70954 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 261, 266, and 268

[FRL–6905–3]

RIN 2050–AE69

Requirements for Zinc Fertilizers Made

From Recycled Hazardous Secondary

Materials

AGENCY: Environmental Protection

Agency.

ACTION: Proposed rule.

SUMMARY: The Environmental Protection

Agency (EPA) is today proposing to

revise the existing regulations that apply

to recycling of hazardous wastes to

make zinc fertilizer products. This

proposal would establish a more

consistent regulatory framework for this

practice, and establish conditions for

excluding hazardous secondary

materials that are used to make zinc

fertilizers from the definition of solid

waste under the Resource Conservation

and Recovery Act (RCRA). Today’s

proposal also solicits comments on

regulating mining wastes that are used

to make fertilizers.

DATES: EPA will accept public comment

on this proposed rule until February 26,

2001.

ADDRESSES: Commenters must send an

original and two copies of their

comments referencing docket number

F–2000–RZFP–FFFFF to: RCRA Docket

Information Center, Office of Solid

Waste (5305W), Environmental

Protection Agency Headquarters (EPA,

HQ), 401 M Street, SW., Washington,

DC 20460. Hand deliveries of comments

should be made to the Arlington, VA,

address below. EPA may conduct a

public hearing on this proposed rule

during the comment period, if there is

sufficient interest on the part of

commenters.

Comments may also be submitted

electronically through the Internet to:

rcra-docket@epamail.epa.gov.

Comments in electronic format should

also be identified by the docket number

F–2000–RZFP–FFFFF. All electronic

comments must be submitted as an

ASCII file avoiding the use of special

characters and any form of encryption.

Commenters should not submit

electronically any confidential business

information (CBI). An original and two

copies of CBI must be submitted under

separate cover to: RCRA CBI Document

Control Officer, Office of Solid Waste

(5305W), U.S. EPA, 1200 Pennsylvania

Ave., NW., Washington, DC 20460.

Public comments and supporting

materials are available for viewing in

the RCRA Docket Information Center

(RIC), located at Crystal Gateway I, First

Floor, 1235 Jefferson Davis Highway,

Arlington, VA. The RIC is open from 9

a.m. to 4 p.m., Monday through Friday,

excluding Federal holidays. To review

docket materials, it is recommended

that the public make an appointment by

calling (703) 603–9230. The public may

copy a maximum of 100 pages from any

regulatory docket at no charge.

Additional copies cost $0.15/page. The

index and some supporting materials

are available electronically. See the

SUPPLEMENTARY INFORMATION section for

information on accessing them.

FOR FURTHER INFORMATION CONTACT: For

general information, contact the RCRA

Hotline at (800) 424–9346 or TDD (800)

553–7672 (hearing impaired). In the

Washington, DC metropolitan area, call

(703) 412–9810 or TDD (703) 412–3323.

For more detailed information on

specific aspects of this proposed

rulemaking, contact Dave Fagan, U.S.

EPA (5301W), 1200 Pennsylvania Ave.

NW., Washington, DC 20460; (703) 308–

0603, or e-mail:

fagan.david@epamail.epa.gov.

SUPPLEMENTARY INFORMATION: The index

and the following supporting materials

are available from the RCRA

Information Center:

The official record for this action will

be kept in paper form. Accordingly, EPA

will transfer all comments received

electronically into paper form and place

them in the official record, which will

also include all comments submitted

directly in writing. The official record is

the paper record maintained at the

address in ADDRESSES at the beginning

of this document.

EPA responses to comments, whether

the comments are written or electronic,

will be published in a notice in the

Federal Register or in a response to

comments document placed in the

official record for this proposed

rulemaking. EPA will not immediately

reply to commenters electronically other

than to seek clarification of electronic

comments that may be garbled in

transmission or during conversion to

paper form, as discussed above.

The contents of today’s action are

listed in the following outline:

I. Statutory Authority

II. Background

A. What Is the Intent of Today’s Regulatory

Proposal?

B. What Is the Scope of This Proposed

Rule?

C. How Is Recycling of Hazardous Wastes

To Make Fertilizer Currently Regulated?

D. What Are EPA’s Goals for This

Rulemaking?

E. How Would Today’s Proposal Affect

Producers and Consumers of Zinc

Fertilizer?

III. Settlement Agreement for the Phase IV

Administrative Stay

IV. Detailed Description of Today’s Proposal

A. Removal of Exemption for K061-Derived

Fertilizers

1. Background

2. Today’s Proposed Action

B. Conditional Exclusion for Recycled

Zinc-Bearing Hazardous Secondary

Materials

1. Background

2. Proposed Conditional Exclusion

a. Applicability of Conditional Exclusion

b. Reporting and Recordkeeping

c. Conditions to the Exclusion

i. Speculative Accumulation

ii. Conditions Applicable to Generators of

Excluded Hazardous Secondary

Materials

iii. Conditions Applicable to

Manufacturers of Zinc Fertilizers or Zinc

Fertilizer Ingredients Made From

Excluded Secondary Materials

d. Alternatives Considered

e. Implementation and Enforcement

Hazardous

C. Conditional Exclusion for Zinc

Fertilizers Made From Excluded

Hazardous Secondary Materials

1. Contaminant Limits

a. Product Specifications for Non-Nutritive

Metals in Conditionally Excluded Zinc

Fertilizers

b. Product Specifications for Dioxins in

Conditionally Excluded Zinc Fertilizers

2. Testing and Recordkeeping

V. Mining Wastes Used To Make Fertilizer:

Request for Comments

VI. Relationship With Other Regulatory

Programs

VII. State Authority

A. Statutory Authority

B. Effect of Today’s Proposed Rule

VIII. Administrative Assessments

A. Executive Order 12866

B. Regulatory Flexibility Act (RFA), as

amended by the Small Business

Regulatory Enforcement Fairness Act of

1996 (SBREFA), 5 U.S.C. 601 et. seq.

C. Paperwork Reduction Act

D. Unfunded Mandates Reform Act

E. Federalism—Applicability of Executive

Order 13132

F. Executive Order 13084: Consultation

and Coordination With Indian Tribal

Governments

G. Executive Order 13045: Protection of

Children From Environmental Risks and

Safety Risks

H. National Technology Transfer and

Advancement Act of 1995

I. Executive Order 12898

Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules 70955

1The purpose of the RCRA LDR standards is to

assure that threats posed by disposal of hazardous

wastes are minimized before disposal. RCRA

section 3004(m). However, EPA has long

acknowledged that these standards are not ideal for

hazardous waste derived products used in a manner

constituting disposal, but rather are the minimum

needed to satisfy section 3004(m). 53 FR 17578,

17605 (May 17, 1988): see also Association of

Battery Recyclers v. EPA, 208 F. 3d 1047 (D.C. Cir.

2000) (acknowledging special risks posed by uses

constituting disposal justifying stricter LDR

Standards).

I. Statutory Authority

These regulations are proposed under

the authority of sections 3001, 3002,

3003, and 3004 of the Solid Waste

Disposal Act of 1970, as amended by the

Resource Conservation and Recovery

Act of 1976 (RCRA), as amended by the

Hazardous and Solid Waste

Amendments of 1984 (HSWA), 42

U.S.C. 6921, 6922, 6923 and 6924.

II. Background

A. What Is the Intent of Today’s

Regulatory Proposal?

Today’s proposed rule is one

component of the Environmental

Protection Agency’s ongoing assessment

of contaminants in fertilizers. Prior to

this proposed rulemaking the Agency

studied available information on

contaminants in a wide range of

fertilizer products (including waste

derived fertilizers), application rates for

fertilizers, and how fertilizers are

regulated in the United States and in

foreign countries. See ‘‘Background

Document on Fertilizer Use,

Contaminants and Regulation’’ (EPA

747–R–98–003, January 1999). In

addition, EPA developed a risk

assessment of contaminants in

fertilizers, which was released in

August 1999. These documents are both

available on EPA’s website; their

respective website addresses are http://

www.epa.gov/opptintr/fertilizer.pdf,

and http://www.epa.gov/epaoswer/

hazwaste/recycle/fertiliz/risk/

report.pdf.

Based on these and similar studies,

such as those recently issued by the

State of Washington (‘‘Screening Survey

for Metals and Dioxins in Fertilizer

Products and Soils in Washington

State,’’ April 1999) and the State of

California (‘‘Development of Risk Based

Concentrations for Arsenic, Cadmium

and Lead in Inorganic Commercial

Fertilizers,’’ California Department of

Food and Agriculture, March 1998),

EPA has tentatively decided that the

relatively small risks associated with

contaminants in fertilizers do not

warrant a broad new federal regulatory

effort in this area (such as under the

authority of the Toxic Substances

Control Act). However, as part of EPA’s

overall assessment of the fertilizer

contaminant issue, the Agency

reexamined the current RCRA

regulatory requirements that apply

specifically to recycling of hazardous

wastes to make fertilizer products. This

reexamination was based on the

Agency’s own experience with

implementing the current RCRA

regulations, as well as views expressed

by regulated industry, public interest

groups, state regulatory officials and

others (see ‘‘EPA Stakeholder Meetings

on Hazardous Waste Derived Fertilizers,

November 12–13, 1998, Meeting

Summaries’’). From this review EPA has

decided to propose certain revisions to

the current regulations for hazardous

waste derived fertilizers, for the

following reasons:

• The RCRA standards that now

apply to most hazardous waste derived

fertilizers, known as the ‘‘land disposal

restrictions’’ (LDR) standards, were

developed based on ‘‘best demonstrated

available technology’’ for treating

hazardous wastes prior to disposal in

hazardous waste landfills. The LDR

standards were thus not developed

specifically for fertilizers.1 A number of

stakeholders have argued persuasively

for contaminant standards that are more

appropriate and specific to fertilizers. In

today’s action, EPA is proposing to set

new standards for fertilizer

contaminants based on the levels that

can be readily achieved using

demonstrated manufacturing practices.

• The current regulations are

inconsistent. As discussed above,

hazardous waste derived fertilizers must

meet the applicable RCRA LDR

treatment standards before they may be

used as fertilizer products. There is one

exception to this requirement, however:

Fertilizers made from electric arc

furnace dust (also known by its RCRA

waste code as K061) are specifically

exempted from having to meet the LDR

standards. EPA believes that the original

basis for exempting K061-derived

fertilizers from these standards is no

longer valid (for reasons explained

further in section IV.A of this preamble),

and that fertilizers made from K061

should be subject to the same standards

that apply to other hazardous waste

derived fertilizers.

• Regulating fertilizer feedstocks as

hazardous wastes creates unnecessary

disincentives to legitimate and

beneficial recycling practices. Currently,

hazardous waste feedstocks that are

used in fertilizer manufacture are

subject to full hazardous waste

management requirements, which

include generator requirements,

manifests (when such wastes are

transported), and permits for

manufacturers who store such materials

prior to incorporation into fertilizer.

However, fertilizer manufacturers and

their suppliers often have strong

incentives to avoid being subject to such

RCRA requirements, for reasons

explained later in this preamble. The

net effect is that many such companies

simply avoid the use of zinc-rich

secondary materials to make fertilizer if

they carry the label of RCRA ‘‘hazardous

waste.’’ EPA believes that the

regulations that govern this recycling

practice should be revised so that

appropriate environmental safeguards

are maintained, while removing

unnecessary regulatory constraints on

legitimate and beneficial recycling

practices.

B. What Is the Scope of This Proposed

Rule?

Today’s proposed regulatory

amendments address only one type of

fertilizer that is made from recycled

hazardous wastes; specifically, zinc

micronutrient fertilizer. According to

the information that EPA has reviewed,

zinc fertilizers account for the great

majority of fertilizers that are made from

recycled hazardous wastes. Another

reason for limiting the scope of this

proposal to zinc fertilizers is the

Agency’s judgment that developing

recycling standards for this one type of

fertilizer product should be relatively

straightforward from a technical

standpoint, and it may thus be possible

to promulgate final rules for such

products in a relatively short time

frame. The Agency is aware, however,

that some manufacturing of other types

of fertilizers from hazardous industrial

wastes may be taking place, and that

regulatory revisions to address these

other recycling practices may also be in

order. However, developing appropriate

regulations that could apply to virtually

any fertilizer made from recycled

hazardous wastes would be a more

complex, longer-term effort. The Agency

has chosen to avoid regulatory delays

for zinc fertilizers by proceeding with

today’s limited-scope rulemaking

proposal. Comment is invited on this

aspect of today’s proposal. EPA may

address other types of hazardous waste

derived fertilizers in a follow-up

rulemaking. Until then, the current

RCRA regulatory framework will

continue to apply to recycling of

hazardous wastes to make fertilizers

other than zinc micronutrient fertilizers.

These regulations are described in detail

in following sections of this preamble.

70956 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules

The Agency is also aware that at least

one iron fertilizer product is currently

being produced from a mining waste

that is exempted from hazardous waste

regulation, despite evidence that the

product exhibits a hazardous waste

characteristic when tested according to

the Toxicity Characteristic Leaching

Procedure (TCLP) (Oregon Department

of Environmental Quality Laboratory,

Case Number 980474, July 31, 1998).

Today’s proposal invites comment on

whether this type of waste recycling

practice should be regulated under

RCRA.

C. How Is Recycling of Hazardous

Wastes To Make Fertilizers Currently

Regulated?

EPA’s longstanding policy is to

encourage legitimate recycling of

hazardous wastes, as a means of

recovering valuable resources (for

example, zinc), and lessening the need

for extraction of virgin materials to

make products. The Agency continues

to believe that recycling of hazardous

wastes in fertilizer manufacture can be

(and is) a safe and beneficial practice,

when proper environmental safeguards

are observed.

