailored land application of the new LDR treatment gases. This reaction alone would disposal restriction treatment standards standards for metal and mineral classify the process as mineral for contaminated soil in September processing wastes to soil contaminated processing since the ore and titanium 1993. 59 FR 48122—48131 (September with those materials. At about the same gas are clearly physically and 14, 1993). In the September 1993 time, EPA decided to go forward with chemically dissimilar from that point on proposal, EPA requested comment on the soil-specific LDR treatment in the process. The Agency stated in three soil treatment standard options. standards proposed in April 1996. 1989 that once mineral processing These three options involved various Therefore, the Agency is promulgating began, all wastes generated after that combinations of percent reduction the land disposal restriction treatment point would be classified as mineral requirements for hazardous constituents standards tailored to contaminated soils processing wastes, even those wastes (typically ninety percent—90%) and proposed on April 29, 1996 (i.e., 90% which are similar to those generated in multipliers of the universal treatment capped at 10xUTS) today, with the new beneficiation. standards (typically ten times the UTS— LDR treatment standards for metal and Thus, all wastes associated with the 10 x UTS). In response to comment on mineral processing wastes. The soil- chloride-ilmenite production of the September 1993 proposal, EPA specific treatment standards titanium tetrachloride are mineral deferred a final decision on soil promulgated today may be applied to processing wastes. They are neither high treatment standards to the Agency’s any contaminated soil that is restricted volume nor low toxicity and therefore broader evaluation of application of from land disposal, including but not are not eligible for the Bevill exemption. RCRA requirements to remediation limited to soil contaminated by metal VII. LDR Treatment Standards for Soil wastes, the Hazardous Waste and mineral processing wastes. Identification Rule for Contaminated The land disposal restriction This section discusses final Media, or HWIR-Media. treatment standards for contaminated regulations establishing land disposal On April 29, 1996, as part of the soil promulgated today differ from the treatment standards specific to HWIR-Media proposal, EPA again standards proposed on April 29, 1996 in contaminated soil. Contaminated soil is proposed tailored land disposal three major ways. First, the Agency subject to the land disposal restrictions, restriction treatment standards for proposed that the soil treatment generally, when it contains a listed contaminated soils. 61 FR at 11804 standards would be available only for hazardous waste or when it exhibits a (April 29, 1996). In the April 29, 1996 contaminated soil that was managed characteristic of hazardous waste. proposal, soil-specific treatment under an approved cleanup plan (Throughout this discussion, the standards would have required (termed a remediation waste specific term ‘‘hazardous contaminated reduction in concentrations of management plan, or RMP). In today’s soil’’ refers to soil which contains a hazardous constituents by 90% with final rule, the Agency is making the soil listed hazardous waste or exhibits a treatment for any given constituent treatment standards available for all characteristic of hazardous waste; the capped at ten times the universal contaminated soil that is restricted from more general term ‘‘contaminated soil’’ treatment standard. Id. This is land disposal. Second, the Agency refers to both hazardous contaminated commonly referred to as ‘‘90% capped proposed that, for soil contaminated by soil and other soils—such as at 10 times UTS.’’ listed hazardous waste, treatment would decharacterized soil—which may be In 1995, 1996 and 1997, EPA be required only for the hazardous subject to the land disposal restrictions.) proposed new land disposal restriction constituents that originated from the Prior to today’s rule, contaminated soil treatment standards for waste identified contaminating listed hazardous waste. subject to LDRs was subject to the same as hazardous because of metal content When the soil treatment standards are land disposal restriction treatment and for mineral processing wastes. 60 used, today’s final rule requires all standards that apply to industrial FR 43654 (August 22, 1995) for metal hazardous contaminated soil, including hazardous waste: soil contaminated by wastes; 61 FR 2338 (January 25, 1996) soil contaminated by listed hazardous listed hazardous waste was subject to for mineral processing wastes; and, 62 waste, to be treated for each underlying the standards that apply to those listed FR 26041 (May 12, 1997) supplemental hazardous constituent reasonably wastes and soil that exhibited a proposal for both types of waste. In expected to be present when such characteristic of hazardous waste was these proposals, soil contaminated with constituents are initially found at subject to the same standards that apply metal or mineral processing waste concentrations greater than ten times to the characteristic waste. Today’s final would have been subject to the new the universal treatment standard. Third, rule establishes a new treatability treatment standards for those wastes. in response to comments asserting that group—contaminated soils—and This was consistent with the way EPA the proposed regulations governing the establishes land disposal restriction had historically addressed contaminated applicability of LDRs to contaminated treatment standards specifically tailored soil and, at the time, considered proper soils were difficult to understand, the to that treatability group. Although EPA given that the proposals to establish Agency has reformatted these believes generators of contaminated soil soil-specific treatment standards were regulations into an easier-to-read table. will typically choose to comply with the not yet resolved. These changes, as well as other new soil treatment standards EPA did not reopen the issue of significant issues associated with the promulgated today, under today’s final whether LDRs apply to contaminated soil treatment standards and responses rule, they have the option of complying soil or whether it is appropriate to to comments, are discussed below. either with the existing treatment require that contaminated soil achieve Today’s promulgation of land standards for industrial hazardous waste the same LDR treatment standards as the disposal restriction treatment standards (i.e., the universal treatment standards) contaminating waste (soil contaminated specific to contaminated soil is largely or the soil treatment standards. This is by listed waste) or the characteristic based on the April 29, 1996 proposal (62 consistent with the approach the property (soil that exhibits a FR at 18804–18818). It also relies on the Agency took in promulgating LDR characteristic of hazardous waste) in the Agency’s first effort to establish soil- treatment standards for hazardous August 22, 1995, January 25, 1996, or specific treatment standards, the LDR contaminated debris. 57 FR 37221, May 12, 1997 proposals. Commenters, Phase II proposal (58 FR 48092, August 18, 1992. nonetheless, strongly opposed September 14, 1993). Today’s action Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28603 resolves the portions of the April 29, particle size and the concentrations of soils such as clays and silts, and the ash 1996 and September 14, 1993 proposals sulfate and chloride compounds. fusion point of the contaminating waste. that address land disposal restriction Various combinations of soil For example, operation of an incinerator treatment standards for contaminated characteristics can impair the at or near the waste ash fusion soil. However, other elements of the effectiveness or rate of reaction in temperature can cause melting and April 29, 1996 proposal remain open stabilization technologies. For example, agglomeration of inorganic salts; the and will be acted on in a future insoluble materials, such as materials loading of clays and silts in some soils rulemaking. Responses to comments that will pass through a number 200 may also result in high loadings of submitted on the soil treatment mesh sieve, can delay setting and curing particulate matter in flue gases. standards proposals are included in the during stabilization, or small soil Proposed BDAT Background Document Soil Treatment Standards Response to particles can coat larger soil particles for Hazardous Soils, August 1993 and Comments Background Document, weakening bonds between particles and Technology Screening Guide for available in the docket for today’s cement or other reagents. High Treatment of CERCLA Soils and action. temperature metal recovery technologies Sludges, EPA 540/2–88/004, September may not be appropriate for some 1988. A. Application of Land Disposal contaminated soil given the low With respect to the remedial context, Restriction Treatment Standards to concentrations of metals that might be EPA, the states, and the regulated and Contaminated Soil and Justification for present in the soil. In addition, clay and environmental communities have long Soil Specific LDRs silt content in some soil matrices may recognized that application of the LDR Prior to today’s rule, soil that add undesired impurities to the metal treatment standards developed for pure, contained listed hazardous waste or concentrates or alloys that are formed industrial hazardous waste to exhibited a characteristic of hazardous during high temperature metal recovery. contaminated soil can be waste were prohibited from land Although EPA has data showing that counterproductive. See, for example, disposal unless they had been treated to some soils can be treated to the existing ‘‘Hazardous Waste: Remediation Waste meet the treatment standards universal treatment standards for metals Requirements Can Increase the Time promulgated for pure industrial using stabilization 15 and high and Cost of Cleanups’ U.S. General hazardous waste. This means the same temperature metals recovery, the Accounting Office, GAO/RCED–98–4, treatment standards which apply to a Agency continues to believe that October 1997. Application of LDRs pure, industrial hazardous waste were tailored soil treatment standards are developed for pure, industrial also applied to contaminated soil. 61 FR appropriate for metal contaminated soil hazardous waste to contaminated soil at 18804 (April 29, 1996) and other to ensure that the wide variety of soils often presents remediation project sources cited therein. In most cases can be effectively treated to meet the managers with only two choices: pursue then, contaminated soils were subject to treatment standards. In addition, the a legal option of capping or treating the treatment standards listed in 40 CFR soil treatment standards will have the hazardous contaminated soil in place 268.40, and the associated treatment added environmental benefit of thereby avoiding a duty to comply with standards in 40 CFR 268.48(a) table encouraging greater use of innovative LDRs, or excavate the soil and treat it to Universal Treatment Standards (UTS).14 soil treatment technologies such as soil the full extent of best demonstrated As EPA has discussed many times, or enhanced soil (acid) washing. See, available technology, usually, for the treatment standards developed for Proposed BDAT Background Document organic constituents, incineration. EPA pure, industrial hazardous waste may be for Hazardous Soils, August 1993; has found that this situation often unachievable in contaminated soil or Technical Resource Document: creates an incentive to select remedies may be inappropriate for contaminated Solidification/Stabilization and its that minimize application of LDRs (e.g., soil due to particularities associated Application to Waste Materials, EPA/ remedies that involve capping or with the soil matrix and the remediation 530/R–93/012, June 1993; and, leaving untreated soil in place) a result context under which most contaminated Technology Screening Guide for obviously not contemplated by Congress soil is managed, as discussed below. For Treatment of CERCLA Soils and in enacting the LDR program.16 62 FR at that reason, EPA is promulgating today’s Sludges, EPA 540/2–88/004, September pages 64505–64506 (Dec. 5, 1997) and LDR treatment standards specifically 1988. 61 FR at 18808 (April 29, 1996) and For soil contaminated with organic tailored to contaminated soil and to the other sources cited therein. constituents, EPA has noted many times remedial context. Because of the differences between that, notwithstanding the fact that such With respect to the soil matrix, the the remedial context (responding to soils can be treated by combustion to treatment standards developed for pure wastes which have already been meet the universal treatment standards, hazardous waste (i.e., the universal released to the environment) and it is generally unsuitable or impractical treatment standards) are generally either from a technical standpoint to combust 16 technically unachievable or technically As discussed in the April 29, 1996 proposal, large volumes of mildly contaminated EPA has, in the past, justified the existing treatment or environmentally inappropriate. For soil. See, for example, 55 FR at 8760 and standards, in part, because they create an incentive metal constituents, the UTS may not be 8761 (March 8, 1990) and 61 FR 18806– to generate less of the affected waste in the first achievable in contaminated soil even instance. See, Steel Manufactures Association v. 18808 (April 29, 1996). In addition, the using model technologies such as EPA, 27 F.3d 642, 649 (D.C. Cir. 1994). In the Agency has documented potential remedial context, the waste is already in existence; stabilization or high temperature metal difficulties that may arise from the therefore waste minimization is not an issue. Thus, recovery. Stabilization technologies are combustion of soil due to soil/ application of the current LDR treatment standards sensitive to soil characteristics such as to remediation waste can have the perverse effect contaminant characteristics that affect the presence of oxidizing agents and of creating an incentive to avoid ‘‘generating’’ waste incineration performance such as the by leaving it in the ground. The Agency believes hydrated salts, the distribution of soil concentrations of volatile metals, the that the goals of remediation are better served by more aggresive remedial approaches, such as 14 The exception is when waste contaminating presence of alkali salts, fine particles of excavation and management (including some soil is subject to a specified treatment method; in degree of treatment) of remediation wastes, that that case, the contaminated soil would also be 15 These soil treatment data have been claimed as generally result in more permanent remedies. Such subject to the specified treatment method. confidential business information. approaches should, therefore, be encouraged. 28604 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations regulation of wastes generated by on- continue to participate in discussions of identify the ‘‘most difficult to treat’’ going industrial process (preventing potential legislation to promote this waste and established treatment wastes from being released into the additional needed reform. If legislation standards based on a statistical analysis environment in the first instance), EPA is not forthcoming, the Agency may of data from the best demonstrated has rejected the conclusion that reexamine its approach to remediation available treatment technology for that treatment standards for soil must be waste management, including the soil waste. See, for example, 55 FR 26594 based upon the performance of the treatment standards. and 26605, June 23, 1989. While the existing regulations allow treatment ‘‘best’’ demonstrated available treatment B. Detailed Analysis of Soil Treatment using any technology that will satisfy technology in the way the Agency has Standards historically interpreted these terms. the treatment standards, the practical Instead, the Agency has chosen to All land disposal restriction treatment impact of that approach is that develop soil treatment standards that standards must satisfy the requirements treatment using the most aggressive can be achieved using a variety of of RCRA section 3004(m) by specifying treatment technology available (i.e., for treatment technologies which achieve levels or methods of treatment that organic constituents, destruction of substantial reductions in concentration ‘‘substantially diminish the toxicity of organic constituents based upon the or mobility of hazardous constituents the waste or substantially reduce the performance of incineration) is often and, because they are generally used to likelihood of migration of hazardous necessary to achieve the treatment treat contaminated soils in remedial constituents from that waste so that standards. settings, do not present site managers short-term and long-term threats to For contaminated soil, the Agency has with the type of dilemma described human health and the environment are chosen to establish technology-based above. As EPA has long maintained, the minimized.’’ As EPA has discussed soil treatment standards at levels that strong policy considerations that argue many times, the RCRA Section 3004(m) are achievable using a variety of for using the traditional BDAT analysis requirements may be satisfied by common remedial technologies which as the basis for LDR treatment standards technology-based standards or risk- destroy, remove or immobilize for hazardous wastes generated by on- based standards. This conclusion was substantial amounts of hazardous going industrial operations do not apply upheld in Hazardous Waste Treatment constituents. 58 FR 48129 (September when evaluating BDAT in the remedial Council v. EPA, 886 F.2d 355, 362–64 14, 1993). The levels chosen—90% context. In the remedial context, for (D.C. Cir. 1989), where technology- reduction capped at 10 X UTS—are based LDR treatment standards were example, waste minimization is not an within the zone of reasonable levels the upheld as a permissible means of issue and the additional increment of Agency could have selected as treatment implementing RCRA Section 3004(m) treatment necessary to achieve standards for contaminated soil. provided they did not require treatment Soil treatability data from EPA’s Soil traditional BDAT may yield little if any beyond the point at which threats to Treatment Database indicate that the environmental benefit over other human health and the environment are soil treatment standards are achievable treatment options that adequately minimized. Today’s treatment standards and that the Agency has selected a protect human health and the for contaminated soils are primarily reasonable level of performance for the environment. 54 FR 41568 (October 19, technology-based; however, a variance standard. After screening the Database 1989). Indeed there is a legitimate from the technology-based standards is to eliminate data from tests reflecting question as to whether a technology allowed when EPA or an authorized poorly designed or operated treatment, whose use results in foregoing other state makes a site-specific determination tests where EPA believes inappropriate substantial environmental benefits (such that threats posed by land disposal of technologies were applied (for example, as more aggressive, permanent any given volume of contaminated soil data from ‘‘immobilization’’ of organic remedies) can be considered a ‘‘best’’ are minimized at higher concentrations. constituents), and other inappropriate technology. Portland Cement data, the Agency was left with 2,541 1. Technology Basis for Soil Treatment Association v. Ruckelshaus, 486 F. 2d data pairs representing treatment of 375, 385–86 at n. 42 (D.C. Cir. 1973); Standards eighty hazardous constituents including Essex Chemical Corp. v. Ruckelshaus, The land disposal restriction nine BDAT list metals.17 EPA then 486 F. 2d 427, 439 (D.C. Cir. 1973). This treatment standards for soil require that analyzed these data to determine if the issue was discussed fully in the April concentrations of hazardous soil treatment standards could be 29, 1996 proposal and in a number of constituents subject to treatment be reliably achieved using demonstrated other EPA documents, see, for example, reduced by ninety percent (90%) with soil treatment technologies. Based on 54 FR 41568 (October 19, 1989) and 61 treatment for any given constituent this analysis, the Agency concluded that FR at 18808 (April 29, 1996) and other capped at ten times the universal the soil treatment standards can be sources cited therein. treatment standard (10 X UTS). In other reliably achieved using a variety of The soil treatment standards words, if treatment of a given available soil treatment technologies. promulgated today will significantly constituent to meet the 90% reduction The Agency concluded that the soil improve management of contaminated standard would reduce constituent treatment standards can be reliably soil and remediations that involve concentrations to less than 10 X UTS, achieved using: biological treatment, contaminated soil. However, the Agency treatment to concentrations less than 10 chemical extraction, dechlorination, soil emphasizes that today’s rule does not X UTS is not required. This is washing, stabilization and thermal resolve the larger, more fundamental commonly referred to as ‘‘90% capped desorption. Of course, since soil issues associated with application of by 10xUTS.’’ treatment is generally matrix dependent, RCRA Subtitle C to remediation As first discussed in the September the exact treatment technology which generally. The Agency maintains that 14, 1993 proposal, the Agency has not additional reform is needed to address, used the statistical methods historically 17 A complete discussion of the Agency’s method more fundamentally, the application of used in the land disposal restriction for screening the Soil Treatment Database can be found in the LDR Phase II proposal (58 FR 48129— certain RCRA subtitle C requirements to program to establish the soil treatment 48131, September 14, 1993) and the Best all remediation wastes, including standards. In the past, the Agency has Demonstrated Available Technology Background contaminated soil. The Agency will typically evaluated treatability data to Document for Hazardous Soil (August 1993). Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28605 might be applied to any given standards for volatile organic using total constituent concentrations. contaminated soil will depend on the constituents are based on the For hazardous constituents which have specific properties of the soil and the performance of biotreatment, chemical a treatment standard measured based on hazardous constituents of concern. extraction, dechlorination, thermal concentrations in a TCLP extract (i.e., Choices about which soil treatment desorption or soil vapor extraction. The standards for metals and for carbon technology to apply should be informed standards for semivolatile organic disulfide, cyclohexanone and by appropriate use of bench and pilot constituents are based on the methanol), compliance with the 90% scale studies and good engineering performance of biotreatment, chemical reduction standard should generally be judgement. EPA acknowledges that the extraction, dechlorination, soil washing, measured in leachate using the toxicity treatment efficiency necessary to thermal desorption, or soil vapor characteristic leaching procedure. The achieve the soil treatment standards will extraction. The standards for exceptions to these rules would be, for depend on, among other things, the organochlorine pesticides are based on example, if soils contaminated with initial concentrations of hazardous the performance of biotreatment, metal constituents were treated using a constituents in any given volume of dechlorination, hydrolysis, or thermal technology which removed or contaminated soil. Thus, not all soil desorption. The standards for destroyed, rather than stabilized, metals. treatment technologies will be capable phenoxyacetic acid pesticides are based In an example like this, compliance of treating every contaminated soil to on the performance of dechlorination. with the 90% reduction standards meet the standards adopted in this rule. The standards for polychlorinated should generally be measured using However, the Agency finds that the soil biphenyls are based on the performance total constituent concentrations. treatment standards typically can be of chemical extraction, dechlorination, EPA takes this opportunity to clarify achieved by at least one of the or thermal desorption. The standards for that when establishing the demonstrated technologies, even in the dioxins and furans are based on the concentrations of hazardous case of hard-to-treat hazardous performance of dechlorination or constituents in any given volume of constituents such as dioxins and furans, thermal desorption. EPA does not have contaminated soil from which the 90% polychlorinated biphenyls, and specific data in the record on treatment reduction will be measured, normal soil polynuclear aromatics. of organophosphorous insecticides. characterization techniques and Furthermore, the Agency has Because they are based on a similar procedures for representative sampling concluded that it is appropriate to chemical structure, these contaminants, should be used. For example, it is not express the soil treatment standards as however, are likely as difficult to treat necessary to measure the 90% reduction a treatment performance goal capped by as other polar nonhalogenated organic from the soil sample with the lowest specific treatment levels. More specific compounds and are expected to respond concentrations of hazardous standards, for example, a single to treatment in a manner similar to other constituents. EPA will publish numerical standard for all soil, could be polar nonhalogenated phenols, phenyl additional guidance on establishing and counterproductive—less often ethers, and cresols. Therefore, EPA validating 90% reduction levels for achievable—given the varying believes that organophosphorous contaminated soil in the near future. Today’s rule does not change existing combinations of hazardous constituents insecticides can be treated using the policies or guidance on soil sampling or and soil properties that might be same technologies as would otherwise site characterization. Although soil is encountered in the field. 58 FR 48130 be used to treat polar nonhalogenated often characterized using composite (September 14, 1993). An express organics, i.e., biotreatment, chemical objective of this rule is to increase the sampling, EPA notes that, consistent extraction, or thermal desorption. For range of appropriate treatment with the way the Agency measures all organic constituents the soil alternatives available to achieve the LDR compliance with other LDR treatment treatment standards are also achievable treatment standards in soil to increase standards, compliance with the soil using combustion. EPA notes also that the likelihood that more remediations treatment standards will be measured a number of judicial opinions have will include treatment as a component and enforced using grab samples. This upheld EPA’s extrapolation of of the remedy. This objective could be is appropriate because well-designed achievability results for technology- impeded by adopting single numeric and well-operated treatment systems based treatment standards based on values as treatment standards, since that should ensure that soil is uniformly chemical structure and activity approach would reduce needed treated. flexibility. The resulting soil treatment similarity, as has been used here. See, b. Major Comments A number of standards, while still technology-based, e.g., Chemical Manufacturers Ass’n v. commenters expressed concern about thus depart from EPA’s past EPA, 870 F. 2d 177, 248 (5th Cir. 1989) the achievability of the soil treatment methodology developed for process and National Ass’n of Metal Finishers v. standards and/or the methodology EPA wastes in that they are not based EPA, 719 F. 2d 624, 659 (3d Cir. 1983). used to develop the soil treatment exclusively on the application of the For metals, the soil treatment standards standards. These concerns are discussed most aggressive technology to the most are based on the performance of in Section VII.B.8 of today’s preamble difficult to treat waste and are not stabilization, and for mercury, chemical and in the response to comments expressed as a single numeric value. extraction. Achievability of the soil document, available in the docket for Like any land disposal restriction treatment standards is discussed, in today’s rulemaking. treatment standard, the soil treatment detail, in section VII.B.8 of today’s standards may be achieved using any preamble. 2. The Soil Treatment Standards Satisfy treatment method except treatment a. Measuring Compliance With the RCRA Section 3004(m) Requirements methods which involve impermissible Soil Treatment Standards For hazardous The technology-based ‘‘90% capped dilution (e.g., addition of volume constituents which have a treatment by 10 X UTS’’ treatment standard for without destroying, removing or standard measured by total waste contaminated soil is sufficiently immobilizing hazardous constituents or analysis (i.e. standards for organic stringent to satisfy the core requirement transfer of hazardous constituents from constituents and for cyanide), of RCRA Section 3004(m) that short- soil to another medium such as air). For compliance with the 90% reduction term and long-term threats to human organic constituents, the soil treatment standard should generally be measured health and the environment posed by 28606 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations land disposal are minimized. land disposed materials such as RCRA Corrective Action, CERCLA and Technology-based standards provide an contaminated soils being capped in state cleanup programs could be applied objective measure of assurance that place rather than more aggressively to ensure that remedies are adequately hazardous wastes are substantially remediated, threats posed by land protective. These programs already treated before they are land disposed, disposal of the waste ordinarily would ensure protection of human health and thus eliminating the ‘‘long-term not be minimized. Conversely, a the environment when managing most uncertainties associated with land treatment standard that results in contaminated soils—i.e., soils that are disposal.’’ Eliminating these substantial treatment followed by secure not subject to the LDRs—and other uncertainties was a chief Congressional land disposal can be said to minimize remediation wastes. Furthermore, as objective in prohibiting land disposal of threats, taking into account the totality discussed later in today’s rule, treated untreated hazardous wastes. Hazardous of threats posed (i.e. including those contaminated soil would remain subject Waste Treatment Council v. EPA, 886 posed if the soil were left in place to regulation under RCRA Subtitle C F.2d at 361–64. In addition, the extent untreated). Id. The soil treatment unless and until EPA or an authorized of treatment required, 90 % reduction standards will ordinarily ensure that state made an affirmative decision that capped at treatment to concentrations contaminated soil is appropriately the soil did not contain hazardous waste within an order of magnitude of the treated within the meaning of RCRA or, in the case of characteristic soil, no UTS, ‘‘substantially’’ reduces mobility Section 3004(m), considering both the longer exhibited a hazardous or total concentrations of hazardous threats posed by new land disposal of characteristic. constituents within the meaning of treated soil and the threats posed by on- 3. Variance From the Soil Treatment RCRA Section 3004(m)(1). going land disposal of existing Standards at Risk-Based Levels EPA has made two changes from contaminated soil (e.g., if the soil were proposal which strengthen the soil left in place untreated). EPA has long indicated that its treatment standards to assure that they EPA recognizes that some people may preference would be to establish a minimize threats to human health and be concerned that a situation may arise complete set of risk-based land disposal the environment. First, the Agency has where the soil treatment standards are at treatment standards at levels that modified its approach to which levels that are higher than those that minimize short- and long-term threats to hazardous constituents will be subject EPA or an authorized state believes human health and the environment. to treatment. In today’s rule, when the should be required for soil cleanup See, for example, 55 FR at 6641 (Feb. 26, soil treatment standards are used, EPA under a cleanup program. The Agency 1990). However, the difficulties requires treatment for all hazardous acknowledges that this may occur. The involved in establishing risk-based constituents reasonably expected to be soil treatment standards, like other land standards on a nationwide basis are present in contaminated soil when such disposal restriction treatment standards, formidable due in large part to the wide constituents are initially found at are based on the performance of specific variety of site-specific physical and concentrations greater than ten times treatment technologies. As discussed chemical compositions encountered in the universal treatment standard. This earlier in today’s preamble, technology- the field and the uncertainties involved treatment is required both for soil based standards have been upheld as a in evaluating long-term threats posed by contaminated by listed hazardous waste permissible means of implementing land disposal. Id.; 60 FR 66380—66081 and soil that exhibits (or exhibited) a RCRA Section 3004(m). Most soil (Dec. 21, 1995). For these reasons the characteristic of hazardous waste. cleanup levels are based not on the Agency has chosen to establish land Constituents subject to treatment are performance of specific treatment disposal restriction treatment standards discussed further in Section VII.B.4 of technologies but on an analysis of risk. based on the performance of specific today’s preamble. For this reason, technology-based treatment technologies. Although To further ensure that contaminated treatment standards will sometimes technology-based treatment standards soil treated to comply with the soil over-and sometimes under-estimate the are permissible, they may not be treatment standards is safely managed, amount of treatment necessary to established at levels more stringent than EPA has included additional restrictions achieve site-specific, risk-based goals. those necessary to minimize short and on the use of treated contaminated soil The purpose of the land disposal long-term threats to human health and in hazardous waste-derived products restriction treatment standards is to the environment. Hazardous Waste that are used in a manner constituting ensure that prohibited hazardous wastes Treatment Council, 886 F. 2d at 362 disposal (i.e., when such products will are properly pre-treated before disposal (land disposal restriction treatment be placed on the land). The restrictions (i.e., treated so that short- and long-term standards may not be established, on use of treated contaminated soil in threats to human health and the ‘‘beyond the point at which there is not hazardous waste-derived products that environment posed by land disposal are a ‘‘threat’’ to human health or the are used in a manner constituting minimized). As discussed above, the environment’’). disposal are discussed in Section VII.B.5 Agency believes the soil treatment While using risk-based approaches to of today’s preamble. standards promulgated today fulfill that determine when threats are minimized Finally, the Agency reiterates that, in mandate for soil that contains on a national basis has proven the remediation context, in assessing prohibited listed hazardous waste or extremely difficult, these difficulties whether threats posed by land disposal exhibits a characteristic of prohibited will diminish when evaluating risks have been minimized, one should hazardous waste. However, technology- posed by a specific contaminated soil in appropriately consider the risks posed based treatment standards are not a particular remediation setting since, by leaving previously land disposed necessarily appropriate surrogates for during remediation, one typically has waste in place as well as the risks posed site-specific risk-based cleanup levels. detailed site-specific information on by land disposal of waste after it is In a circumstance where the soil constituents of concern, potential removed and treated. 62 FR at 64506 treatment standards result in constituent human and environmental receptors, (December 5, 1997). For example, if a concentrations that are higher than and potential routes of exposure. For treatment standard for organic those determined, on a site-specific this reason, EPA is establishing a site- constituents based on performance of basis, to be required for soil cleanup, specific variance from the technology- incineration typically results in already existing remedial programs such as based soil treatment standards, which Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28607 can be used when treatment to pathways and human and determination. 62 FR at 64507 (Dec. 5, concentrations of hazardous environmental receptors. Through 1997). constituents greater (i.e., higher) than application of this information, While not required, EPA anticipates those specified in the soil treatment overseeing agencies can eliminate many that decisions about site-specific standards minimizes short- and long- of the long-term uncertainties associated minimize threat decisions variances will term threats to human health and the with land disposal and, therefore, make often be combined with decisions that environment. In this way, on a case-by- appropriate risk-based decisions soil no longer contains hazardous waste. case basis, risk-based LDR treatment regarding the extent of treatment needed As discussed later in today’s preamble, standards approved through a variance to minimize short- and long-term threats Agency guidance on ‘‘contained-in’’ process could supersede the technology- to human health and the environment determinations is essentially the same based soil treatment standards. This from any given hazardous constituent or as the requirements for site-specific, approach was first discussed in the combination of hazardous constituents. risk-based minimize threat September 14, 1993 proposal, where EPA and state officials already routinely determinations promulgated today. For EPA proposed that determinations that make these types of decisions when that reason, EPA believes it will always contaminated soil did not or no longer developing site-specific, risk-based be appropriate to combine a contained- contained hazardous waste could cleanup levels and when making in determination with a site-specific, supersede LDR treatment standards, if decisions about whether any given risk-based minimize threat variance. In the ‘‘contained-in’’ level also contaminated medium contains these cases, EPA encourages program constituted a ‘‘minimized threat’’ level. hazardous waste.19 After experience implementors and facility owners/ It was repeated in the April 29, 1996 implementing the site-specific minimize operators to include information about proposal where the Agency proposed threat variance for contaminated soil, the ‘‘contained-in’’ decision in the that, in certain circumstances, variances the Agency may consider extending it to public notice of the site-specific from land disposal restriction treatment other environmental media and minimize threat variance. In cases standards could be approved in remediation wastes. where a site-specific minimize threat situations where concentrations higher Some commenters expressed concern variance is combined with a decision than the treatment standards minimized that allowing site-specific, risk-based that a soil no longer contains hazardous threats.18 58 FR at 48128 (September 14, minimize threat determinations would waste, once treated to comply with the 1993) and 61 FR at 18811 and 18812 abrogate the Agency’s responsibilities treatment standard imposed by the (April 29, 1996). under RCRA Section 3004(m). The variance, the soil would no longer have At this time, EPA is allowing the risk- Agency strongly disagrees. RCRA any obligations under RCRA Subtitle C based variances only for contaminated Section 3004(m) requires EPA to and could be managed—including land soils. The Agency believes this establish ‘‘levels or methods of disposed—without further control limitation is appropriate for a number of treatment, if any. * * *.’’ In the case of under RCRA Subtitle C. The contained- reasons. First, contaminated soils are contaminated soil, EPA is establishing in policy is discussed in more detail in most often generated during agency those levels today based on the Section VII.B.8 and Section VII.E of overseen cleanups, such as CERCLA performance of available, appropriate today’s preamble. cleanups, RCRA corrective actions or soil treatment technologies. Providing a EPA reminds program implementors state overseen cleanups. This type of variance process to modify a level or that, consistent with the rest of the land involvement in cleanups positions EPA method of treatment on a case-by-case disposal restriction program, site- and authorized states to appropriately basis reduces the likelihood that in any specific determinations that threats are consider site-specific, risk-based issues. particular situation technology-based minimized cannot be based on the Second, during remediation, experts treatment standards will result in potential safety of land disposal units, and field personnel typically gather treatment beyond the point at which or engineered structures such as liners, detailed site-specific information on threats are minimized. The Agency is caps, slurry walls or any other practice risks posed by specific hazardous requiring that minimize threat variance occurring after land disposal. American constituents or combinations of determinations for contaminated soils Petroleum Inst. v. EPA, 906 F.2d 729, hazardous constituents, potential direct be evaluated using the existing site- 735–36 (D.C. Cir. 1990) (land treatment and indirect exposure routes, risk specific variance process set out in 40 cannot be considered in determining CFR 268.44(h). EPA recently added whether threats posed by land disposal 18 In the April 29, 1996 proposal, the Agency language to this provision to clarify that have been minimized because land proposed to limit variances based on a site-specific variances cannot be approved without treatment is a type of land disposal and minimize threat determination to contaminated soils where all concentrations of hazardous opportunity for public participation, section 3004(m) requires that threats be constituents were below a ‘‘bright line,’’ that is, including notice by appropriate means, minimized before land disposal occurs); below a certain risk level. The Agency also opportunity for public comment and see also S. Rep. No. 284, 98th Cong. 1st requested comment on extending site-specific adequate explanation of an ultimate sess. at 15, stating that engineered minimize threat variances to other contaminated soils. Based on further consideration and barriers cannot be considered in consideration of comments, the Agency is 19 While not forbidden, the Agency believes that assessing no-migration variances persuaded that a site-specific minimize threat site-specific, risk-based minimize threat because ‘‘[a]rtificial barriers do not variance should be available to all contaminated determinations will rarely be made in the context provide the assurances necessary to soils. The Agency believes this is proper because of an independent or voluntary cleanup action, the outcome of a site-specific, risk-based minimize since, in these types of actions, an overseeing meet the standard.’’ This means that threat variance—alternative, site-specific LDR Agency will not, typically, have been involved in site-specific minimize threat treatment standards based on risk—will be the same the identification exposure pathways and receptors determinations must be based on the regardless of the initial concentrations of hazardous of concern or the calculation of site-specific, risk- inherent threats any given contaminated constituents. In any case, the Agency is not, at this based cleanup levels. Of course, generators could time, taking action on the portion of the April 29, apply for a site-specific, risk-based minimize threat soil would pose. The Agency recognizes 1996 proposal that would have established a ‘‘bright variance during an independent or voluntary that this will have the effect of line’’ to distinguish between higher- and lower-risk cleanup and, provided EPA or an authorized state precluding site-specific minimize threat media. If, in the future, the Agency takes action to agreed that the proposed alternative treatment variances for remedies that rely, even in establish a bright line, it will address the standards minimized threats considering relationship of a bright line to site-specific appropriate exposure pathways and receptors, a part, on capping, containment or other minimize threat variances. variance could be approved. physical or institutional controls. In 28608 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations addition to being compelled by the occur.20 Protection of environmental site-specific minimize threat variance be statute, the Agency believes this receptors and against cross-media within the range of acceptable values approach is proper, in that it may contamination may, in some cases, the Agency typically uses for cleanup encourage remedy choices that rely require more stringent (i.e., lower) decisions, as discussed above. In more predominantly on treatment to alternative treatment standards than addition, as discussed above, the permanently and significantly reduce would be necessary to protect human Agency has clarified that, unlike some the concentrations (or mobility) of health alone. The Agency recognizes CERCLA or RCRA corrective action hazardous constituents in contaminated that this approach is different from the remedies, site-specific minimize threat soil. The Agency has a strong and approach used in developing national variances may not rely on post-land longstanding preference for these types risk-based minimize threat levels disposal controls. of more permanent remedial proposed in the Hazardous Waste 4. Constituents Subject to Treatment approaches. Identification Rule (HWIR-Waste). 60 FR In addition, at a minimum, alternative 66344 (December 21, 1995). This For soil contaminated by listed land disposal restriction treatment difference is proper, in that the HWIR- hazardous waste, EPA proposed that standards established through site Waste proposal contemplated treatment would be required for each specific, risk-based minimize threat nationally-applicable risk-based LDR hazardous constituent originating from variances should be within the range of treatment standards and, therefore, had the contaminating waste. For soil which values the Agency generally finds to consider the myriad of potential exhibits (or exhibited) a characteristic of acceptable for risk-based cleanup levels. exposure pathways and receptors which hazardous waste, EPA proposed that That is, for carcinogens, alternative might occur at any given site, nation treatment would be required: (1) in the treatment standards should ensure wide. A site-specific minimize threat case of TC soil, for the characteristic constituent concentrations that result in determination is informed by actual and contaminant; (2) in the case of ignitable, the total excess risk from any medium reasonable potential exposure pathways reactive or corrosive soil, for the to an individual exposed over a lifetime and receptors at a specific land disposal characteristic property; and, (3) in both generally falling within a range from location. cases, for all underlying hazardous 10¥4 to 10¥6, using 10¥6 as a point of Although not expressly limited to constituents. 61 FR at 18809 (April 29, departure and with a preference, all land disposal of contaminated soil on- 1996). Under the 1996 proposal, things being equal, for achieving the site, EPA anticipates that site-specific treatment would have been required only when those constituents were more protective end of the risk range. minimize threat variances will, most initially present at concentrations For non-carcinogenic effects, alternative often, be applied to these activities. The greater than ten times the universal treatment standards should ensure basis for developing an alternative land treatment standard. EPA also requested constituent concentrations that an disposal restriction treatment standard comment on, among other things, individual could be exposed to on a during the site-specific minimize threat whether, for soil contaminated by listed daily basis without appreciable risk of variance is application of risk hazardous waste, treatment should be deleterious effect during a lifetime; in information about specific exposure required for all underlying hazardous general, the hazard index should not pathways and receptors of concern. To constituents present at concentrations exceed one (1). Constituent apply such a variance to off-site land above ten times the UTS. Underlying disposal, the treatment standard would concentrations that achieve these levels hazardous constituent is defined in 40 have to be informed by the exposure should be calculated based on a CFR 268.2(i) as, ‘‘any constituent listed pathways and receptors present at the reasonable maximum exposure in 40 CFR 268.48 table UTS, except off-site land disposal areas (assuming no scenario—that is, based on an analysis fluoride, sulfides, vanadium, selenium, physical or engineered structures or of both the current and reasonably and zinc, which can reasonably be expected future land uses, with other post-land-disposal controls). expected to be present at the point of exposure parameters chosen based on a While such an analysis is allowed, this generation of the hazardous waste, at a reasonable assessment of the maximum information is not, to the Agency’s concentration above the constituent- exposure that might occur. The Agency knowledge, routinely gathered during specific UTS treatment standards.’’ believes these represent an appropriate site remediation. Many commenters supported the range of minimum values for site- Most commenters supported the proposed approach. Some commenters, specific, risk-based minimize threat concept of using a treatment variance to however, expressed concern that, determinations because sites cleaned up reduce the likelihood that, in any because contaminated soil often to these levels are typically released particular case, technology-based soil contains numerous hazardous from regulatory control under the treatment standards might prompt constituents from a variety of sources, Federal CERCLA program and the RCRA treatment beyond the point at which limiting treatment of soil contaminated corrective action program. See, for threats to human health and the by listed hazardous waste to example, the National Contingency Plan environment are minimized. constituents originating from the (55 FR 8666, March 8, 1990) the 1990 One commenter was concerned that contaminating waste might result in soil RCRA Corrective Action Subpart S establishing a risk-based minimize contaminated with listed waste Proposal (55 FR 30798, July 27, 1990), threat variance without adequate undergoing less treatment than soil and the 1996 RCRA Corrective Action minimum standards would be contrary which exhibits (or exhibited) a Subpart S ANPR (61 FR 19432, May 1, to law and impossible to oversee. EPA characteristic of hazardous waste. One 1996). In addition to achieving was, in part, persuaded by these commenter also asserted that the protection of human health, alternative comments and has added a requirement proposed approach to constituents treatment standards must ensure that that, at a minimum, alternative LDR subject to treatment was, in the case of environmental receptors are protected treatment standards approved through a soil contaminated by listed hazardous and must also ensure that no waste, inconsistent with the Chemical unacceptable transfer of contamination 20 Unacceptable cross-media transfer would include, for example, transfer of contaminants from Waste opinion. On further from one medium to another, for soil to air in excess of applicable air emission consideration, EPA was persuaded that example, from soil to ground water, will standards. it is prudent to apply the logic of the Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28609