With regard to recycling hazardous

wastes to make fertilizer, current RCRA

regulations place controls on the

management of the hazardous wastes

prior to incorporation of the waste into

a fertilizer, and define when fertilizers

made from recycled hazardous wastes

are legitimate products. These

regulatory requirements are specified in

40 CFR Part 266, Subpart C.

Under RCRA, placement of hazardous

wastes on the land is generally regulated

as a disposal practice, and thus the

regulations that apply to this type of

recycling practice are generally referred

to as the ‘‘use constituting disposal’’

(UCD) regulations. Fertilizers produced

from hazardous waste (i.e.,

incorporating hazardous wastes as one

of their ingredients) are one example of

a use constituting disposal. Hazardous

waste derived asphalt is another

example of such a product. See 63 FR

at 28609–610 (May 26, 1998);

Association of Battery Recyclers, 208

F.3d 1047 (DC Cir. 2000), upholding

LDR rules applied to hazardous waste

derived asphalt.

Products made from recycled

hazardous wastes whose intended use

involves placement on the land may

create risks that are potentially higher

than for other types of recycled products

(actual risk potential depends, of course,

on concentrations of toxic constituents

in the products and a number of other

factors). Regulating these products as

hazardous wastes, however, would have

the effect of prohibiting their use

altogether. See 50 FR at 628 (January 4,

1985). Rather than prohibiting their use,

current regulations require that these

products meet the same treatment

standards they would have to meet if

they were disposed in a landfill.

In the final rule on the definition of

solid waste (50 FR 614, Jan. 4, 1985),

EPA asserted jurisdiction over all

hazardous secondary materials, and

over products that contain these wastes,

when they are applied to the land.

However, in the preamble to that rule,

the Agency noted that we hoped

eventually to develop standards or

specification levels for toxic

constituents in waste-derived products

whose use on the land may cause

substantial harm (50 FR 628). Based on

the information described elsewhere in

this preamble, we have decided to

propose specific levels (discussed

elsewhere in this preamble) at which

waste-derived zinc fertilizers should be

considered products, rather than wastes.

Under the current UCD regulations,

hazardous wastes that are going to be

recycled to make fertilizers must be

managed in accordance with all

applicable hazardous waste

management requirements, until they

are incorporated into a fertilizer.

Generators of the hazardous wastes

must comply with the RCRA generator

requirements (see 40 CFR Part 262), offsite shipments of the wastes must be

manifested (Subpart B of Part 262), and

storage of these materials by fertilizer

manufacturers generally requires a

RCRA permit. In addition, the fertilizers

produced from hazardous wastes must

meet the LDR treatment standards prior

to being land disposed.

The requirements for hazardous waste

derived fertilizers to meet LDR

treatment standards were first

promulgated in the ‘‘First Third’’ LDR

rule (August 17, 1988, 53 FR 31138).

The standards were revised in the

‘‘Third Third’’ LDR rule, which

established treatment standards for

metals in characteristic hazardous

wastes (June 1, 1990, 55 FR 22520). In

the Third Third rule the treatment

standards for hazardous waste derived

fertilizers were specified as the toxicity

characteristic levels (i.e., the levels that

identified when wastes are considered

‘‘hazardous’’ according to the TCLP).

The Agency changed those standards in

the ‘‘Phase IV’’ LDR rule (May 26, 1998,

63 FR 28556), which set new (and for

most constituents, more stringent)

treatment standards for metals in

toxicity characteristic wastes.

In response to the Phase IV LDR rule,

affected fertilizer manufacturers

submitted information to the Agency

arguing that the Phase IV standards

could actually have negative

environmental consequences by

eliminating relatively ‘‘clean’’ zinc

fertilizers from the market, and

encouraging the use of fertilizers with

higher levels of contaminants (e.g., K061

derived fertilizers) that were not subject

to the LDR standards. In response, the

Agency administratively stayed the

effectiveness of the Phase IV rule as it

applied to zinc micronutrient fertilizers

(63 FR 46332, August 31, 1998).

In that notice EPA announced its

intent to address more broadly the

requirements for recycling of hazardous

wastes into fertilizer through a

rulemaking process, as manifested by

today’s proposal. The effect of the Phase

IV administrative stay was that the

Third Third treatment standards (i.e.,

the characteristic levels) continue to

apply to zinc fertilizers made from

recycled hazardous wastes. A petition

for review of this part of the final Phase

IV rule, which challenged the stay, was

subsequently filed in the D.C. Circuit

Court of Appeals by several petitioners.

Further discussion of this petition and

its resolution is presented in section III

of this preamble.

As mentioned previously, fertilizer

products made from one particular type

of hazardous waste (K061, or electric arc

furnace dust) are exempt from having to

meet the LDR treatment standards.

However, management of the K061

feedstocks prior to recycling is subject

to the same hazardous waste

management standards described above

for other hazardous wastes used as

components of fertilizers. Further

discussion of the regulatory exemption

for K061 derived fertilizers is contained

in section IV.A. of this preamble.

D. What Are EPA’s Goals for This

Rulemaking?

EPA hopes to achieve the following

through this rulemaking effort:

• More regulatory consistency.

Today’s proposal is intended to create a

‘‘level playing field’’ with regard to how

the recycling of hazardous waste into

zinc fertilizers is regulated. Removing

the current exemption for K061 derived

fertilizers is one aspect of today’s

proposal that should result in a more

comprehensive and more consistent

regulatory framework for hazardous

waste derived zinc fertilizers. In this

same vein, today’s proposal requests

comments on eliminating the current

exemption from the definition of solid

waste for mining wastes that exhibit a

hazardous characteristic and that are

used to make fertilizer products.

• Limits on contaminants in recycled

zinc fertilizers that are based on

Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules 70957

demonstrated manufacturing practices.

Today’s proposed limits on metals in

recycled zinc fertilizers are based on

levels that have been demonstrated to be

technically and economically

achievable by the industry, are

protective of human health and the

environment, and will result in overall

reductions in the volumes of heavy

metals that are applied to the nation’s

farmlands from hazardous waste

derived zinc fertilizers.

• More appropriate controls on

management of hazardous secondary

materials used in legitimate zinc

fertilizer recycling practices. Today’s

proposal should serve to better define

‘‘legitimate recycling’’ for zinc

fertilizers, and streamline current

regulatory restrictions on management

of hazardous secondary materials used

as feedstocks in zinc fertilizer

manufacturing.

E. How Would Today’s Proposal Affect

Producers and Consumers of Zinc

Fertilizer?

We believe that today’s regulatory

proposal should have very few negative

impacts on fertilizer manufacturers, the

waste generators who supply them, or

on farmers who use zinc fertilizers. In

fact, many elements of today’s proposal

are expected to have a positive effect on

the zinc fertilizer market. However, the

Agency is interested in any further

information that commenters may be

able to provide on such impacts, either

positive or negative. A more detailed

discussion of the economic impact

analysis prepared in support of this

rulemaking is presented in section

VIII.A. of this preamble.

RCRA regulations affect only a

portion of the overall zinc fertilizer

industry. It is estimated that roughly

one half of the total zinc fertilizer

produced in the United States is made

from hazardous secondary materials,

such as K061, brass fume dust and other

zinc oxide materials. (Land Application

of Hazardous Waste Derived

Micronutruent Fertilizers, Bay Zinc

Company and Tetra Technologies, Inc.;

November 19, 1999) The balance of zinc

fertilizer production is made from

secondary materials (or in some cases,

‘‘virgin’’ mineral concentrates) that are

not hazardous wastes, and thus are not

subject to RCRA controls. An example

of a non-hazardous waste that is

commonly used to make zinc fertilizer

is zinc oxide ‘‘skimmings,’’ a by-product

from galvanizing of various steel

products. Manufacturers of high-purity

zinc fertilizers (such as zinc sulfate

monohydrate, or ZSM) typically can use

either hazardous or non-hazardous

secondary materials; the resultant

fertilizer products are essentially

identical (Ibid.).

EPA recognizes that regulating one

half of the industry while the other half

is essentially unregulated has the

potential for creating distortions in the

zinc fertilizer market. One of the

Agency’s concerns in this regard is that

imposing stringent regulations on

recycling of hazardous material

feedstocks can create a strong economic

incentive for manufacturers to use

feedstock materials that carry no RCRA

regulatory ‘‘baggage.’’ This can be

detrimental environmentally, if

unregulated fertilizers with higher

concentrations of toxic constituents

have a market advantage. This partial

regulation could also lead to greater

reliance on non-RCRA regulated

feedstock materials from foreign

sources. Ultimately, such distortions in

the market would likely result in lower

volumes of zinc-bearing wastes being

beneficially recycled.

EPA believes that the regulatory

amendments proposed today could

greatly reduce these deleterious effects

on the industry and its customers, and

may encourage beneficial recycling by

zinc fertilizer producers and their

suppliers, while ensuring appropriate

environmental protections.

III. Settlement Agreement for the Phase

IV Administrative Stay

On December 18, 1998, a petition for

review of the Phase IV administrative

stay (described in Section II.C above)

was filed by the Washington Toxics

Coalition, the Sierra Club and the

Environmental Technology Council.

Since the objectives of the petitioners to

ensure protection of human health and

the environment are generally

consistent with EPA’s, and in order to

avoid protracted litigation on this

matter, a settlement agreement was

reached on June 20, 2000, in which the

Agency committed to address several

issues relating to hazardous waste

derived fertilizers in this rulemaking

effort. In summary, in the settlement

agreement the Agency agreed to:

• Sign a notice of proposed rulemaking

(NPRM) by November 15, 2000;

• Propose in the NPRM:

—Technology-based standards for

certain metal contaminants in

hazardous waste derived zinc

fertilizers;

—Elimination of the current

exemption from LDR treatment

standards for K061 derived zinc

fertilizers;

—Standards for dioxins in hazardous

waste derived zinc fertilizers; and

—Record keeping and reporting

requirements.

• In the NPRM, solicit comments on a

regulatory option that would

establish a comprehensive reporting

and record keeping system for

generators, transporters and

manufacturers involved with

production of any fertilizer made

from hazardous waste, based on the

RCRA Biennial Reporting system.

• In the NPRM, solicit comment on

eliminating the current exemption

from Subtitle C regulation for

fertilizers made from mining

wastes;

• In the NPRM, discuss the option of

retaining the current generator,

transportation and storage

requirements, if the Agency

proposes to modify those

requirements;

• Sign a Notice of Final Rulemaking

that addresses the above provisions

no later than May 15, 2002.

Today’s proposed rule is consistent

with the terms of this agreement.

Pursuant to Administrative Procedures

Act regulations, the Agency has not

committed to promulgating any specific

regulatory action in the final fertilizer

rulemaking. The final rulemaking will

reflect the comments and data

submitted during the public comment

period on this proposal, as well as any

new analyses conducted by the Agency.

A copy of the settlement agreement is

included in the docket for today’s

proposed rule.

IV. Detailed Description of Today’s

Proposal

A. Removal of Exemption for K061-

Derived Fertilizers

1. Background

Electric arc furnace dust, known by its

RCRA waste code as K061, is a zinc-rich

waste collected in air emission control

baghouses and scrubbers at electric arc

steel making plants. K061 was listed by

EPA as a hazardous waste in 1980, due

to relatively high concentrations of

heavy metals such as lead, cadmium

and chromium. More recent data

indicate that the levels of heavy metal

contaminants in K061 have generally

declined, as generators have made

advances in removing such

contaminants from the scrap metal

feedstocks used in this type of

steelmaking process. However,

concentrations of lead in excess of one

percent (by weight) are still reported to

be relatively common in K061 used by

the fertilizer industry (‘‘Land

Application of Hazardous Waste

Derived Micronutrient Fertilizers, Bay

Zinc Company and Tetra Technologies

Inc., November 19, 1999, Appendix A).

70958 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules

Measurable levels of dioxin

contaminants have also been reported in

a limited number of K061 samples: Data

from the State of Washington’s recent

study of fertilizer contaminants

(‘‘Screening Survey for Metals and

Dioxins in Fertilizer Products and Soils

in Washington State,’’ April 1999)

indicated dioxin levels in one sample of

raw K061 at over 800 ppt, and a sample

of K061-derived fertilizers at

approximately 340 ppt. Other types of

zinc fertilizers that were tested showed

far lower (in many cases, non-detect)

levels of dioxins.

Manufacturing zinc fertilizer from

K061 typically involves treating the

material with sulfuric acid to form a

granular zinc ‘‘oxy-sulfate’’ fertilizer

product. Thus, the manufacturing

process does not involve any processing

to remove heavy metal contaminants.

K061 fertilizers are only partially

soluble in water, since much of the zinc

remains in an oxide or ferrite (a zinciron compound) form, which is less

water soluble than zinc sulfate. Recent

trends in the zinc fertilizer industry

indicate a shift away from K061 oxysulfate products, and increased

production of zinc sulfate monohydrate

(ZSM) products, which typically have

much lower levels of heavy metal

contaminants (Ibid). Further discussion

of zinc fertilizer manufacturing

processes, and ZSM fertilizer products

in particular, is presented in section

IV.B. of today’s preamble.

It should be noted that K061 can be

processed thermally (e.g., in multiple

hearth furnaces) to reclaim iron and

produce a zinc oxide material that is

amenable to further processing to

manufacture high-purity zinc fertilizer

such as ZSM. Although this is not yet

a widespread practice, it further

illustrates that the purity of zinc

fertilizer is largely a function of how

feedstock materials are processed, rather

than the type of feedstock itself.