Chemical Waste opinion both to soil and circumstances at the facility and compliance with LDRs when contaminated by listed hazardous waste focus on the units, releases, and constituent concentrations fall below and to soils which exhibit a exposure pathways of concern.’’ background concentrations even if it felt characteristic of hazardous waste. For nonanalyzable constituents, EPA compelled to do so. (Of course, such As the Agency explained in the 1996 is promulgating the approach discussed constituents could be regulated as proposal, contaminated soils are in both the September 14, 1993 and the hazardous constituents under state and potentially contaminated with a wider April 29, 1996 proposals. In situations Federal cleanup authorities, including range of hazardous constituents than where contaminated soil contains both RCRA corrective action and other most pure hazardous wastes generated analyzable and nonanalyzable organic authorities.) by on-going industrial processes—in no constituents, treating the analyzable Since natural background small part because contaminated soils constituents to meet the soil treatment concentrations may vary across generally reflect uncontrolled disposal standards is also reasonably expected to geographic areas, and to ensure that settings. 58 FR at 48124 (September 14, provide adequate treatment of the LDRs will only be capped at background 1993). Since the Chemical Waste nonanalyzable constituents. In where appropriate, EPA will require opinion addressed a similar situation situations where contaminated soil that individuals who wish to cap LDR (certain characteristic hazardous wastes contains only nonanalyzable treatment at natural background that might contain a variety of constituents (i.e., soil contaminated concentrations apply for and receive a hazardous constituents), the Agency is only by nonanalyzable U or P listed treatment variance. EPA will presume persuaded that it is prudent to apply the wastes), treatment using the specified that when LDRs would require logic of the Chemical Waste opinion to method for the appropriate U or P listed treatment to concentrations that are less contaminated soil and require treatment waste is required. 61 FR at 18810, April than natural background, such a of all underlying hazardous 29, 1996. Most commenters supported variance will be appropriate, based on constituents. See Chemical Waste this approach. the finding that it is inappropriate, for Management v. US EPA, 976 F.2d at 16– contaminated soil, to require treatment 5. Relationship of Soil Treatment 18 (D.C. Cir 1992). Therefore, when the to concentrations less than natural Standards to Naturally Occurring soil treatment standards are used, background concentrations. This issue Constituents today’s final rule requires that all has been clarified in today’s final contaminated soil subject to the LDRs be In the April 29, 1996 proposal EPA regulations, see 40 CFR 268.44(h)(4). treated to achieve the soil treatment requested comment on whether 6. Restrictions on Use of Treated standards for each underlying concentrations of naturally occurring Hazardous Contaminated Soil in hazardous constituent reasonably constituents should be evaluated when Products Used in a Manner Constituting expected to be present in the soil when identifying constituents subject to Disposal such constituents are initially found at treatment. Commenters who addressed concentrations greater than ten times this issue overwhelmingly Although, as discussed earlier in the universal treatment standard. In recommended that, for naturally today’s preamble, EPA believes the soil addition to treatment of all underlying occurring constituents, EPA cap LDR treatment standards satisfy the hazardous constituents as discussed treatment requirements for soil at requirements of RCRA Section 3004(m), above, as proposed, characteristic soil natural background concentrations. EPA has determined that additional must also be treated, in the case of TC After considering these comments, EPA restrictions are necessary for hazardous soil, for the TC constituent and, in the was persuaded that treatment to comply contaminated soils that are used to case of ignitable, corrosive, or reactive with LDRs should not be required if produce products which are, soil, for the characteristic property. constituent concentrations fall below subsequently, used in a manner Although, when the soil treatment naturally occurring background constituting disposal (i.e., used to standards are used, treatment is now concentrations, provided the soil will produce products which are placed in required for each underlying hazardous continue to be managed on site or in an or on the land). Under current constituent when such constituents are area with similar natural background regulations, hazardous waste-derived initially found at concentrations greater concentrations. If soil will be sent for products that are used in a manner than ten times the universal treatment land disposal off-site, compliance with constituting disposal must, among other standard, it will not be necessary to LDRs is required, since the Agency things, comply with the applicable land monitor soil for the entire list of believes that natural background disposal restriction treatment standards underlying hazardous constituents. concentrations on-site will not in 40 CFR part 268.40, that is, the Generators of contaminated soil can automatically correspond to natural Universal Treatment Standards. See 40 reasonably apply knowledge of the background concentrations at a remote CFR 266.23(a). EPA has concluded that likely contaminants present and use that land disposal facility. hazardous contaminated soil used to knowledge to select appropriate The Agency notes that, for purposes produce products which are, underlying hazardous constituents, or of this discussion, natural background subsequently, used in a manner classes of constituents, for monitoring. concentrations are constituent constituting disposal must continue to This is consistent with the approaches concentrations that are present in soil meet the universal treatment standards. EPA typically takes in remedial which has not been influenced by Such products, then, are not eligible for programs, where it emphasizes that human activities or releases. Since these the soil treatment standards remediation managers should focus constituent concentrations are present promulgated today. EPA has made this investigations on constituents of absent human influence and EPA has decision for several reasons. First, EPA concern and with regulations that allow determined that soil (like other has chosen technology-based treatment generators to rely on knowledge to environmental media) is not, of itself, a standards (such as today’s soil treatment determine whether any given solid waste but may be regulated as standards) as a means of implementing waste is hazardous. Cf. 61 FR at 19444 hazardous waste under RCRA only the LDR statutory requirements in order where EPA encouraged remediation when it contains (or contained) waste, to eliminate as many of the managers to ‘‘tailor [facility EPA is not convinced the Agency would uncertainties associated with land investigations] to the specific conditions have the authority to require disposal of hazardous waste as possible. 28610 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations

55 FR at 6642 (Feb. 26, 1990). These contaminated soil and has revised the required before treated contaminated uncertainties increase sharply when one regulations accordingly. soil can exit the system of RCRA considers possible dispositions of EPA’s thinking in proposing to regulations. hazardous waste-derived products used require a site-specific remediation Second, as noted earlier, EPA has in a manner constituting disposal. These management plan to take advantage of extended the treatment requirement to products can be placed virtually the soil treatment standards was that all underlying hazardous constituents anywhere, compounding potential site-specific oversight, and potentially reasonably expected to be present in release mechanisms, exposure modification of the treatment standards, contaminated soils when such pathways, and human and would be necessary to ensure that all constituents are found at initial environmental receptors. 62 FR at 64506 contaminated soils were appropriately concentrations greater than ten times (Dec. 5, 1997) and 53 FR at 31197–98 treated. 61 FR at 18807 (April 29, 1996). the universal treatment standard and (August 17, 1988). For these reasons, the However, EPA now concludes that the retained current treatment requirements Agency in 1988 determined that these soil treatment standards will ensure for hazardous contaminated soils used wastes should be treated to reflect the adequate treatment of all contaminated to produce products that are best treatment available, 53 FR at soils for two reasons. subsequently used in a manner 31197–98, and the Agency believes this First and primarily, the residuals from constituting disposal. reasoning continues to hold with treatment of hazardous contaminated soil will typically continue to be 8. Achievability of Contaminated Soil respect to contaminated soils. Second, Treatment Standards EPA has determined that the soil regulated as hazardous waste and will treatment standards adopted in today’s remain subject to applicable RCRA The soil treatment standards rule are justified, in many instances, in Subtitle C requirements. 61 FR at 18810 promulgated today are based primarily order to encourage remediation (April 29, 1996). Non-soil residuals, on the data for soil treatability found in involving treatment over remedies that such as wastes generated during EPA’s Soil Treatment Database (SDB). involve leaving un-treated contaminated application of separation technologies, See, Best Demonstrated Available soils in place. The Agency is less sure will be regulated as hazardous wastes if Treatment Background Document for that this is a desirable incentive if the they exhibit a characteristic of Hazardous Soils, August 1993 and LDR contaminated soils are to be used in a hazardous waste or if they derive from Phase 2 proposal at 58 FR 48122, Sept. manner constituting disposal, again treating a soil which contains listed 14, 1993. Data from the soil treatment because of the uncertainties posed by hazardous waste. Therefore, these types database are corroborated by more this method of land disposal. of non-soil residuals will typically be recent performance data for non- Note that EPA has explained, subject to the universal treatment combustion treatment of remediation however, that remediation activities standards in 40 CFR 268.40. See 57 FR wastes. See Soil Treatability Analysis: involving replacement of treated soils at 37240 (Aug. 18, 1992) where EPA Analysis of Treatability Data for onto the land is not a type of use took the same approach for residues Contaminated Soil Treatment constituting disposal, in part, because it from treating contaminated debris. Soil Technologies (April 1998, USEPA) and is a supervised remediation instead of residuals will also be regulated as references cited in note 5 below. an unsupervised recycling activity. 62 hazardous waste unless it is determined The soil treatment data base contains FR 26063 (May 12, 1997). This that the soil does not contain hazardous 6,394 pairs of data points (for the same interpretation is not affected by today’s waste.21 For example, application of a sample, one datum for untreated soil rulemaking. thermal desorption technology would and one datum for treated soil) likely generate two types of residuals: describing the treatment of hazardous 7. Availability of Soil Treatment treated soil (soil residual) and constituents in contaminated soils Standards concentrated contaminants removed managed under the RCRA and the EPA proposed that soil-specific land from the soil and captured in an air Superfund programs. After screening disposal restriction treatment standards pollution control device (non-soil the database to eliminate data from tests would be available only for residual). If the contaminated soil reflecting poorly designed or operated contaminated soils managed under an contained a listed hazardous waste or treatment, tests where EPA believes agency approved, site-specific cleanup exhibited a characteristic of hazardous inappropriate technologies were applied plan termed a Remediation Management waste at the time of treatment, both (for example, data from immobilization Plan or ‘‘RMP.’’ The Agency also residuals would continue to be subject of organic constituents) and other specifically requested comment on to RCRA Subtitle C regulations. The inappropriate data, the Agency was left whether soil-specific treatment non-soil residual would be required to with 2,541 pairs of data points. These standards should be made available to comply with applicable universal data pairs depict treatment of ninety- all contaminated soil. 61 FR at 18813 treatment standards prior to land four hazardous constituents, including (April 29, 1996). The majority of disposal; the soil residual would eighty-five organic constituents and commenters who addressed this issue generally require land disposal in a nine BDAT list metals. The retained strongly supported extending the soil Subtitle C unit unless a ‘‘contained-in’’ 2,541 pairs of data points from the soil treatment standards to all contaminated determination was made. Therefore, treatment database represent the soil. These commenters argued that although a remediation management treatment of organic and metal extending soil-specific LDRs to all plan is no longer required to take constituents by various technologies contaminated soil would encourage advantage of the soil treatment including: combustion, biological voluntary and independent cleanups, standards, a site-specific decision is still treatment, chemical/solvent extraction, especially at low and medium priority dechlorination, thermal desorption, air/ sites where a regulatory agency might 21 The exception would be soil residuals from steam extraction, photolysis, soil not have the resources to provide real- treatment of soils which were determined no longer washing, stabilization, and vitrification. time oversight through a ‘‘RMP.’’ After to contain a listed hazardous waste or were The soil treatment database includes decharacterized and yet remained subject to LDRs. considering these comments, EPA is In this case, since the treatment would be performance data from bench, pilot, and persuaded that the soil treatment performed on non-hazardous soil, the soil residuals full scale technologies. A complete standards should be available for all would also be considered non-hazardous. discussion of the Agency’s method for Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28611 screening the Soil Treatment Database capped at ten times the UTS—are a. Comments. Many commenters can be found in the LDR Phase II within the zone of reasonable values expressed concern that the retained proposal (58 FR 48129–31, September from which the Agency can properly 2,541 data points from the soil treatment 14, 1993) and the Best Demonstrated select. database might not adequately address Available Technology Background For soil contaminated with organic the many types of soils and Document for Hazardous Soil (August constituents, the retained 2,143 data contaminated site scenarios that may 1993). pairs from the soil treatment database arise in the field. Among other things, A number of commenters were show generally that soils with moderate these commenters asserted that: (1) the concerned that aggregated data, i.e., the levels of contamination are more list of chemical organic constituents for 2,541 pairs of data points representing amenable to treatment by non- which EPA has data may be too small the combined performance of combustion technologies than soils with to extrapolate to other organics in the combustion and non-combustion high levels of contamination. However, list of underlying hazardous technologies, may mask the the data also show that the soil constituents that must meet treatment performance of non-combustion treatment standards promulgated today standards; (2) for organic constituents, technologies alone. Commenters urged can be achieved by non-combustion many of the treatment test results EPA to disaggregate these performance technologies even in cases when soils examined by EPA involved mostly data to allow for more accurate analysis contain elevated levels of harder-to-treat combustion rather than non-combustion of non-combustion technology organic hazardous constituents, such as technologies; (3) for soils with multiple performance. As a result, EPA has dioxins and furans, polychlorinated hazardous constituents and other disaggregated the combustion and non- biphenyls (PCBs), and polynuclear complex soil matrices, the soil treatment combustion treatment data for purposes aromatics (PNAs). The available data on standards could only be met via of analyzing the achievability of today’s the performance of non-combustion incineration; and, (4) EPA should not soil treatment standards. See generally, technologies suggest that some pool data from bench, pilot, and full Soil Data Analysis: Soil Treatability technologies are more effective with scale treatment applications. For the Analysis of Treatability Data for certain organics within specific families most part, these commenters suggested Contaminated Soil Treatment or chemical functional groups. For that EPA either exempt hazardous Technologies (April 1998, USEPA) and example, while many organic treatment contaminated soil entirely from a duty Additional Information on Treatability technologies were effective in removing to comply with land disposal restriction of Contaminated Soils as Discussed in volatile organics from the soils, treatment standards or, if hazardous Section VII.B.8. of Phase IV Final Rule dechlorination is more effective than contaminated soil were to remain Preamble (April 1998, USEPA). other non-combustion treatment subject to LDRs, allow risk-based After separating out combustion data, technologies for treating chlorinated treatment standards to be developed the remaining non-combustion soil organics. For soil contaminated by entirely on a site-by-site basis pursuant treatment data base is reduced from metals, the retained 2,143 data points to state oversight. EPA closely considered these 2,541 to 2,143 paired data points. These from the soil treatment database show 22 comments and carefully re-evaluated 2,143 data pairs depict the treatment that metals can typically be treated via 23 the data from the soil treatment database of 72 organics and nine metals in stabilization to meet the soil treatment contaminated by biological treatment, as well as other data from more recent standards. sources. These evaluations are chemical and solvent extraction, Although, for the reasons discussed dechlorination, thermal desorption, air summarized in the background earlier in today’s preamble, EPA has documents for today’s final rule. EPA is and steam stripping, hydrolysis, elected to base the soil treatment photolysis, soil washing, and not, at this time, taking action to standards on the performance of non- categorically exempt large volumes of stabilization. combustion technologies, combustion of As discussed earlier in today’s hazardous remediation waste (including soil is not prohibited. This is consistent contaminated soil) from RCRA preamble, EPA did not use the with all other numerical treatment traditional BDAT approach to develop hazardous waste management standards, which can likewise be requirements and, therefore, the issue of the soil treatment standards. Instead, the achieved through use of any technology Agency evaluated data from the 2,143 achievability of today’s soil treatment (other than impermissible dilution). It standards is germane. non-combustion data pairs in the soil may be that combustion is, in fact, treatment database to identify, Notwithstanding the treatment results chosen as the remedial treatment described in this section below, which generally, the level of performance non- technology at certain sites, most likely combustion soil treatment technologies support the achievability of today’s soil because of economic considerations treatment standards, EPA realizes that achieve. In light of our multi-faceted (such as in the case of low soil volumes objectives regarding remediation of national, technology-based treatment where on-site treatment units are not standards are sometimes not achievable contaminated soils (discussed earlier in economically viable). Selection of the this preamble), this approach and because of site- and waste-specific best treatment technology for the characteristics. Thus, EPA has long methodology are appropriate. As noted specific soil type and range of provided for treatment variances under earlier in today’s preamble, the contaminants present at any given these circumstances (see 40 CFR numerical values chosen for soil remediation site is a site-specific 268.44). In addition, because EPA and treatment standards—90% reduction decision assuming, for soils subject to authorized states are in a position the LDRs, that the selected technology during remediation to make site-specific 22 One single datum from the vitrification of p,p’DDT was not included since it appears to have does not involve impermissible dilution risk-based minimize threat resulted from treatment that was not optimally and that today’s soil treatment standards determinations, the Agency is also designed or conducted. are met. Further details about the results adopting in today’s rule a new type of 23 Out of 85 organic constituents, only 13 were of EPA’s examination of treatment variance for contaminated soils. This treated exclusively by combustion. See, however, the discussion later in this preamble with regard to technologies for different groups of variance can be granted if, on a case-by- presence of data from incineration and contaminants are discussed in the case basis, it is determined that the extrapolation of data among organic constituents. succeeding sections. technology-based treatment standard 28612 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations would prompt treatment beyond the remediation wastes or a re-evaluation of Technologies (April 1998, USEPA) point at which threats are minimized. today’s soil treatment standards, or (hereinafter, this document is referred to Fundamentally, EPA agrees with both. In the meantime, today’s rule as the ‘‘Soil Treatability Analysis many commenters that today’s land represents a significant improvement Report’’). General concerns about the disposal treatment standards for over the current practice of applying the soil treatment database (and in contaminated soil may not remove all of treatment standards developed for pure particular, concerns about achieving the the barriers RCRA can impose on industrial hazardous waste to 10 times UTS or 90% reduction efficient and aggressive site contaminated soil. standard) are addressed here. Results of remediation. As discussed earlier in b. Analysis of Data from the Soil our analysis of the soil treatment today’s preamble, the Agency hopes the Treatment Database. The soil treatment database data on treatment performance application of RCRA Subtitle C standards promulgated today are based requirements to remediation of EPA’s Soil Treatment Database (SDB). for various technologies are shown in contaminated soils and other wastes See, Best Demonstrated Available Table 1 below. Results of additional will be addressed through legislation. If Treatment Background Document for analysis for various organic and metal there is no legislative action, EPA may Hazardous Soils (August 1993); LDR contaminant groups are shown in Tables choose to take additional regulatory Phase 2 proposal (58 FR 48122, Sept. 14, 2–5 below. Further details of the action, which may include either a re- 1993); and Soil Treatability Analysis: analysis and additional findings are examination of the application of LDRs Analysis of Treatability Data for contained in the technical background to contaminated soil or other Contaminated Soil Treatment documents in this docket.

TABLE 1.ÐSUMMARY OF TREATMENT RESULTS PER TECHNOLOGY IN SOIL DATA BASE 24

Untreated Treated Total paired data Data points Data points Data points Data Points fail- Treatment technology points in the soil Data points meeting 10 times meeting 90% re- meeting both 10 ing both 10 times data base meeting 10 times UTS but not 90% duction but not times UTS and UTS and 90% UTS standard reduction stand- 10 times UTS 90% reduction reduction stand- ard standard standards ards

Biological Treatment ...... 250 86 176 168 109 15 Chemical Treatment ...... 242 58 226 206 200 10 Dechlorination ...... 154 53 134 100 84 4 Stabilization ...... 269 140 250 239 232 12 Stripping ...... 236 88 206 103 103 30 Washing ...... 35 10 21 14 11 11 Thermal Desorption ...... 957 338 833 759 692 57 Total ...... 2143 25 773 1846 1589 1431 139

In aggregate, the results on Table 1 mixtures or soil textures at a site. As dichlorophenol; methoxychlor; 2,4,6- indicate that the Agency’s selection of further explained in succeeding sections trichlorophenol; 2,4,5-trichlorophenol; standards are within the range of of this preamble and in various carbon tetrachloride; chloroform; reasonable values for non-combustion background documents, EPA believes hexachloroethane; 1,2-dibromo-3- technologies to achieve. These data that the hazardous soil treatment chloro-propane; isodrin; and gamma- show that 139 (or 6%) paired data standards promulgated today are within BHC. None of the data describing points out of 2143 would fail to meet a regime of reasonable treatment levels combustion of these 13 constituents or the 10 times UTS or 90% reduction normally achieved by non-combustion the other 37 organics (for which there standard. Among possible reasons for technologies. See, e.g., Soil Treatability are some combustion results) were these treatment performance deviations Analysis Report and Extrapolation of relied upon in assessing achievability of are that some soil samples represent Treatment Performance Data in the Soil today’s hazardous soil treatment limits. cases in which the selected technology Data Base Among Hazardous With respect to commenters’ concerns was not appropriate for the range of Constituents in Contaminated Soils about extrapolating the SDB data to hazardous constituents in an organic (April 1998, USEPA). organic and inorganic constituents that chemical admixture. A better selection (1) Concerns About Presence of Data will need to be treated, EPA analyzed of treatment technology may include from Incineration and Extrapolation of the various non-combustion either a more aggressive non- Data to Other Constituents. As technologies and their average treatment combustion technology or may involve mentioned earlier, EPA has segregated efficiencies against various chemical use of two or more technology trains in the available treatment data (2,541 clusters and chemical functional groups order to meet the soil treatment paired data points) so that we can better standards. It is common practice to examine the 2,143 paired data points of hazardous constituents. See: (1) employ multiple treatment trains at describing the treatment of hazardous Extrapolation of Treatment Performance facilities that have complex chemical soils by non-combustion technologies. Data in the Soil Data Base Among Although 50 organic constituents in the Hazardous Constituents in 24 For discussion of these treatment data, see Soil original 2,541 paired data points were Contaminated Soils (April 1998, Treatability Analysis Report, and Extrapolation of treated by combustion (i.e., USEPA); (2) Derivation of Treatment Treatment Performance Data in the Soil Data Base incineration), only 13 of these 50 Achievability Results of Organic Among Hazardous Constituents in Contaminated organics were treated exclusively by Functional Groups and Types of Soils (April 1998, USEPA). Compounds (April 1998, USEPA); (3) 25 As noted earlier, EPA examined in detail up to combustion. These 13 hazardous 2,541 pairs of data points in total, and the number constituents are: 1,2,4-trichloro- Soil Treatability Analysis Report of non-combustion data pairs examined is 2,143. benzene; p,p′-DDD; p,p′DDE; 2,4- (USEPA, 1998); and (4) Additional Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28613

Information on Treatability of • Ethylbenzene—100%; desorption. For these reasons, the Contaminated Soils as Discussed in • Volatile aromatics—99.9%; Agency has concluded that today’s soil • Section VII.B.8. of the Final Rule Semivolatile PNAs—97.4%; treatment standard for cyanide can be • Preamble (April 1998, USEPA). Bis(2-ethylhexyl)phthalate—93.2%. achieved by a non-combustion Regarding complex metal The results are summarized in Tables technology as well. 2–5 below. These results show that non- remediations, the full-scale stabilization combustion technologies can achieve study conducted at the Portable (2) Technology Scale and Soil today’s soil treatment standards. 93.5% Equipment Salvage Company, a Variability Issues. As noted earlier, (2,004 of the 2,143 data pairs ) of the transformer and metal salvage operation several commenters objected to EPA’s treatment test results meet the 10 times in Oregon, involved untreated levels of pooling of treatment data from pilot, UTS or 90% reduction standard. lead up to 880 mg/l (TCLP) and zinc up bench, and full scale processes, and Furthermore, non-combustion to 71 mg/l (TCLP). Organics were also urged EPA to consider only performance technologies can meet the soil treatment present—the highest sample showing data from full-scale field studies standards even in cases when soils 610 mg/l lead (TCLP), 14,000 ppm oil characterizing the treatment of soil contain elevated levels of harder-to-treat and grease, 41,000 ppm total organic volumes. EPA prefers, generally, to rely organic hazardous constituents, such as carbon, and 7.1 pH. The facility on full scale studies for the purpose of dioxins and furans, polychlorinated conducted treatability studies on three developing and promulgating treatment biphenyls (PCBs), and polynuclear soil textures found at the site: (1) sandy standards, and this is true with respect aromatics (PNAs). See Appendix D in loam, (2) loamy sand, and (3) loam. The to the soil treatment standards as well. stabilized sandy loam sample showed a Soil Treatability Analysis Report. However, in this case as well as in many concentration of 0.5 ppm lead, a 99.72% As noted earlier, available data on the prior LDR treatment standard efforts, reduction efficiency. The facility also performance of non-combustion EPA’s data base includes more than just technologies treating organics also show treated two samples of loamy sand, one full scale data upon which EPA can that some technologies are more to 47 mg/l lead (TCLP) (a 93.65% properly rely. Bench and pilot scale effective with certain organics within reduction efficiency ) and the other to specific families or chemical functional 2.5 mg/l lead (TCLP) (a 99.72% technologies can be appropriately groups, e.g., organic treatment reduction efficiency ). The treated loam considered by EPA (and EPA has technologies removing volatile organics sample showed 0.10 mg/l lead, a historically done so) in setting treatment from the soils and dechlorination 99.97% reduction. limits as long as full scale operations of removing halogenated organics. More information underlying EPA’s the treatment system under Treatability tests at certain complex rationale for extrapolating the available consideration exist or have been sites corroborate these findings of treatment performance data to other demonstrated on wastes/soils. Except achievability from the SDB. organic and inorganic hazardous for hydrolysis,27 the technologies in the Regarding organics, at the Ninth constituents regulated under the land SDB are demonstrated full scale, and the Avenue Dump Site in Indiana, disposal restrictions can be found in the administrative docket contains bench, hazardous soils were contaminated with RCRA Docket for this rule (see pilot, and full scale studies that reflect low to moderate concentrations of Appendix D in Soil Treatability the Agency’s field experiences at PNAs, aromatics, chlorinated aliphatics, Analysis Report) and memorandum to contaminated sites. and phthalates. Untreated constituents docket on extrapolation of treatment showed concentrations that were about performance data among different Furthermore, in this rulemaking, the same or up to two orders of hazardous constituents. given the variability of hazardous soils magnitude higher than today’s soil Finally, we note that even though (in terms of types, concentrations and treatment standards.26 Among the there were treatment data on soils numbers of hazardous constituents and volatiles were toluene (1,100 ppm), total containing cyanide in the larger data soil matrices), plus the special policy xylene (2,100 ppm), ethylbenzene ( 420 base (6,394 paired data points), none of considerations associated with ppm), 1,1,1-trichloroethane (120 ppm), the retained 2,541 or 2,143 paired data remediations, the Agency is adopting trichloroethene (93 ppm), points included treatment data on treatment standards from the zone of tetrachloroethene (380 ppm), 1,1- cyanide. However, the current UTS for reasonable values that could be dichloroethane (81 ppm), and cyanide is based on the performance of permissibly selected based upon the methylene chloride (800 ppm). The alkaline dechlorination, a non- treatment performance data. Thus, the following semivolatile organics-PNAs combustion technology. Cyanides can data are not being used so much to (and their highest concentration) were form complexes with metals and establish a precise performance level as phenanthrene (92 ppm) and organics and, therefore, technologies to confirm the typical achievability of naphthalene (84 ppm). Bis(2-ethylhexyl) capable of removing both organic and the promulgated standards, i.e., ten phthalate, a semivolatile phthalate, was metals are also able to remove cyanide times UTS or 90% reduction. reported at 110 ppm. The soil particle from contaminated soils. As a result, it distribution of the contaminated soil is reasonable to expect that the average With respect to the SDB and was not quantified, but the soil was treatment performance attained by commenters’ concerns about the impact reported as comprised primarily of sand treating organics in soils will also be of soil variability on achievability of the and silt. Biotreatment achieved the achieved for cyanide-bearing soil treatment standards by non- following average treatment reduction contaminated soils. We note that, for combustion technologies, EPA collected efficiencies: example, 90% reduction can be 6,394 pairs of data point describing the • Volatile chlorinated aliphatics— achieved based on the performance treatment of various hazardous soils. 99.9%; efficiency that thermal desorption attained in removing PNA’s (with more 27 Hydrolysis can be of normal occurrence or 26 The following constituents were present at than five rings) and chlorinated organics intentionally induced at hazardous waste sites. EPA levels below the soil treatment standards; fluorene, from contaminated soil. These does not have full-scale ex-situ demonstration fluoranthene, pyrene, acenaphthalene, studies on this technology but considers the data in benzo(a)anthracene, chrysene, di-n-butyl phthalate, constituents are among the hardest the SDB to be indicative of what levels can be and diphenylnitrosamine. chemical species to remove via thermal achieved. 28614 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations

The retained 2,143 non-combustion Another alternative is to optimize Pooled bench, pilot, and full scale paired data points are reasonably specific technology operating data in the SDB are expected to depict sufficient to adequately describe the parameters that can enhance the ability what the various treatment technologies treatment of metal, organics, and of the technology to meet the prescribed can achieve for other hazardous soils multiple metal and organic treatment limits. Optimization can managed under CERCLA and RCRA. As contaminants that are frequently found involve: (1) feeding the correct soil/ noted earlier, non-combustion at different type of sites, including both debris particle size fractions to the technologies will behave better on a Superfund and RCRA sites. For treatment system, (2) creating more given range or class of organic and metal instance, the SDB has treatment data on turbulence between soil and gaseous/ constituents. A given range of soil liquid treatment fluids, (3) using a soils with varying textures including top characteristics that may inhibit soils, silty/loam soils, and clay soils. For greater-than-normal amount of chemical treatment performance can be amended the 14 different soil type groupings agents, (4) operating at the higher end of to facilitate the treatment of hazardous analyzed, only 139 out of 2,143 data an operating temperature range, (5) soils. Available information on other pairs (about 6.5%) would not meet adjusting the pH of the soil, (6) adding today’s soil treatment standards (see adequate pre-/post-treatment steps that full scale operations of the tested Appendices C and D in Soil Treatability address specific contaminants that may technologies demonstrate that Analysis Report). be expected to receive sub-optimal optimization techniques can be used to With respect to these 6.5% data pairs, treatment, or (7) allowing longer overcome potential soil interferences several potential reasons exist to explain residence time in the treatment unit. and thus attain, generally, treatment why 90 % reduction or 10 times UTS It is not possible to determine design objectives. Hence, it is important level might not have been achieved. precisely how many of these techniques to carefully evaluate the characteristics First, the treatment study objectives may were used in the 139 instances that of each site against the expected not primarily have been to test whether failed the 90% reduction or 10 times capabilities of various non-combustion these standards could be met. For UTS levels. However, EPA expects that technologies, which are summarized example, the treatment study may have not all optimization measures were used below. since the operators of the treatment been designed either to assess the (3) Performance Data for Organic feasibility of using a particular (but not technologies did not have as their primary objective the attainment of Constituents. EPA’s conclusions with necessarily optimum) technology on a respect to achievability of soil treatment particular contaminated soil, or to meet these particular levels, which are being standards for organics in hazardous a prescribed risk-based level under a adopted today as the soil treatment soils are based on the performance of RCRA or CERCLA site remediation plan. standard. On balance, the weight of Second, a treatment technology may evidence and analysis from the SDB are biological treatment, chemical have been applied to soils contaminated believed to reasonably indicate that extraction, dechlorination, soil washing, with multiple hazardous constituents today’s standards are achievable for thermal desorption, and soil vapor where the technology may have been soils that may exhibit variability, extraction. Other treatment technologies inappropriate for a subset of those particularly if optimization techniques capable of achieving the treatment contaminants (and for which data were or treatment technology trains are fully limits (such as combustion) are not reported anyway). For example, air considered. Of course, should an prohibited except for those that may stripping is a technology that operates unusual situation present itself in which constitute impermissible dilution. best on volatile organics within a given these measures are not successful, a Tables 2 and 3 below provide an range of Henry constant values. In treatment variance can be sought under overview of the number of data points contrast, air stripping of semivolatile 40 CFR 268.44(h) or under the risk- and the average treatment efficiency organics and metals is expected to be based variance provisions being adopted ranges that each of the technology much poorer. (In this type of situation, in today’s rule. categories achieved. Also, each Table a technology amendment or treatment Furthermore, EPA has a number of below reports the range of test scales as train may be appropriate, i.e., air bench and pilot studies on the treatment well as the available treatment stripping may be improved if steam of contaminated soils from wood performance data per major chemical stripping is applied first to enhance the preserving, petroleum refining, and family category/cluster assigned to pool of semivolatiles that can respond to electroplating sites, which contain a chemical constituents in the BDAT List. wide range of constituents such as the physical separation treatment (For the whole list of BDAT constituents polynuclear aromatic, phenolic, process.) and their classification, see Appendix B chlorinated organics, spent solvents, Third, these treatment data likely in the BDAT Background Document for creosote, and metals. It is reasonable to include instances when a treatment Hazardous Soils, August 1993.) Further technology encountered soil expect that these treatment results, details and discussion on the results for heterogeneities that resulted in showing achievability, also lend support major chemical family categories/ undertreatment of portions of the soil. to the conclusion that treatment at other clusters is contained in the docket. For instance, during the clean up of RCRA and Superfund sites, containing contaminated debris and soils, detailed these types of complex contaminant and sampling protocols are typically soil variability scenarios, can be NTIS PB97–177562; (3) Analysis of Selected developed to ensure that desired expected to achieve today’s soil 28 Enhancements for Soil Vapor Extraction, September treatment constituent concentrations are treatment standards. See also Chapter 1997, EPA–542–R–97–007; (4) Remedial Case met because of the deleterious impact of 4 in Soil Treatability Analysis Report. Studies: Thermal Desorption, Soil Washing, and In heterogeneous soil strata and the Situ Vitrification, March 1995, EPA 542–R–95–005 presence of debris on treatment 28 See (1) Remediation Case Studies: or NITS PB95–182945; (5) Remediation Case Bioremediation and Vitrification, July 1997, EPA Studies: Soil Vapor Extraction, March 1995, EPA technology performance. Re-processing 542–R–97–008 or PB97–177554; (2) Remediation 542–4–95–004 or NTIS PB95–182937; and (6) can often be required to comply with Case Studies: Soil Vapor Extraction and Other In Remediation case Studies: Bioremediation, March the applicable treatment standards. Situ Technologies, July 1997, EPA 542–R–97–009 or 1995, EPA 542–R–95–002 or NTIS PB95–182911. Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28615

TABLE 2.ÐSUMMARY OF NONTHERMAL TREATMENT PERFORMANCE DATA ON GROUPS OF ORGANIC HAZARDOUS CONSTITUENTS 29

Biotreatment scale: Chemical extraction scale: Dechlorination scale: Soil washing scale: Hydrolysis scale: 0.01 kg to 1,250,000 kg 0.0075 kg to 37,000 kg 0.1 kg to 127,913 kg 0.08±204 kg 0.1 kg to 2.75 kg BDAT organic cluster Data Average removal Data Average removal Data Average removal Data Average removal Data Average removal points efficiency points efficiency points efficiency points efficiency points efficiency

Volatiles ...... 48 >99% ...... 9 >99% ...... 13 96.3 to 99.3% ...... None None ...... None None Semivolatiles ...... 185 55±98.2% 30 ...... 163 62±98.8% ...... 2 99.8% ...... 13 81.8±97.2% ...... None None Organochlorine ...... 12 16.7Ð70.2% ...... None None ...... 13 >95.2% ...... None None ...... 2 67.9±91.7% Phenoxyacetic Acid Pesticides ...... None None ...... None None ...... 9 98.6±99.0% ...... None None ...... None None Organo Phosphorous insecticides 31 ...... None None ...... None None ...... None None ...... None None ...... None None Polychlorinated Biphenyls ...... None None ...... 52 71.5%±99.9% ...... 69 68.8±97.1% ...... 1 88.5% 32 ...... None None Dioxins and Furans ...... None None ...... 12 40±>97% ...... 48 73.7±>99.8% ...... 7 84.8% ...... None None

Total Number of Data Points ...... 245 ...... 236 ...... 154 ...... 21 ...... 2

TABLE 3.ÐSUMMARY OF THERMAL PERFORMANCE DATA ON GROUPS OF ORGANIC HAZARDOUS CONSTITUENTS 33

Thermal desorption 34 scale: 21.6 kg to Soil vapor extraction scale: 3,823,000 kg 4.5 kg to >1,000 kg BDAT organic cluster Average Data points Average removal efficiency Data points removal efficiency

Volatiles ...... 293 79.2±99.9% ...... 189 44±99.2% Semivolatiles 35 ...... 614 50±99.4% ...... 47 0±57.2% Organochlorines ...... 12 88.5±98.8% ...... None None Phenoxyacetic Acid Pesticides ...... None None ...... None None Organo Phosphorous insecticides 36 ...... None None ...... None None Polychlorinated Biphenyls ...... 1 87.5% ...... None None Dioxins and Furans ...... 37 85.6±97.6% ...... None None

Total Number of Data Points ...... 957 ...... 236

As shown on Tables 2 and 3, EPA or non-thermal treatment of four organic which EPA has data. Therefore, based lacks performance data for the thermal constituents classified in the BDAT list on the available data for polar as organophosphorous insecticides. nonhalogenated compounds, EPA 29 For a discussion of these treatment data, see the These four constituents are disulfoton, concludes that the treatment standards Soil Treatment Achievability Report; Extrapolation famphur, methyl parathion, and for soils contaminated with these four of Treatment Performance Data in the Soil Data Base Among Hazardous Constituents in phorate. However, we can determine organophosphorous compounds can be Contaminated Soils (April 1998, USEPA); and the achievability for these four organic achieved by , chemical Additional Information on Treatability of constituents based upon the transfer of extraction, and thermal desorption Contaminated Soils as Discussed in Section VII.B.8. treatment data for other, similarly (semivolatiles). of Phase IV Final Rule Preamble, (April 1998, difficult to treat organics. Because of USEPA). These documents indicate the numbers structural and chemical similarities, (4) Other Indicia of Achievability for and types of data pairs that meet the 10 times UTS Organic Constituents level, both prior to treatment and after the treatment these four organophosphorous described in the table. compounds are expected to behave EPA also re-analyzed certain portions 30 Cyclical hydrocarbons with more than five similarly during treatment to other polar rings undergo lower reduction efficiencies. nonhalogenated phenols, phenyl ethers, of the SDB with regard to ability of 31 EPA is transferring the available performance and cresols. Thus, EPA believes that various technologies to meet today’s soil data from the chemical extraction and the biological treatment standards by looking more treatment of (semivolatile) polar nonhalogenated these four organophosphorus compounds can be treated by the same closely at organic treatability groups organics in the hazardous solid treatment data base. based on the structural features of the Thus, the columns are intentionally left blank. technologies as other polar 32 Only one test was performed. nonhalogenated organic compounds, for hazardous constituents of concern. The 33 For a discussion of these treatment data, see the results of this analysis, presented in Soil Treatment Achievability Report; Extrapolation techniques. No conclusion may be drawn about the Table 4 below, corroborate those in of Treatment Performance Data in the Soil Data regulatory status or classification of a particular Tables 1–3 and EPA’s conclusion that Base Among Hazardous Constituents in thermal desorber from the inclusion of treatment the soil treatment standards—ten times Contaminated Soils (April 1998, USEPA) and the data from that device in this column. UTS or 90% reduction—are within the Additional Information on Treatability of 35 The performance of combustion and soil vapor Contaminated Soils as Discussed in Section VII.B.8. extraction is less effective in treating semivolatile zone of reasonable values that could of Phase IV Final Rule Preamble, (April 1998, organics that contain aromatic and heterocyclical have been selected. For further USEPA). These documents indicate the numbers structures. The same is true for and nonvolatile information on the derivation of Table and types of data pairs that meet the 10 times UTS chlorinated organics. 4, see the background document entitled level, both prior to treatment and after the treatment 36 EPA is transferring the available performance described in the table. data from the chemical extraction and the biological ‘‘Derivation of Treatment Achievability 34 The term thermal desorption, as used in this treatment of (semivolatile) polar nonhalogenated Results for Organic Functional Groups table, is a general description of various thermal organics in the hazardous soil treatment data base. and Types of Compounds.’’ 28616 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations

TABLE 4.ÐTREATMENT EFFICIENCYÐPERCENT REDUCTION RANGES BY TECHNOLOGY FOR VARIOUS FUNCTIONAL GROUPINGS [Average percent reduction in brackets; number of data points analyzed in parentheses] 37

Treatability group Biological Chemical Dechlorination Thermal Soil washing Other treatment extraction desorption 38 technologies 39

Halogenated Nonpolar Aromatics ...... 52.05±99.97 80.42 99.05±100 29.19±100 66.21±95.6 30.13Ð49.68 [76.01] [80.42] [99.53] [95.31] [85.41] [42.41] (2) (1) (2) (29) (4) (3) Dioxins, Furans, PCBs, and Precursors ... none 14.88±99.97 91.66±99.88 98.9±100 none none [90.13] [97.94] [99.57] (40) (20) (17) Halogenated Phenols, Cresols, and Other Polar Aromatics ...... 45.1±95.14 63.83±93.18 none 2.71±99.93 6.25±99.06 96.21 [81.05] [79.46] [56.21] [73.71] [96.21] (5) (3) (15) (6) (1) Halogenated Aliphatics ...... 99.87±99.99 86.62±94.81 89.06±100 36.88±100 58.68±99.4 72±99.68 [99.91] [91.09] [97.54] [96.49] [90.58] [95.66] (3) (3) (7) (80) (9) (6) Halogenated Cyclic Aliphatics, Ethers, Esters, and Ketones ...... 9.76±99.77 none none none none none [60.99] (8) Nitrated Aromatics and Aliphatics ...... none none none none none none Simple Nonpolar Aromatics and Heterocyclics ...... 99.97±100 77.41±99.92 96.39±100 22.68±100 47.74±99.91 97.7 [100] [90.77] [98.61] [94.3] [82.39] [97.7] (10) (6) (10) (158) (14) (1) Polynuclear Aromatic Hydrocarbons ...... 5.13±99.85 51.55±99.98 10.92±97.42 10.14±100 81.83±92.19 95.9±99.55 [67.15] [95.72] [67.47] [94.19] [85.74] [97.73] (75) (125) (3) (301) (3) (2) Other Nonhalogenated Polar Organics .... none 75.96±99.82 90.81±99.89 2.6±99.98 51.07±99.97 94.59±99.89 [98.35] [95.13] [82.04] [88.67] [97.24] (28) (10) (36) (10) (2)

(5) Performance Data for Metal performance of stabilization and dilution were to occur). The results of Contaminants chemical extraction (mercury) of soils EPA’s analysis of the data on treatment contaminated with metals. Other metal of metals in soils are summarized in Performance data for metals treatment technologies are not Table 5 below. contaminants are based on the prohibited (except if impermissible

TABLE 5.ÐSUMMARY OF PERFORMANCE DATA FOR HAZARDOUS METALS CONSTITUENTS 40

Stabilization scale: bench, pilot, and full Chemical extraction Soil washing BDAT metals clus- scale scale: pilot scale: bench & pilot ter Data Average removal effi- Data Average removal effi- Data Average removal effi- Points ciency points ciency points ciency