In 1988, as part of the ‘‘First Third’’

land disposal restrictions final rule, EPA

exempted fertilizers made from K061

from having to meet the LDR treatment

standards applicable to other types of

hazardous waste derived fertilizers.

EPA’s decision to promulgate this

exemption was based on an analysis of

then-available data that indicated heavy

metal contaminant levels in K061-

derived fertilizer were comparable to

(and in some cases were lower than)

contaminant levels in zinc fertilizers

made from non-hazardous waste

feedstocks. Thus, it was concluded that

eliminating K061 fertilizers from the

market (as would have been likely

absent the regulatory exemption) would

not have had any net environmental

benefit. EPA also concluded at that time

that, based on available information,

agricultural application of K061

fertilizers did not appear to pose

significant risks for either ground water

or food chain contamination pathways

(see 53 FR 31164, August 17, 1988).

2. Today’s Proposed Action

Today’s proposed rule would amend

the current regulations at § 266.20, by

removing the provision that exempts

fertilizers made from K061 from having

to meet applicable land disposal

restrictions standards. In effect, this

proposal would require all zinc

fertilizers made from recycled

hazardous secondary materials to meet

the same set of contaminant standards.

This aspect of today’s proposal is in

accord with the Agency’s objective of

creating a more consistent regulatory

framework for this particular recycling

practice.

EPA’s rationale for eliminating the

current regulatory exemption for K061

derived fertilizers also rests on the fact

that the composition of zinc fertilizers

on the market has changed significantly

since the exemption was granted in

1988. Current data on zinc fertilizer

composition clearly indicate that levels

of certain heavy metal contaminants in

K061 fertilizers are considerably higher

than those in other types of zinc

fertilizers that are now widely marketed.

For example, total concentrations of

lead in K061 fertilizers commonly

exceed one percent (10,000 mg/kg) by

weight, while available data suggest that

lead levels in zinc sulfate monohydrate

fertilizers (which are also widely

marketed) rarely exceed 100 mg/kg in

dry product (see, for example, ‘‘Land

Application of Hazardous Waste

Derived Micronutrient Fertilizers,’’ Bay

Zinc Company and Tetra Technologies,

Inc., November 19, 1999).

Such higher purity zinc fertilizers

were not widely available as substitutes

for K061-derived fertilizers in 1988.

Today’s proposal to eliminate the

exemption for K061 derived fertilizers

has also been made in consideration of

the levels of dioxins in K061 fertilizers

that were identified in the State of

Washington’s report ‘‘Screening Survey

of Metals and Dioxins in Fertilizer

Products and Soils in Washington

State,’’ (April 1999).

As discussed further in Section VII.A.

of this preamble and in the Regulatory

Impact Analysis (RIA) prepared in

support of today’s proposal, EPA

believes that subjecting K061 zinc

fertilizers to the same regulatory

controls as other types of hazardous

waste derived fertilizers will have the

benefit of creating a more consistent

regulatory framework for this type of

zinc fertilizer manufacturing, and will

not create undue hardships for the zinc

fertilizer industry.

At the present time EPA is aware of

only one manufacturer (Frit Industries

of Ozark, AL) currently using K061 to

produce zinc oxy-sulfate fertilizer.

Although this company would need to

modify its manufacturing practices to

comply with this regulatory change,

EPA believes that this should not cause

undue economic hardship for either the

company or for zinc fertilizer

consumers. In any case, we do not

believe that it is sensible to exempt this

type of fertilizer from having to meet

contaminant limits, while other zinc

fertilizers of greater purity would be

required to meet them. In addition, the

provisions in today’s proposal that

would streamline regulatory controls on

management of hazardous feedstocks in

zinc fertilizer manufacture should

benefit the industry by increasing the

availability of alternative hazardous

feedstock materials (e.g., brass foundry

dusts).

Some stakeholders have advocated a

total ban on the use of K061 to make

zinc fertilizer, largely because of

concerns about measured

concentrations of dioxin contaminants

in two samples of these fertilizers,

which were analyzed as part of the State

of Washington’s previously cited

screening study. The Agency considered

this option, but is not proposing it. EPA

believes that K061 can be a suitable

feedstock for manufacturing zinc

fertilizer, provided that it is processed

sufficiently to address metal and dioxin

contaminants. In fact, at least one steel

manufacturer in the United States is

currently thermally processing K061 to

recover its iron content and to produce

a zinc oxide material that can be further

refined to make high-quality zinc

fertilizer (Illinois Pollution Control

Board, AS99–3, May 5, 1999). The

Agency does not believe that there is

any environmental reason to discourage

recycling of K061 to make fertilizer; in

fact, we hope that this rulemaking may

serve to encourage beneficial metals

recovery from K061 that might

otherwise be landfilled.

In summary, given the relatively high

contaminant levels in K061 fertilizers,

and the availability to the industry of

alternative hazardous waste (and other)

feedstock materials, EPA sees no

compelling reason to continue

subjecting K061 fertilizers to less

stringent regulatory controls than other

types of hazardous waste derived zinc

fertilizers. The Agency requests

comment on this provision of today’s

proposal.

Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules 70959

2EPA is reciting this history as an aid to readers;

EPA is not accepting comment on these past

determinations; or otherwise reopening these

issues.

B. Conditional Exclusion for Recycled

Zinc-Bearing Hazardous Secondary

Materials

1. Background

a. General. As discussed in Section

II.C. of this preamble, the ‘‘use

constituting disposal’’ (UCD)

requirements of § 266.20 currently apply

to management of any RCRA hazardous

waste that is recycled to make fertilizer.

This in effect requires the wastes to be

managed according to all applicable

hazardous waste regulations, including

requirements for generation,

transportation and storage of the wastes

prior to recycling. The recycling

processes themselves are generally not

subject to RCRA regulation.

EPA’s rationale for regulating these

materials as hazardous wastes is that the

end disposition of the waste closely

resembles uncontrolled land disposal,

which is the classic type of discard

under RCRA. (January 4, 1985, 50 FR at

627–28; August 17, 1988, 53 FR at

31198). At the time these regulations

were promulgated, however, EPA was

unsure as to how to regulate the end

disposition of the waste-derived

products, since full Subtitle C regulation

would essentially prohibit their use as

products (January 4, 1985; 50 FR at 646).

The original regulatory scheme

consequently applied RCRA Subtitle C

regulation only to persons generating,

transporting and storing hazardous

wastes before they were incorporated

into the waste-derived products. Id. At

646–47. As explained earlier, because

the use of waste-derived products on the

land is a type of land disposal, EPA in

1988 amended these regulations to

require all such waste-derived products

(with the exception of K061 derived

fertilizers) to meet LDR treatment

standards 2.

As mentioned previously, zinc

fertilizers can be manufactured from a

variety of different feedstock materials—

some are ‘‘virgin’’ materials such as

refined ores, while others are secondary

materials generated from emission

control devices or other industrial

processes. While their origins may

differ, the physical and chemical

characteristics of these materials are

generally quite similar—for the most

part they are dry, powdery solid

materials containing a high percentage

of zinc in oxide or chloride form, along

with lower levels of non-nutritive

contaminants such as lead, cadmium

and other heavy metals. The zinc

content of these materials typically

ranges from 50% to 80% by weight.

Levels of metal contaminants in these

feedstocks vary considerably, even from

batch to batch; on average, contaminant

levels in non-hazardous feedstocks are

slightly lower than those in hazardous

feedstocks. Levels of lead (for example)

in non-hazardous galvanizer ash

typically range between one and two

percent, while levels in hazardous brass

foundry dust can be as high as six

percent (letter from George M.

Obeldobel, March 6, 2000). As a general

matter, however, we believe that any

potential risks posed by hazardous and

non-hazardous zinc feedstock materials

would be substantially similar, which

argues for more consistent regulation of

these materials under RCRA.

In EPA’s view, more consistent

regulation of zinc fertilizer feedstocks is

also appropriate since the current

regulatory structure tends to discourage

legitimate and beneficial recycling of

those materials that are now classified

as hazardous wastes. As mentioned

previously, the current UCD regulations

that apply to this recycling practice

were originally promulgated in 1985. A

thorough, prospective examination of

the potential impacts of the UCD

regulations specifically on the zinc

fertilizer industry was beyond the scope

of that original rulemaking.

Since 1985 the Agency has gained

considerable insight as to how the UCD

regulations have affected manufacturers

of zinc fertilizers and their suppliers.

Based on this experience with

implementing the UCD requirements,

EPA has concluded that the existing

UCD regulatory structure unnecessarily

constrains legitimate recycling in the

zinc fertilizer industry, as discussed in

more detail below.

Under the current regulations,

companies that use hazardous wastes to

make fertilizers typically will need a

RCRA permit for storage of the material

prior to recycling. This can have

important implications for zinc fertilizer

manufacturers. Obtaining a RCRA

permit can be costly and time

consuming. In addition, a RCRA permit

carries with it other obligations, such as

the requirement for facility-wide

corrective action, which can incur

further substantial costs. Most

companies (and fertilizer manufacturers

are no exception) thus have a strong

incentive to avoid the RCRA permit

requirement for their facilities whenever

possible.

One way for a zinc fertilizer

manufacturer to avoid the RCRA permit

requirement is to simply use nonhazardous feedstock materials. These

materials are generally more expensive

than hazardous waste feedstocks, which

increases the price of zinc fertilizer

products. For manufacturers who do

accept hazardous feedstock materials,

the RCRA permit requirement can also

be avoided by selling the end product

for purposes other than fertilizer. ZSM,

for example, can also be used as an

animal feed supplement, which does

not trigger the UCD regulatory

requirements. This creates the

anomalous situation in which a

manufacturer of ZSM would be subject

to full regulation under RCRA if the

product is sold as fertilizer, but is not

regulated at all if the identical product

is sold as animal feed. EPA does not

believe that there is a convincing

environmental rationale for

perpetuating this somewhat artificial

regulatory distinction between zinc

products that trigger the UCD

requirements and those that do not,

particularly when the composition of

the products may be identical.

The current UCD regulations create

similar disincentives for generators of

hazardous zinc secondary materials.

Such generators typically prefer not to

have such materials classified as

hazardous waste, since they are then

less valuable as a commodity, are

subject to stringent hazardous waste

management requirements, and in many

states are assessed hazardous waste

generation fees. These generators

therefore tend to avoid selling their

material to companies that make

fertilizer products. However, fertilizer is

by far the largest market for ZSM. Since

this market is effectively closed for

many generators, and alternative

recycling options are limited, generators

of zinc-bearing secondary materials can

often be forced to dispose of the

material as hazardous waste, rather than

sell it to fertilizer manufacturers. In

EPA’s view, such distortions in the

market for recyclable hazardous

secondary materials are both

environmentally and economically nonproductive.

b. Reporting and Recordkeeping. As

discussed above, under current

regulations hazardous wastes that are

used to make fertilizers are subject to

the RCRA ‘‘cradle to grave’’

requirements for tracking and

recordkeeping prior to being recycled.

The following is a summary of these

requirements:

• Generators of such hazardous wastes

must:

—Manifest off-site shipments of

hazardous waste (§ 262.20–23);

—Submit exception reports for any

unconfirmed deliveries of waste

shipments (§ 262.42);

70960 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules

—Maintain copies of manifests,

exception reports, biennial reports

and any data used to make

hazardous waste determinations, for

at least three years (§ 262.40); and

—Submit a biennial report describing

all hazardous wastes generated and

the facilities they were shipped to

every other year (§ 262.41).

• Manufacturers of hazardous waste

derived fertilizers must:

—Maintain copies of manifests for at

least three years [§ 264.71(b)(5)];

—Submit a report for each shipment

of hazardous waste received

without a manifest (§ 264.76) and

each shipment with significant

manifest discrepancies (§ 264.72);

and

—Submit a biennial report for each

odd-numbered year describing all

hazardous wastes received from any

off-site generators, and who the

generators were.

These RCRA requirements were

designed to be a ‘‘cradle to grave’’

tracking system, to document and

ensure that hazardous wastes shipped

from a generator’s facility actually arrive

at their intended destination (e.g., a

hazardous waste disposal facility), and

do not become ‘‘lost’’ or dumped

indiscriminately. The biennial reporting

requirement is intended to provide

information to the public on hazardous

waste generation and movement, and to

enable EPA to report to Congress with

national profiles of these activities.

While these requirements apply when

the recycled end product is subject to

the UCD regulations, such cradle-tograve requirements generally do not

apply if such wastes are used to make

other types of products. Thus, the RCRA

tracking system does not apply to many

hazardous waste streams that are

recycled but are exempt or excluded

from regulation because the end

products are not used on the land.

With regard to monitoring and

tracking hazardous wastes that are used

to make fertilizers (and other recycled

products), the current RCRA regulations

have certain limitations. For example,

hazardous waste generators who supply

fertilizer manufacturers are not required

to notify regulatory agencies of the

practice, so identifying the sources of

hazardous waste feedstock materials

involves reviewing individual

manifests, which are typically

maintained at the fertilizer

manufacturer’s facility. Tracking such

waste movements may be especially

difficult in cases where there is a

middleman (e.g., a waste broker or

processor) involved, who may aggregate

or blend wastes from various sources

before shipping them to a fertilizer

manufacturer.