Metals ...... 269 91.1±99.8% ...... 4 97.7% 41 ...... 14 17.9±97.2%

Total ...... 269 ...... 4 ...... 14

The results in Table 5 corroborate standards—ten times UTS or 90% USEPA). These documents indicate the numbers EPA’s conclusion that the soil treatment and types of data pairs that meet the 10 times UTS reduction—are within the zone of level, both prior to treatment and after the treatment reasonable values that could have been 37 Table based on data from ‘‘Delivery of Graphs described in the table. selected. For further information on the and Data Tables Showing Corrected Treated 38 The term thermal desorption, as used in this derivation of Table 5, see Soil Concentrations vs. Data Point Number Index for table, is a general description of various thermal Treatability Analysis Report. Selected Constituents,’’ February 19, 1992 techniques. No conclusion may be drawn about the (Administrative Record of the proposed LDR Phase regulatory status or classification of a particular With respect to multiple metal 2 rules as F–93–CS2P–S0597). See also (1) thermal desorber from the inclusion of treatment constituents or organometallic Derivation of Treatment Achievability Results for data from that device in this column. constituents in a contaminated soil, we Organic Functional Groups and Types of 39 These include air stripping, photolysis, and Compounds, April 1998 (USEPA); (2) Additional treatment trains. of Phase IV Final Rule Preamble, (April 1998, Information on Treatability of Contaminated Soils 40 For a discussion of these treatment data, see the as Discussed in Section VII.B.8. of Phase IV Final USEPA). These documents indicate the numbers Soil Treatment Achievability Report; Extrapolation and types of data pairs that meet the 10 times UTS Rule Preamble, (April 1998, USEPA); (3) of Treatment Performance Data in the Soil Data Extrapolation of Treatment Performance Data in the level, both prior to treatment and after the treatment Base Among Hazardous Constituents in Soil Data Base Among Hazardous Constituents in described in the table. Contaminated Soils (April 1998, USEPA); and the Contaminated Soils (April 1998, USEPA); and (3) 41 Available data are exclusively for the treatment Additional Information on Treatability of Soil Treatability Analysis Report (April 1998, of mercury on soils. Contaminated Soils as Discussed in Section VII.B.8 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28617 recognize that a situation may call for many of those observations on how non- being adopted today, the commenter two or more treatment technology trains combustion technologies can be may be able to avail itself of a treatment to achieve the treatment standards optimized. variance, depending on the site-specific promulgated today (e.g., one treatment Two other commenters submitted circumstances involved. for organics and another for metals). data in the Phase 2 rule regarding the This must include proper consideration performance of non-combustion 9. Applicability of Soil Treatment of the order in which various treatment technologies—USPCI and Sierra Standards and Readability of Final processes should be applied to the Environmental Services. USPCI’s Regulations contaminated soil so that treatment performance data describe the treatment Many commenters asserted that the effectiveness is optimized. However, if of polynuclear organics in soils via proposed regulations governing these considerations have been properly chemical oxidation followed by applicability of LDRs to contaminated made and the required treatment stabilization. These data were soil were difficult to understand and standards are not being met because, for determined to be insufficient to support apply. EPA was persuaded by these example, of unique soil matrices or a broad national determination that comments and has reformatted the difficult to treat sites, then we expect stabilization of organics can be applicability regulations into an easier- that entities may elect to seek a considered BDAT for organics. to-read table. The Agency recognizes treatment variance pursuant to 40 CFR However, use of organic stabilization that determining whether or not LDRs 268.44(h) or a risk-based soil treatment may, in some situations, be a apply to any given volume of variance, which is being adopted in permissible treatment option since the contaminated soil can be complicated. today’s rule. LDRs do not specifically prohibit the To further assist program implementors c. Data Submitted by Commenters use of stabilization or solidification to and facility owners/operators, we will At least four commenters submitted treat nonwastewaters containing review and discuss the principles that treatment data from studies describing hazardous organic constituents. See govern LDR applicability for the performance of innovative and Response to Comment Document, contaminated soil in this section of conventional treatment technologies on Comment from Chemical Waste today’s preamble. hazardous soils. DuPont submitted Management, Inc. (No. PH4P–00048). The following principles informed bench, pilot, and full scale treatment There are, however, specific EPA’s decisions concerning application data from various vendors describing circumstances in which stabilization or of LDRs to contaminated soils. the operation of soil washing. DuPont solidification would be considered First principle: land disposal asserts these data supports the viability impermissible dilution. We expect that, restrictions only attach to prohibited of soil washing as an innovative for these types of situations to be hazardous waste (or hazardous technology for hazardous soils. properly evaluated, it will be necessary contaminated soil) when it is (1) The Environmental Technology to petition for a treatment variance generated and (2) placed in a land Council (formerly the Hazardous Waste under 40 CFR 268.44(h) or under the disposal unit.42 Therefore, if Treatment Council) submitted full, provisions for a risk-based soil contaminated soil is not removed from pilot, and bench scale treatment data treatment variance being adopted in the land (i.e., generated), LDRs cannot from various vendors of innovative today’s rule. The Agency also is apply. Similarly, if contaminated soil is treatment technologies and provided an currently considering whether, in the removed from the land (i.e., generated) extensive review of EPA’s soil treatment near future, to issue guidance on when yet never placed in a land disposal unit, data base. See document entitled, stabilization or solidification of organic- LDRs cannot apply.43 In other words, Evaluation of Proposed BDAT Soil and bearing waste is appropriate and when LDRs do not apply to contaminated soil Process Treatment Technologies— it may constitute impermissible in situ or force excavation of Report to the Hazardous Waste dilution. contaminated soil. If soils are excavated, Treatment Council, November 1993 Sierra Environmental Services however, LDRs may apply, as discussed (filed as document number submitted performance data regarding below. CS2P00060.E in Docket No. F–92– the treatment of carcinogenic Second principle: once a decision has CS2P–FFFFF). Based on the ETC’s polyaromatic hydrocarbons (cPAH) via been made to generate and re-land- technical report and the subsequent bioremediation. These data are based on dispose contaminated soils, LDRs comments of the ETC to the HWIR- in-situ treatment of a 7.5 acre lagoon generally only apply to contaminated Media rule (see comments from the which was divided into two cells. soils that contain hazardous waste. The Environmental Technology Council, Although the facility remediated 35 Agency considers soil to contain filed as comment number MHWP 00088 volatile, 65 semivolatile organics, PCBs, hazardous waste: (1) when it exhibits a in Docket No. F–92–CS2P–FFFFF), the and pesticides, the facility only ETC believes that today’s treatment submitted data describing the treatment 42 As discussed earlier in today’s final rule, all standards for hazardous soils are of major PAHs. Based on the hazardous wastes that were listed or identified at achievable using thermal treatment. performance of the biotreatment process the time of the 1984 Hazardous and Solid Waste Although the ETC report stated that EPA applied to this site, the commenter Amendments to RCRA have been prohibited from may lack full-scale treatment data for land disposal. EPA is required to prohibit argued the proposed treatment hazardous wastes listed or identified after 1984 several innovative or alternative standards, if promulgated as proposed, within six months of the wastes’ listing or technologies, the ETC data support would eliminate biotreatment as an identification. RCRA Section 3004(g)(4). A table in EPA’s view that the many full scale alternative at this facility. EPA 40 CFR Part 268 Appendix VII. outlines the dates operations of non-combustion disagrees. Remediation processes that of LDR applicablity for hazardous wastes. 43 Note that, as discussed later in today’s technologies demonstrated in the field are applied in-situ do not trigger land preamble, nothing in today’s final rule affects were sufficient to support a view that disposal restrictions. If the facility were implementation of the existing ‘‘area of the soil treatment standards were biotreating the lagoon sludges ex-situ, contamination’’ policy. Therefore, soil managed achievable. Further, the ETC pointed to EPA concurs that the facility may be within areas of contamination, even if it is ‘‘removed from the land’’ within such an area, various examples of how various non- unable to land dispose the treated would not be considered to be ‘‘generated.’’ See the combustion treatment technologies can lagoon sludges. We also note that, under discussion of the area of contamination policy later be better optimized. EPA concurs with the existing regulations and regulations in today’s preamble. 28618 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations characteristic of hazardous waste; and, The remainder of today’s regulations (principles (1) and (2)). (It would be the (2) when it is contaminated by certain on application of LDRs to contaminated same if a hazardous waste land disposed concentrations of constituents from soil, which are in table form, apply to before the effective date of an applicable listed hazardous waste. The contained- soil contaminated with listed hazardous land disposal prohibition were delisted in policy is discussed in Section VII.E wastes. The table lists four scenarios. when first re-generated. In that case too, of today’s preamble. In the first scenario, soil is there would be no hazardous waste to Third principle: once LDRs attach contaminated with untreated listed which a land disposal prohibition could (generally, at the point of generation, see hazardous waste that was prohibited attach and the delisted waste, thus, principle (1)) to any given hazardous from land disposal when first land would not be prohibited from land waste or volume of hazardous disposed (e.g., prohibited hazardous disposal.) Note that, under principle (3), contaminated soil, the LDR treatment waste that was illegally placed or once LDRs attach to contaminated soil, standards continue to apply until they prohibited hazardous waste that was the treatment standards must be met are met. This principle comes from spilled). In this case, LDRs have already prior to land disposal even if the soil is, application of the logic of the Chemical attached to the hazardous waste. subsequently, determined no longer to Waste opinion. In that opinion, the D.C. Therefore, since LDRs have attached to contain hazardous waste. Circuit held that land disposal the waste and threats have not yet been The final scenario requires no prohibitions attach at the point that a minimized (i.e., treatment standards elaboration; it simply makes clear that if hazardous waste is generated and have not been met), under principle (3) soil is contaminated by hazardous waste continue to apply until threats posed by LDRs continue to apply to the waste that was never prohibited from land and, automatically, to any contaminated disposal, LDRs do not apply. This is land disposal of the waste are 44 minimized. Chemical Waste soil. The Agency has concluded that through application, primarily, of Management v. EPA, 976 F.2d at 13, 14 LDRs apply to soils contaminated in this principle (2)—LDRs attach only to way regardless of whether the soil is and 24. In illustration of this principle, hazardous wastes or soil that contains determined not to (or no longer to) the court held that (in the case of hazardous waste. ‘‘contain’’ hazardous waste either when Note that, because LDRs apply to the characteristic hazardous waste) first generated or at any time in the waste ‘‘contained-in’’ soil, and not the elimination of the property that caused future. This conclusion comes from soil itself (see principle (2)), LDRs do EPA to identify a waste as hazardous in application of principle (3): once not apply to soil that is at any time the first instance does not automatically something is prohibited from land completely separated from its eliminate the duty to achieve disposal, LDRs continue to apply until contaminating waste ( i.e., the soil compliance with LDRs. As discussed threats to human health and the contains no solid or hazardous waste, later in this section of today’s preamble, environment posed by land disposal are it’s ‘‘just soil’’). One might determine EPA has determined that, although the minimized regardless of whether the that soil contained no solid or Chemical Waste opinion did not address material is at some point determined no hazardous waste, for example, if contaminated soils per se, it is prudent longer to be ‘‘hazardous.’’ concentrations of hazardous to apply the logic of the Chemical Waste In the next two scenarios, soil is constituents fall below natural opinion to contaminated soils. contaminated with hazardous wastes background levels or are at non- Using these principles, EPA created that were not prohibited from land detectable levels. Such a determination the regulations and table that govern disposal when first land disposed, but, would terminate all RCRA Subtitle C application of LDRs to contaminated sometime after land disposal, LDRs have requirements, including LDRs, since soils, as discussed below. gone into effect. In these cases, whether waste would not longer be ‘‘contained- The regulations that address or not LDRs apply to contaminated soil in’’ the soil. See September 15, 1996 application of LDRs to soil that exhibits is governed by a determination of letter from Michael Shapiro (EPA) to a characteristic of hazardous waste are whether or not any given volume of Peter Wright (Monsanto Company), relatively straightforward. Soil that contaminated soil ‘‘contains’’ hazardous making this finding; see also, 61 FR exhibits a characteristic of hazardous waste at its point of generation. If any 18806 (April 29, 1996) and other waste when it is generated is subject to given volume of soil is determined to sources cited therein. LDRs and must be treated to meet LDR contain hazardous waste at its point of The following examples illustrate treatment standards prior to land generation, LDRs attach (principles (1) application of LDRs to contaminated disposal. EPA’s conclusion that soil that and (2)) and, therefore, the LDR soil: exhibits a characteristic of hazardous treatment standards must be met prior 1. Generator A is excavating soil waste must be treated to meet LDRs to placement of such soil in a land mildly contaminated with wastewater prior to land disposal derives from a disposal unit (principle (3)). If any given treatment sludge (listed waste F006). simple application of the principles volume of soil is determined not to The sludge was land disposed before above. First, LDRs have the opportunity contain hazardous waste at its point of 1980. The soil does not exhibit a to attach to contaminated soil at the generation, there is no hazardous waste characteristic of hazardous waste and point of generation (principle (1)) and, to which a land disposal prohibition has been determined by an authorized second, under the contained-in policy, could attach and the soil, thus, would state not to contain listed hazardous soil that exhibits a characteristic of not be prohibited from land disposal waste. The soil is not prohibited from hazardous waste must be managed as land disposal. This is because, for LDR hazardous waste (principle (2)) and, 44 EPA is assuming that the waste did not meet purposes, the point of generation is therefore, must comply with LDRs. Note a treatment standard when it was placed on the soil. when the soil is first excavated from the Wastes which meet a treatment standard are no that, once LDRs have attached to soil longer prohibited from land disposal and, unless it land (principle (1)). Since no prohibited that exhibits a characteristic of is determined to ‘‘contain’’ hazardous waste at its hazardous waste existed before that time hazardous waste, LDR treatment point of generation and are subsequently land (i.e., the contaminating waste was not standards must be met prior to land disposed, soils contaminated by these wastes are, prohibited) and the soil does not likewise, not prohibited from land disposal. See, disposal of the soil, even if the RCA section 3004(m)(2) (hazardous wastes meeting contain listed hazardous waste or characteristic is subsequently treatment standards are no longer prohibited from exhibit a characteristic of hazardous eliminated (principle (3)). land disposal). waste at its point of generation, there is Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28619 no hazardous waste to which a land meet applicable technology-based including criminal sanctions. 61 FR at disposal prohibition could attach treatment standards or until a site- 18805 (April 29, 1996). Of course, (principle (2)). specific, risk-based minimize threat program implementors and facility 2. Generator B is excavating soil determination is made through the owners/operators cannot make the contaminated by leaks from a closing variance process. determination that information on the hazardous waste surface impoundment. 5. Generator E is excavating soil types of waste contamination or dates of The surface impoundment received contaminated by listed hazardous waste waste placement is unavailable or listed hazardous wastes K062 (spent F004 (generally, spent non-halogenated inconclusive without first making a pickle liquor) and characteristic solvents). The F004 waste was land good faith effort to uncover such hazardous waste D018 (wastes that fail disposed in 1984, prior to the effective information. By using available site- and the TCLP test for benzene). The surface date of an applicable land disposal waste-specific information such as impoundment stopped receiving K062 prohibition; however, on generation the manifests, LDR records required under waste in 1987 and D018 waste in 1993. soil contains high concentrations of 40 CFR 268.7, vouchers, bills of lading, The soil does not exhibit a characteristic cresols constituents, so that an sales and inventory records, storage of hazardous waste and has been authorized state determines it records, sampling and analysis reports, determined by an authorized state not to ‘‘contains’’ hazardous waste. The soil is accident reports, site investigation contain listed hazardous waste. The soil prohibited from land disposal. Although reports, spill reports, inspection reports is not prohibited from land disposal. the contaminating waste was not and logs, EPA believes that program This is because, for LDR purposes, the prohibited from land disposal, since the implementors and facility owners/ point of generation is when the soil is soil contained hazardous waste at the operators will typically be able to make first excavated from the land (principle point of generation (and the waste had informed decisions about the types of (1)). Since no prohibited hazardous since become prohibited from land waste contamination and dates of waste waste existed before that time (i.e., the disposal), the land disposal prohibition placement. Most commenters supported contaminating wastes were not attaches to the contaminated soil and, this approach. prohibited) and the soil does not before land disposal, the soil must be EPA notes that it is not critical for a contain listed hazardous waste or treated to meet applicable technology- decision about whether contaminated exhibit a characteristic of hazardous based treatment standards or until a soil contains listed hazardous waste or waste at its point of generation, there is site-specific, risk-based minimize threat exhibits a characteristic of hazardous no hazardous waste to which a land determination is made through the waste to be made without removing any disposal prohibition could attach variance process (principles (1), (2), and of the soil (other than the sample (principle (2)). (3)). volume) from the land. In an area of 3. Generator C is excavating soil EPA acknowledges that the reading of generally dispersed soil contamination, contaminated with listed hazardous LDR applicability to contaminated soil soil may be consolidated or managed waste F024. The F024 waste was land discussed above creates potential within the area of contamination to disposed after 1991, after it was administrative difficulties, since, in facilitate sampling, for example, to prohibited from land disposal, and was many cases, a factual determination will ensure that soil samples are not first treated to meet applicable land be required as to when hazardous representative or to separate soil from disposal treatment standards (i.e., it was wastes were land disposed in order to non-soil materials. However, care illegally land disposed or accidentally determine whether they were prohibited should be taken not to remove spilled). Since the contaminating waste at that time and whether, therefore, the hazardous contaminated soils from was prohibited from land disposal and prohibition continues to apply to separate areas of contamination at a treatment standards were not achieved contaminated soil. The Agency expects facility and place such hazardous prior to land disposal, the LDR that these difficulties will be minimal contaminated soil into a land disposal prohibition continues to apply to any because, in most cases, contamination unit unless, of course, the soil meets soil contaminated by the waste will be caused by hazardous wastes applicable LDR treatment standards. (principle (3)) regardless of whether the placed before the effective date of The area of contamination policy is soil ‘‘contains’’ hazardous waste when applicable land disposal prohibitions discussed later in this section of today’s generated. The soil is prohibited from since land disposal after prohibition preamble. land disposal and, before land disposal, would be illegal. The exception is A few commenters expressed concern must be treated to meet applicable accidental spills of hazardous waste, or confusion over the application of technology-based treatment standards or which the Agency believes are (1) rare, LDRs to soil contaminated by accidental until a site-specific, risk-based minimize and (2) known, so determining dates of spills of hazardous wastes. The Agency threat determination is made through land disposal should not be clarifies that accidental spills of the variance process. problematic. This issue was discussed hazardous wastes (or products or raw 4. Generator D is excavating soil in detail in the HWIR-Media proposal. materials) are not considered placement contaminated by an accidental spill of 61 FR 18805 (April 26, 1996). of hazardous waste into a land disposal benzyl chloride, which, when As discussed in the April 29, 1996 unit since, in the case of a spill, discarded, is listed hazardous waste proposal, the Agency continues to prohibited waste is not being placed in P028 and is prohibited from land believe that, if information is not one of the identified units named in disposal. The accidental spill occurred available or inconclusive, it is generally RCRA Section 3004(m).45 See, 45 FR yesterday. The contaminating waste was reasonable to assume that contaminated 76626 (Nov. 19, 1980), issuing clarifying prohibited from land disposal and, since soils do not contain untreated regulations at 40 CFR 264.10(g) to the treatment standards were not hazardous wastes placed after the provide that hazardous waste treatment achieved prior to the accidental spill, effective dates of applicable land the prohibition continues to apply to disposal prohibitions. This is because 45 Although, if such a spill were not cleaned up any soil contaminated by the waste placement of untreated hazardous waste in a timely way, EPA or an authorized state could determine that the contaminated area should be (principle (3)). Thus, the soil is after applicable LDR effective dates considered a land disposal unit for purposes of prohibited from land disposal and, would be a violation of RCRA, subject requiring cleanup under RCRA Subtitle C. 55 FR at before land disposal, must be treated to to significant fines and penalties 20809 (July 27, 1990). 28620 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations and storage activities undertaken in 976 F.2d at 13–16. Although, as 2. Definition of Soil immediate response to an accidental discussed later in today’s preamble, spill are exempt from the 40 CFR Part EPA believes that contained-in The Agency is promulgating the 264 and 265 regulations governing determinations will rarely, if ever, be definition of soil from the April 29, treatment and storage and do not require made at constituent concentrations 1996 proposal with one change made in permits and Sept. 29, 1986 memo from which do not minimize threats, without response to comments. Soil is defined J. Winston Porter (EPA Assistant codifying the contained-in policy, the as, ‘‘unconsolidated earth material Administrator) to Fred Hansen Agency cannot make the generic finding composing the superficial geologic interpreting the 40 CFR 264.10(g) that this will be the case at every site. strata (material overlying bedrock), regulations; also see, 55 FR at 30808– For this reason, EPA is requiring that consisting of clay, silt, sand, or gravel 30809 (July 27, 1990) (‘‘a one-time spill the standards and procedures size particles as classified by the U.S. of hazardous waste would not be promulgated today for site-specific, risk- Soil Conservation Service, or a mixture considered a solid waste management based minimize threat variances alone of such materials with liquids, sludges unit.’’) However, contaminated soils be used to make minimize threat or solids which is inseparable by simple generated through remediation of spills determinations. This issue is discussed mechanical removal processes and is of untreated listed prohibited hazardous in section VII.E of today’s preamble. made up primarily of soil by volume, wastes are, as discussed above, subject based on visual inspection.’’ The C. Conforming and Supporting Changes to land disposal prohibitions since the Agency has added the phrase ‘‘by LDR prohibition that had attached to the To support the land disposal volume, based on visual inspection’’ in contaminating hazardous waste restriction treatment standards for response to comments recommending continues to apply until threats are contaminated soil, the Agency is today that EPA explicitly conform the minimized, and, therefore, any promulgating a number of conforming definition of soil with the definition of contaminated soil remains subject to and supporting regulations, as follows. debris. See 57 FR 37222 (August 18, LDRs (see principle (3)). 1. Recordkeeping Requirements 1992). This clarification is consistent A number of commenters expressed with the Agency’s intent, as discussed A number of commenters expressed concern that EPA’s interpretation of in the 1996 proposal, that confusion over the recordkeeping and LDR applicability to contaminated soil determinations of whether any material reporting requirements that would might preclude application of the was ‘‘soil,’’ ‘‘debris,’’ or ‘‘waste’’ to be apply to contaminated soil. The Agency existing area of contamination policy. In made in the field. 61 FR 18794 (April is today clarifying that contaminated the area of contamination policy, EPA 26, 1996). interprets RCRA to allow certain soil subject to the land disposal discrete areas of generally dispersed restrictions must comply with the same The definition of soil includes the contamination to be considered a RCRA recordkeeping and reporting concept that mixtures of soil and other unit (usually a landfill). 55 FR 8758– requirements as other wastes subject to materials are to be considered soil 8760 (March 8, 1999). This the land disposal restrictions. That is, provided the mixture is made up interpretation allows hazardous wastes the recordkeeping and reporting predominantly of soil and that the other (and hazardous contaminated soils) to requirements of 40 CFR 268.7 will materials are inseparable using simple be consolidated, treated in situ or left in apply. physical or mechanical means. This place within an area of contamination EPA has clarified this in the final approach allows program implementors without triggering the RCRA land regulations by adding appropriate and facility owners/operators to disposal restrictions or minimum recordkeeping requirements for determine whether any given material is technology requirements—since such contaminated soils to the tables in 40 soil, waste, or debris based on the activities would not involve ‘‘placement CFR 268.7(a) and 40 CFR 268.7(b). results of simple mechanical removal into a land disposal unit,’’ which is the These rules specify that, for processes commonly used to separate statutory trigger for LDR. EPA clarifies contaminated soil, generators and/or materials, such as pumping, dredging, that its interpretation of LDR treaters must include the following or excavation by backhoe, forklift or applicability for contaminated soil does information with their land disposal other device. It avoids requiring not, in any way, affect implementation restriction paperwork: the constituents chemical analysis for soil properties in of the area of contamination policy. subject to treatment as described in 40 order to differentiate precisely between Finally, many commenters expressed CFR 268.49(d) and this statement, ‘‘this wastes, soil and debris. As discussed in concern over EPA’s application of the contaminated soil [does/does not] the April 29, 1996 and September 14, LDR treatment standards to soil that is contain listed hazardous waste and 1993 proposals, the Agency believes determined no longer to contain [does/does not] exhibit a characteristic that attempting to distinguish more hazardous waste or exhibit a of hazardous waste and [is subject to/ precisely between waste, soil or debris characteristic of hazardous waste. As complies with] the soil treatment using chemical analysis or other tests discussed in detail in the 1996 proposal, standards as provided by 268.49(c) or would be prohibitively difficult to at this time EPA has concluded that the universal treatment standards.’’ Note develop and support and cumbersome although the Chemical Waste opinion that because in some cases to administer. Cf. 57 FR at 37224, did not speak to contaminated soil contaminated soil will continue to be August 18, 1992, where the Agency specifically, it is prudent to apply the subject to LDRs even after it has been adopted a similar classification system Chemical Waste logic—that a duty to determined not to or no longer to for hazardous debris. Most commenters comply with LDRs attaches to contain listed hazardous waste (or de- supported this approach. Note that any hazardous waste when it is first characterized), the statement includes a non-soil that is separated from generated and elimination of the indicia notification of whether the soil is still contaminated soil that contains listed of ‘‘hazardousness’’ does not, considered hazardous. This is consistent hazardous waste or is found to exhibit necessarily, fulfil the statutory land with the approach the Agency used a characteristic of hazardous waste disposal restriction treatment when establishing land disposal should be considered hazardous waste standard—to contaminated soil. See restriction treatment standards for and is subject to the applicable Chemical Waste Management v. EPA, hazardous contaminated debris. universal treatment standard. Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28621

EPA also emphasizes that any 1990); 58 FR 48092, 48125 (September technologies that are typically used dilution of a prohibited contaminated 14, 1993); 61 FR 18805–18808, 18810– during remediation. Variances for soil (or of a prohibited hazardous waste 18812 (April 29, 1996); and, 61 FR treatment of contaminated soil will be with soil) as a substitute for adequate 55717 (October 28, 1996). This applied during the remedial context, treatment to achieve compliance with presumption will no longer apply once where, as discussed in Section VII.B.3 of LDR treatment standards or to today’s soil treatment standards take today’s preamble, EPA and authorized circumvent the effective date of an LDR effect. This is because today’s standards states will typically have detailed prohibition is considered a type of were developed specifically for information about the risks posed by impermissible dilution and is illegal. contaminated soils and are intended to specific hazardous constituents, direct Therefore, any deliberate mixing of specifically address the past difficulties and indirect exposure routes, risk prohibited hazardous waste with soil in associated with applying the treatment pathways and human and order to change its treatment standards developed for process waste environmental receptors. This classification (i.e., from waste to to contaminated soil. information can be used to inform contaminated soil) is illegal. Existing This is not to say that treatment decisions about whether threats are regulations concerning impermissible variances based on the ‘‘unachievable’’ minimized. dilution already make this point. See 40 or ‘‘inappropriate’’ prongs of the test are E. The Contained-In Policy CFR 268.3(a) and (b); see also 57 FR at now unavailable for contaminated soils. 37243 (Aug. 18, 1992) (adopting the For example, in some cases it may prove The contained-in principle is the same principle for contaminated debris). that even though an appropriate basis for EPA’s longstanding The Agency expects that deliberate technology, suited to the soil matrix and interpretation regarding application of mixing of hazardous waste with soil constituents of concern was used, a RCRA Subtitle C requirements to (and vice versa) will be rare because particular soil cannot be treated to meet mixtures of contaminated media and such actions are clearly illegal and the soil treatment standards using a hazardous wastes. Under the would subject generators to substantial well-designed well-operated application ‘‘contained-in’’ policy, EPA requires fines and penalties, including criminal of one of the technologies EPA that soil (and other environmental sanctions. In addition, the resulting considered in establishing the soil media), although not wastes themselves, mixture (hazardous waste impermissible standards. In these types of cases, under be managed as if they were hazardous diluted by soil) would continue to be existing regulations, the soil treatment waste if they contain hazardous waste or subject to the LDRs for the original standard would be considered exhibit a characteristic of hazardous hazardous waste (i.e., generally, the ‘‘unachievable’’ and a treatment waste. See, for example, 53 FR 31138, universal treatment standards), so no variance could be approved. In other 31148 (August 17, 1988) and 57 FR benefit in terms of reduced treatment cases, under existing regulations, 21450, 21453 (May 20, 1992) requirements would occur. The Agency application of the soil treatment (inadvertently citing 40 CFR 261(c)(2) took a similar approach when standards might be ‘‘inappropriate’’ in instead of 40 CFR 261.3(d)(2)); see also promulgating treatment standards that, for example, it would present Chemical Waste Management v. EPA, specific to hazardous debris. See 57 FR unacceptable risks to on-site workers. 869 F.2d 1526, 1539–40 (D.C. Cir. 1989) at 37224 (August 18, 1992). As noted earlier in today’s preamble, (upholding the contained-in principle as The Agency notes that the normal alternative LDR treatment standards a reasonable interpretation of EPA mixing of contaminated soil from established through treatment variances regulations). In practice, EPA has various portions of a site that typically must, according to 40 CFR 268.44(m), applied the contained-in principle to occurs during the course of remedial ‘‘minimize threats to human health and refer to a process where a site-specific activities or in the course of normal the environment posed by land disposal determination is made that earthmoving and grading activities is of the waste.’’ In cases where an concentrations of hazardous not considered intentional mixing of alternative treatment standard does not constituents in any given volume of soil with non-media or prohibited soil meet this requirement, a treatment environmental media are low enough to with non-prohibited soil and, therefore, variance will not be approved even determine that the media does not is not a type of impermissible dilution. though application of a technology more ‘‘contain’’ hazardous waste. Typically, aggressive than the technologies on these so called ‘‘contained-in’’ D. Seeking Treatment Variances which the soil treatment standards are Because the National Treatment determinations do not mean that no based might then be necessary. For hazardous constituents are present in Standard is Unachievable or example, in cases where the soil Inappropriate environmental media but simply that treatment standards cannot be achieved the concentrations of hazardous Under existing regulations at 40 CFR through application of a well-designed, constituents present do not warrant 268.44, people may obtain a variance well-operated application of one of the management of the media as hazardous from a land disposal restriction model soil treatment technologies and waste.46 For contaminated soil, the treatment standard when a waste cannot application of the model technology or result of ‘‘contained-in determinations’’ be treated to the specified level or when other non-combustion technologies will is that soil no longer ‘‘contains’’ a a treatment standard may be not result in constituent concentrations inappropriate for the waste. With that minimize threats, a variance would 46 Of course, as noted earlier, EPA or an respect to contaminated soils, EPA has not be approved and combustion would authorized state could determine, at any time, that to this point presumed that a treatment be necessary. This is proper given that any given volume of environmental media did not variance would generally be needed the soil treatment standards were not contain (or no longer contained) any solid or hazardous waste (i.e., it’s just media). These types because the LDR treatment standards developed using the methodology of determinations might be made, for example, if developed for process wastes were typically used in the land disposal concentrations of hazardous constituents fall below either unachievable (generally applied restriction program (i.e., application of background levels, or are at non-detectable levels. to soil contaminated by metals) or the most aggressive treatment Such a determination would terminate all RCRA Subtitle C requirements, including LDRs. See, inappropriate (generally applied to soil technology to the most difficult to treat September 15, 1995 letter from Michael Shapiro contaminated by organic constituents). waste), but, instead are designed to (EPA) to Peter Wright (Monsanto Company), making See, for example, 55 FR 8760 (March 8, accommodate a variety of soil treatment this finding, and 61 FR 18806 (April 29, 1996). 28622 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations hazardous waste; however, as discussed 2. Relationship of the Contained-In F. Relationship of Soil Treatment above, the result is not automatically Policy to Site-Specific, Risk-Based Standards to the Final HWIR-Media that soil no longer must comply with Minimize Threat Determinations Rule LDRs. As discussed above, the D.C. Circuit In the April 29, 1996 HWIR-Media In order to preserve flexibility and held in the Chemical Waste opinion that proposal, EPA proposed to establish a because EPA believes legislative action the RCRA Section 3004(m) obligation to comprehensive alternative management is needed, the Agency has chosen, at minimize threats can continue even regime for hazardous contaminated this time, not to go forward with the after a waste would no longer be media, of which the treatment standards portions of the September 14, 1993 or identified as ‘‘hazardous.’’ Chemical for contaminated soil would have been April 29, 1996 proposals that would Waste Management v. EPA, 976 F.2d at a small part. The HWIR-Media proposal have codified the contained-in policy 13–16. The Agency believes that it is discussed a number of options for for contaminated soils. The Agency prudent to apply the logic of the comprehensive management standards continues to believe that legislation is Chemical Waste opinion to for hazardous contaminated media. needed to address application of certain contaminated soil. Therefore, when the Today’s action resolves and finalizes RCRA subtitle C requirements to contained-in policy is applied to soil the portion of the HWIR-Media proposal hazardous remediation waste, including that is already subject to a land disposal that addressed land disposal restriction contaminated soil. If legislation is not prohibition, the Agency is compelled to treatment standards for contaminated forthcoming, the Agency may, in the decide if a determination that soil does soil. See 61 FR 18805–18814, April 29, future, re-examine its position on the not or no longer ‘‘contains’’ hazardous 1996. Other portions of the proposal are relationship of the contained-in policy waste is sufficient to determine that not resolved by this action and will be to site-specific minimize threat threats posed by subsequent land addressed by EPA in future actions. EPA determinations based on disposal of those soils have been continues to emphasize that, while the implementation experience and/or may minimized. As discussed earlier in soil-specific LDR treatment standards choose to codify the contained-in policy today’s preamble, EPA is not, at this will improve contaminated soil for contaminated soil in a manner time, able to make a generic finding that management and expedite cleanups, the similar to that used to codify the all contained-in determinations will Agency also recognizes that additional contained-in policy for contaminated automatically satisfy this standard. This reform is needed, especially for is largely because, for reasons of needed debris. management of non-media remediation administrative flexibility and because wastes like remedial sludges. The 1. Current Guidance on Implementation we believe legislation is needed, EPA Agency will continue to participate in of the Contained-in Policy has not codified standards for approving discussions on potential legislation to contained-in determinations and has not promote this additional needed reform. EPA has not, to date, issued definitive codified procedures for making such guidance to establish the concentrations determinations. Absent such standards VIII. Improvements and Corrections to at which contained-in determinations and procedures, the Agency cannot, at LDR Regulations may be made. As noted above, decisions this time, make a generic finding that all that media do not or no longer contain contained-in determinations will result Summary: The regulated community hazardous waste are typically made on in constituent concentrations that also has pointed out several examples of the a case-by-case basis considering the minimize threats within the meaning of LDR regulations that were unclear or risks posed by the contaminated media. RCRA Section 3004(m). These had typographical errors. These sections The Agency has advised that contained- decisions, of course, could be made on are clarified and corrected below. in determinations be made using a site-specific basis, by applying the A. Typographical Error in Section conservative, health-based levels standards and procedures for site- 261.1(c)(10) derived assuming direct exposure specific, risk-based minimize threat pathways. 61 FR at 18795 (April 29, variances, promulgated today. A typographical error was found in 1996) and other sources cited therein. A The regulations governing site- the cross reference in the note in compilation of many of the Agency’s specific, risk-based minimize threat § 261.1(c)(10). The first Phase IV final statements on the contained-in policy determinations promulgated today are, rule (‘‘Minirule,’’ 62 FR 25998) said has been placed in the docket for essentially, the same as the Agency’s ‘‘They are covered under the exclusion from the definition of solid waste for today’s rulemaking. guidance for making contained-in determinations. See, for example, 61 FR shredded circuit boards being recycled The land disposal restriction 18795 (April 29, 1996) and other (261.4(a)(13)).’’ The correct cross treatment standards for contaminated sources cited therein. That is, decisions reference is to ‘‘(261.4(a)(14).’’ This soil promulgated today do not affect should be made by considering the typographical error is corrected in this implementation of the contained-in inherent risks posed by any given soil, final rule. policy. They are not considered, and assuming direct exposure (i.e., no post- should not be used, as de facto B. Typographical Error in Section land disposal controls) and applying 268.4(a)(2)(ii) and (a)(2)(iii) ‘‘contained-out’’ concentrations conservative information to calculate although, in some cases, it may be risk. Therefore, the Agency expects that, These paragraphs have referred to appropriate to determine that soil in most cases, a determination that soils § 268.8 for some time. Section 268.8 was treated to the soil treatment standards do not (or no longer) contain hazardous where the so called ‘‘soft hammer’’ no longer contains hazardous waste. waste will equate with minimize threat provisions were once found in the Remediation project managers should levels and, therefore, encourages regulations. These provisions expired in continue to make contained-in decisions program implementors to combine 1990, and the provisions have been based on site-specific conditions and by contained-in determinations, as removed from the regulations; thus considering the risks posed by any given appropriate, with site-specific, risk- there is no need to continue to include contaminated media. based minimize threat variances. references to § 268.8. Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28623

C. Clarifying Language Added to Section was the only UTS constituent for which § 268.43 (the treatment standards once 268.7 EPA had promulgated a nonwastewater found in these sections have been The first item in the paperwork tables standard but not a wastewater standard. consolidated into the ‘‘Table of requires that the EPA Hazardous Waste However, as part of that rule, the Treatment Standards’’ at § 268.40). and Manifest numbers be placed on the Agency failed to extend the treatment These cross references have been notification forms. Today’s changes standard to wastewater forms of U108 removed from § 268.45(d)(3) and (d)(4). G. Correction to § 268.48 to Explain clarify that the manifest number wastes. Today, the Agency is correcting That Sulfides are not Regulated as required to be placed on the notification this oversight in Section 268.40— Treatment Standards for Hazardous Underlying Hazardous Constituents in form is that of the first shipment of Wastes, by replacing the ‘‘NA’’ Characteristic Wastes waste to the treatment or disposal designation under AU108 -1,4-Dioxane In response to a comment received on facility. wastewaters@ with ‘‘12.0 mg/L.’’ As the original Phase IV proposal, EPA The tables of paperwork requirements such the 1,4-Dioxane alternate treatment reviewed the basis for the universal found at § 268.7(a)(4) and (b)(3) have standard now applies to both treatment standard for sulfides in the entries that describe what waste wastewater and nonwastewaters forms Universal Treatment Standard Table at constituents have to be identified on the of U108 waste. 40 CFR 268.48. EPA is correcting the one-time LDR notification (see item 3 in table in this rule. Sulfides are regulated the generator table at § 268.7(a)(4), and E. Removal of California List only in Waste Code F039 (multi-source item 2 in the treatment and storage Requirements and de minimis Provision leachate), and not as underlying facility table at § 268.7(b)(3)). The From Section 268.42 hazardous constituents in characteristic language of these items has been In the Phase IV rule promulgated on wastes. changed to avoid confusion about May 12, 1997, EPA removed the whether wastes managed at facilities California List requirements because H. Cross References in Section 268.50(e) subject to the Clean Water Act (CWA), they have all been superseded by more Erroneous references appeared in this CWA-equivalent facilities, or wastes specific treatment standards. The section to §§ 268.41, 268.42, 268.43, and injected into deepwells subject to the California List included liquid wastes 268.32. They are eliminated in this final Safe Drinking Water Act (SDWA) are containing certain metals, cyanide, rule. subject to a paperwork requirement (and polychlorinated biphenyls (PCBs) above if so, what requirements). Wastes specified levels, and liquid and I. Mistakes in Appendices VII and VIII managed in these facilities are subject to nonliquid halogenated organic Table 1 includes entries for F033. a one-time notification requirement. compounds (HOCs) above specified There is no hazardous waste with the This notification must be placed in the levels. These wastes were removed from EPA waste code F033. Therefore, these facility’s on site files and must contain the Table of Treatment Standards in entries are being removed. The second the information described in the § 268.40; however, the requirements in entry for waste codes F032, the second paperwork tables. Therefore, the § 268.42(a)(1) and (a)(2) were entry for F034, and the first entry for parenthetical language that appeared to overlooked. These paragraphs are K088 contained typographical errors exclude such facilities from the removed by today’s rule. And because that are being revised in today’s final paperwork requirements has been these paragraphs are being removed, it rule. In addition, two entries for waste removed from item 2 in the ‘‘Generator’’ is necessary to revise the language of code F035 are being added to the table. table, and item 3 in the ‘‘Treatment § 268.42(a) to remove references to these Table 2 is amended by revising entry Facility’’ table. paragraphs. number 9 to change the prohibition date In addition, these items have been The de minimis provision of for soil and debris contaminated with further clarified by adding the language paragraph § 268.42(a)(3) is also being K088 wastes. ‘‘in characteristic wastes’’ after the removed by today’s rule. The de The title of appendix VIII is revised to clause ‘‘and underlying hazardous minimis provision applied to clarify that it provides the effective constituents,’’ to indicate exactly what wastewaters regulated under the Clean dates for wastes injected into deep type of wastes must be considered when Water Act (CWA) mixed with high total wells. determining whether underlying organic carbon (TOC) ignitable wastes. hazardous constituents are present. The J. Clarification Regarding Point of In the Phase III final rule, however, Generation of Boiler Cleanout Rinses title of the paperwork table at wastes discharged under the CWA, or in § 268.7(b)(3) has been changed to clarify a facility that is CWA-equivalent, are In the May 12, 1997 final Phase IV that the requirements apply to storage not subject to the LDRs (61 FR 15660, rule, EPA included in the preamble an facilities as well as treatment facilities. April 8, 1996). Therefore the de minimis interpretive discussion regarding at A number of certifications were provision was redundant and has been what point the Agency considers a inadvertantly removed from § 268.7(b) removed by today’s rule. waste to be generated when power plant through Office of Federal Register boilers are cleaned out using multiple drafting errors. Those certifications are F. Typographical Errors and Outdated rinses. 62 FR at 26006. The question is reinstated because it was never the Cross-References in Section 268.45 relevant to the issue of whether subtitle intention of the Agency that they were There is a typographical error in C rules apply to such waste, and also, removed. § 268.45(a). The language has referred to if the waste is to be land disposed, § 261.3(c)(2), a section removed from the whether LDR prohibitions apply. In D. Correction to Section 268.40— regulations on September 30, 1992 (57 essence, the interpretation is that the Treatment Standards for Hazardous FR 49278). It should refer to cleanout of the boiler is to be viewed as Waste § 261.3(f)(2). The correction is being a single process, so that if the boiler In the Phase III Final Rule (61 FR made in this final rule. cleanout liquids are commingled in a 15566), the Agency promulgated a UTS In paragraphs (3) and (4) in single tank system, the hazardousness of of 12.0 mg/L for 1,4-dioxane § 268.45(d) there are outdated cross the resulting cleanout liquids is to be wastewaters based on the performance references to treatment standards that determined at the end of the cleaning of distillation. At that time, 1,4-dioxane were once found at § 268.42 and process. Id. 28624 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations

Some confusion has arisen regarding EPA’s decisions on when to establish constituents. EPA identified and whether this interpretation applies to the effective date of the treatment reviewed several metal recovery permanent storage tanks, or only to standards (e.g., by granting a national technologies that are commercially temporary tanks brought on-site to capacity variance) are based on the available, and has determined that at manage the boiler cleanout rinses. The availability of alternative treatment or least 800,000 mt/yr of metal recovery Agency’s view is that the interpretation recovery technologies. Consequently, capacity exists. applies to temporary tanks, and also to the methodology focuses on deriving EPA recognizes, however, that not all permanent tanks when such units are estimates of the quantities of waste that of this capacity will be available for used exclusively for the management of will require either commercial treatment Phase IV wastes. For example, there are boiler cleanout during the boiler or the construction of new on-site technical constraints on the metal cleanout process. (Such tanks could, of treatment as a result of the LDRs. EPA recovery systems stemming from metal course, be engaged in other activities also estimates the quantities of waste content limitations of the waste. when they are not dedicated to that will be treated adequately either on Nevertheless, the Agency believes that a management of boiler cleanout waste site in existing systems or off site by significant portion of this capacity is during the cleanout process.) facilities owned by the same company amenable to Phase IV wastes. For EPA did state in the May 12 notice as the generator (i.e., captive facilities), additional details, see the Capacity that ‘‘[t]he interpretation * * * does not and attempts to subtract that amount Background Documents. apply where there are permanent from the overall amount of required 4. Thermal Treatment storage units involved.’’ 62 FR at 26007. capacity. What the Agency had in mind was a EPA estimates that there are B. Available Capacity for Surface tank already engaged in the permanent approximately 231,000 mt/yr of Disposed Wastes storage of hazardous waste. However, so commercial sludge/solid/soil long as a tank is dedicated solely to Available capacity was estimated for combustion capacity and 651,000 mt/yr storage of boiler cleanout rinses during four treatment technology categories of commercial liquid combustion the boiler cleanout process, there is no that are expected to be used for the capacity available for wastes covered by environmental distinction between majority of wastes in today’s rule: today’s rule. Other types of thermal whether or not a temporary or stabilization (including chemical treatment, such as thermal desorption, permanent tank is used for the purpose. fixation), vitrification, metal recovery, also are available. For additional details, see the Capacity Background Consequently, the point of generation and thermal treatment. (Numerous other Documents. interpretive principle announced in the types of treatment also can meet the May 12 notice applies to both treatment standards for much of these C. Required Capacity and Variance permanent and temporary tanks wastes, although the Agency did not Determination for Surface Disposed TC systems. find it necessary to present the estimates Metal Wastes of available capacity of these treatments. EPA estimates that at most, 1.2 IX. Capacity Determination for Phase See the Capacity Background million mt/yr of TC metal wastes could IV Land Disposal Restrictions Documents for further information.) require alternative treatment as a result A. Introduction 1. Stabilization of promulgation of today’s rule. This This section summarizes the results of EPA estimates that there are at least estimate includes both wastes that are the capacity analysis for the wastes several million mt/yr of available newly-identified TC wastes (i.e., wastes covered by today’s rule. For a detailed stabilization capacity, with most of it that do not fail the EP test, and, discussion of capacity analysis-related able to meet the treatment requirements consequently, were not part of the Third data sources, methodology, and for the TC metal wastes and newly Third LDR rule) and wastes that fail the response to comments for each group of identified mineral processing wastes. EP test (i.e., those wastes that were wastes covered in this rule, see the Furthermore, the Agency found that regulated in the Third Third LDR rule). background document for the capacity currently utilized stabilization capacity Although only the newly identified TC analysis and the background document can be quickly modified (i.e., in less wastes are eligible for a national for the comment summary and response than 90 days) to meet the new treatment capacity variance, the capacity analysis for capacity-related issues (i.e., standards by implementing relatively includes all wastes affected by the rule collectively referred to as the Capacity simple changes to formulations. For because estimates for each category are Background Documents). additional details, see the Capacity not available, and, furthermore, because In general, EPA’s capacity analysis Background Documents. all of these wastes need to be assessed focuses on the amount of waste to be to determine the full impact of this rule restricted from land disposal that is 2. Vitrification on the need for a capacity variance. currently managed in land-based units EPA has determined that vitrification Additionally, the 1.2 million estimated and that will require alternative technology is commercially available for quantity is likely to be an overestimate treatment as a result of the LDRs. The treating limited quantities of Phase IV because most of these wastes are already quantity of wastes that are not managed wastes, such as some arsenic wastes, meeting the new treatment standards. in land-based units (e.g., wastewater that are difficult to treat using Also, most of these wastes are likely to managed only in RCRA exempt tanks, stabilization and other techniques. EPA fail the EP test and, therefore, are no with direct discharge to a Publicly estimates that there are approximately longer eligible for a capacity variance. Owned Treatment Works (POTW)) is 15,000 mt/yr of available vitrification The wastes that will require not included in the quantities requiring capacity. alternative treatment are expected to alternative treatment as a result of the primarily only require optimization of LDRs. Also, wastes that do not require 3. Metal Recovery existing stabilization formulations and alternative treatment (e.g., those that are High temperature and other types of systems. Also, sufficient vitrification currently treated using an appropriate metal recovery appears to be the most capacity exists to treat the otherwise treatment technology) are not included applicable treatment for certain wastes difficult-to-treat TC metal wastes, high in these quantity estimates. containing high concentrations of metal temperature metal recovery capacity Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28625 exists for some of the TC metal wastes, treatment capacity for process wastes, Pocatello, Idaho facility, provided a and sufficient and other combustion soil, and debris, EPA is providing 90 substantial amount of data to show that capacity exists to pre-treat TC metal days between the publication of today’s these waste streams pose unique wastes that contain organic underlying rule and the effective date of the treatability problems (e.g., due the hazardous constituents (UHCs). The treatment standards for the mineral presence of naturally occurring Agency has determined that these processing wastes, contaminated soil radioactive materials (NORM)) and that conclusions also apply to TC metal (including MGP soil; see discussion a two-year national capacity variance is contaminated debris. In addition, the below), and debris covered by today’s needed to develop and construct other debris treatment technologies set rule (one exception is the elemental treatment capacity. After careful review out in 268.45 are widely available. phosphorus wastes; see discussion of the data, EPA discussed in the May For TC metal contaminated soils, the below). For a detailed discussion on 10, 1996 Notice of Data Availability, the Agency believes that the treatment data sources, methodology, and possibility of a two-year national standards, ten times UTS or 90% comments and responses for these capacity variance for these three large reduction, will not result in any wastes, see the Capacity Background volume wastewater streams. In May capacity problems for treating metals Documents. 1997, EPA proposed the second since most soils are already meeting EPA estimates that up to 1.2 million supplemental Phase IV rule (62 FR these standards and, furthermore, there mt/yr of soil contaminated with ‘‘de- 26041) and, in response to this proposal, is an excess of stabilization treatment Bevilled’’ wastes may be remediated FMC submitted a comment to EPA with capacity. Additionally, for treating from historic manufactured gas plant new information identifying three other organics to the alternative treatment (MGP) sites. In response to the first waste streams (NOSAP slurry, standards, sufficient treatment capacity supplemental proposal, several precipitator slurry, and phossy water) at exists from use of other technologies commenters stated that more than 50 its Pocatello, Idaho facility that FMC (e.g., thermal desorption, soil washing, percent of the MGP remediation sites believes would be subject to Phase IV biotreatment). are currently co-burning the wastes in LDR requirements. FMC requested that To allow facilities time to determine on-site coal-fired utility boilers and a two-year national capacity variance whether their wastes are affected by this requested the Agency to allow co- also be granted for these three new rule and identify and locate alternative burning of MGP soils in coal-fired waste streams. Like the original waste treatment capacity if necessary, EPA is utility boilers and exclude them from streams, the three newly identified providing 90 days between the RCRA requirements. In today’s streams are generated in the elemental publication of today’s rule and the rulemaking, the Agency is confirming phosphorous production process and effective date of the treatment standards its existing (and not reopened) contain varying amounts of both NORM for the TC metal wastes, including soil interpretation that residues from co- and elemental phosphorous. FMC also and debris, covered by today’s rule. For burning hazardous MGP soils along noted that the AFM Rinsate waste a detailed discussion on data sources, with coal are covered by the Bevill stream, for which FMC originally methodology, and comments and amendment (assuming the residues are requested a national capacity variance, responses for these wastes, see the not significantly affected by such has been completely eliminated, and Capacity Background Documents. burning, as provided in section that therefore a national capacity D. Required Capacity and Variance 266.112). In addition, as discussed variance would no longer be needed for Determination for Surface Disposed elsewhere in this notice, the Agency is this waste stream. The Agency made Mineral Processing Wastes promulgating treatment standards (ten these additional data available for times UTS or 90 percent reduction) for public comment in a November 10, 1997 EPA estimates that the maximum contaminated soils. On-site treatment NODA (62 FR 60465). No adverse quantity of newly identified mineral and existing commercially available comments were received. The Agency processing wastes potentially requiring treatment technologies can readily has decided to grant a two-year capacity alternative treatment is approximately achieve—and to a large extent are variance for all five FMC wastestreams. 1.9 million mt/yr. Most of these wastes already achieving—the treatment Details of the methodology and (approximately 1.8 million mt/yr) are standards for contaminated MGP soil. estimates of affected facilities and waste already being treated to nonhazardous Therefore, the Agency does not quantities for the newly identified levels and, therefore, are not expected to anticipate any capacity problems. To mineral processing wastes are provided require much, if any, additional allow facilities time to determine in the Capacity Background Documents. treatment. The remaining wastes, whether their wastes are affected by this E. Phase IV Mineral Processing and TC approximately 71,000 mt/yr, will rule, to identify alternative treatment Metal Wastes Injected Into Underground require treatment to meet the treatment capacity if necessary, and to make standards. However, adequate on-site contractual arrangements for Injection Control (UIC) Class I Wells and off-site treatment capacity is transportation and other logistics, EPA Summary: EPA is granting a two-year available for these wastes. The Agency is providing 90 days between the capacity variance for UIC wells that has determined that these conclusions publication of today’s rule and the inject newly identified mineral also apply to debris contaminated with effective date of the treatment standards processing wastes from titanium dioxide mineral processing wastes. In addition, for MGP soils. production. the other debris treatment technologies In the first supplemental proposed There are approximately 272 Class I set out in 268.45 are widely available. rule, the Agency identified the facilities nationwide. The For soils contaminated with mineral following three waste streams generated Agency identified approximately 46 of processing wastes, the Agency believes from elemental phosphorus production those facilities as potentially injecting that the treatment standards, ten times as lacking sufficient commercial Phase IV wastes. These injected Phase UTS or 90 percent reduction, will not treatment capacity: Medusa scrubber IV wastes account for less than 15 result in any capacity problems. blowdown, Anderson filter media percent of the total injectate being Nevertheless, to allow time for activities rinsate, and furnace building managed by Class I wells annually. Most such as treatment system modifications washdown. A major generator of these of these facilities potentially identified or to identify and locate alternative waste streams, the FMC Corporation’s already have approved no-migration 28626 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations petitions. In assessing the impact of the waste to a commercial Class I hazardous facilities and found that individual Phase IV rule to operators of UIC disposal well facility, or deactivating injection and flow capacity rates facilities, the Agency found that the (diluting) the waste to make it (UICWELLS Database) may restrict only potentially affected wells are those nonhazardous before injection (see injection of additional high volumes of injecting newly identified characteristic RCRA section 3004 (g) (9), a recent waste. Rates are scientifically and mineral processing wastes, since other amendment which allows such mathematically determined to avoid characteristic wastewaters were already dilution). All of these options are damage to the well and the injection prohibited in 1990 and the period for resource intensive and owners/operators zone. Further study of compatibility possible capacity extensions for these of these facilities will be faced with requirements for these wells suggest that wastes has run out. (See UIC critical economic and business they have acceptable construction for background document explaining in decisions. These TiO2 facilities do not most wastes disposed but not detail why the other wastes are have immediate capability to treat their necessarily for the TiO2 production unaffected.) waste onsite. If they were to opt for waste in its present concentration. For a facility with an existing treatment onsite, it would require Without pretreatment, these waste approved no-migration determination, substantial time and resources to build characteristics would require a more the facility operator may have already a treatment facility or to substantially exotic well construction that is incorporated the subject waste in the modify their existing facility. It would composed of fiberglass injection tubing, original petitions. Any facility with an take at least two years (and possibly titanium casing and packer, epoxy and approved no-migration determination longer) to construct such a treatment acid resistance compatible cement. without the waste already incorporated system. In evaluating various disposal EPA has also looked at commercial may submit a modified petition (40 CFR alternatives, one DuPont facility is wastewater treatment capacity in the Part 148.20 (f)). However, if an injection currently constructing a treatment vicinity of the two DuPont facilities. For well has received a no-migration works that will integrate a one facility, there are no available determination, it can inject a newly neutralization project based on current commercial waste water treatment prohibited waste only if the waste is production. As an alternative to deep plants within 200 miles. For the other similar to wastes included in the initial well injection disposal, the long term facility, there are two treatment plants no-migration petition. The new wastes construction at this facility has been within 75 miles but neither has the must behave hydraulically and costly and operational start-up will capacity to accept the high volumes of chemically in a similar manner to those require additional time to work out waste generated by either DuPont already included in the initial petition issues. See DuPont letter of Feb. 5, 1998. facility (based on BSR data). demonstration such that they will not With respect to the options of Commercial waste water treatment interfere with the containment managing the waste water offsite, severe facilities generally handle corrosive capability of the injection zone and the practical constraints limit the toxic metal waste waters by stabilization location of the waste plume will not availability of capacity to these DuPont and neutralization techniques. significantly differ from the initial Ti02 facilities. A typical volume of Ti02 Treatment plants managing the Ti02 demonstration (See 40 CFR 148.20 (f) & wastewater is 900,000 Gallons (3,750 production waste waters would have to UIC Program Guidance # 74)). Based on tons) per day; and peak production be specially constructed and equipped this information, promulgation of the volumes are 1 million Gallons (4,167 not only to be amenable to a high Phase IV LDRs should have little impact tons) per day. DuPont letters of Feb. 5 volume of acidic waste but also have the on any facilities with approved & 20, 1998. At peak production, this capacity to manage the huge amount of petitions. would take 200 tanker trucks per day for solids that will yield from treatment. EPA estimates that approximately five each affected facility to ship the volume Thus, wastewater treatment requires million tons of mineral processing of waste that is currently injected. having pre-storage and processing units, wastes are being disposed annually in Additionally, these trucks must be adequate chemicals to neutralize the UIC wells. Of these, approximately three constructed with fiberglass or titanium corrosive characteristic of the waste and million tons are attributable to titanium tanks to be compatible to the low pH- stabilization technology to immobilize dioxide production from two DuPont highly corrosive acid waste (Note from the metals before they are either stored facilities. This volume is a conservative ICF to R. E. Smith to RCRA Docket (Feb. onsite, marketed, or landfilled. While estimate based on highly complex, non- 17, 1998)). Indeed, it is not even certain the Agency is satisfied that this segregable waste stream mixtures. This that existing 10, 000 gallon tanker trucks treatment technology is applicable to total volume would be subject to the are compatible with this wastestream, Ti02 waste water, there is much LDR treatment standards. Titanium due to its weight (the TDS content is so reservation whether DuPont’s facilities dioxide (TiO2) production wastes are high that a 10, 000 gallon tanker could could realistically mobilize 200 tanker either generated onsite at facilities with only be half full) and corrosivity. trucks per day per facility to safely ship injection wells, or at facilities without Dupont letter of Feb. 20, 1998. this waste to these treatment facilities injection. For these DuPont facilities, Commercial waste management even if treatment capacity were readily this waste is generated and disposed facilities normally cannot feasibly available at them. onsite by injection wells. In order for accommodate this daily volume. There The statute also allows injection of these facilities to continue injection of are at least ten operating commercial waste waters which no longer exhibit a this restricted waste, a no-migration Class I hazardous waste injection characteristic into Class I wells without petition must be approved to meet the facilities nationwide, it is uncertain meeting any other LDR treatment conditions of 40 CFR Part 148.20 of the whether they have the capacity to standard, and dilution may be used as UIC regulations. accept 3 million tons of TiO2 mineral a means of decharacterizing the waste. For those facilities disposing processing waste annually for disposal RCRA section 3004 (g) (9). However, restricted Phase IV TiO2 mineral because of permitting limitations. These deactivation of certain characteristic processing waste, their options may be commercial wells also have finite wastes through dilution is not always limited to meeting treatment standards capacity limitations. The Agency practical or even feasible. The whole (onsite or offsite), submitting a no- studied the operational permit waste stream process may not be migration petition, transporting their parameters of these commercial amenable to dilution prior to injection Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28627 at the wellhead, and the geologic facilities at this time, plus all of the are much less than the TiO2 production reservoirs into which the wells inject other repiping that would be entailed. waste being injected. Since the volume have a finite capacity. Sometimes filling The Agency believes that it would take of wastes is so much less than TiO2, and up reservoirs with huge volumes of at least two years for the TiO2 facilities the wastes are more amenable to additional water shortens the life of the to alter their operations to ship conventional management, EPA does well operation because reservoir wastewater to offsite facilities and for not see the same types of difficulties pressures build up much more quickly off-site facilities to make corresponding arising, and is therefore not delaying the and the injection zone becomes changes to their operations to effective date of the prohibition for ‘‘overpressurized.’’ EPA finds that this accommodate the large influx of highly these facilities. (See UIC background is the case for the TiO2 wastewater at corrosive, high volume, dense document). issue here. Thus, the dilution option wastewater (even if off-site facilities F. Mixed Radioactive Wastes cannot be utilized here to find that there were to be willing to accept the waste, is adequate available treatment capacity which is quite unclear). Significant uncertainty exists about for these TiO2 wastes. Under these circumstances, the quantities of mixed radioactive wastes Capacity analyses usually focus on Agency finds that there is inadequate containing wastes that will require the demand for alternative capacity treatment, recovery, or disposal capacity treatment as a result of today’s rule. once existing on-site capacity and presently available for TiO2 injected Despite this uncertainty, any new captive off-site capacity have been waste waters currently being injected commercial capacity that becomes accounted for. However, capacity also into Class I hazardous wells, and available will be needed for mixed may be unavailable if there is no therefore is granting a two-year national radioactive wastes that were regulated practical means of utilizing it due to capacity variance for these wastes. The in previous LDR rulemakings and whose logistical problems. For example, in the Agency expects that affected generators variances have already expired. Thus, Third Third rule, EPA relied on such will utilize this period for applying for EPA has determined that sufficient logistical factors to determine when no-migration petitions for their existing alternative treatment capacity is not capacity was realistically available (see wells, or to construct on-site wastewater available, and therefore is granting a 55 FR 22645–22646, June 1, 1990). The treatment systems. two-year national capacity variance for Agency noted that injection wells at on- EPA estimates that there is mixed RCRA/radioactive TC metal site facilities are directly connected to approximately 2 million tons of other wastes that are newly identified (i.e., the plant operations and that in order to injected Phase IV mineral processing wastes, soil, or debris identified as realistically arrange for off-site wastes (i.e. from processes other than hazardous by the TCLP but not the EP), disposition of the waste, the plant TiO2 production). One facility with the and newly identified characteristic managers will need time to make largest volume of that injected waste has mineral processing wastes including considerable logistical adjustments such applied for and received an approved soil and debris. as, repiping, retooling, and development no-migration petition thus meeting the G. Summary of transportation networks at the plant conditions of 40 CFR Part 148.20. The operations. Similarly, for TiO2 waste rest of these facilities are either applying Table 1 summarizes the capacity facilities, the Agency doesn’t believe dilution as a means of decharacterizing variance determination for each that treatment capacity is available since their waste (as allowed under Section category of Phase IV RCRA wastes for there is no feasible way for generators to 3004(g)(9)), or are treating their waste which EPA is promulgating LDR transport their wastes to the treatment before disposal. Their waste volumes treatment standards.

TABLE OF CAPACITY VARIANCES FOR PHASE IV WASTES [Note: Capacity variances begin from the publication date]

Surface-disposed Deep well-injected Waste description wastes wastes

Newly identified wastes from elemental phosphorus processing ...... Two years ...... Not applicable. Newly identified mineral processing wastes from titanium dioxide production ...... 90 days ...... Two years. Newly identified TC metal wastes (i.e., wastes identified as hazardous by the TCLP but not the 90 days ...... 90 days. EP), and newly identified characterisitc mineral processing wastes including soil and debris. Radioactive wastes mixed with newly identified TC metal wastes (i.e., wastes identified as haz- Two years ...... Two years. ardous by the TCLP but not the EP), and mixed with newly identified characteristic mineral processing wastes, including soil and debris.