In addition, generators are required to

identify only the facility to which their

wastes are shipped, but do not need to

identify what their wastes may be used

for. Many facilities that receive such

wastes make a variety of products in

addition to fertilizers, which makes it

difficult for regulators (and others) to

determine whether or not a particular

waste shipment was used specifically

for fertilizer manufacture. The biennial

reporting system has similar limitations

for much the same reasons, and in

addition only applies to hazardous

waste management activities that occur

every other year.

In summary, the existing regulatory

framework provides regulators and

others with only limited means of

identifying and monitoring generators

who supply manufacturers of hazardous

waste derived fertilizers, or what they

are supplying. Furthermore, the current

biennial reporting system is admittedly

only marginally useful for identifying at

an aggregate national level who is

engaged in these practices, what wastes

are being used, or what products are

being produced. EPA believes that the

current recordkeeping, reporting and

tracking system (as it applies to

recycling of hazardous wastes in zinc

fertilizers) can be streamlined and

greatly improved with relatively minor

modifications.

To this end, EPA is today proposing

(as discussed below) a new set of

reporting and recordkeeping

requirements specifically for this

industry that should enhance oversight

capabilities of regulatory agencies, and

provide more complete, more accurate

and more accessible information to

regulators and others on this particular

type of hazardous waste recycling. In

addition, as discussed in section VIII.C.

of this preamble, we believe that the

proposed new requirements would

actually result in less overall paperwork

burden on industry than the current

system. EPA requests comments on

whether the new set of reporting and

recordkeeping requirements in today’s

proposal is necessary, and on the

potential impacts of such requirements.

2. Proposed Conditional Exclusion

EPA is today proposing in

§ 261.4(a)(20) a conditional exclusion

from the definition of solid waste for

hazardous secondary materials—that is,

spent materials, sludges and

byproducts—that are recycled to make

zinc fertilizers or zinc fertilizer

ingredients. We believe excluding these

materials from being classified as wastes

is appropriate, for the reasons outlined

above. However, we do not believe that

a total exclusion (which would allow

unrestricted management of these

materials) is appropriate, given the

Agency’s recent experience with at least

three cases of environmental damage

caused by improper management of

such materials by zinc product

manufacturers (these cases are

discussed further in the economic

impact analysis prepared for this

proposed rule).

As mentioned previously, these

materials are typically dry zinc oxide

dusts that contain significant levels of

non-nutritive metals such as lead,

cadmium and arsenic, often in soluble

form. They are thus susceptible to wind

and water dispersion if not managed

properly. The damage cases that the

Agency has dealt with have primarily

involved situations where the secondary

material feedstocks and/or wastes

generated from fertilizer manufacturing

processes have been stored outdoors,

usually in uncovered, unlined piles.

These cases have resulted in

contamination of soils, sediments and

ground water via uncontrolled

dispersal, a form of ‘‘throwing away’’

inconsistent with the notion that these

zinc-containing materials were valuable

feedstocks (‘‘Report of RCRA

Compliance Inspection at American

Microtrace Corporation,’’ US EPA

Region VII, December 4, 1996). In

summary, today’s proposal would

replace the current Subtitle C regulatory

controls on these materials with

conditions designed to ensure that the

unprocessed materials do not become

discarded.

EPA is not aware of any damage cases

that may have occurred from

mismanagement of hazardous waste

derived zinc fertilizers themselves. EPA

requests information on any other

proven damage cases due to

mismanagement of secondary material

feedstocks and/or wastes generated from

fertilizer manufacturing processes, or

proven damage cases involving

mismanagement of hazardous waste

derived zinc fertilizers.

a. Applicability of Conditional

Exclusion. The conditional exclusion

proposed today would be an exclusion

only from the RCRA Subtitle C

regulations, and not from the

emergency, remediation and

information-gathering sections of the

RCRA statute (sections 3004(u), 3007,

3013, and 7003). This restates the

principle already codified for other

excluded secondary materials—that the

exclusion is only from RCRA regulatory

provisions, and not from these statutory

authorities. See section 261.1(b).

Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules 70961

EPA is repeating that principle here in

the interests of clarity, not to reopen the

issue. The legal basis for the distinction

of the Agency’s authority under these

provisions is that they use the broader

statutory definition of solid waste (and

hazardous waste as well) and so need

not (and should not) be read as being

limited by the regulatory definition. See,

for example, 50 FR 627; January 4, 1985.

b. Reporting and Recordkeeping.

Today’s proposed rule includes

conditions for reporting and

recordkeeping by generators and

manufacturers that are designed to

ensure that government oversight over

the handlers of excluded materials (e.g.,

generators and manufacturers) is not

compromised. These conditions would

replace the current hazardous waste

regulatory requirements for reporting

and recordkeeping. As discussed below,

the proposed conditions are in fact

designed to improve the accountability

system, and government oversight

capabilities, over the handling of

secondary materials used to make zinc

fertilizers.

Today’s proposal would replace the

existing tracking system with a set of

reporting and recordkeeping

requirements (i.e., conditions to the

exclusion) to specifically identify zinc

fertilizer manufacturers who receive

excluded hazardous secondary materials

and the generators who supply them, to

track shipments of these materials, and

to provide a much more detailed

accounting of the types and volumes of

hazardous secondary materials that are

actually used to make zinc fertilizer

products. The proposal also specifies

recordkeeping requirements for finished

zinc fertilizer products that are made

from excluded materials, as discussed

below in section IV.C.2.

The proposed conditions on reporting

and recordkeeping are not expected to

impose substantial new paperwork

burdens on affected companies, since

we believe they rely primarily on

standard business record keeping

practices. At the same time, however, it

should be understood that the proposed

requirements would be unique, in that

no other RCRA-regulated recycling

practice is subject to such an expanded,

industry-specific accountability system.

EPA solicits comments on whether such

an accountability system is warranted,

whether it would necessitate substantial

changes to current business practices,

and on any other potential impacts of

such a system.

c. Conditions of the Exclusion.

i. Speculative Accumulation. Today’s

proposal would prohibit speculative

accumulation (as defined in existing

§ 261.1(c)(8)), which generally requires

an annual recycling rate of 75% of all

hazardous secondary materials

accumulated as of the first day of each

calendar year. This proposed provision

is mainly for emphasis and clarity; a

general provision classifying secondary

materials accumulated speculatively as

solid wastes already appears at

§ 261.2(c)(4). See generally 50 FR at

634–37; January 4, 1985.

ii. Conditions Applicable to

Generators of Excluded Hazardous

Secondary Materials.

Overview. As discussed above, under

today’s proposal generators would no

longer be subject to current hazardous

waste management regulations,

provided that the generator met the

specified conditions relating to

accumulation, storage, transportation,

reporting and recordkeeping of

excluded materials. The following is a

general, simplified reiteration of how

requirements for generators would

change under these proposed rules,

followed by a more detailed explanation

of each of the proposed conditions.

Accumulation/Generation. Currently,

generators of hazardous wastes used to

make zinc fertilizers may accumulate

the wastes on-site for no more than 90

days without triggering the need for a

RCRA permit. In addition, a number of

states levy fees on all such generated

wastes, which are typically based on the

volumes generated in a given year.

Under today’s proposal, these

requirements would no longer apply to

generators (unless a state chose to adopt

more stringent requirements).

Storage. On-site storage (e.g., in tanks

or containers) of hazardous waste

accumulations is currently allowed if

the generator meets the management

requirements for such units at interim

status facilities. Under today’s proposal,

these storage requirements would be

replaced by a set of more general,

performance-based conditions intended

to ensure that excluded materials are

stored safely at generator facilities.

Transportation. Off-site shipments of

hazardous wastes (e.g., from a generator

to a fertilizer manufacturer) currently

must be manifested according to the

requirements of 40 CFR Part 262,

Subparts B and C. These requirements

include provisions for packaging,

labeling, marking, and placarding of

waste shipments, as well as procedural

requirements such as those for dealing

with manifest discrepancies. Under

today’s proposal hazardous waste

manifests and the requirements

associated with their use would not

apply. The generator would, however,

need to document shipments of

excluded materials and maintain copies

of shipping papers, analogous to the

current manifesting requirements.

Reporting and Recordkeeping. Under

current regulations, generators of

hazardous wastes used to make zinc

fertilizers must provide notice to the

authorized agency of their hazardous

waste management activity (§ 262.12),

submit biennial report information

every other year (§ 262.41), and

maintain manifest records for at least

three years (§ 262.40). These

requirements would no longer apply

under today’s proposal. Instead,

generators would need to: (a) Submit a

one-time notice of their intent to

manage (now excluded) materials

according to the proposed conditions;

and (b) maintain shipping records

(containing information analogous to

that in manifests) for at least three years.

The following is a more detailed

explanation of today’s proposed

conditions for generators.

Storage. Under today’s proposal

(§ 261.4(a)(20)(ii)(A)), storage of

excluded hazardous secondary materials

at a generator’s facility would, as a

condition of the exclusion, only be

allowed in tanks, containers or in

buildings. These units would have to be

constructed and maintained in a way

intended to prevent releases of the

material into the environment from

occurring. This is in effect a general

performance standard for such units,

coupled with a few broad design

conditions.

EPA expects that in most cases

generators will choose to store their

feedstock materials inside buildings,

either in bulk (i.e., in piles) or in

‘‘supersack’’ containers. Supersacks are

reusable woven resin bags that can

contain approximately one ton of dry

material, and are typically handled with

forklifts, cranes or other heavy

machinery. As mentioned previously,

the damage cases known to the Agency

that involved hazardous zinc feedstock

materials have all resulted from outside

storage, typically in uncovered, unlined

piles. Storage of these materials inside

well-designed and maintained buildings

should adequately prevent against

releases of such materials into the

environment. Thus, the proposed

storage condition is that any such

building be engineered to have a floor,

walls and a roof made of non-earthen

materials, such that dispersal or contact

by rainwater are prevented. These

buildings may, however, have doors or

removable sections to enable access by

trucks or machinery.

Excluded secondary materials could

also be stored in tanks that are not

located inside buildings. Such tanks are

often used for receiving shipments of

70962 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules

bulk material from trucks or rail cars. A

tank (as defined in § 260.10) subject to

this exclusion would have to be

structurally sound, and have a roof or

cover that prevents wind or water

dispersal.

Outside storage of secondary

materials in containers at generating

facilities would also be allowed, with

some restrictions. Such containers

would have to have lids or covers to

prevent dispersal of the contents, and be

constructed of metal or other rigid

materials. This last requirement is

intended to prevent the use of

supersacks or similar types of containers

for outside storage. This is because

supersacks are to some extent porous,

and do not have sealed openings. They

are not waterproof or airtight, and can

rupture if mishandled. EPA believes

that this type of container does not offer

secure enough storage under outside

conditions, and so is proposing not to

allow their use for outdoor storage of

excluded materials.

EPA believes that the proposed

conditions on storage of excluded

hazardous secondary materials at

generator facilities would be protective

of human health and the environment.

However, we recognize that the

proposed conditions do not address

every possible circumstance that could

lead to releases of these materials at a

generator’s facility. The same can be

said, of course, for permitted hazardous

waste management facilities. An

example might be an accident during

loading or unloading of material that

causes spillage or wind dispersal, and

(at least potentially) contamination of

soils. In all cases, unless the owner/

operator of the facility responds

immediately to clean up the released

material, these situations would be

considered an act of discard under

RCRA. Such materials would then be

considered waste (i.e., the conditional

exclusion would not longer apply), and

the owner/operator would potentially be

subject to enforcement action for illegal

disposal of hazardous waste. EPA

invites comment on all aspects of

today’s proposed storage requirements

for generators.

One-time notification. The proposed

rule would require generators of

excluded hazardous secondary materials

to submit a one-time notice

(§ 261.(4)(a)(20)(ii)(B)) to the EPA

Regional Administrator (or the state

Director in an authorized state)

identifying the name, location and EPA

ID number of the generating facility, and

the type (e.g., brass foundry dust) and

estimated annual volume of material

that is expected to be excluded under

these fertilizer recycling regulations.

This condition is intended to enable

regulatory agencies to readily identify

the generators who supply (or intend to

supply) excluded secondary materials to

zinc fertilizer producers. If the generator

anticipates shipping excluded materials

off-site, the generator would also have to

certify in the notice that he will only

ship excluded materials to states that

are authorized to administer these

regulations (i.e., if that state were not

authorized, the material would not be

excluded in that state and would have

to be managed as hazardous waste in

that state).

With regard to off-site shipments, the

DOT requirements for transportation of

hazardous materials (which generally

involve proper identification of such

materials in case of emergency

incidents) could potentially apply. The

shipments would not be subject to

RCRA manifest requirements (since the

materials would not be hazardous

wastes), although similar shipping

papers would be required for tracking

purposes, as discussed below.

This proposed reporting requirement

is generally analogous to the current

requirement for generators of excluded

secondary materials that are placed on

the land (see § 268.7(a)(7)), which

requires the generator to place a similar

one-time notice in the generator

facility’s on-site files. However, the

proposed requirement should have the

effect of enhancing regulatory agencies’

tracking and oversight capabilities,

since the information would be

submitted directly to the overseeing

agency, rather than being maintained in

the facility’s files.

EPA considered alternatives to this

one-time notice requirement, such as

requiring periodic (e.g., yearly, or once

every five years) notices, or a new notice

whenever a significant change occurs,

such as process changes that could

change the product’s composition. The

one-time notice is consistent, however,

with similar conditional exclusions

(e.g., for comparable fuels—see

§ 261.38(c)(1)(i)(A)), and it is not clear

that additional notices from generators

would be necessary for regulatory

oversight purposes. We solicit comment

on the need for a one-time notice to the

regulating agency, as well as the content

and frequency of this reporting

condition.

Recordkeeping. Today’s proposal

would require generators to maintain

records of all shipments of excluded

hazardous secondary materials for a

minimum of three years. These

proposed recordkeeping conditions

should enable regulatory agencies to

more easily investigate shipments of

excluded materials for compliance and

enforcement purposes. We believe that

these recordkeeping conditions should

be generally consistent with normal

business recordkeeping practices, and

thus would not be expected to impose

significant additional paperwork

burdens on generators. We invite

comment on this issue.

As specified in § 261.4(a)(20)(ii)(C),

these records would have to identify for

each shipment the name of the

transporter, date of the shipment, the

quantity shipped and a brief description

of the excluded material in the

shipment, name and location of the

fertilizer manufacturer who received the

shipment, a notice to the receiving

manufacturer that the shipped materials

are subject to the conditions specified in

this rule, and documentation confirming

receipt of the shipment by the

manufacturer. These conditions are

analogous to the current requirements

for shipping hazardous wastes under

manifests and maintenance of manifest

records. Copies of manifests are

typically kept at the generator’s facility,

though some states require copies of

manifests to be submitted to the state

agency.

The proposed recordkeeping

conditions would require generators of

excluded hazardous secondary materials

to verify that each off-site shipment of

excluded material was received as

intended at the destination fertilizer

manufacturing facility. This is intended

to ensure a clear, documented chain of

custody between the generator and the

fertilizer manufacturer. In addition,

under the proposed conditions

generators would need to provide for

each shipment a notice to the receiving

manufacturer that the material is a

hazardous secondary material excluded

from hazardous waste regulations only

as long as certain conditions are met.

This is intended to ensure that

manufacturers are fully aware of the

regulatory status of each shipment of

material, the obligations associated with

receiving it, and the consequences of

failing to meet the exclusion conditions.

These conditions may have particular

implications for generators who ship

their wastes to or through middlemen,

such as waste brokers or transfer

facilities. The conditions are not

intended to prevent this practice—the

use of a middleman to facilitate

shipments from generator to fertilizer

manufacturer would be allowed,

provided that the manufacturer receives

the same wastes that the generator

shipped. If excluded wastes were to be

mixed with other materials, all of the

mixed materials would need to be

managed in accordance with the

exclusion conditions (or in accordance

Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules 70963

with Subtitle C requirements, if they

were mixed with hazardous wastes).

Other issues could arise with regard

to shipments of material through

middlemen. For example, a generator of

zinc fume dust might send secondary

material to a treatment facility that

recovers lead, with the treated material

then sent to a manufacturer of zinc

micronutrient fertilizer. As explained

below, under today’s proposal the

intermediate processor in this scenario

would be considered a manufacturer of

fertilizer ingredients, and would need to

meet the conditions applicable to

manufacturers in order to maintain the

excluded status of the secondary

material. If the processed secondary

material was still hazardous after the

intermediate processing (i.e., if it

exhibited a hazardous characteristic, or

if it would be considered a listed

hazardous waste were it not excluded),

the processor would be considered both

a manufacturer and a generator, and

would need to meet both sets of

conditions in order to maintain the

material’s excluded status. If the

processor rendered the material nonhazardous, however, the conditions for

generators would not apply to the

processor, since there would be no need

to further exclude the material.

Although we believe that a clear chain

of custody between generator and

fertilizer manufacturer is important to

maintaining the integrity and

effectiveness of today’s conditional

exclusion, we recognize that the

conditions described above could have

consequences for generators and other

entities that we have not yet fully

evaluated. For example, it is possible

that some intermediate handlers could

blend excluded hazardous secondary

materials with other bulk materials

before they are shipped to a fertilizer

manufacturer. In such a case the

blended material would all be subject to

the conditions in today’s proposal in

order to maintain the excluded status of

the material. This could create problems

for the intermediate handler (and

perhaps the manufacturer) in accurately

tracking the shipments of excluded

materials and maintaining the excluded

status of all such blended materials. We

therefore invite comment on this aspect

of today’s proposal having to do with

intermediate processors, as well as on

the other proposed conditions

(described above) that generators would

have to comply with to maintain the

excluded status of their secondary

materials.

iii. Conditions Applicable to

Manufacturers of Zinc Fertilizers and

Zinc Fertilizer Ingredients Made From

Excluded Hazardous Secondary

Materials. Today’s proposal specifies

certain conditions that manufacturers of

zinc fertilizers and zinc fertilizer

ingredients would need to meet in order

for hazardous secondary materials that

they handle at their facilities to be

excluded from regulation as hazardous

wastes. The following is a general,

simplified discussion of how

requirements for fertilizer

manufacturers would change under

these proposed rules, followed by a

more detailed explanation of each

proposed condition.

Permits. Currently, zinc fertilizer

manufacturers typically need RCRA

permits for storage of hazardous wastes

prior to recycling. Under today’s

proposal, a manufacturer would not be

subject to RCRA permitting

requirements, provided that the

manufacturer met the proposed

conditions.

Storage. Manufacturers who are

subject to RCRA permit requirements

under the current regulations need to

comply with specific requirements for

storage (e.g., in tanks or containers) at

permitted facilities. Under today’s

proposal, these storage requirements

would not apply; storage of excluded

hazardous secondary materials prior to

recycling would instead need to be

conducted according to the more

general, performance-based conditions

proposed today.

Transportation. Manufacturers must

now comply with manifest requirements

for shipments of hazardous wastes from

off-site, including procedural

requirements and those pertaining to

retention of manifest records. Under

today’s proposal, these transportation

requirements would be replaced with

less prescriptive conditions for

documenting and maintaining records

of shipments of excluded materials.

Reporting and Recordkeeping. Under

current regulations, manufacturers of

hazardous waste derived fertilizers

must: (a) Submit a notice of waste

management activity and obtain an ID

number (§ 262.11); (b) submit a one-time

notice and certification relating to

compliance with land disposal

restrictions (LDRs) standards (§ 268.7);

(c) notify the authorized agency of each

shipment of product made from

recycled hazardous waste (§ 268.7(b)(6));

and (d) submit biennial report

information (§ 264.75).

Under today’s proposal the

manufacturer would instead need to: (a)

submit a one-time notice to the

authorized agency; (b) maintain

shipping records; and (c) Submit an

annual report of recycling activity to the

authorized agency.

Applicability of conditional

exclusion. The proposed conditions

would apply to both manufacturers of

finished zinc fertilizer products, as well

as manufacturers of chemicals or

materials that are in turn used as

ingredients in zinc fertilizers. The

distinction between fertilizer

manufacturers and those who

manufacture fertilizer ingredients may

in this context be important for some

companies. In some cases, zinc refiners

or zinc metal producers that are not in

the business of making fertilizers may

manufacture chemicals (e.g., ZSM) that

are then sold to fertilizer manufacturers

as ingredients. Such producers are

currently subject to the UCD regulations

in the same way as zinc fertilizer

manufacturers, since they make a

product from hazardous waste that

ultimately is used on the land.

Similarly, some facilities may process or

reclaim hazardous secondary materials

(e.g., K061) to make them amenable for

recycling into zinc fertilizers; these

would also be considered

manufacturing facilities for the purpose

of this conditional exclusion. Note that

if the same processed or reclaimed

materials are used for other purposes

than to make zinc fertilizer, the

conditional exclusion would not apply

(and would probably not be needed

unless the materials are used for some

other purpose subject to UCD regulatory

requirements).

In the situations described above

involving manufacturers of zinc

fertilizer ingredients, it is possible that

in some cases the manufacturer of the

ingredient may sell the product to

another company, unaware that it will

be used to make fertilizer. We believe

that such cases will be rare, given the

relatively small size of the industry and

the limited number of uses for such zinc

products. We invite comment, however,

as to how common this scenario might

be and what impacts today’s proposed

regulations might have on business

transactions such as these.

For the reasons outlined above, EPA

believes today’s proposal should extend

to manufacturers of zinc fertilizer

ingredients, as well as to manufacturers

of finished fertilizer products. We invite

comment on this aspect of the proposed

rule, including the need for such a

provision, as well as information on

which companies or facilities might be

affected by such a provision, and any

implementation issues that might occur

as a result.

Storage. Under today’s proposal,

manufacturers of zinc fertilizers or

ingredients would need to meet the

same storage requirements for excluded

hazardous secondary materials that

70964 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules

3This objective is tempered by the specific goals

that such properly conducted recycling is expected

to achieve: increased waste minimization and

decreased land disposal. It could be argued that

because these fertilizers are placed on the land

(land disposal under section 3004(k)), the policy of

encouraging this type of recycling carries less

weight. Nonetheless, EPA believes the conditional

exclusion approach available to both secondary

material generators and fertilizer manufacturers will

encourage safe and legitimate use of these zinccontaining secondary materials, and that this result

is therefore in keeping with RCRA’s recycling goals.

would apply to the generators of such

materials (described above), as a

condition of the exclusion. Again, the

general intent of these storage

conditions is to ensure that the

materials are managed securely at

fertilizer manufacturing facilities, and

that releases of the materials into the

environment are avoided. EPA solicits

comments on the need for and approach

to these proposed storage conditions,

and specifically whether additional

conditions (e.g., controls on fugitive

dust emissions from production

buildings) may be necessary to ensure

adequate protections.

One-time notification. As a condition

of the exclusion, manufacturers would

also need to submit a one-time notice to

the authorized agency that identifies the

name and location of the manufacturing

facility, and estimated annual quantities

and types (e.g., generating industrial

processes) of excluded materials that are

expected to be used in zinc fertilizer

production. The intent of this one-time

notice is to provide regulators with

general knowledge of which

manufacturers intend to make use of the

conditional exemption, as well as

background information on the nature

and scale of their intended recycling

operations. This notice would in effect

replace and streamline the current

notification requirements for hazardous

waste recyclers who make products

used in a manner constituting disposal,

as specified in § 268.7(b)(6).

Under those requirements

manufacturers of hazardous waste

derived fertilizers must submit to the

overseeing agency an LDR certification

statement (see § 268.7(b)(4)), and certain

other information relating to compliance

with LDR treatment standards, for each

shipment of fertilizer products. While

we believe that it is reasonable and

desirable for regulatory agencies to be

informed as to which companies are

making zinc fertilizer from excluded

secondary materials and what materials

they intend to use, we do not believe

that it is necessary to require reporting

on every shipment of fertilizer products,

especially in light of the proposed

annual reporting requirement for

manufacturers (see following

discussion).

EPA considered alternatives to this

proposed one-time notice requirement,

similar to the alternatives described

above for the proposed one-time notice

requirement for generators. We solicit

comment on the need for a one-time

notice to the regulating agency, as well

as the content and frequency of this

reporting requirement.

Recordkeeping. Under today’s

proposal manufacturers would need to

retain for a minimum of three years

records of all shipments of excluded

hazardous secondary materials that

were received by the zinc fertilizer

manufacturer during that period

(§ 261.4(a)(20)(iii)(C)). These records

would need to include information

identifying the names and addresses of

the generators and transporters of

excluded wastes received by the

manufacturer, the date each shipment

was received, and information on the

types and quantities of excluded

materials in each received shipment.

This recordkeeping condition is also

intended to enhance the capability of

regulatory agencies to (when necessary)

account for shipments of excluded

secondary materials. We believe that the

condition is consistent with standard

business practices, and thus should not

be burdensome to fertilizer

manufacturers. We request comment as

to whether such a recordkeeping

provision is needed, on the impacts of

such a requirement, and on the

alternatives that might be available.

Annual report. Under proposed

§ 261.4(a)(20)(iii)(D), each zinc fertilizer

manufacturer who uses excluded

hazardous secondary materials would

need to submit to the appropriate

regulatory agency an annual report that

identifies the types, quantities and

origins of all such excluded materials

that were received by the manufacturer

in the preceding year. This would also

be a new type of report, intended to

ensure an adequate tracking and

accountability system for these

excluded materials. EPA requests

comment on this proposed condition,

particularly with regard to whether such

a requirement is necessary, and/or

whether additional information (e.g.,

material composition data) should be

required.

d. Alternatives Considered. EPA

considered several regulatory

approaches as alternatives to the

conditional exclusion approach

outlined in today’s proposed rule. For

each of the alternatives, EPA is

interested in the views of potentially

regulated entities and the public

regarding the costs, benefits and other

impacts of such alternatives. The

following is a description of the

alternatives considered:

• Maintain current regulatory

structure. EPA considered retaining the

current UCD regulatory approach for

zinc fertilizer recycling, as an

alternative to today’s proposed

conditional exclusion. As explained

previously, under the current

regulations hazardous secondary

materials that are recycled to make zinc

fertilizer are considered hazardous

wastes, and thus must be managed in

accordance with all applicable RCRA

Subtitle C regulations. Note that under

this regulatory option the LDR standards

for product contaminants could be

retained, or other product contaminant

limits (such as those proposed today)

could be applied, in which case the

limits would be regulatory standards,

rather than conditions for exclusion.

The main advantage of retaining

Subtitle C controls over these materials

prior to recycling into zinc fertilizer is

presumably the greater certainty that

they will be managed properly. The

RCRA permit requirement for off-site

storage (i.e., at the manufacturing

facility) additionally imposes facilitywide corrective action obligations on

the owner/operators of such facilities.