X. Change to Definition of Solid Waste certain conditions are met, as specified wood preserving solutions from To Exclude Wood Preserving below. classification as solid waste under RCRA. Any wood preserving plant Wastewaters and Spent Wood A. Summary of the Proposal Preserving Solutions From RCRA claiming the exclusion for these wastes Jurisdiction On May 12, 1997 in the Phase IV LDR would need to manage them according second supplemental rulemaking, EPA to the following criteria: (1) the Summary: As proposed on May 12, proposed to amend the RCRA materials must be recycled and reused 1997 (FR 62 26055), EPA is today regulations to provide an exclusion from on-site in the production process for amending the definition of solid waste the definition of solid waste for certain their original intended purpose; (2) the to exclude wood preserving wastewaters materials generated and recycled by the materials must be managed to prevent and spent wood preserving solutions wood preserving industry. Specifically, release; (3) the plant must assure that from RCRA jurisdiction provided that the proposal would exclude certain the units managing these materials can wood preserving wastewaters and spent be visually or otherwise determined to 28628 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations prevent releases; and (4) drip pads proposal, others were critical of the stating that the plant intends to claim managing these materials must comply Agency for, among other things, the exclusion, giving the date on which with Subpart W drip pad standards relinquishing some regulatory oversight the plant intends to begin operating regardless of whether the plant has been of the wood preserving industry. The under the exclusion, and containing the classified as a conditionally exempt comments EPA received on the scope of following language: ‘‘I have read the small quantity generator (CESQG) (see the proposed exclusion and the applicable regulation establishing an 40 CFR 261.5). For a more detailed Agency’s response can be found in the exclusion for wood preserving discussion of these conditions, please docket for this rulemaking. All wastewaters and spent wood preserving consult the relevant sections in the May comments were carefully considered. solutions and understand it requires me 12, 1997 proposed rule. This section addresses those changes to comply at all times with the As noted above, the exclusion was to that EPA made to the proposed rule conditions set out in the regulation.’’ be limited to wood preserving based on comments the Agency The plant must maintain a copy of that wastewaters and spent wood preserving received. The next section (‘‘Other document in its on-site records for a solutions that are recycled and reused Comments’’) addresses those aspects of period of no less than 3 years from the on-site at wood preserving plants in the the proposal that, though they remain date specified in the notice. production process for their original unchanged by today’s rule, require 2. Conditions Under Which the intended purpose. As EPA explained in further clarification based on the Exclusion Would No Longer Apply the proposal, any listed wastewater or comments received. spent solution that is not recycled on- EPA requested comment on site according to the conditions of the 1. Notification conditions that void the exclusion. exclusion is not excluded from the EPA received two responses to its Specifically, EPA asked whether a spill definition of solid waste. Moreover, the request for comment on whether it was should result in the loss of the exclusion F032, F034 and F035 listings cover necessary for a plant claiming the just for the spilled material, or also for wastestreams other than wastewaters proposed exclusion to provide notice to the wastewaters and spent solutions and spent solutions. These other listed the appropriate regulatory agency and, if generated after the spill occurred. EPA wastestreams would not be eligible for so, what type of notice that should be. received two comments on conditions exclusion even if recycled. This could One commenter suggested that the under which the exclusion, once include materials associated with publication of the exclusion and its claimed, would no longer apply. One wastewaters and spent solutions, such effective date by EPA in this final rule commenter stated that RCRA regulation as residues that accumulate in a drip would serve as sufficient notice, and should be required for all materials that pad sump. EPA affirms this scope of the that notification on a plant specific basis are spilled or otherwise exit the exclusion for the final rule. is unnecessary. EPA does not consider recycling loop. The other commenter It was neither the Agency’s intent nor publication of the final rule to provide suggested that ‘‘a simple spill . . . is belief that the proposed exclusion adequate notice on the names and obviously not related to the normal would in any way reduce the locations of wood preserving plants operation of the drip pad . . .’’ and obligations that wood preserving plants planning to operate under the should therefore not void the exclusion have under 40 CFR Part 264, Subpart W conditional exclusion. Moreover, EPA is for wastewaters and spent solutions that and Part 265, Subpart W, including the concerned that this commenter may are collected and not spilled or released. requirements for drip pads and the have assumed that the exclusion would EPA agrees with the commenter who § 264.570(c) and § 265.440(c) take effect nationwide upon publication. took the position that the spilled requirements under for response to As explained below in the section titled material itself should be ineligible for infrequent and incidental drippage in ‘‘state authorization,’’ this is not correct. the exclusion. The spilled material storage yards. The Agency specifically The exclusion will not take effect in any inherently fails to meet the condition requested comment on whether the authorized state unless and until the requiring plant operators to manage proposed exclusion would reduce these state adopts it. wastewaters and solutions so as to requirements. The Agency also sought The other commenter suggested that it prevent releases. Although there could comment on whether a plant claiming is appropriate for wood preserving potentially be conditions under which a the proposed exclusion should be plants claiming an exclusion for their spilled material could still be eligible required to place a notification form to recycled wastewaters and spent for the existing exclusions under that effect in its files on-site and/or to solutions to notify the appropriate state § 261.4(a)(9)(i) and (ii) following submit it to either the EPA Regional agency. EPA considers notification to reclamation, such materials are in all Administrator or State Director to allow the appropriate regulatory agency to be cases ineligible for today’s new review. Finally, EPA asked for comment essential to the proper implementation exclusion under § 261.4(a)(9)(iii). concerning the conditions under which of this provision. To allow EPA and To respond to the second comment, the proposed exclusion, once claimed, authorized states to verify that the EPA has decided to clarify the effect of would no longer apply. conditions placed upon today’s a violation of any condition, including Of course, this exclusion from the exclusion are properly met, it is the condition prohibiting spills, on definition of solid waste under the important that wood preserving plants wastewaters and spent solutions federal RCRA statute does not modify inform the appropriate Regional generated after a violation occurs. EPA any regulatory requirements that are Administrator or State Director that they has decided that the exclusion should independently imposed under other are claiming the exclusion and will not be available until the plant owner or environmental statutes. therefore be reporting significantly operator notifies the appropriate lower waste generation totals. EPA is regulatory agency, and the agency B. Modifications to the Proposal therefore revising the proposed determines that the problem has been The Agency received four sets of exclusion to require a plant owner or adequately addressed. It is appropriate comments on the proposed exclusion operator (prior to operating pursuant to to impose this requirement even for for wood preserving wastewaters and this exclusion) to submit to the spills, because the significance of a spill spent wood preserving solutions. While appropriate Regional Administrator or may vary greatly from plant to plant and some comments were supportive of the State Director a one-time notification from incident to incident. EPA hopes Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28629 that a reviewing agency would quickly Thus, sumps or other units that are make an informed determination as to reinstate the exemption after a one-time arguably part of an exempt wastewater whether the unit is cracked or leaking. spill, particularly if small, and would treatment unit and that manage 5. CESQG Status not require specific actions to correct wastewaters and spent solutions are the problem. In contrast, EPA would subject to these conditions. EPA has One commenter also requested EPA to expect the reviewing agency to require already stated that ‘‘management to prevent wood preserving plants from specific actions (such as creation and prevent releases would include, but not becoming conditionally exempt small implementation of a spill prevention necessarily be limited to, compliance quantity generators (CESQGs) after plan) for a plant that experienced with [Subpart W] and maintenance of claiming the exemption. The commenter repeated spills. EPA believes the the sumps receiving the wastewaters was concerned that other, non-excluded severity of any violation and the precise and spent solutions from the drip pad wastestreams generated at these plants actions needed to return the plant to and retort to prevent leaching into land that are covered by the listings would compliance can best be assessed on a and groundwater.’’ (62 FR 26057). The no longer be subject to any hazardous case-by-case basis. EPA has added Agency must be able to verify that the waste regulation. As explained in more language to the regulation to clarify this excluded materials are being managed detail in the response to comment issue. It applies to all of the conditions to prevent release at every step of the document, EPA lacks sufficient of the exclusion. recycling process through reclamation information about the volumes of these to ensure that the basic technical and other wastes and the risks they pose to C. Other Comments policy conditions underlying the promulgate a rule creating an exception A number of comments indicated a exclusion are properly met. to the long-established CESQG exemption for them. need for EPA to clarify other aspects of 3. Relationship of Today’s Exclusion to the proposal that the Agency is Previous Industry Exclusions D. State Authorization finalizing today. One commenter wanted to assure that Upon promulgation, this exclusion 1. Oil Borne Facilities today’s exclusion would not now will immediately go into effect only for regulate units that transmit or store plants in those states and territories that One commenter suggested that the materials that have been excluded are not currently authorized to exclusion that EPA is finalizing today according to other, currently existing implement the RCRA program (i.e., applies not only to water borne wood regulations. EPA does not intend to use Alaska, Iowa, Hawaii, American Samoa, treating plants but also to oil borne today’s exclusion to rescind either of the Northern Mariana Islands, Puerto Rico wood treating plants. At the time of exclusions that the Agency has and Virgin Islands). Plants in these proposal, EPA intended to create an previously granted the wood preserving states are subject to the provisions of the exclusion only for plants using water industry under §§ 261.4(a)(9)(i) and (ii). federal program. Conversely, any plant borne preservatives. See, for example, located in a RCRA authorized state will the discussion at 63 FR 26057, col. 1. 4. Units That May Be Visually or be unable to claim the exclusion we are EPA did not evaluate oil borne plants at Otherwise Determined to Prevent finalizing today unless and until that the time. It is EPA’s general Release state amends its regulations to include understanding that plants which use oil One commenter expressed concern the exclusion. Because EPA allows state borne preservatives do not recycle that the term ‘‘units’’ is an overly broad programs to be more stringent than the wastewaters and spent solutions by way to refer to those portions of the federal program, it is not necessarily using them in the work tank to treat system subject to RCRA inspection. EPA guaranteed that all authorized states wood. Rather, they reuse these will now clarify which ‘‘units’’ are will elect to adopt this exclusion. wastewaters in cooling systems, vacuum subject to inspection under the seals, and other devices. EPA wants to conditions of this exclusion. As XI. Clarification of the RCRA Exclusion limit today’s exclusion to materials that mentioned above, all units that come of Shredded Circuit Boards are reused for their original intended into contact with the excluded materials In the May 12, 1997 final rule on Land purpose—the treatment of wood. EPA prior to reclamation must necessarily be Disposal Restrictions, the has not had time to investigate the subject to verification that they are able Environmental Protection Agency (EPA) jurisdictional and factual issues posed to contain these materials in a manner excluded shredded circuit boards from by the use of wastewaters for other, that prevents their release to the the definition of solid waste more ancillary purposes. Consequently, environment. This includes, but is not conditioned on containerized storage EPA is not expanding the exclusion necessarily limited to, any drip pad, prior to recovery. To be covered by this beyond the proposal. It applies only to sump, retort or conduit that comes into exclusion shredded circuit boards must water borne processes. contact with the wastewaters and spent be free of mercury switches, mercury 2. Application of the Conditions to solutions prior to reclamation. This also relays, nickel-cadmium batteries or Units Other Than the Drip Pad includes any unit that is arguably part lithium batteries. On a related issue, of a plant’s wastewater treatment system current Agency policy states that whole One commenter expressed opposition but that comes into contact with the circuit boards may meet the definition to ‘‘any language that would extend the wastewaters or spent solutions prior to of metal and therefore be exempt EPA’s RCRA authority to devices that reclamation. An inspector must be able from hazardous waste regulation. In a have previously not been regulated to determine (by visual or other means) parenthetical statement in the May 12, under RCRA.’’ In view of this comment, whether these units are managing the 1997 rule, the Agency asserted that the Agency is prompted to clarify that wastewaters and spent solutions in a whole used circuit boards which the conditions for claiming the manner that prevents release. When contain mercury switches, mercury exclusion must be met with regard to relying on a visual inspection (as relays, nickel-cadmium batteries, or any unit that comes into contact with opposed to a leak detection system or lithium batteries also do not meet the the recycled wastewaters and spent other means), it may be necessary for an definition of scrap metal because wood preserving solutions excluded in inspector to require these units be mercury (being a liquid metal) and today’s rule. drained or cleaned for the inspector to batteries are not within the scope of the 28630 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations definition of scrap metal. The preamble regulatory action is ‘‘significant.’’ The Contaminated Media,’’ which were cited 50 FR 614, 624 (1985). Order defines a ‘‘significant’’ regulatory placed in the docket for today’s final Members of the electronics industry action as one that ‘‘is likely to result in rule. expressed concern to the Agency about a rule that may: (1) have an annual 1. Methodology Section the preamble statement regarding the effect on the economy of $100 million regulatory status of whole used circuit or more or adversely affect, in a material The Agency estimated the volumes of boards which contain mercury switches, way, the economy, a sector of the waste and contaminated media affected mercury relays, nickel-cadmium economy, productivity, competition, by today’s rule to determine the national batteries, or lithium batteries. The jobs, the environment, public health or level incremental costs (for both the electronics industry indicated that its safety, or State, local, or tribal baseline and post-regulatory scenarios), member have developed a sophisticated governments or communities; (2) create economic impacts (including first-order asset/materials recovery system to serious inconsistency or otherwise measures such as the estimated collect and transport whole used circuit interfere with an action taken or percentage of compliance cost to boards to processing facilities. The planned by another agency; (3) industry or firm revenues), and benefits industry explained that the boards are materially alter the budgetary impact of or risk-screens used to document the sent to processing facilities for entitlements, grants, user fees, or loan inherent hazard of materials being evaluation (continued use, reuse or programs or the rights and obligations of evaluated. reclamation) where the switches and the recipients; or (4) raise novel legal or types of batteries are generally removed policy issues arising out of legal 2. Results by persons with the appropriate mandates, the President’s priorities, or a. Volume Results. EPA estimates that knowledge and tools for removing these the principles set forth in the Executive there are 29 mineral commodity sectors materials. Once these materials are Order.’’ potentially affected by today’s rule, The Agency estimated the costs of removed from the boards, they become including an estimated 136 facilities today’s final rule to determine if it is a a newly generated waste subject to a that generate 118 streams of newly significant regulation as defined by the hazardous waste determination. If they identified mineral processing secondary Executive Order. The analysis fail a hazardous waste characteristic, materials. The estimated volume for considered compliance costs and they are handled as hazardous waste, these potentially affected newly economic impacts for newly identified otherwise they are managed as a solid identified mineral processing secondary wastes affected by this rule, as well as waste. Information was also provided materials is 22 million tons. Also, media contaminated with these wastes. regarding the quantity of mercury on approximately 1.3 million tons of In addition, the analysis addresses the these switches and on the physical state contaminated soil containing coal tar in which they are found on the boards. cost savings associated with the new soil treatment standards being and other wastes from manufactured gas The information indicates that the plants are potentially affected by this mercury switches and relays on circuit promulgated in today’s rule. Newly identified mineral processing wastes rule. As discussed below, EPA does not boards from some typical applications believe that any TC metal process contain between 0.02–0.08 grams of covered under this rule include 118 mineral processing wastes identified as wastes are potentially affected by mercury and are encased in metal which today’s final rule. EPA estimates that is then coated in epoxy prior to potentially characteristically hazardous. Also covered under this rule are TC approximately 165,000 tons per year of attachment to the boards. soil and sediment contaminated with In today’s final rule, the Agency metal wastes. Today’s final rule also covers treatment standards for TC metals and approximately 90,000 recognizes that the preamble statement tons per year of previously regulated in the May 12, 1997 final rule is overly contaminated media (i.e., soil and sediment). EPA estimates the total cost contaminated soils is impacted by broad in that it suggested that the scrap today’s rule. metal exemption would not apply to of the rule to be a savings of $6 million b. Cost Results For the part of today’s whole used circuit boards containing annually, and concludes that this rule is final rule that prohibits land storage of the kind of minor battery or mercury not economically significant according mineral processing residues (below the switch components and that are being to the definition in E.O. 12866. high volume threshold) prior to being sent for continued use, reuse, or However, the Agency does consider this recycled, EPA estimates these expected recovery. It is not the Agency’s current rule to be significant for novel policy case annualized compliance costs to be intent to regulate under RCRA circuit reasons. The Office of Management and $10 million. The cost results for this boards containing minimal quantities of Budget has reviewed this rule. Detailed discussions of the part of today’s final rule are a function mercury and batteries that are methodology used for estimating the of two factors: (1) the expense protectively packaged to minimize costs, economic impacts and the associated with purchasing new storage dispersion of metal constituents. Once benefits attributable to today’s proposed units or upgrading existing storage these materials are removed from the rule for newly identified mineral units, and (2) the transfer of some boards, they become a newly generated processing wastes, followed by a mineral processing residues either from waste subject to a hazardous waste presentation of the cost, economic recycling to disposal resulting in determination. If they meet the criteria impact and benefit results, may be increased costs or from disposal to to be classified as a hazardous waste, found in the background documents: (1) recycling resulting in a cost savings. they must be handled as hazardous ‘‘Regulatory Impact Analysis of the For TC metal wastes the Agency waste, otherwise they must be managed Phase IV Land Disposal Restrictions as a solid waste. believes that there will be no Final Rule for Newly Identified Mineral incremental costs associated with XII. Regulatory Requirements Processing Wastes,’’ (2)’’Regulatory stabilization of these wastes from the Impact Analysis of the Phase IV Land A. Regulatory Impact Analysis Pursuant promulgation of these treatment Disposal Restrictions Final Rule for TC standards.47 In addition, EPA believes to Executive Order 12866 Metal Wastes,’’ and (3) ‘‘Regulatory Executive Order No. 12866 requires Impact Analysis of the Phase IV Land 47 One possible exception to this are producers of agencies to determine whether a Disposal Restrictions Final Rule for hazardous waste-derived fertilizers. This is Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28631 that there will be no incremental cost of switching from iron filings to standards which are less stringent than treatment costs for the treatment of TC another treatment reagent is attributable current LDR treatment standards for metal wastes that contain organic to today’s final rule, the Agency has contaminated soils. The one category of underlying hazardous constituents. estimated these compliance costs and TC hazardous metal contaminated soil Based on public comment and data included this information in the that is potentially impacted by today’s collected from commercial hazardous background document ‘‘Regulatory rule is TC hazardous metal waste treaters and generators, EPA Impact Analysis of the Phase IV Land contaminated soil which contains believes that TC metal wastes are often Disposal Restrictions Final Rule for TC organic underlying hazardous already treated to these universal Metal Wastes,’’ which was placed in the constituents. These soils require treatment standard levels when waste docket for today’s final rule. EPA additional treatment over that received handlers treat to the current treatment estimates that the annual cost to in the baseline to effectively treat the standards using bona fide treatment nonferrous foundries to switch from organic constituents of concern. The reagents (e.g., portland cement).48 iron to portland cement to stabilize Agency estimates that this additional Therefore, no additional treatment hazardous foundry sands is $11.7 requirement will result in a $3 million reagent or capital equipment associated million. Results from the risk screen for per year cost for these wastes, occurring with stabilization is required with these nonferrous foundry sands are discussed mainly at voluntary cleanups and wastes. below. Superfund sites. Previously, EPA had estimated costs For TC metal hazardous wastes that Manufactured gas plant contaminated to the nonferrous foundry industry contain organic underlying hazardous soils (MGP) are a class of contaminated associated with complying with today’s constituents, one commenter has media that has heretofore not been treatment standards. This estimate was suggested that the Phase IV final rule subject to LDR treatment standards. EPA modeled on trisodium phosphate with a would result in costs resulting from believes that some incremental costs ph buffer. When this type of treatment changing from stabilization of these may result from today’s final rule to reagent is used, incremental quantities wastes to incineration. EPA has MGP clean ups involving the use of are required to achieve the universal evaluated data from the National MGP soils in land applied recycling treatment standards for cadmium Hazardous Waste Constituent Survey to such as hot or cold mix asphalt, brick promulgated in today’s rule. However, assess both the prevalence and level of and concrete. It is possible that some of based on contacts with trade organic underlying hazardous these soils will not meet the conditional associations and vendors of stabilization constituents in TC metal wastes (solid exemption for waste-derived products equipment, EPA believes that portland and sludges). The results indicate that that are used in a manner constituting cement is equal to or less than the cost organic underlying hazardous disposal. 40 CFR § 266.20(b). For this of trisodium phosphate and is therefore constituents are rarely present in these reason, it is also possible that owner/ wastes. Only seven of 181 TC metal a more appropriate choice for modeling operators of these sites may select an hazardous wastes examined contained a compliance baseline from which to alternative remedy such as in-situ organic underlying hazardous estimate the costs of the rule. Unlike treatment or co-burning which are not constituents. Of these seven, only three trisodium phosphate, portland cement affected by today’s rule. On balance, contained organics above the Univeral currently being used to meet existing EPA still believes that the promulgation Treatment Standard. None of the three treatment standards has been shown to of new treatment standards will waste steams that contained organics meet the universal treatment standards encourage remediation of hazardous above the Univeral Treatment Standard without additional reagent. soils. The estimated annual costs to was present in concentrations high Accordingly, EPA believes that no owner/operators of MGP sites for enough to warrant incineration. In short, incremental costs (or benefits) for selecting remedies that are alternatives stabilization are attributable to the it is unlikely that organic underlying hazardous constituents will be present to asphalt, brick or concrete recycling promulgation of the universal treatment are $6.2 million. standards for TC metal wastes. in TC metal wastes. And if present, Although according to the American incineration is unlikely to be used to c. Economic Impact Results. To Foundrymen’s Society iron filings are treat these wastes. For reasons, EPA estimate potential economic impacts used by many nonferrous foundries as a believes that the Phase IV final rule will resulting from today’s final rule, EPA treatment reagent, for the reasons not result in incremental costs for TC has used first order economic impacts discussed above under Section III (f), metal wastes containing organic measures such as the estimated EPA does not believe that iron filings underlying hazardous constituents. compliance cost of the rule as a are a legitimate and effective form of The Agency is also promulgating new percentage of sales/revenues, value treatment. Therefore, the costs of soil treatment standards in today’s final added (sales less and material cost) and switching from iron filings to another rule. As these standards are less profit or return on capital. EPA has form of treatment reagent such as stringent than those currently required applied these measures to newly portland cement is more appropriately for previously regulated soils, an identified mineral processing hazardous characterized as a cost of coming into estimate of the cost savings associated wastes. compliance with already existing with these standards has been prepared. For recycled mineral processing treatment standards rather than an The total incremental savings estimated secondary materials, EPA has evaluated incremental cost attributable to today’s for the new soil treatment standards is the estimated compliance costs as a rule. Although EPA does not believe the $25 million per year. percentage of value (i.e. sales), value For contaminated soils which exhibit added and profits of the mineral discussed below under the Regulatory Flexibility a characteristic for TC metals (including commodities produced in each sector. section. soils containing newly identified In addition EPA has compared 48 December 19, 1996 letter to Anita Cummings, mineral processing wastes) but do not estimated compliance costs as a USEPA Office of Solid Waste from Michael G. contain organic underlying hazardous percentage of revenues to specific Fusco, Director of Regulatory Analysis, Rollins Environmental Inc., p.4 of edited draft EPA trip constituents, there is no incremental mineral processing firms to provide report letter to Rollins Highway 36 facility in cost expected from today’s rule. These additional information on potential Colorado. soils are subject to the new treatment impacts. 28632 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations

Economic impacts from today’s rule reagent are not properly considered constituents available for release in the for mineral processing facilities may or attributable to this rulemaking but waste management unit was available may not be substantial for selected rather a cost of coming into compliance for release through each pathway. This mineral processing sectors depending with existing regulations. Moreover, could result in overestimation in risks on the actual storage and management even if these costs were attributable to due to double counting of constituent of mineral processing residues prior to this rulemaking, EPA estimates that mass. To address this factor, EPA being recycled. In the expected case incremental costs attributable to this conducted mass balance calculations for scenario up to 5 of the 29 commodity switching from iron filings to portland all non-groundwater release pathways. sectors are expected to incur cement are less than one percent of These calculations indicate that this compliance costs equal to or greater industry revenues and six percent of potential overestimate would result in than 1 percent of the economic value of industry profits and therefore would not negligible bias because only a very small the mineral commodities produced create a significant impact to these percentage of hazardous constituents in under the Agency’s proposed option in facilities. More detailed information on the waste mass is available for release. today’s rule. These sectors include: this estimate can be found in the In addition, EPA did not conduct these cadmium, fluorspar and hydrofluoric regulatory impact analysis placed into mass balance calculations for the acid, mercury, selenium and tungsten. today’s docket. groundwater pathway because of The range of percentages in these As previously stated, EPA does not limitations in the methodology for sectors is between 2 percent (cadmium) believe there are incremental costs which individual groundwater risks and 36 percent (mercury). Because associated with today’s rule for TC were calculated. The Agency believes many of these sectors are actually co- hazardous metal contaminated soils that the potential bias in risk results for processed with other mineral except for TC hazardous metal both surface impoundments and waste commodity sectors, these impacts may contaminated soils that contain organic piles is low. be distributed over the economic value underlying hazardous constituents. EPA As stated above the Agency’s efforts to of the other minerals, rather than has evaluated the industries generating evaluate benefits for mineral processing concentrated solely on the mineral these TC metal organometallic soils and secondary materials were limited to commodity associated with generating has determined that incremental costs calculations for central tendency and the secondary materials. For example, from today’s final rule do not impose a high-end individual risk. However, due EPA has estimated that today’s final rule significant impact. to data limitations, the Agency has been may affect the cadmium and selenium Similarly, EPA has determined for unable to evaluate additional more sectors by imposing incremental costs MGP site clean ups that the economic explicit risk-reduction benefits, equal to 18 percent of the value added impact of today’s rule is not a including populations benefits. In of those minerals. The value added is significant impact. The estimated general, the Agency’s experience has equal to the market value of the percentage of compliance costs to firm been that it is unusual to predict high minerals less the cost of the raw sales is less than 1 percent. population risks, unless there is an materials (i.e., ore concentrate). d. Individual Risk Estimate Results. unusually large water well supply Cadmium is a co-product of zinc The Agency has performed an impacted by the facility, because ground production and selenium is co-product individual risk analysis to estimate the water contamination generally moves of copper production; hence, these quantifiable central tendency and high- slowly and locally. economic impacts are expected end hypothetical individual risk for Although the regulatory impact primarily to affect the production of mineral processing secondary materials analysis completed for today’s rule does these co-products and the reclamation associated with today’s final rule to be not address benefits associated with of their residuals rather than the mineral above levels of concern for cancer and ecological risk reduction and a decrease processing operation as a whole. noncancer risks for specific mineral in natural resource damages, based on a Because recovery for these co-product processing streams in both groundwater review of available information on residuals is generally less expensive and nongroundwater pathways. Results damage incidents associated with than treatment and disposal, EPA suggest that central tendency and high- mining and mineral processing believes that the costs for these end hypothetical individual cancer and operations 49, the Agency’s experience is residuals will not significantly decrease non-cancer risks may be decreased that, while these types of benefits are their recovery although the storage costs below 1×10¥5 and below a reference extremely difficult to quantify, this rule could add to the expense. dose ratio of 1 in a number of mineral may produce benefits in the area of As stated above, the Agency believes processing facilities. These results are ecological risk reduction and reduced that there are no incremental costs linked primarily with mineral natural resource damage. associated with today’s final rule for processing liquid secondary materials For TC metals, because the analysis stabilization for handlers of TC metal stored in surface impoundments prior to shows that many handlers of TC metal hazardous wastes. Moreover, the reuse. The data used to calculate these wastes are already meeting the universal Agency believes that there are no results are based on the groundwater treatment standards being promulgated incremental costs associated with TC pathway as well as other potential metal wastes containing organic routes of exposure such as air or surface 49 See Human Health and Environmental water. The risk results indicate that the Damages from Mining and Mineral Processing underlying hazardous constituents may Wastes, Technical Background Document incur costs as described above and highest individual risks are associated Supporting the Supplemental Proposed Rule corresponding impacts. Accordingly, with exposure through groundwater and Applying Phase IV Land disposal Restrictions to there is no economic impact for waste surface water pathways. These results Newly Identified Mineral Processing Wastes, U.S. are also limited to a subset of the Office of Solid Waste, U.S. Environmental handlers managing TC metal wastes. Protection Agency, December 1995; Ecological Risk For TC hazardous foundry sands, EPA mineral processing universe being Assessment Southshore Wetlands for the Kennecott also believes that there is no economic regulated today where the Agency has Utah Copper Salt Lake City, Utah. Working Draft impact attributable to today’s final rule. collected data from individual mineral March 4, 1996; May 7, 1996 letter from Max H. As stated above, EPA views the cost processing facilities. EPA also notes that Dodson, Assistant Regional Administrator for Ecosytem Protection and Remediation, U.S.E.P.A, associated from switching from iron in completing these individual risk Region VIII to Michael Sahpiro, Director, Office of filings to cement or other treatment results that the entire mass of hazardous Solid Waste, U.S.E.P.A. Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28633 in today’s rule, EPA does not believe As discussed above in the cost and C. Unfunded Mandates Reform Act that there are either incremental costs or economic impact section on TC metal Title II of the Unfunded Mandates benefits associated with stabilization of wastes, EPA has determined that Reform Act of 1995 (UMRA), P.L. 104– these wastes. However, for TC treating TC metal wastes will not result 4, establishes requirements for Federal hazardous nonferrous foundry sands, in incremental costs to the regulated Agencies to assess the effects of their the Agency has completed a risk community. As stated above, data from regulatory actions on State, local, and screening for groundwater releases of commercial treaters and generators of tribal governments and the private lead and cadmium resulting from the TC metal wastes indicate that the wastes sector. Under Section 202 of the UMRA, disposal of untreated or poorly treated are already treated to below UTS levels. EPA generally must prepare a written sands in municipal solid waste landfills. Moreover, today’s rule will not result in statement, including a cost-benefit The results of the screen indicate that increased costs from incinerating TC analysis, for proposed and final rules the probability the lead and cadmium metal wastes with organic underlying with ‘‘Federal mandates’’ that may would exceed the action level for lead hazardous constituents. EPA’s review of result in expenditures to State, local, of 0.015 mg/l or the drinking water data from commercial hazardous wastes and tribal governments, in the aggregate, standard for cadmium of 0.005 mg/l for treatment facilities indicates that TC or to the private sector, of $100 million untreated foundry sands was metal wastes with organic underlying or more in any one year. Before approximately 9 percent for lead and 14 hazardous constituents are not prevalent promulgating an EPA rule for which a percent for cadmium. The risk results and when present would rarely require written statement is needed, section 205 also showed that the probability for incineration. of the UMRA generally requires EPA to hazardous foundry sands treated to the identify and consider a reasonable universal treatment standard to exceed Finally, after the close of the public number of regulatory alternatives and these standards were approximately 2 comment period, representatives of adopt the least costly, most cost- percent for lead and 7 percent for small business hazardous waste-derived effective, or least burdensome cadmium. Because of data limitations, fertilizer producers met with the Agency alternative that achieves the objectives EPA is not able to demonstrate claiming economic hardship resulting of the rule. The provisions of section population benefits associated with from the Agency’s proposed UTS for 205 do not apply when they are effective treatment of foundry sands. metal wastes. Under existing 40 CFR inconsistent with applicable law. These risk results do, however, § 266.20(b) commercial fertilizers sold document the intrinsic hazard of the for public use must meet treatment Moreover, section 205 allows EPA to sands and the need for effective standards in order to be placed on the adopt an alternative other than the least treatment of these sands. However, as land. Currently all such hazardous costly, most cost-effective, or least indicated above, EPA would attribute waste fertilizers (except for K061– burdensome alternative if the any public health benefits associated derived fertilizers) are subject to Administrator publishes with the final with decreasing lead and cadmium treatment standards for metals at the rule an explanation why that alternative concentrations from foundry sands characteristic level. Based on available was not adopted. Before EPA establishes leachate to coming into compliance information, the Agency has found that any regulatory requirements that may with existing regulations rather than out of 10 secondary small business zinc significantly or uniquely affect small promulgation of today’s universal fertilizer producers only two firms in governments, including tribal treatment standards. the United States produce a hazardous governments, it must have developed under section 203 of the UMRA a small B. Regulatory Flexibility waste-derived fertilizer, meet the definition of a small business and are government agency plan. The plan must The Regulatory Flexibility Act (RFA) subject to this today’s rule. Considering provide for notifying potentially generally requires an agency to conduct a limited range of regulatory responses affected small governments, enabling officials of affected small governments a regulatory flexibility analysis of any (such as switching from a hazardous to to have meaningful and timely input in rule subject to notice and comment a non-hazardous source of zinc waste), the development of EPA regulatory rulemaking requirements unless the EPA believes that only one of the two proposals with significant Federal agency certifies that the rule will not firms could potentially incur a intergovernmental mandates, and have a significant economic impact on significant economic impact. Because informing, educating, and advising a substantial number of small entities. only one firm in this industry is small governments on compliance with Small entities include small businesses, potentially affected by today’s rule, EPA small not-for-profit enterprises, and the regulatory requirements. does not consider this to be a substantial small governmental jurisdictions. Based EPA has determined that this rule number of small entitities. on the following discussion, this final does not include a Federal mandate that rule will not have a significant impact Additionally, there are incremental may result in estimated costs of $100 on a substantial number of small costs estimated to result from today’s million or more to either State, local, or entities. rule to facilities undergoing remediation tribal governments in the aggregate. The With respect to mineral processing of TC metal contaminated soils and rule would not impose any federal facilities that are small entities, EPA sediments with organic underlying intergovernmental mandate because it believes that today’s final rule will not hazardous constituents. EPA estimates imposes no enforceable duty upon State, pose a significant impact to a substantial that between 34 and 93 small entities tribal or local governments. States, number of these facilities. EPA would be impacted by these costs. Two tribes and local governments would identified 22 firms owning 24 mineral firms out of the 93 identified as an have no compliance costs under this processing facilities that are small upper bound estimate incurred rule. It is expected that states will adopt businesses based on the number of estimated compliance costs that exceed similar rules, and submit those rules for employees in each firm. Under the 1 percent of reported firm revenues. inclusion in their authorized RCRA Agency’s proposed option, zero firms Therefore, I certify that this action will programs, but they have no legally out of the 24 identified incurred not have a significant economic impact enforceable duty to do so. For the same estimated compliance costs that exceed on a substantial number of small reasons, EPA also has determined that 1 percent of reported firm revenues. entities. this rule contains no regulatory 28634 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations requirements that might significantly or information; and transmit or otherwise authorization are found in 40 CFR Part uniquely affect small governments. In disclose the information. 271. addition, as discussed above, the private Send comments on the Agency’s Prior to the Hazardous and Solid sector is not expected to incur costs burden reduction, the accuracy of the Waste Amendments of 1984 (HSWA), a exceeding $100 million. EPA has provided burden estimates, and any State with final authorization fulfilled the requirement for analysis suggested methods for minimizing administered its hazardous waste under the Unfunded Mandates Reform respondent burden, including through program in lieu of EPA administering Act. the use of automated collection of the Federal program in that State. The techniques to the Director, OPPE Federal requirements no longer applied D. Paperwork Reduction Act Regulatory Information Division; U.S. in the authorized State, and EPA could The information collection Environmental Protection Agency not issue permits for any facilities that requirements in this rule have been (2136); 401 M St., S.W.; Washington, DC the State was authorized to permit. submitted for approval to the Office of 20460; and to the Office of Information When new, more stringent Federal Management and Budget (OMB) under and Regulatory Affairs, Office of requirements were promulgated or the Paperwork Reduction Act, 44 U.S.C. Management and Budget, 725 17th St., enacted, the State was obliged to enact 3501 et seq. EPA has prepared an N.W., Washington, D.C. 20503, marked equivalent authority within specified Information Collection Request (ICR) ‘‘Attention: Desk Officer for EPA.’’ time frames. New Federal requirements document: OSWER ICR No. 1442.15 Include the ICR number in any did not take effect in an authorized State would amend the existing ICR approved correspondence. until the State adopted the requirements under OMB Control No. 2050–0085. as State law. This ICR has not been approved by XIII. Environmental Justice In contrast, under RCRA section OMB and the information collection A. Applicability of Executive Order 3006(g) (42 U.S.C. 6926(g)) new requirements, although they are less 12898 requirements and prohibitions imposed stringent than those previously required by HSWA take effect in authorized EPA is committed to address by the EPA, are not enforceable until States at the same time that they take environmental justice concerns and is OMB approves the ICR. EPA will effect in unauthorized States. Although assuming a leadership role in publish a document in the Federal States are still required to update their environmental justice initiatives to Register when OMB approves the hazardous waste programs, EPA is enhance environmental quality for all information collection requirements directed to carry out the HSWA showing the valid OMB control number. residents of the United States. The requirements and prohibitions in An agency may not conduct or sponsor, Agencies goals are to ensure that no authorized States, including the and a person is not required to respond segment of the population, regardless of issuance of permits, until the State is to, a collection of information unless it race, color, national origin, or income granted authorization. displays a currently valid OMB control bears disproportionately high and Authorized States are required to number. The OMB control numbers for adverse human health and modify their programs only when EPA EPA’s regulations are listed in 40 CFR environmental effects as a result of promulgates Federal requirements that Part 9 and 48 CFR Chapter 15. EPA’s policies, programs, and activities, are more stringent or broader in scope Copies of this ICR may be obtained and all people live in clean and than existing Federal requirements. from Sandy Farmer, OPPE Regulatory sustainable communities. RCRA section 3009 allows the States to Information Division; U.S. B. Potential Effects impose standards more stringent than Environmental Protection Agency those in the Federal program. See also Today’s rule covers high-metal wastes (2136); 401 M St., S.W.; Washington, 40 CFR 271.1(i). Therefore, authorized (‘‘TC metal wastes,’’ hazardous mineral D.C. 20460 or by calling (202) 260–2740. States can, but do not have to, adopt processing wastes, and mineral Include the ICR number in any request. Federal regulations, both HSWA and processing materials). The rule will The Agency has estimated the average non-HSWA, that are considered less possibly affect many facilities information collection burden of this stringent. Less stringent regulations, nationwide, with the potential for final Phase IV rule to the private sector promulgated under both HSWA and impacts to minority or low-income and the government. The burden of this non-HSWA authority, do not go into communities. Today’s rule is intended final rule to the private sector is effect in authorized States until those to reduce risks to human health and the approximately 4,880 hours over three States adopt them and are authorized to environment, and to benefit all years, at a cost of $943,942. The burden implement them. to EPA is approximately 787 hours over populations. It is not expected to cause three years, at a cost of $29,841. The any disproportionate impacts to B. Effect on State Authorization term ‘‘burden’means the total time, minority or low income communities Today’s rule is promulgated in part effort, or financial resources expended versus affluent or non-minority pursuant to non-HSWA authority, and by persons to generate, maintain, retain, communities. in part pursuant to HSWA. The more or disclose or provide information to or XIV. State Authority stringent HSWA portions of this rule for a Federal agency. This includes the will become effective at the same time time needed to review instructions; A. Statutory Authority in all states. The new LDR treatment develop acquire, install, and utilize Under section 3006 of RCRA, EPA standards for metal-bearing and mineral technology and systems for the purposes may authorize qualified States to processing wastes are being of collecting, validating, and verifying administer and enforce the RCRA promulgated pursuant to section 3004 information; process and maintain hazardous waste program within the (g)(4) and (m), provisions added by information and comply with any State. Following authorization, EPA HSWA. (Note, however, that the previously applicable instructions and retains enforcement authority under treatment standards, even though they requirements; train personnel to be able sections 3008 (a)(2), 3013, and 7003 of are promulgated pursuant to HSWA, to respond to a collection of RCRA, although authorized States have will not apply to mineral processing information; search data sources; primary enforcement responsibility. The wastes unless the wastes are currently complete and review the collection of standards and requirements for included in the authorized State’s Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28635 definition of solid waste.) The adopt these provisions, EPA strongly portions of this rule, States can received application of the TCLP to mineral encourage them to do so, because the final authorization only. The procedures processing wastes likewise implements exclusion encourages properly and schedule for final authorization of a HSWA provision, section 3001(g). conducted material recovery in the State program modifications are These requirements are being added to wood preserving industry. described in 40 CFR 271.21. It should be Table 1 in 40 CFR 271.1(j), which Last, the treatment standards for soil noted that all HSWA interim identifies the Federal program contaminated with hazardous waste authorizations will expire January 1, requirements that are promulgated (and the associated site-specific risk 2003. (See 40 CFR 271.24(c) and 57 FR pursuant to HSWA, and would take based variance provision for 60132, December 18, 1992.) effect in all States, regardless of contaminated soils), promulgated under Section 271.21(e)(2) requires that authorization status. States may apply HSWA, are less stringent than the States with final authorization modify for final or interim authorization for the existing treatment standards. Although their programs to reflect Federal HSWA provisions in Table 1, as the authority for these standards is discussed in the following section of under HSWA, EPA will not implement program changes and subsequently this preamble. Table 2 in 40 CFR them in those States that are authorized submit the modification to EPA for 271.1(j) is also modified to indicate for the existing standards because they approval. The deadline by which the those provisions of this rule that are are less stringent. EPA will implement State would have to modify its program self-implementing provisions of HSWA. them in those States that are to adopt these regulations is specified in Note that there are other HSWA unauthorized for the applicable existing section 271.21(e). This deadline can be provisions that are not more stringent treatment standards. However, EPA extended in certain cases (see section than the current program, such as the strongly encourages States to seek 271.21(e)(3)). Once EPA approves the revisions to certain of the existing LDR authorization for these standards in modification, the State requirements treatment standards. These would not order to encourage and speed up become Subtitle C RCRA requirements. be implemented by EPA in those states cleanups of contaminated sites based on States with authorized RCRA authorized for the existing provisions remedies involving treatment of programs may already have prior to a State being authorized for contaminated soils, thus providing more requirements similar to those in today’s them. These provisions are further permanent remedial solutions. rule. These State regulations have not discussed below. Some of today’s regulatory been assessed against the Federal Today’s rule contains provisions, both amendments are neither more or less regulations being promulgated today to under HSWA and non-HSWA authority, stringent than the existing Federal determine whether they meet the tests that are less stringent than the current requirements. These are the revisions to for authorization. Thus, a State is not Federal program. First is the non-HSWA the existing UTS numbers. EPA clarified authorized to implement these provision which would allow mineral in a December 19, 1994, memorandum requirements in lieu of EPA until the processing spent materials being (which is in the docket for today’s rule) State program modifications are reclaimed within the mineral processing that EPA would not implement the approved. Of course, States with industry sector, or in beneficiation Universal Treatment Standards existing standards could continue to processes, to be excluded from the (promulgated under HSWA authority in administer and enforce their standards definition of solid waste. This provision the Phase II LDR rule) separately for as a matter of State law. In can be adopted at the States’ option, those States for which the State has implementing the Federal program, EPA although EPA strongly encourages received LDR authorization. EPA views will work with States under agreements States to adopt this provision. As stated changes from the existing limits to be to minimize duplication of efforts. earlier in the preamble, part of the neither more or less stringent since the purpose of this rule is to eliminate technology basis of the standards has D. Streamlined Authorization distinctions among reclaimed spent not changed. Accordingly, EPA will not Procedures materials, by-products, and sludges implement today’s amendments to the within this industry. This change, in UTS in those States with authorization It is EPA’s policy to provide as much combination with the conditioned for the treatment standards. flexibility as possible to encourage exclusion for the reclaimed byproducts Today’s rule also clarifies the scrap States to become authorized for rules and sludges, will result in more control metal exemption from solid waste as it under the hazardous waste program. over land-based mineral processing applies to whole circuit boards. This EPA discussed an expedited units than exists presently, encourage part of the preamble simply clarifies the authorization approach in the proposed additional material recovery within the Agency’s interpretation of the existing Phase IV LDR rule (60 FR 43688, August industry, properly control land-based rules. If authorized for the scrap metal 22, 1995), and the supplemental storage of mineral processing industry exemption, States do not need further proposal (61 FR 2338, January 25, 1996). secondary materials awaiting intra- authorization to interpret their rules in EPA also discussed streamlined industry recovery, and also simplify the conformity with this interpretation. authorization procedures in a more solid waste regulatory classification comprehensive fashion in the proposed C. Authorization Procedures scheme. In addition, State adoption of HWIR-media rule (61 FR 18780, April these provisions will provide national Because portions of today’s rule are 29, 1996). This expedited approach consistency. promulgated pursuant to HSWA, a State would apply to those minor or routine Similarly, another less stringent non- submitting a program modification for changes to the existing program that do HSWA provision in this rule excludes those portions may apply to receive not expand the scope of the program in from RCRA regulation certain recycled interim authorization under RCRA significant ways, and was called wood preserving wastewaters and spent section 3006(g)(2) or final authorization Category 1. EPA has decided to address wood preserving solutions. The under RCRA section 3006(b), on the this proposed authorization procedure exclusion will not be effective in basis of requirements that are, in the upcoming HWIR-Media rule authorized States until they amend their respectively, substantially equivalent or rather than here, so that the expedited regulations and received authorization. equivalent to EPA’s. For program authorization approaches can be dealt Although the States do not have to modifications for the non-HSWA with in a comprehensive manner. 28636 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations

XV. Submission to Congress and test methods, sampling procedures, Authority: Secs. 3004, Resource General Accounting Office business practices, etc.) that are Conservation and Recovery Act, 42 U.S.C. 6901, et seq. The Congressional Review Act, 5 developed or adopted by voluntary consensus standard bodies. Where U.S.C. § 801 et seq., as added by the 2. Section 148.18 is amended by Small Business Regulatory Enforcement available and potentially applicable voluntary consensus standards are not redesignating paragraphs (a) through (f) Fairness Act of 1996, generally provides as (c) through (h) respectively, and by that before a rule may take effect, the used by EPA, the Act requires the Agency to provide Congress, through adding paragraphs (a) and (b) to read as agency promulgating the rule must follows: submit a rule report, which includes a the Office of Management and Budget, copy of the rule, to each House of the an explanation of the reasons for not § 148.18 Waste specific prohibitionsÐ Congress and to the Comptroller General using such standards. newly listed and identified wastes. of the United States. EPA will submit a EPA is not proposing any new test (a) Effective August 24, 1998, all report containing this rule and other methods or other technical standards as newly identified D004–D011 wastes and required information to the U.S. Senate, part of today’s final rule. Thus, the characteristic mineral processing the U.S. House of Representatives, and Agency has no need to consider the use wastes, except those identified in the Comptroller General of the United of voluntary consensus standards in paragraph (b) of this section, are States prior to publication of the rule in developing this proposed rule. prohibited from underground injection. the Federal Register. This rule is not a List of Subjects ‘‘major rule’’ as defined by 5 U.S.C. (b) Effective May 26, 2000, § 804(2). 40 CFR Part 148 characteristic hazardous wastes from Administrative practice and titanium dioxide mineral processing, XVI. Executive Order 13045: Protection procedure, Hazardous waste, Reporting and radioactive wastes mixed with of Children From Environmental Health and recordkeeping requirements, Water newly identified D004–D011 or mixed Risks and Safety Risks supply. with newly identified characteristic Executive Order 13045: The Executive mineral processing wastes, are 40 CFR Part 261 Order 13045 applies to any rule that prohibited from underground injection. EPA determines (1) ‘‘economically Environmental protection, Hazardous * * * * * significant’’ as defined under Executive waste, Recycling, Reporting and Order 12866, and (2) the environmental recordkeeping requirements. PART 261ÐIDENTIFICATION AND health or safety risk addressed by the 40 CFR Part 266 LISTING OF HAZARDOUS WASTE rule has a disproportionate effect on children. If the regulatory action meets Energy, Hazardous waste, Recycling, Subpart AÐGeneral both criteria, the Agency must evaluate Reporting and recordkeeping the environmental health or safety requirements. 3. The authority citation for Part 261 effects of the planned rule on children, 40 CFR Part 268 continues to read as follows: and explain why the planned regulation is preferable to other potentially Hazardous waste, Reporting and Authority: 42 U.S.C. 6905, 6912(a), 6921, effective and reasonably feasible recordkeeping requirements. 6922, 6924(y), and 6938. alternatives considered by the Agency. 40 CFR Part 271 4. Section 261.2 is amended by This final rule is not subject to E.O. revising Table 1 in paragraph (c)(4), 13045, entitled ‘‘Protection of Children Administrative practice and paragraph (c)(3) and (e)(1)(iii) to read as from Environmental Health Risks and procedure, Hazardous materials follows: Safety Risks (62FR19885, April 23, transportation, Hazardous waste, Penalties, Reporting and recordkeeping 1997), because this is not an § 261.2 Definition of solid waste. economically significant regulatory requirements. * * * * * action as defined by E.O. 12866. Dated: April 30, 1998. (c) * * * XVII. National Technology Transfer Carol M. Browner, and Advancement Act Administrator. (3) Reclaimed. Materials noted with a ‘‘*’’ in column 3 of Table 1 are solid Under § 12(d) of the National For the reasons set out in the preamble, Title 40, chapter I of the Code wastes when reclaimed (except as Technology Transfer and Advancement provided under 40 CFR 261.4(a)(15)). Act, the Agency is directed to use of Federal Regulations is amended as follows: Materials noted with a ‘‘—’’ in column voluntary consensus standards in its 3 of Table 1 are not solid wastes when regulatory activities unless to do so PART 148ÐHAZARDOUS WASTE reclaimed (except as provided under 40 would be inconsistent with applicable INJECTION RESTRICTIONS CFR 261.4(a)(15)). law or otherwise impractical. Voluntary consensus standards are technical 1. The authority citation for Part 148 * * * * * standards (e.g., materials specifications, continues to read as follows: (4) * * * Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28637

TABLE 1

Reclamation (§ 261.2(c)(3)) (except as Use constitut- Energy provided in Speculative ing disposal recovery/ fuel 261.4(a)(15) accumulation (§ 261.2(c)(1)) (§ 261.2(c)(2)) for mineral (§ 261.2(c)(4)) processing secondary materials)

1 2 3 4

Spent Materials ...... (*) (*) (*) (*) Sludges (listed in 40 CFR Part 261.31 or 261.32 ...... (*) (*) (*) (*) Sludges exhibiting a characteristic of hazardous waste ...... (*) (*) Ð (*) By-products (listed in 40 CFR 261.31 or 261.32) ...... (*) (*) (*) (*) By-products exhibiting a characteristic of hazardous waste ...... (*) (*) Ð (*) Commercial chemical products listed in 40 CFR 261.33 ...... (*) (*) ÐÐ Scrap metal other than excluded scrap metal (see 261.1(c)(9)) ...... (*) (*) (*) (*) Note: The terms ``spent materials,'' ``sludges,'' ``by-products,'' and ``scrap metal'' and ``processed scrap metal'' are defined in § 261.1.

* * * * * (iii) It is a mixture of a solid waste and (C) Any unit used to manage (e) * * * a hazardous waste that is listed in wastewaters and/or spent wood (1) * * * subpart D of this part solely because it preserving solutions prior to reuse can (iii) In cases where the materials are exhibits one or more of the be visually or otherwise determined to generated and reclaimed within the characteristics of hazardous waste prevent such releases; primary mineral processing industry, identified in subpart C of this part, (D) Any drip pad used to manage the the conditions of the exclusion found at unless the resultant mixture no longer wastewaters and/or spent wood § 261.4(a)(15) apply rather than this exhibits any characteristic of hazardous preserving solutions prior to reuse provision. waste identified in subpart C of this complies with the standards in part 265, subpart W of this chapter, regardless of * * * * * part, or unless the solid waste is excluded from regulation under whether the plant generates a total of 5. Section 261.3 is amended by § 261.4(b)(7) and the resultant mixture less than 100 kg/month of hazardous revising paragraphs (a)(2)(i) and no longer exhibits any characteristic of waste; and (a)(2)(iii) to read as follows: hazardous waste identified in subpart C (E) Prior to operating pursuant to this § 261.3 Definition of hazardous waste. of this part for which the hazardous exclusion, the plant owner or operator submits to the appropriate Regional (a) * * * waste listed in subpart D of this part was listed. (However, nonwastewater Administrator or State Director a one- (2) * * * mixtures are still subject to the time notification stating that the plant (i) It exhibits any of the characteristics requirements of part 268 of this chapter, intends to claim the exclusion, giving of hazardous waste identified in subpart even if they no longer exhibit a the date on which the plant intends to C of this part. However, any mixture of characteristic at the point of land begin operating under the exclusion, a waste from the extraction, disposal). and containing the following language: beneficiation, and processing of ores ‘‘I have read the applicable regulation and minerals excluded under * * * * * establishing an exclusion for wood § 261.4(b)(7) and any other solid waste 6. Section 261.4 is amended by preserving wastewaters and spent wood exhibiting a characteristic of hazardous adding paragraphs (a)(9)(iii) and (a)(16) preserving solutions and understand it waste under subpart C is a hazardous and by revising paragraph (b)(7) to read requires me to comply at all times with waste only if it exhibits a characteristic as follows: the conditions set out in the regulation.’’ that would not have been exhibited by § 261.4 Exclusions. The plant must maintain a copy of that the excluded waste alone if such document in its on-site records for a mixture had not occurred, or if it (a) * * * period of no less than 3 years from the continues to exhibit any of the (9) * * * date specified in the notice. The characteristics exhibited by the non- (iii) Prior to reuse, the wood exclusion applies only so long as the excluded wastes prior to mixture. preserving wastewaters and spent wood plant meets all of the conditions. If the Further, for the purposes of applying the preserving solutions described in plant goes out of compliance with any Toxicity Characteristic to such mixtures, paragraphs (a)(9)(i) and (a)(9)(ii) of this condition, it may apply to the the mixture is also a hazardous waste if section, so long as they meet all of the appropriate Regional Administrator or it exceeds the maximum concentration following conditions: State Director for reinstatement. The for any contaminant listed in table I to (A) The wood preserving wastewaters Regional Administrator or State Director § 261.24 that would not have been and spent wood preserving solutions are may reinstate the exclusion upon exceeded by the excluded waste alone if reused on-site at water borne plants in finding that the plant has returned to the mixture had not occurred or if it the production process for their original compliance with all conditions and that continues to exceed the maximum intended purpose; violations are not likely to recur. concentration for any contaminant (B) Prior to reuse, the wastewaters and * * * * * exceeded by the nonexempt waste prior spent wood preserving solutions are (16) Secondary materials (i.e., sludges, to mixture. managed to prevent release to either by-products, and spent materials as * * * * * land or groundwater or both; defined in § 261.1) (other than 28638 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations hazardous wastes listed in subpart D of secondary material, including its roasting, autoclaving, and/or this part) generated within the primary potential for migration off the pad; the chlorination in preparation for leaching mineral processing industry from which potential for human or environmental (except where the roasting (and/or minerals, acids, cyanide, water or other exposure to hazardous constituents autoclaving and/or chlorination)/ values are recovered by mineral migrating from the pad via each leaching sequence produces a final or processing, provided that: exposure pathway, and the possibility intermediate product that does not (i) The secondary material is and extent of harm to human and undergo further beneficiation or legitimately recycled to recover environmental receptors via each processing); gravity concentration; minerals, acids, cyanide, water or other exposure pathway. magnetic separation; electrostatic values; (B) Pads must meet the following separation; flotation; ion exchange; (ii) The secondary material is not minimum standards: be designed of solvent extraction; electrowinning; accumulated speculatively; non-earthen material that is compatible precipitation; amalgamation; and heap, (iii) Except as provided in paragraph with the chemical nature of the mineral dump, vat, tank, and in situ leaching. (a)(15)(iv) of this section, the secondary processing secondary material, capable (ii) For the purposes of § 261.4(b)(7), material is stored in tanks, containers, of withstanding physical stresses solid waste from the processing of ores or buildings meeting the following associated with placement and removal, and minerals includes only the minimum integrity standards: a building have run on/runoff controls, be operated following wastes as generated: must be an engineered structure with a in a manner which controls fugitive (A) Slag from primary copper floor, walls, and a roof all of which are dust, and have integrity assurance processing; made of non-earthen materials through inspections and maintenance (B) Slag from primary lead processing; providing structural support (except programs. (C) Red and brown muds from bauxite smelter buildings may have partially (C) Before making a determination refining; earthen floors provided the secondary under this paragraph, the Regional (D) Phosphogypsum from phosphoric material is stored on the non-earthen Administrator or State Director must acid production; portion), and have a roof suitable for provide notice and the opportunity for (E) Slag from elemental phosphorus diverting rainwater away from the comment to all persons potentially production; foundation; a tank must be free interested in the determination. This (F) Gasifier ash from coal gasification; standing, not be a surface impoundment can be accomplished by placing notice (G) Process wastewater from coal (as defined in 40 CFR 260.10), and be of this action in major local newspapers, gasification; manufactured of a material suitable for or broadcasting notice over local radio (H) Calcium sulfate wastewater containment of its contents; a container stations. treatment plant sludge from primary must be free standing and be (v) The owner or operator provides a copper processing; manufactured of a material suitable for notice to the Regional Administrator or (I) Slag tailings from primary copper containment of its contents. If tanks or State Director, identifying the following processing; (J) Fluorogypsum from hydrofluoric containers contain any particulate information: the types of materials to be acid production; which may be subject to wind dispersal, recycled; the type and location of the (K) Process wastewater from the owner/operator must operate these storage units and recycling processes; units in a manner which controls hydrofluoric acid production; and the annual quantities expected to be (L) Air pollution control dust/sludge fugitive dust. Tanks, containers, and placed in land-based units. This from iron blast furnaces; buildings must be designed, constructed notification must be updated when (M) Iron blast furnace slag; and operated to prevent significant there is a change in the type of materials (N) Treated residue from roasting/ releases to the environment of these recycled or the location of the recycling leaching of chrome ore; materials. process. (O) Process wastewater from primary (iv) The Regional Administrator or the (vi) For purposes of § 261.4(b)(7), magnesium processing by the State Director may make a site-specific mineral processing secondary materials anhydrous process; determination, after public review and must be the result of mineral processing (P) Process wastewater from comment, that only solid mineral and may not include any listed phosphoric acid production; processing secondary materials may be hazardous wastes. Listed hazardous (Q) Basic oxygen furnace and open placed on pads, rather than in tanks, wastes and characteristic hazardous hearth furnace air pollution control containers, or buildings. Solid mineral wastes generated by non-mineral dust/sludge from carbon steel processing secondary materials do not processing industries are not eligible for production; contain any free liquid. The decision- the conditional exclusion from the (R) Basic oxygen furnace and open maker must affirm that pads are definition of solid waste. hearth furnace slag from carbon steel designed, constructed and operated to (b) * * * production; prevent significant releases of the (7) Solid waste from the extraction, (S ) Chloride process waste solids secondary material into the beneficiation, and processing of ores from titanium tetrachloride production; environment. Pads must provide the and minerals (including coal, phosphate (T) Slag from primary zinc processing. same degree of containment afforded by rock, and overburden from the mining (iii) A residue derived from co- the non-RCRA tanks, containers and of uranium ore), except as provided by processing mineral processing buildings eligible for exclusion. § 266.112 of this chapter for facilities secondary materials with normal (A) The decision-maker must also that burn or process hazardous waste. beneficiation raw materials remains consider if storage on pads poses the (i) For purposes of § 261.4(b)(7) excluded under paragraph (b) of this potential for significant releases via beneficiation of ores and minerals is section if the owner or operator: groundwater, surface water, and air restricted to the following activities; (A) Processes at least 50 percent by exposure pathways. Factors to be crushing; grinding; washing; weight normal beneficiation raw considered for assessing the dissolution; crystallization; filtration; materials; and, groundwater, surface water, air sorting; sizing; drying; sintering; (B) Legitimately reclaims the exposure pathways are: the volume and pelletizing; briquetting; calcining to secondary mineral processing materials. physical and chemical properties of the remove water and/or carbon dioxide; * * * * * Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28639

PART 268ÐLAND DISPOSAL residues which do not meet the ‘‘Test Methods of Evaluating Solid RESTRICTIONS treatment standards promulgated under Waste, Physical/Chemical Methods,’’ subpart D of this part; residues which EPA Publication SW–846, as referenced 7. The authority citation for Part 268 do not meet the prohibition levels in § 260.11 of this chapter, depending continues to read as follows: established under subpart C of this part on whether the treatment standard for Authority: 42 U.S.C. 6905, 6912(a), 6921, or imposed by statute (where no the waste is expressed as a total and 6924. treatment standards have been concentration or concentration of 8. Section 268.2 is amended by established); residues which are from hazardous constituent in the waste’s revising paragraph (i) and adding the treatment of wastes prohibited from extract. In addition, some hazardous paragraph (k) to read as follows: land disposal under subpart C of this wastes must be treated by particular part (where no treatment standards have treatment methods before they can be § 268.2 Definitions applicable in this part. been established and no prohibition land disposed and some soils are * * * * * levels apply); or residues from managing contaminated by such hazardous (i) Underlying hazardous constituent listed wastes which are not delisted wastes. These treatment standards are means any constituent listed in under § 260.22 of this chapter. If the also found in § 268.40, and are § 268.48, Table UTS—Universal volume of liquid flowing through the described in detail in § 268.42, Table 1. Treatment Standards, except fluoride, impoundment or series of These wastes, and soils contaminated selenium, sulfides, vanadium, and zinc, impoundments annually is greater than with such wastes, do not need to be which can reasonably be expected to be the volume of the impoundment or tested (however, if they are in a waste present at the point of generation of the impoundments, this flow-through mixture, other wastes with hazardous waste at a concentration constitutes removal of the supernatant concentration level treatment standards above the constituent-specific UTS for the purpose of this requirement. would have to be tested). If a generator treatment standards. (iii) Subsequent management. determines they are managing a waste or * * * * * Treatment residues may not be placed soil contaminated with a waste, that (k) Soil means unconsolidated earth in any other surface impoundment for displays a hazardous characteristic of material composing the superficial subsequent management. ignitability, corrosivity, reactivity, or geologic strata (material overlying * * * * * toxicity, they must comply with the bedrock), consisting of clay, silt, sand, 11. Section 268.7 is amended by special requirements of § 268.9 of this or gravel size particles as classified by revising paragraphs (a)(1), (a)(3)(ii), part in addition to any applicable the U.S. Soil Conservation Service, or a (a)(7), (b)(1), (b)(2), (b)(5) and (b)(6); by requirements in this section. mixture of such materials with liquids, revising the first sentence of the (2) If the waste or contaminated soil sludges or solids which is inseparable paragraphs (a)(2), (a)(3) introductory does not meet the treatment standard: by simple mechanical removal text, (a)(4), (a)(5) introductory text, With the initial shipment of waste to processes and is made up primarily of (a)(6), and (b)(3) introductory text; by each treatment or storage facility, the soil by volume based on visual adding paragraph (a)(2)(i) and three generator must send a one-time written inspection. sentences to the end of paragraph (b)(4) notice to each treatment or storage 9. Section 268.3 is amended by introductory text and adding paragraphs facility receiving the waste, and place a adding paragraph (d) to read as follows: (b)(4)(iv), (b)(4)(v), and (e) and adding copy in the file. * ** and reserving paragraph (a)(2)(ii); and (i) For contaminated soil, the § 268.3 Dilution prohibited as a substitute by revising entries 1 and 3, designating following certification statement should for treatment. entry 8 as 9, and adding entry 8 in the be included, signed by an authorized * * * * * table entitled ‘‘Generator Paperwork representative: (d) It is a form of impermissible Requirements Table’’ in paragraph I certify under penalty of law that I dilution, and therefore prohibited, to (a)(4), and by revising entries 1 and 2 personally have examined this add iron filings or other metallic forms designating entry 5 as 6, and adding contaminated soil and it [does/does not] of iron to lead-containing hazardous entry 5 in the table entitled ‘‘Treatment contain listed hazardous waste and wastes in order to achieve any land Facility Paperwork Requirements [does/does not] exhibit a characteristic disposal restriction treatment standard Table’’ in paragraph (b)(3)(ii) to read as of hazardous waste and requires for lead. Lead-containing wastes include follows: treatment to meet the soil treatment D008 wastes (wastes exhibiting a standards as provided by 268.49(c). characteristic due to the presence of § 268.7 Testing, tracking, and recordkeeping requirements for generators, (ii) [Reserved] lead), all characteristic wastes treaters, and disposal facilities. (3) If the waste or contaminated soil containing lead as an underlying meets the treatment standard at the hazardous constituent, listed wastes (a) * * * (1) A generator of hazardous waste original point of generation: containing lead as a regulated must determine if the waste has to be * * * * * constitutent, and hazardous media treated before it can be land disposed. (ii) For contaminated soil, with the containing any of the aforementioned This is done by determining if the initial shipment of wastes to each lead-containing wastes. hazardous waste meets the treatment treatment, storage, or disposal facility, 10. Section 268.4 is amended by standards in § 268.40, § 268.45, or the generator must send a one-time revising paragraphs (a)(2)(ii) and § 268.49. This determination can be written notice to each facility receiving (a)(2)(iii) to read as follows: made in either of two ways: testing the the waste and place a copy in the file. § 268.4 Treatment surface impoundment waste or using knowledge of the waste. The notice must include the information exemption. If the generator tests the waste, testing in ‘‘268.7(a)(3) of the Generator (a) * * * would normally determine the total Paperwork Requirements Table in (2) * * * concentration of hazardous constituents, § 268.7(a)(4). (ii) Removal. The following treatment or the concentration of hazardous (4) For reporting, tracking, and residues (including any liquid waste) constituents in an extract of the waste recordkeeping when exceptions allow must be removed at least annually; obtained using test method 1311 in certain wastes or contaminated soil that 28640 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations do not meet the treatment standards to hazardous wastes or contaminated soil meet treatment standards before they be land disposed: There are certain can be land disposed. * ** exemptions from the requirement that * * * * *

GENERATOR PAPERWORK REQUIREMENTS TABLE

§ 268.7 § 268.7 § 268.7 § 268.7 Required information (a)(2) (a)(3) (a)(4) (a)(9)

1. EPA Hazardous Waste Numbers and Manifest Number of first shipment.

******* 3. The waste is subject to the LDRs. The constituents of concern for F001±F005, and F039, and underlying hazardous constituents in characteristic wastes, unless the waste will be treated and monitored for all constituents. If all constituents will be treated and monitored, there is no need to put them all on the LDR notice ...... ✔ ......