EPA believes that the disadvantages of

retaining the current UCD regulatory

structure for zinc fertilizer recycling

outweigh the potential advantages. The

Agency is persuaded that the current

UCD regulations have created

unnecessary impediments to safe and

legitimate recycling, as discussed

previously in this preamble. We also

believe that the conditional exclusion

proposed today would be protective and

would result in greater volumes of

hazardous secondary materials

legitimately and beneficially recycled

into valuable products. It must be

remembered that encouraging ‘‘properly

conducted recycling and reuse’’ is a

statutory objective. RCRA section

1003(a)(5).3 Further, today’s proposal is

expected to enhance government

oversight capabilities over these

practices through more complete

reporting and recordkeeping by

generators and fertilizer manufacturers.

EPA requests comment on the

alternative of retaining the current UCD

regulatory structure for hazardous

wastes that are used to make zinc

fertilizers.

• Maintain current UCD

requirements, with additional reporting,

recordkeeping and testing requirements

for all hazardous waste derived

fertilizers. Under this option the current

UCD regulatory framework would be

retained (i.e., management of hazardous

waste fertilizer feedstocks prior to

Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules 70965

recycling would be subject to RCRA

regulation), the K061 exemption would

be removed, and today’s proposed

fertilizer contaminant limits would

apply. More importantly, under this

regulatory alternative, expanded

biennial reporting requirements (see

§ 262.41) would be required for all

manufacturers of hazardous waste

derived fertilizers (not just zinc fertilizer

manufacturers), and the hazardous

waste generators that supply them. The

main objective of such expanded

requirements would be to collect much

more detailed information on zinc

fertilizer recycling practices, and

provide greater public access (as well as

access by regulatory agencies) to that

information. The following is an outline

of the expanded biennial reporting

requirements that would be required:

1. Applicability. Generators of

hazardous wastes being sent to fertilizer

manufacturers, waste brokers and

receivers [i.e., hazardous waste

treatment, storage or disposal (TSD)

facility owner/operators] who use

hazardous wastes to make fertilizers

would be subject to the enhanced

reporting, recordkeeping and testing

requirements.

2. General reporting requirements.

Generators and facility owner/operators

who are currently required to submit

biennial reports (see § 262.41) would be

required to submit additional

information in those reports, in

electronic format (consistent with

electronic reporting procedures that are

currently being developed by EPA).

Such information would include

(asterisk indicates items already

required):

—EPA ID Number *

—Company Name *

—Street Address *

—Mailing Address

—City, State, Zip *

—County

—Tax ID

—Contact Name and Title and

Telephone #, ext.*

—Dunn and Bradstreet Number

—Industry SIC Codes * (one code for the

overall production of the site and one

code for the specific industrial

process that generated the waste)

—Parent Company Name

—Parent Company Dunn and Bradstreet

Number

—Latitude and Longitude

—Regulatory Status (under what laws

reports are made)

3. Additional requirements for

generators (only):

—Type of waste (waste code) and

amount of total hazardous waste

generated and shipped for use in

fertilizer manufacture. If the waste is

made into fertilizer on-site by the

same company, this information

would be reported under the

‘‘receiver’’ section. If the facility does

not know how much might be used

for fertilizer (e.g., if they send it to a

waste broker) they would have to

report the total amount shipped that

could be made into fertilizer.

—EPA ID # of facility waste is shipped

to —Chemical specific information

(CAS code):

—Chemical composition data for

shipped wastes, including data on

concentrations as well as the total

weight of each contaminant in each

shipment of waste (see testing

requirements)

4. Additional requirements for

receivers (only):

—Type (waste code) and amount of

hazardous waste received from any

source (i.e., including waste brokers)

for use as fertilizer, and amount that

was actually used to manufacture

fertilizer.

—EPA ID # of waste generator facility

—Total amount of fertilizer produced

from hazardous waste

—Chemical specific information (CAS

code):

—Chemical composition data for

hazardous waste received, and for

finished fertilizer products made from

hazardous wastes (see testing

requirements)

—Fertilizer specific information: Brand

name, guaranteed analysis, type of

fertilizer, batch number and date

received.

5. Testing requirements. Chemical

analyses would have to be performed by

the generator and the facility owner/

operator on the types and amounts of

chemicals in hazardous wastes before

they are made into fertilizers, as well as

the finished fertilizer products.

Chemicals to be tested for would

include: arsenic, beryllium, cadmium,

cobalt, chromium-6, lead, manganese,

molybdenum, zinc, boron, antimony,

barium, nickel, copper, aluminum, iron,

selenium, sodium, silver, magnesium,

strontium, thallium, titanium,

vanadium, cyanide, chloride, benzene,

toluene, xylene, styrene, ethylene

glycol, phenol, aldehydes

(formaldehyde), vinyl chloride,

chlorinated hydrocarbons (including

trichloroethylene, perchlorethylene,

1,1,1 trichloroethane, methylene

chloride, and chloroform), phthalates,

dioxins and furans, PACs, PCBs,

hexachlorobenzene, radioactivity,

fluoride, and ketones.

6. Data management. The data would

be accessible to the public in hard copy

form and maintained in a searchable

database accessible through the EPA

Web Site. This database would also

need to be accessible and available in

electronic form (i.e., on diskette or CD).

7. Labeling. Labels (i.e., on consumer

product packaging) or product

disclosure documents (i.e., for farmers)

would identify that the fertilizer is made

from hazardous waste. The labels and

documents would also identify the

chemical composition of the fertilizer,

including concentrations of plant

nutrient chemicals and regulated

contaminants.

EPA requests comment on this

regulatory alternative. Specifically, EPA

is interested in the views of affected

entities and the public on the need for,

potential impacts of, and incremental

benefits of each requirement in this

alternative compared with the other

options discussed in the preamble.

• Exclusion without conditions. EPA

also considered the option of simply

excluding from the definition of solid

waste hazardous secondary materials

that are recycled to make zinc fertilizer.

Recycling such materials to make zinc

fertilizer would then be regulated the

same as recycling them to make other

types of zinc products, such as animal

feed or zinc metal for galvanizing. This

option would not include regulatory

contaminant limits for fertilizers, since

other recycled zinc products do not

have such limits.

One rationale for this regulatory

option would be that hazardous wastes

used to make zinc fertilizers do not need

to be regulated under RCRA Subtitle C,

since they have commodity value and

are essentially the same as alternative,

non-hazardous feedstock materials. It

could be further argued that restrictions

on managing hazardous feedstock

materials are unnecessary, since the

original concern behind the UCD

regulations had more to do with

uncontrolled use of contaminated

products on the land than management

of feedstock materials prior to recycling.

EPA does not prefer this regulatory

option, for several reasons. Damage

cases involving mismanagement of

hazardous zinc fertilizer feedstocks are

evidence of the need for some system of

controls over these materials. In

addition, eliminating all reporting,

recordkeeping or storage requirements

would compromise the ability of

regulatory agencies (and others) to

monitor these recycling practices. EPA

does not believe that eliminating

virtually all controls and accountability

over hazardous waste fertilizer

feedstocks would serve the public’s (and

regulators’) interest in ensuring proper

management of these materials. These

70966 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules

4EPA notes that, in a recent Federal Register

preamble, the Agency may have implied that RCRA

section 3008(h) authority ceases whenever a

facility’s application for a permit has been denied.

See, 63 FR 56712 & 56716 (October 22, 1998). The

Agency, however, did not intend by that notice to

opine on the scope of the Agency’s authority under

section 3008(h). The statements reflect the Agency’s

general practice of ensuring that any necessary

corrective action has been completed prior to

denying a permit application. Where cleanup has

been completed prior to permit denial, further

action under section 3008(h) is obviously

unnecessary.

factors argue convincingly, in our

opinion, for maintaining enforceable

conditions over hazardous secondary

materials prior to recycling into

fertilizers. Nevertheless, we request

comments on this alternative, including

information on tradeoffs between the

level of regulation and the potential for

risks.

e. Implementation and Enforcement.

Implementation. If finalized, today’s

proposed conditional exclusion for

hazardous secondary materials could

have important implications for

facilities that are currently in this

business and are subject to the UCD

hazardous waste regulatory

requirements. As a general matter, once

the regulatory changes become effective

and facilities begin complying with the

exclusion conditions, the affected

activities of those facilities (some

facilities might be managing hazardous

wastes that are not affected by this rule)

would no longer be subject to hazardous

waste management regulations.

Under this proposal, a RCRApermitted facility that is now managing

hazardous waste, but which under the

new rules would be managing only

excluded hazardous secondary

materials, would not be required to

maintain the operating portion of its

permit, since it would no longer be

engaged in hazardous waste

management. In these cases the permit

should be modified to reflect the

changes in the facility’s hazardous

waste management operations. The type

of modification necessary will depend

upon facility-specific circumstances, as

described below.

For permitted facilities that manage

excluded secondary materials in

addition to regulated hazardous wastes,

changes to the facility’s permit would be

relatively minor. These facilities would

still need operating permits—only those

units used solely to manage excluded

materials would be relieved of

permitting requirements. In this case,

the facility owner/operator might seek a

permit modification to remove the

formerly subject unit(s) from the permit.

As mentioned above, a permitted

facility that would no longer be

considered a hazardous waste

management facility (e.g., a facility that

now managed only excluded hazardous

secondary materials) would no longer

need a hazardous waste operating

permit. However, where such a facility

has not yet completed facility-wide

corrective action (see 40 CFR 264.101),

the obligation to conduct such cleanup

continues. Therefore, one approach

would be to modify the permit to

remove the requirements applicable to

hazardous waste storage, but not to

eliminate the corrective action portion

of the facility’s permit. In such a case,

the facility would thereafter have a

corrective action-only-permit that

would expire only when facility-wide

corrective action is determined to be

complete.

A similar situation could occur in the

case of permits that have long-term

‘‘post-closure’’ requirements for

monitoring or remediating groundwater

contamination from RCRA-regulated

units such as landfills. In cases like

these the authorized agency would also

have the option of eliminating only the

provisions of the permit relating to the

affected storage units holding excluded

materials at the facility, while leaving in

effect the permit conditions for postclosure care.

EPA recognizes that there may be

practical issues associated with

transitioning a RCRA-permitted facility

to a facility that no longer would be

subject to hazardous waste regulations

under the provisions of today’s

conditional exclusion. One issue in

particular could be that the terms of the

facility’s permit (a legally enforceable

document) would technically remain in

effect until the authorized agency took

action to modify or terminate the

permit. Such permit conditions could

include unit-specific requirements (e.g.,

design, operating and closure

requirements for storage tanks), as well

as general facility requirements such as

financial assurance, security and

personnel training. This could

potentially put the owner/operator (and

the authorized agency) in the awkward

situation of being subject to two sets of

overlapping and inconsistent regulatory

requirements, that is, the hazardous

waste permit requirements and the

conditions of today’s proposed rule.

Current RCRA regulations do not

provide an explicit mechanism for

automatically eliminating permit

conditions in these situations. We

expect that such situations would be

temporary and relatively rare, and an

authorized agency should be able to

deal with them in a common-sense

manner, without legal difficulties. It is

possible, however, that some problems

could arise under some circumstances.

EPA is therefore considering (and

solicits comment on) whether a more

explicit regulatory provision is

necessary to address these potential

transition issues.

One approach to more explicitly deal

with this issue might involve amending

the current permit requirements in 40

CFR Part 270 to specify that permit

conditions pertaining to any active

hazardous waste management activity at

a facility in this type of situation would

automatically be eliminated, without

the need for any action on the part of

the authorized agency. Such a

regulatory amendment would not

relieve owner/operators of permit

obligations that do not pertain to active

hazardous waste management in the

unit in question, such as corrective

action requirements. Alternatively,

permit termination could be

accomplished through the Class I permit

modification process (§ 270.42(a)).

A facility that is operating under

RCRA interim status would be affected

by promulgation of today’s proposed

rule in much the same way as permitted

facilities, and the issue of corrective

action would be addressed in a similar

manner. In this case, Part 265 interim

status standards that apply to the

affected unit and the general facility

standards would be moot and no longer

in effect. Under RCRA regulations,

however, cessation of hazardous waste

operations alone does not eliminate a

facility’s interim status. See 40 CFR

270.73. A facility that wishes to no

longer be in ‘‘interim status’’ could seek

a denial of its pending permit

application. Since the Agency believes

it appropriate to ensure that corrective

action is addressed prior to denying a

permit under these circumstances, we

would expect to grant the denial only

when we concluded that corrective

action obligations have been satisfied 4.

In addition to the above described

issues relating to permits and corrective

action, today’s proposed rule may also

have implications with regard to closure

of hazardous waste storage units at

affected facilities. If today’s rule were

finalized, wastes currently managed as

hazardous wastes would no longer be so

classified as long as the facility

complies with the proposed exclusion

conditions. Such a conditional

exemption could be read as triggering

the existing closure requirements, since

owners/operators of non-land based

hazardous waste units (e.g., tanks,

containers, containment buildings) must

begin closure within 90 days of

receiving the unit’s final volume of

hazardous wastes. 40 CFR 264.113(a)

and 265.113(a).

Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules 70967

EPA is concerned that requiring

closure of units in these situations

would serve little environmental

purpose since, after closure, the unit

would be immediately reopened and be

used to store the same (now excluded)

material. It should also be noted that,

under today’s proposal, units storing

excluded materials would be considered

essentially the same as similar units

used to store products. Thus, we do not

believe that requiring these particular

units to close through RCRA Subtitle C

procedures is necessary to protect

human health and the environment.

For these reasons, EPA is considering

an explicit regulatory exemption from

RCRA closure requirements for units

that store hazardous wastes that

subsequently become conditionally

excluded under this rule. EPA’s closure

regulations fit into the broader RCRA

hazardous waste ‘‘cradle-to-grave’’

management system by minimizing or

eliminating potential threats to human

health and the environment and the

need for future corrective action at the

site after active hazardous waste

management activities cease. See 52 FR

8712, 8713. The Agency is today

proposing that hazardous secondary

materials do not warrant classification

as hazardous waste when managed in

compliance with the specified

conditions of today’s rule, and that

storage units containing excluded

materials do not warrant regulation

under the closure standards when they

cease storing hazardous wastes. We

therefore request comment as to

whether a more explicit regulatory

exemption from RCRA closure

requirements may be appropriate for

units that once stored hazardous wastes

but now store only conditionally

excluded materials.

Another option would be to treat such

units comparably to those at generator

facilities that cease managing hazardous

wastes. When this occurs such storage

units are subject to unit-specific

removal and decontamination standards

(40 CFR 262.34(a)). Under this option, a

hazardous waste storage unit that

subsequently is used to store only

excluded material would have to meet

the removal and decontamination

standards at the point when the unit no

longer is used to manage excluded

materials. EPA does not favor this

approach, however, since we do not

believe it necessary or appropriate for

such RCRA regulatory requirements to

remain in effect (for what could be a

long period of time) after such a unit

ceases managing hazardous wastes. In

addition, any concerns about hazardous

waste spills and contamination from

these units would be dealt with through

corrective action requirements.

Therefore, EPA is not proposing this

approach.

Finally, EPA is also considering

revising the ‘‘delay of closure’’ rules, set

forth at 40 CFR 265.133(d) and (e), to

allow units storing only conditionally

exempt wastes to postpone closure until

the unit is taken out of service. Such an

approach would involve certain

procedural steps built into the delay-ofclosure rule, but it would avoid

triggering closure for units that are

managing now conditionally exempt

waste, while at the same time requiring

that such units eventually undergo

formal RCRA closure under Subtitle C.

EPA questions the need for this

approach, however, especially since the

delay of closure regulations are based on

the assumption that hazardous waste

remains in the closing unit, which is not

the case here.

EPA requests comment on all of the

implementation issues described above.

Enforcement. With regard to

generators and fertilizer manufacturers

who would be interested in making use

of the conditional exclusion provisions

of today’s proposed rule, it should be

understood that failure to meet one or

more of the conditions specified in the

rule could have serious consequences.

Each condition must be met in order to

maintain the excluded status of the

hazardous secondary materials used to

make zinc fertilizers. Thus, failure to

meet any of the conditions would have

the effect of removing the exclusion,

and the secondary materials would be

considered hazardous wastes subject to

regulation under RCRA Subtitle C. If, for

example, a fertilizer manufacturer failed

to store hazardous secondary materials

according to the conditions in the rule,

the manufacturer could be required to

obtain a RCRA permit, and begin

managing the waste materials according

to applicable hazardous waste

regulations. As a general matter, if a

facility’s conditional exclusion were to

be revoked under circumstances like

these such an action would typically not

affect the excluded status of the material

before it was received at the

manufacturer’s facility. In other words,

in the above example the generator of

the material would typically be allowed

to retain the excluded status of the

material at the generating facility,

provided that the generator continued to

meet the applicable conditions.

An owner/operator of a generating or

manufacturing facility who chooses to

use the exclusion would need to be able

to demonstrate to the appropriate

regulatory agency that the conditions

are being met. Thus, for the purpose of

clarity, proposed § 261.4(a)(21)(iv)

specifies that in an enforcement action

the facility owner/operators claiming

the exclusion would bear the burden of

proof with regard to demonstrating

conformance with the conditions

specified in the rule.

It should be noted that for fertilizer

manufacturers the proposed exclusions

in today’s rule would apply only to the

secondary materials being recycled and

to the finished fertilizer products.

Manufacturers (or intermediate

processors) would not be relieved of the

existing obligation to make a hazardous

waste determination for all wastes

generated from the fertilizer

manufacturing process. Under current

regulations, any such wastes that exhibit

a hazardous waste characteristic would

have to be managed in accordance with

all applicable hazardous waste

regulations.

EPA requests comment on these

enforcement issues.

C. Conditional Exclusion for Zinc

Fertilizers Made From Hazardous

Wastes or Excluded Hazardous

Secondary Materials

As mentioned previously, under

current regulations manufacturers of

zinc fertilizers made from recycled

hazardous wastes must comply with the

following requirements for the

manufactured fertilizer products: (a)

The fertilizer must meet the applicable

LDR treatment standards before they

may be used (§ 268.40), and (b) notice of

each shipment of product must be

submitted to the authorized agency

(§ 268.7(b)(6)). Under today’s proposal

manufacturers would need to: (a) meet

the proposed technology-based

contaminant limits, and (b) maintain

analytical data and analyses

demonstrating compliance with the

limits. The following is a more detailed

discussion of today’s proposed

conditions.

1. Contaminant Limits

As discussed previously in this

preamble, the current regulations

require fertilizers made from recycled

hazardous wastes to meet the LDR

treatment standards applicable to the

hazardous wastes which they contain.

This applies to hazardous waste-derived

products made from characteristic

hazardous waste, even if the product no

longer exhibits a hazardous waste

characteristic. Chemical Waste

Management v. EPA, 976 F.2d2, 12–14.

The LDR standards also apply to

fertilizers made from listed hazardous

wastes, with the exception of those

made from K061, as discussed

elsewhere in this preamble. Under

today’s proposal, these LDR treatment

70968 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules

standards would be replaced with a new

set of product specification contaminant

limits for metals and dioxins. These

contaminant limits would apply to zinc

fertilizer products in their ‘‘pure’’ or

manufactured form; in other words,

before they are blended with other types

of fertilizers prior to application. Thus,

compliance with the standards could

not be achieved simply by diluting a

conditionally excluded zinc fertilizer

with other products, such as primary

nutrient (nitrogen, phosphorous or

potassium) fertilizers.

It should also be noted that the

proposed product specification limits

would apply to manufacturers of zinc

fertilizer products, but would not apply

to manufacturers of fertilizer

ingredients. The reason for this is that

ingredient manufacturers who use

excluded hazardous secondary materials

would likely not be able to control the

content of the end product that is sold

as fertilizer. We believe that meeting the

proposed product specifications should

be the responsibility of the product

manufacturer; requiring manufacturers

of fertilizer ingredients to meet the

specification limits would likely be

duplicative and unnecessary. We

understand, however, that in some cases

fertilizer ‘‘manufacturers’’ may buy ZSM

(or other zinc compounds) in bulk from

zinc chemical suppliers, and simply

package it and market it as fertilizer. In

these situations it might make sense to

require the company that actually

manufactured the product to

demonstrate compliance with the

proposed exclusion conditions. We

invite comment on this issue.

a. Product Specifications for NonNutritive Metals in Conditionally

Excluded Zinc Fertilizers. Today’s

proposal would establish product

specifications (i.e., contaminant

concentration limits) for non-nutritive

metals as a condition for excluding from

the RCRA definition of solid waste zinc

fertilizers that are made from excluded

hazardous secondary materials. The

proposed specifications are based on

contaminant levels that have been

demonstrated to be technically (and

economically) achievable, that will

reduce the volumes of heavy metals

applied to agricultural lands from these

products, and that are protective of

human health and the environment. The

approach used to develop these

proposed contaminant limits is

described in detail below.

The proposed standards for metal

constituents in conditionally excluded

zinc fertilizers are:

Metal constituent

Maximum

allowable

total concentration in

fertilizer, per

unit (1%) of

zinc (ppm)5

Lead .......................................... 2.8

Cadmium .................................. 1.4

Arsenic ...................................... 0.6

Mercury ..................................... 0.3

Nickel ........................................ 1.4

Chromium ................................. 0.6

5A zinc unit in this context represents one

percent (by weight) of zinc in the fertilizer

product that is applied to the land. Thus, for

example, an excluded fertilizer containing 10%

zinc could contain no more than 28 ppm of

lead.

These contaminant limits are

expressed as total concentrations of the

metal in the zinc fertilizer product. This

is in contrast to the current LDR

standards, which are expressed as levels

in a leachate extract, using the ‘‘toxicity

characteristic leaching procedure

(TCLP).’’ See 63 FR at 28609 (May 26,

1998) (noting that total concentration

limits are often the more appropriate

measure for minimizing threats posed

by uses constituting disposal, in light of

exposure pathways other than leaching

to groundwater); Association of Battery

Recyclers v. EPA, 208 F.3d, 1047, D.C.

Circuit 2000 (noting special risks posed

by use constituting disposal situations).

We believe that establishing these limits

as total concentrations, rather than as

concentrations in leachate, is more

appropriate for the purpose of today’s

rulemaking.

For wastes containing hazardous

metal constituents, compliance with

LDR standards typically requires adding

some type of stabilizing material to the

waste (such as concrete), thereby

reducing the leachability of the metal

contaminants once the waste is

disposed in a landfill. Stabilization is

obviously an impractical way to limit

contaminants in zinc fertilizers, since

the zinc content of the fertilizer would

also be stabilized, and thus would be

useless as fertilizer. In addition, the

TCLP was intended to simulate the fate

and transport of hazardous constituents

in a municipal landfill, a scenario quite

unlike fertilizer application to

agricultural land. For these reasons, the

Agency believes that standards for total

concentrations of contaminants in

fertilizers are more appropriate for this

rule than standards based on a leachate

test. Comments are solicited on this

aspect of today’s proposal.

The product specifications in today’s

proposal specify maximum allowable

concentrations in conditionally

excluded zinc fertilizer for six metals:

lead, cadmium, arsenic, mercury,

nickel, and chromium. Although the

Agency considered setting standards for

other metals (e.g., selenium, beryllium

and vanadium), we did not have

sufficient data on levels of such metals

in ZSM fertilizers to establish numerical

standards for them, nor are we aware of

evidence of such metals in any

appreciable amounts in zinc fertilizers.

The Agency solicits additional data on

metals concentrations in ZSM

fertilizers, including metals for which

we are not proposing standards, and on

the associated risks that such metals

pose in fertilizers under typical

application scenarios.

At this time, we believe that

establishing standards for the six metals

listed above should be sufficient for the

purpose of this rulemaking. Several

recent studies report that the primary

metals of concern for fertilizers are lead,

cadmium and arsenic. In fact, a recent

screening study done by the State of

California concluded that only those

three metals are found in fertilizer

products at levels that merit regulation

under California law. (‘‘Development of

Risk Based Concentrations for Arsenic,

Cadmium and Lead in Inorganic

Commercial Fertilizers’’; California

Department of Food and Agriculture,

March 1998). Today’s proposal

addresses the three additional metals

generally because they were specifically

highlighted in the settlement agreement

discussed earlier in this preamble. In

any case, because of the chemical

purification processes that are used to

manufacture ZSM, it is highly likely

that fertilizers which meet the

specifications for lead, cadmium and

arsenic would also meet the

specifications for these additional

metals, without the need for additional

processing.

Since the current RCRA standards for

metal contaminants in fertilizers are

expressed as concentrations in leachate

(measured according to the TCLP), and

today’s proposed constituent limits are

expressed as total concentrations in the

fertilizer product, comparing the two

sets of limits with regard to their

‘‘stringency’’ is not entirely

straightforward. The main reason for

this is that, using the TCLP, not all of

the metals in a given test sample are

actually extracted or leached, especially

those that are relatively non-soluble.

Perhaps the simplest way to compare

the numbers, however, is to assume that

100% of the metals in a TCLP sample

become dissolved in the tested leachate.

Since the acidic test medium used in

the TCLP dilutes the concentration of

the metals by a factor of twenty, the

maximum total concentration of metals

Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules 70969

6Other zinc fertilizers have lower zinc contents

and would, therefore, have proportionally lower

exclusion levels.

7Note that the exclusion levels listed in the table

would be lower for a fertilizer that contained less

than 35.5% zinc. For example, the limit for lead in

a 20% zinc fertilizer would be 56 ppm (i.e., 2.8 ×

20).

in a given sample can be assumed to be

twenty times the TCLP leachate

concentration.

Thus, under the assumption that

100% of the metals are leached, the

maximum contaminant level for a toxic

metal in fertilizer would be twenty

times the toxicity characteristic limit.

For lead, for example, this would be 100

ppm (5 ppm × 20) total concentration.

In reality, of course, the concentration of

lead in an actual tested fertilizer sample

would likely be considerably higher

than 100 ppm, since it is likely that not

all of the lead in the sample would

leach. The following is a comparison of

today’s proposed conditional limits for

metals in 35.5% zinc fertilizer (the

typical zinc content of most dry ZSM

fertilizers 6), and the highest levels that

would be allowed under the current

regulations using this very conservative

approach to comparing leachate levels

to total concentration levels 7.

Metal

Proposed

exclusion

levels

(35.5%

zinc), mg/kg

dry wt.

20 × TCLP

limit, mg/kg

dry weight

Arsenic .............. 21.3 100.0

Cadmium .......... 49.7 20.0

Chromium ......... 21.3 100.0

Lead .................. 99.4 100.0

Mercury ............. 10.7 4.0

Nickel ................ 49.7 (1)

1 No limit.

Using this simplistic comparison

method, most of the proposed exclusion

levels are at or below the maximum

levels allowed by the current

regulations. The proposed levels for

cadmium and mercury exceed the

worst-case TCLP standards, but are well

within the same order of magnitude,

and could be lower than what is

actually allowed under the current

standards, depending on the

leachability of the metals in the tested

fertilizers. Thus, EPA considers the

exclusion levels proposed today to be

more stringent than the existing

standards, for the purpose of state

authorization (see discussion in Section

VII of this preamble). EPA requests

comments on the incremental benefits

to having more stringent standards, as

well as the costs of such an approach.