******* 8. For contaminated soil subject to LDRs as provided in 268.49(a), the constituents subject to treatment as described in 268.49(d), and the following statement: This contaminated soil [does/does not] contain listed hazardous waste and [does/does not] exhibit a characteristic of hazardous waste and [is subject to/complies with' the soil treatment standards as provided by 268.49(c) or the universal treatment stand- ards...... ✔ ......

*******

(5) If a generator is managing and 261.2 through 261.6 subsequent to the using test method 1311 (the Toxicity treating prohibited waste or point of generation (including Characteristic Leaching Procedure, contaminated soil in tanks, containers, deactivated characteristic hazardous described in ‘‘Test Methods for or containment buildings regulated wastes managed in wastewater Evaluating Solid Waste, Physical/ under 40 CFR 262.34 to meet applicable treatment systems subject to the Clean Chemical Methods,’’ EPA Publication LDR treatment standards found at Water Act (CWA) as specified at 40 CFR SW–846 as incorporated by reference in § 268.40, the generator must develop 261.4(a)(2) or that are CWA-equivalent, § 260.11 of this chapter) to assure that and follow a written waste analysis plan or are managed in an underground the treatment residues extract meet the which describes the procedures they injection well regulated by the SDWA), applicable treatment standards. will carry out to comply with the he must place a one-time notice (2) For wastes or contaminated soil treatment standards. * ** describing such generation, subsequent with treatment standards expressed as * * * * * exclusion from the definition of concentrations in the waste, the owner (6) If a generator determines that the hazardous or solid waste or exemption or operator of the treatment facility must waste or contaminated soil is restricted from RCRA Subtitle C regulation, and test the treatment residues (not an based solely on his knowledge of the the disposition of the waste, in the extract of such residues) to assure that waste, all supporting data used to make facility’s on-site files. they meet the applicable treatment this determination must be retained on- * * * * * standards. site in the generator’s files. * ** (b) * * * (3) A one-time notice must be sent (7) If a generator determines that he is (1) For wastes or contaminated soil with the initial shipment of waste or managing a prohibited waste that is with treatment standards expressed in contaminated soil to the land disposal excluded from the definition of the waste extract (TCLP), the owner or facility. * * * hazardous or solid waste or is exempted operator of the treatment facility must * * * * * from Subtitle C regulation under 40 CFR test an extract of the treatment residues, (ii) * * *

TREATMENT FACILITY PAPERWORK REQUIREMENTS TABLE

Required information § 268.7(b)

1. EPA Hazardous Waste Numbers and Manifest Number of first shipment. 2. The waste is subject to the LDRs. The constituents of concern for F001±F005, and F039, and underlying hazardous constitu- ents in characteristic wastes, unless the waste will be treated and monitored for all constituents. If all constituents will be treated and monitored, there is no need to put them all on the LDR notice...... ✔

******* 5. For contaminated soil subject to LDRs as provided in 268.49(a), the constituents subject to treatment as described in 268.49(d) and the following statement, ``this contaminated soil [does/does not] contain listed hazardous waste and [does/does not] exhibit acharacteristic of hazardous waste and [is subject to/complies with] the soil treatment standards as provided by 268.49(c)...... ✔ *******

(4) * * * A certification is also I certify under penalty of law that I have treatment process used to support this necessary for contaminated soil and it personally examined and am familiar with certification and believe that it has been must state: the treatment technology and operation of the maintained and operated properly so as to Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28641 comply with treatment standards specified in submit a certification described in with D004—D011 wastes that are newly 40 CFR 268.49 without impermissible paragraph (b)(4) of this section, and a identified (i.e. wastes, soil, or debris dilution of the prohibited wastes. I am aware notice which includes the information identified as hazardous by the Toxic there are significant penalties for submitting Characteristic Leaching Procedure but a false certification, including the possibility listed in paragraph (b)(3) of this section of fine and imprisonment. (except the manifest number) to the not the Extraction Procedure), or mixed Regional Administrator, or his delegated with newly identified characteristic * * * * * mineral processing wastes, soil, or (iv) For characteristic wastes that are representative. The recycling facility debris may be disposed in a landfill or subject to the treatment standards in also must keep records of the name and surface impoundment only if such unit § 268.40 (other than those expressed as location of each entity receiving the is in compliance with the requirements a required method of treatment) that are hazardous waste-derived product. specified in § 268.5(h)(2) of this part. reasonably expected to contain * * * * * (e) Generators and treaters who first (d) The requirements of paragraphs (a) underlying hazardous constituents as and (b) of this section do not apply if: defined in § 268.2(i); are treated on-site receive from EPA or an authorized state a determination that a given (1) The wastes meet the applicable to remove the hazardous characteristic; treatment standards specified in subpart contaminated soil subject to LDRs as and are then sent off-site for treatment D of this part; provided in § 268.49(a) no longer of underlying hazardous constituents, (2) Persons have been granted an the certification must state the contains a listed hazardous waste and exemption from a prohibition pursuant following: generators and treaters who first to a petition under § 268.6, with respect determine that a contaminated soil I certify under penalty of law that the to those wastes and units covered by the waste has been treated in accordance with subject to LDRs as provided in petition; the requirements of 40 CFR 268.40 to remove § 268.49(a) no longer exhibits a (3) The wastes meet the applicable the hazardous characteristic. This characteristic of hazardous waste must: alternate treatment standards decharacterized waste contains underlying (1) Prepare a one-time only established pursuant to a petition hazardous constituents that require further documentation of these determinations granted under § 268.44; or treatment to meet universal treatment including all supporting information; (4) Persons have been granted an standards. I am aware that there are and, extension to the effective date of a significant penalties for submitting a false (2) Maintain that information in the certification, including the possibility of fine prohibition pursuant to § 268.5, with and imprisonment. facility files and other records for a respect to these wastes covered by the minimum of three years. (v) For characteristic wastes that extension. (e) To determine whether a hazardous contain underlying hazardous Subpart CÐProhibitions on Land waste identified in this section exceeds constituents as defined § 268.2(i) that Disposal the applicable treatment standards are treated on-site to remove the specified in § 268.40, the initial hazardous characteristic to treat 12. Section § 268.34 is revised to read generator must test a sample of the underlying hazardous constituents to as follows: waste extract or the entire waste, levels in § 268.48 Universal Treatment § 268.34 Waste specific prohibitionsÐ depending on whether the treatment Standards, the certification must state toxicity characteristic metal wastes. standards are expressed as the following: (a) Effective August 24, 1998, the concentrations in the waste extract or I certify under penalty of law that the following wastes are prohibited from the waste, or the generator may use waste has been treated in accordance with land disposal: the wastes specified in 40 knowledge of the waste. If the waste the requirements of 40 CFR 268.40 to remove CFR Part 261 as EPA Hazardous Waste the hazardous characteristic and that contains constituents (including underlying hazardous constituents, as numbers D004—D011 that are newly underlying hazardous constituents in defined in § 268.2(i) have been treated on-site identified (i.e. wastes, soil, or debris characteristic wastes) in excess of the to meet the § 268.48 Universal Treatment identified as hazardous by the Toxic applicable Universal Treatment Standards. I am aware that there are Characteristic Leaching Procedure but Standard levels of § 268.48 of this part, significant penalties for submitting a false not the Extraction Procedure), and the waste is prohibited from land certification, including the possibility of fine waste, soil, or debris from mineral disposal, and all requirements of part and imprisonment. processing operations that is identified 268 are applicable, except as otherwise (5) If the waste or treatment residue as hazardous by the specifications at 40 specified. will be further managed at a different CFR Part 261. treatment, storage, or disposal facility, (b) Effective May 26, 2000, the Subpart DÐTreatment Standards the treatment, storage, or disposal following wastes are prohibited from 13. Section 268.40 is amended by facility sending the waste or treatment land disposal: newly identified revising paragraph (e), adding paragraph residue off-site must comply with the characteristic wastes from elemental (h), and revising the Table of Treatment notice and certification requirements phosphorus processing; radioactive Standards to read as follows: applicable to generators under this wastes mixed with EPA Hazardous section. wastes D004—D011 that are newly § 268.40 Applicability of treatment (6) Where the wastes are recyclable identified (i.e. wastes, soil, or debris standards. materials used in a manner constituting identified as hazardous by the Toxic * * * * * disposal subject to the provisions of Characteristic Leaching Procedure but (e) For characteristic wastes (D001— § 268.20(b) regarding treatment not the Extraction Procedure); or mixed D043) that are subject to treatment standards and prohibition levels, the with newly identified characteristic standards in the following table owner or operator of a treatment facility mineral processing wastes, soil, or ‘‘Treatment Standards for Hazardous (i.e., the recycler) is not required to debris. Wastes,’’ and are not managed in a notify the receiving facility, pursuant to (c) Between May 26, 1998 and May wastewater treatment system that is paragraph (b)(3) of this section. With 26, 2000, newly identified characteristic regulated under the Clean Water Act each shipment of such wastes the owner wastes from elemental phosphorus (CWA), that is CWA-equivalent, or that or operator of the recycling facility must processing, radioactive waste mixed is injected into a Class I nonhazardous 28642 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations deep injection well, all underlying prior to land disposal as defined in treated by stabilization to the treatment hazardous constituents (as defined in § 268.2(c) of this part. standards in effect at that time and then § 268.2(i)) must meet Universal * * * * * put into storage, do not have to be re- Treatment Standards, found in § 268.48, (h) Prohibited D004–D011 mixed treated to meet treatment standards in Table Universal Treatment Standards, radioactive wastes and mixed this section prior to land disposal.

radioactive listed wastes containing BILLING CODE 6560±50±P metal constituents, that were previously Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28643 28644 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28645 28646 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28647 28648 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28649 28650 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28651 28652 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28653 28654 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28655 28656 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28657 28658 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28659 28660 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28661 28662 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28663 28664 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28665 28666 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28667 28668 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28669 28670 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28671 28672 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28673 28674 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28675 28676 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28677 28678 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28679 28680 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28681 28682 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28683 28684 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28685 28686 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28687 28688 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28689 28690 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28691 28692 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28693 28694 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28695 28696 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28697 28698 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28699 28700 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28701 28702 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28703 28704 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28705 28706 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28707 28708 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28709 28710 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28711 28712 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28713 28714 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28715 28716 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28717 28718 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28719 28720 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28721 28722 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28723 28724 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28725 28726 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28727 28728 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28729 28730 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28731 28732 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28733 28734 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28735 28736 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28737 28738 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations

Footnotes to Treatment Standard Table waste may be satisfied by either meeting the (A) For carcinogens, achieve 268.40 constituent concentrations in this table or by constituent concentrations that result in 1 The waste descriptions provided in this treating the waste by the specified the total excess risk to an individual table do not replace waste descriptions in 40 technologies: combustion, as defined by the exposed over a lifetime generally falling CFR 261. Descriptions of Treatment/ technology code CMBST at § 268.42 Table 1 within a range from 10 ¥4 to 10 ¥6; and of this Part, for nonwastewaters; and, Regulatory Subcategories are provided, as (B) For constituents with non- needed, to distinguish between applicability biodegradation as definded by the technology of different standards. code BIODG, carbon adsorption as defined by carcinogenic effects, achieve constituent 2 CAS means Chemical Abstract Services. the technology code CARBN, chemical concentrations that an individual could When the waste code and/or regulated oxidation as defined by the technology code be exposed to on a daily basis without constituents are described as a combination CHOXD, or combustion as defined as appreciable risk of deleterious effect of a chemical with its salts and/or esters, the technology code CMBST at § 268.42 Table 1 during a lifetime. CAS number is given for the parent of this Part, for wastewaters. (ii) Not consider post-land-disposal 11 compound only. For these wastes, the definition of controls. 3 Concentration standards for wastewaters CMBST is limited to: (1) combustion units (4) For contaminated soil only, are expressed in mg/l and are based on operating under 40 CFR 266, (2) combustion analysis of composite samples. units permitted under 40 CFR Part 264, treatment to the level or by the method 4 All treatment standards expressed as a Subpart O, or (3) combustion units operating specified in the soil treatment standards Technology Code or combination of under 40 CFR 265, Subpart O, which have would result in concentrations of Technology Codes are explained in detail in obtained a determination of equivalent hazardous constituents that are below 40 CFR 268.42 Table 1—Technology Codes treatment under 268.42 (b). (i.e., lower than) natural background and Descriptions of Technology-Based 14. Section 268.42 is amended by concentrations at the site where the Standards. contaminated soil will land disposed. 5 Except for Metals (EP or TCLP) and revising the introductory text of * * * * * Cyanides (Total and Amenable) the paragraph (a) and removing paragraphs nonwastewater treatment standards (a)(1), (a)(2), and (a)(3) to read as 16. Section 268.45 is amended by expressed as a concentration were follows: revising the introductory text of established, in part, based upon incineration paragraph (a), and paragraphs (d)(3) and in units operated in accordance with the § 268.42 Treatment standards expressed (d)(4) to read as follows: as specified technologies. technical requirements of 40 CFR Part 264 Subpart O or Part 265 Subpart O, or based (a) The following wastes in the table § 268.45 Treatment standards for upon combustion in fuel substitution units in § 268.40 ‘‘Treatment Standards for hazardous debris. operating in accordance with applicable Hazardous Wastes,’’ for which standards (a) Treatment standards. Hazardous technical requirements. A facility may are expressed as a treatment method debris must be treated prior to land comply with these treatment standards rather than a concentration level, must disposal as follows unless EPA according to provisions in 40 CFR 268.40(d). be treated using the technology or All concentration standards for determines under § 261.3(f)(2) of this technologies specified in the table nonwastewaters are based on analysis of grab chapter that the debris is no longer samples. entitled ‘‘Technology Codes and contaminated with hazardous waste or 6 Where an alternate treatment standard or Description of Technology-Based the debris is treated to the waste- set of alternate standards has been indicated, Standards’’ in this section. specific treatment standard provided in a facility may comply with this alternate * * * * * this subpart for the waste contaminating standard, but only for the Treatment/ 15. Section 268.44 is amended by the debris: Regulatory Subcategory or physical form (i.e., redesignating paragraph (h)(3) as (h)(5), * * * * * wastewater and/or nonwastewater) specified and adding new paragraphs (h) (3) and for that alternate standard. (d) * * * (4) to read as follows: 7 Both Cyanides (Total) and Cyanides (3) Cyanide-reactive debris. Residue (Amenable) for nonwastewaters are to be § 268.44 Variance from a treatment from the treatment of debris that is analyzed using Method 9010 or 9012, found standard. reactive because of cyanide must meet in ‘‘Test Methods for Evaluating Solid Waste, the treatment standards for D003 in Physical/Chemical Methods,’’ EPA * * * * * (h) * * * ‘‘Treatment Standards for Hazardous Publication SW–846, as incorporated by Wastes’’ at § 268.40. reference in 40 CFR 260.11, with a sample (3) For contaminated soil only, size of 10 grams and a distillation time of one treatment to the level or by the method (4) Ignitable nonwastewater residue. hour and 15 minutes. specified in the soil treatment standards Ignitable nonwastewater residue 8 These wastes, when rendered would result in concentrations of containing equal to or greater than 10% nonhazardous and then subsequently hazardous constituents that are below total organic carbon is subject to the managed in CWA, or CWA-equivalent (i.e., lower than) the concentrations technology specified in the treatment systems, are not subject to treatment necessary to minimize short- and long- standard for D001: Ignitable Liquids. standards. (See § 268.1(c) (3) and (4)). term threats to human health and the * * * * * 9 These wastes, when rendered nonhazardous and then subsequently environment. Treatment variances 17. Section 268.48 is amended by injected in a Class I SDWA well, are not approved under this paragraph must: revising the table Universal Treatment subject to treatment standards. (See (i) At a minimum, impose alternative Standards to read as follows: § 148.1(d)). land disposal restriction treatment § 268.48 Universal treatment standards. 10 Between August 26, 1996, and August standards that, using a reasonable 26, 1997, the treatment standard for this maximum exposure scenario: (a) * * * Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28739 28740 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28741 28742 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28743 28744 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28745 28746 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28747 28748 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28749 28750 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations

BILLING CODE 6560±50±C Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28751

18. Subpart D is amended by adding § 268.49 Alternative LDR treatment hazardous waste at the time it was § 268.49 to read as follows: standards for contaminated soil. generated, into a land disposal unit. The (a) Applicability. You must comply following chart describes whether you with LDRs prior to placing soil that must comply with LDRs prior to placing exhibits a characteristic of hazardous soil contaminated by listed hazardous waste, or exhibited a characteristic of waste into a land disposal unit:

If LDRs And if LDRs And if Then you

Applied to the listed waste when it Apply to the listed waste now ...... Must comply with LDRs contaminated the soil*. Didn't apply to the listed waste Apply to the listed waste now ...... The soil is determined to contain Must comply with LDRs. when it contaminated the soil*. the listed waste when the soil is first generated. Didn't apply to the listed waste Apply to the listed waste now ...... The soil is determined not to con- Needn't comply with LDRs. when it contaminated the soil*. tain the listed waste when the soil is first generated. Didn't apply to the listed waste Don't apply to the listed waste now ...... Needn't comply with LDRs. when it contaminated the soil*. * For dates of LDR applicability, see 40 CFR Part 268 Appendix VII. To determine the date any given listed hazardous waste contaminated any given volume of soil, use the last date any given listed hazardous waste was placed into any given land disposal unit or, in the case of an acci- dental spill, the date of the spill.

(b) Prior to land disposal, concentrations (when a metal removal standards in paragraph (c) of this contaminated soil identified by treatment technology is used), except as section, constituents subject to paragraph (a) of this section as needing provided by paragraph (c)(1)(C) of this treatment are any constituents listed in to comply with LDRs must be treated section. 40 CFR 268.48, Table UTS—Universal according to the applicable treatment (C) When treatment of any constituent Treatment Standards that are reasonably standards specified in paragraph (c) of subject to treatment to a 90 percent expected to be present in any given this section or according to the reduction standard would result in a volume of contaminated soil, except Universal Treatment Standards concentration less than 10 times the fluoride, selenium, sulfides, vanadium specified in 40 CFR 268.48 applicable to Universal Treatment Standard for that and zinc, and are present at the contaminating listed hazardous constituent, treatment to achieve concentrations greater than ten times waste and/or the applicable constituent concentrations less than 10 the universal treatment standard. characteristic of hazardous waste if the times the universal treatment standard (e) Management of treatment soil is characteristic. The treatment is not required. Universal Treatment residuals. Treatment residuals from standards specified in paragraph (c) of Standards are identified in 40 CFR treating contaminated soil identified by this section and the Universal 268.48 Table UTS. paragraph (a) of this section as needing Treatment Standards may be modified (2) Soils that exhibit the characteristic to comply with LDRs must be managed through a treatment variance approved of ignitability, corrosivity or reactivity. as follows: in accordance with 40 CFR 268.44. In addition to the treatment required by (1) Soil residuals are subject to the (c) Treatment standards for paragraph (c)(1) of this section, prior to treatment standards of this section; contaminated soils. Prior to land land disposal, soils that exhibit the (2) Non-soil residuals are subject to: disposal, contaminated soil identified characteristic of ignitability, corrosivity, by paragraph (a) of this section as or reactivity must be treated to eliminate (A) For soils contaminated by listed needing to comply with LDRs must be these characteristics. hazardous waste, the RCRA Subtitle C treated according to all the standards (3) Soils that contain nonanalyzable standards applicable to the listed specified in this paragraph or according constituents. In addition to the hazardous waste; and to the Universal Treatment Standards treatment requirements of paragraphs (B) For soils that exhibit a specified in 40 CFR 268.48. (c)(1) and (2) of this section, prior to characteristic of hazardous waste, if the (1) All soils. Prior to land disposal, all land disposal, the following treatment is non-soil residual also exhibits a constituents subject to treatment must required for soils that contain characteristic of hazardous waste, the be treated as follows: nonanalyzable constituents: treatment standards applicable to the (A) For non-metals, treatment must (A) For soil that also contains characteristic hazardous waste. achieve 90 percent reduction in total analyzable constituents, treatment of 19. Table 1 in Appendix VII to Part constituent concentrations, except as those analyzable constituents to the 268 is amended by removing the entries provided by paragraph (c)(1)(C) of this levels specified in paragraphs (c)(1) and for waste code F033; revising the second section. (2) of this section; or, entry for waste code F032, the second (B) For metals, treatment must (B) For soil that contains only entry for F034, and the first entry for achieve 90 percent reduction in nonanalyzable constituents, treatment K088; revising the entries for D003-D011 constituent concentrations as measured by the method specified in § 268.42 for and two entries for waste code F035; in leachate from the treated media the waste contained in the soil. and, Table 2 is amended by revising (tested according to the TCLP) or 90 (d) Constituents subject to treatment. entry number 9 and adding entries 12 percent reduction in total constituent When applying the soil treatment and 13 to read as follows: 28752 Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations

TABLE 1.ÐEFFECTIVE DATES OF SURFACE DISPOSED WASTES [(Non-soil and Debris) Regulated in the LDRSaÐComprehensive List]

Waste code Waste category Effective date

******* D003 ...... Newly identified surface-disposed elemental phosphorus processing wastes ...... May 26, 2000. D004 ...... Newly identified D004 and mineral processing wastes ...... August 24, 1998. D004 ...... Mixed radioactive/newly identified D004 or mineral processing wastes ...... May 26, 2000. D005 ...... Newly identified D005 and mineral processing wastes ...... August 24, 1998. D005 ...... Mixed radioactive/newly identified D005 or mineral processing wastes ...... May 26, 2000. D006 ...... Newly identified D006 and mineral processing wastes ...... August 24, 1998. D006 ...... Mixed radioactive/newly identified D006 or mineral processing wastes ...... May 26, 2000. D007 ...... Newly identified D007 and mineral processing wastes ...... August 24, 1998. D007 ...... Mixed radioactive/newly identified D007or mineral processing wastes ...... May 26, 2000. D008 ...... Newly identified D008 and mineral processing waste ...... August 24, 1998. D008 ...... Mixed radioactive/newly identified D008 or mineral processing wastes ...... May 26, 2000. D009 ...... Newly identified D009 and mineral processing waste ...... August 24, 1998. D009 ...... Mixed radioactive/newly identified D009or mineral processing wastes ...... May 26, 2000. D010 ...... Newly identified D010 and mineral processing wastes ...... August 24, 1998. D010 ...... Mixed radioactive/newly identified D010 ormineral processing wastes ...... May 26, 2000. D011 ...... Newly identified D011 and mineral processing wastes ...... August 24, 1998. D011 ...... Mixed radioactive/newly identified D011or mineral processing wastes ...... May 26, 2000.

******* F032 ...... All others ...... August 12, 1997.

******* F034 ...... All others ...... August 12, 1997. F035 ...... Mixed with radioactive wastes ...... May 12, 1999. F035 ...... All others ...... August 12, 1997.

******* K088 ...... All others ...... October 8, 1997.

*******

* * * * *

TABLE 2.ÐSUMMARY OF EFFECTIVE DATES OF LAND DISPOSAL RESTRICTIONS FOR CONTAMINATED SOIL AND DEBRIS (CSD)

Restricted hazardous waste in CSD Effective date

******* 9. Soil and debris contaminated with K088 wastes ...... October 8, 1997.

******* 12. Soil and debris contaminated with newly identified D004±D011 toxicity characteristic wastes and mineral processing August 24, 1998. wastes. 13. Soil and debris contaminated with mixed radioactive newly identified D004±D011 characteristic wastes and mineral May 26, 2000. processing wastes.

20. Appendix VIII to Part 268 is amended by revising the title and adding in alpha numeric order the entry ‘‘NA’’ to read as follows:

Appendix VIII to Part 268—LDR Effective Dates of Injected Prohibited Hazardous Wastes

NATIONAL CAPACITY LDR VARIANCES FOR UIC WASTES

Waste code Waste category Effective date

******* NA ...... Newly identified mineral processing wastes from titanium dioxide production and mixed radioactive/ May 26, 2000. newly identified D004±D011 characteristic wastes and mineral processing wastes.

******* Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules and Regulations 28753

PART 271ÐREQUIREMENTS FOR Subpart AÐRequirements for Final 2 in chronological order by effective AUTHORIZATION OF STATE Authorization date in the Federal Register, to read as HAZARDOUS WASTE PROGRAMS follows: 22. Section 271.1(j) is amended by 21. The authority citation for Part 271 adding the following entries to Table 1 § 271.1 Purpose and scope. continues to read as follows: in chronological order by date of * * * * * publication in the Federal Register, and Authority: 42 U.S.C. 6905, 6912(a) and (j) * * * 6926. by adding the following entries to Table

TABLE 1.ÐREGULATIONS IMPLEMENTING THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984

Promulgation date Title of regulation Federal Register reference Effective date

******* May 26, 1998 ...... Land Disposal Restrictions Phase IV Final Rule ...... [Insert FR page numbers] ...... August 24, 1998.

*******

* * * * *

TABLE 2.ÐSELF-IMPLEMENTING PROVISIONS OF THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984

Effective date Self-implementing provision RCRA citation Federal Register reference

******* August 24, 1998 ...... Prohibition on land disposal of newly identified 3004(m) ...... Date of publication and FR page cite. wastes including TC metal wastes and char- acteristic mineral processing wastes; treat- ment standards for contaminated soil. May 26, 2000 ...... Prohibition on land disposal of newly identified 3004(m) ...... Date of publication and FR page cite. wastes from elemental phosphorus processing and mixed radioactive and newly identified TC metal/mineral processing wastes (including soil and debris). Prohibition on underground injection of newly identified mineral processing wastes from tita- nium dioxide production

*******

* * * * * [FR Doc. 98–12575 Filed 5–22–98; 8:45 am] BILLING CODE 6560±50±P