Note that fertilizer manufacturers would

always have the opportunity to continue

using current standards.

The proposed product specifications

are expressed as concentrations of

metals in product, per unit of zinc. In

this case one unit of zinc equals one

percent. The primary reason for

expressing the standards in this way is

that the zinc content of fertilizers varies

widely. If the standards were not tied to

the percentage of zinc in the product,

fertilizers with low zinc content could

much more easily comply with the

standards due to the dilution effect of

the other materials in the fertilizer. EPA

requests comments on the relative

merits of basing exclusion levels on zinc

concentrations versus the total product

content.

For reasons explained below, the

Agency has decided to base today’s

proposed product specifications for

metals in conditionally excluded zinc

fertilizers on the levels that have been

demonstrated as technically (and

economically) achievable in ZSM

fertilizers. See § 261.38 (specifications

for toxic constituents in fuels based on

levels in commercial fossil fuels). ZSM

is a common, commercially available

product manufactured by several

companies in the United States and

elsewhere. It can be made from

hazardous waste feedstocks, as well as

a variety of non-hazardous raw material

or secondary material feedstocks. ZSM

fertilizers are marketed in solid

(granular or powdered) form or in a

liquid solution. Since zinc fertilizer is

applied sparingly to agricultural land

(i.e., a few pounds per acre per year), it

is almost always blended with other

fertilizers before application, either by

manufacturers or in the field by

fertilizer applicators. It should be noted

that ZSM is also widely used as an

animal feed supplement, and can be

used as an ingredient in a variety of

consumer products as well.

In recent years there has been a

marked increase in manufacturing

capacity of ZSM fertilizers, combined

with a downward trend in production of

oxy-sulfates made from K061 and other

materials. For example, one major

manufacturer (Bay Zinc of Moxee, WA),

citing changing market conditions,

recently changed its manufacturing

process to begin producing a line of

ZSM products, and is phasing out its

production of other types of zinc

fertilizers. The manufacturing process

for ZSM involves a series of chemical

purification steps that remove the great

majority of non-nutritive metals. This is

generally not the case for other types of

zinc fertilizers, such as oxy-sulfates

made from recycled K061. Thus, the

concentrations of non-nutritive metals

in ZSM are typically much lower than

in other types of zinc fertilizers. To

illustrate, several manufacturers

guarantee a lead content in ZSM

fertilizers (35.5% zinc content) of less

than 50 ppm, while lead concentrations

in K061-derived fertilizers (which often

have lower zinc content) are often above

10,000 ppm.

The proposed concentration limits for

metals in conditionally excluded zinc

fertilizers are based on the Agency’s

analysis of ZSM contaminant data from

a number of different sources, and

represent products marketed at the time

of sampling by at least nine different

companies. The concentration limits

were calculated to include a small

margin to account for variabilities in the

manufacturing process. A summary of

available data on contaminant levels in

ZSM products is included in the record

for today’s proposal.

By basing today’s product

specifications on contaminant levels

that can be routinely and reliably

achieved in ZSM fertilizer products, the

Agency in effect is using a technologybased approach to setting specifications

for these products. The proposed

specifications are not intended to

represent the very lowest levels of

contaminants that could technically be

achieved. Rather, they are intended as a

reasonable measure of fertilizer product

quality from both a commercial and

environmental standpoint. It is entirely

possible that some manufacturers could

achieve significantly lower levels than

those proposed today—for example, the

average lead levels in ZSM (35.5% zinc)

made by at least two different

manufacturers typically do not exceed

10 ppm, while the proposed standard

would be approximately 100 ppm of

lead. For the purpose of this

rulemaking, however, the Agency does

not believe that it is necessary from an

environmental perspective to set

standards based on the very lowest

levels that may technically be achieved.

We do not believe that levels below

those proposed would result in any

significant gain in environmental

protection. In addition, establishing

more stringent standards for metal

contaminants could force some

manufacturers to make substantial

additional investments to ensure that

the standards were met. As discussed

further in section VIII.A of this

preamble, this could result in

unnecessary dislocations in the zinc

fertilizer market, and could raise the

prices that farmers must pay for zinc

fertilizer, with virtually no

commensurate environmental benefit.

EPA also acknowledges the possibility

that the proposed product specifications

70970 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules

8 It is possible, of course, that excessively high

rates of fertilizer application could result in risks

of concern. We do not believe, however, that this

is a realistic scenario, since zinc fertilizers are

purchased as a commodity, and that is thus a strong

incentive not to overuse such products. A massive

over-application of such fertilizers could in some

circumstances be considered a type of ‘‘sham

recycling’’ since it could be inferred that such use

is more akin to disposal than beneficial use of

fertilizer. See Marine Shale Processors v. U.S., 81

F 3d 1371, 1381–83 (5th Cir. 1996) (sham recycling

when material is used in excess of what is needed,

or where hazardous constituents are present in

concentrations unrelated to ostensible recycling

purpose).

for metal contaminants may not

sufficiently account for process

variabilities, and could thus be

unnecessarily stringent. The proposed

specifications were based on a

qualitative assessment of the variability

of contaminant levels in ZSM fertilizers;

for each metal the specification was set

at slightly above the ‘‘high end’’ range

of concentration levels, based on

available data. For example, the

distribution of lead levels in ZSM

(35.5% zinc) indicates that most

samples contained well below 50 ppm

lead, with a few samples in the 80 to 90

ppm range. The proposed specification

for lead in such products would be

approximately 100 ppm, to account for

such variabilities.

Some ZSM manufacturers have

argued that significantly higher limits

(e.g., 500 ppm lead) should be

established to account for these

variabilities (‘‘Land Application of

Hazardous Waste Derived Micronutrient

Fertilizer,’’ Bay Zinc Company and

Tetra Technologies, Inc., November 19,

1999). The Agency solicits comment

(and supporting data) as to whether the

proposed product specification limits

for metals are unnecessarily stringent,

and what alternative contaminant

concentration limits may be more

appropriate for this rulemaking.

Alternatives Considered. The Agency

examined several different approaches

to setting limits on metals in

conditionally excluded zinc fertilizers.

These included: (a) Developing new

risk-based limits specifically for

fertilizers; (b) using the EPA standards

for biosolids applied to agricultural land

under section 405 (d) of the Clean Water

Act (codified at 40 CFR Part 503); (c)

using the proposed standards for

contaminants in cement kiln dust used

as a liming agent; (d) using the Canadian

fertilizer standards; and (e) developing

contaminant limits based on

background soil concentrations. These

alternatives are discussed in more detail

below.

• Risk-based standards. Risk

assessment is a tool often used by the

Agency to set standards aimed at

limiting the adverse effects of chemicals

that are (or may potentially be)

introduced into the environment. One

benefit of such an approach is that it is

subject to a rigorous peer review

process. However, risk assessments to

support regulatory standard setting can

be time and resource intensive.

As mentioned in Section II.A of this

preamble, in response to public

concerns about possible risks from

contaminants in fertilizers, EPA

developed a risk assessment for

contaminants in a wide range of

different types of fertilizers. This

assessment was released in August,

1999. A major finding of that assessment

was that, with a few exceptions, the

contaminant levels found in fertilizer

products are not expected to cause risks

of concern. However, this risk

assessment was not intended to support

development of risk-based fertilizer

standards, and there are a number of

uncertainties in the analysis that would

need to be addressed if it were to

withstand the rigorous technical

scrutiny involved in supporting national

regulatory standards. For this proposed

rule the Agency has chosen not to

conduct the additional data gathering

and analyses that would be needed to

augment the fertilizer risk assessment in

this way, given the time and resources

that would be required to complete such

an effort. Moreover, we do not think it

necessary, given the conclusion from

several different analyses (see section

II.A. of this preamble) that hazardous

contaminants in fertilizers generally do

not pose unacceptable risks to human

health and the environment, even at

relatively high rates of application.8

EPA believes that risk-based

contaminant limits for this rulemaking

could potentially allow substantially

higher levels of contaminants in

excluded zinc fertilizers than are

currently found in such fertlizers. To

illustrate, proposed guidelines recently

considered by the Association of

American Plant Food Control Officials

(AAPFCO), which have since been

withdrawn, specified risk-based limits

for toxic metals in fertilizers that would

have allowed, for example, up to 26,000

ppm lead in zinc (35.5%) fertilizer (draft

SUIP #25, AAPFCO, January 2000). In

contrast, levels of lead in ZSM fertilizers

rarely exceed 100 ppm. For the purpose

of this proposed rulemaking, EPA does

not believe that regulatory standards for

fertilizers should allow higher riskbased contaminant levels in these

products over current levels, when

much lower standards can be easily

achieved by ZSM fertilizers. EPA

requests comment on this issue.

• EPA standards for biosolids used in

agriculture. The Agency also considered

using the standards that have been

established by EPA for contaminants in

biosolids (e.g., sewage sludge) that are

applied to agricultural land (58 FR

9248). Consistent with the discussion

above, the use of such risk-based

standards for this rulemaking could

theoretically allow zinc fertilizers to

have much higher levels of metal

contaminants than are currently found

in most, if not all zinc fertilizers

currently on the market. As discussed

further below, EPA believes that the

§ 503 standards are fully protective of

human health and the environment as

they apply to biosolids applied to the

land. However, for the reasons outlined

in the preceding discussion of riskbased standards, EPA believes that the

technology-based standards proposed

today are more appropriate than the

§ 503 standards for the purpose of this

rulemaking. EPA requests comment on

this issue.

There are also a number of technical

reasons as to why standards for metal

contaminants developed for landapplied biosolids are inappropriate for

commercial fertilizers. Biosolids and

commercial or manmade fertilizers are

fundamentally different materials. The

key difference between these two

materials is organic matter content.

Fertilizers can be classified into one of

two categories: organic or inorganic.

Biosolids are organic fertilizers,

composed of biodegradable organic

matter from waste products of living

organisms or decay products of once

living organisms. Most commercial

fertilizers are inorganic. Inorganic

fertilizers are derived from non-living

sources and are essentially devoid of

organic matter content. Organic and

inorganic fertilizers exhibit different

physical and chemical properties.

Consequently, they effect the fate and

mobility of chemical constituents

(especially metals) in different ways.

In general, biosolids exhibit greater

metals adsorption capacity than

inorganic fertilizers because organic

matter provides reactive sites that bind

metals. This binding capacity limits

metals mobility in the fertilized soil and

makes metals less available for uptake

by plants. Organic binding sites are

absent in inorganic fertilizers.

Therefore, metals applied as a

component of inorganic fertilizers tend

to be more mobile and more readily

taken up by plants. Organic and

inorganic fertilizers also differ in

chemical composition. Both contain

varying levels of metals (e.g., As, Cd, Pb)

and agricultural nutrients (e.g.,

phosphate, nitrogen). However,

Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules 70971

biosolids also contain hydrous metal

oxides which tend to bind metals and

further increase the capacity of biosolids

to limit metals mobility. In addition,

biosolids are usually applied at much

higher rates than fertilizers. Given the

significant difference in composition

and use between these materials, EPA

believes that the pollutant loading limits

established for biosolids are

inappropriate for use as health based

standards for inorganic fertilizers. EPA

requests comment on this issue.

• Proposed standards for

contaminants in cement kiln dust used

in agriculture. On August 20, 1999 EPA

proposed standards for management of

cement kiln dust, or CKD (64 FR 45631).

CKD can be used as a substitute for

agricultural lime to maintain proper soil

pH for crop production, and is typically

applied at a rate of several tons per acre.

The proposal included limits on four

metal contaminants (thallium, lead,

arsenic and cadmium) in CKD that is

applied to agricultural land. These

contaminant limits were based on a risk

assessment conducted in support of the

proposed rule.

CKD is typically used agriculturally

only under certain types of agronomic

conditions. Thus, EPA’s risk assessment

evaluated risks from applying CKD only

to acidic, sandy loam soils in a limited

number of geographic areas and for a

limited number of crop types. In

contrast, zinc fertilizers are applied to a

wide variety of different soil types to

supply nutrient to many different types

of crops in virtually every area of the

country. Because of these limitations,

EPA believes that the proposed CKD

standards are not appropriate for

establishing contaminant limits for

metals in zinc fertilizers. In addition,

the Agency has received numerous

comments on the CKD risk assessment

that have not yet been thoroughly

evaluated, and that analysis has not yet

been revised to reflect those comments.

Until these uncertainties are resolved,

we do not think it would be appropriate

to propose in today’s rule contaminant

limits based on the CKD proposal. We

invite comment on this regulatory

option.

• Canadian standards. EPA examined

the option of using the Canadian

fertilizer standards for this rulemaking

(‘‘Standards for Metals in Fertilizers and

Supplements,’’ Trade Memorandum T–

4–93; Canadian Food Inspection

Agency, August 1996). These standards,

which apply to all fertilizers marketed

in Canada, have been in effect since

1993, and were recently adopted (with

somewhat modified assumptions for

application rates) by the State of

Washington. The Canadian standards

are not risk-based; instead, they are

based on a ‘‘no significant degradation’’

goal for fertilizer amended soils,

assuming 45 years of fertilizer

application. The RCRA statute does not

have an analogous, explicit ‘‘no

significant degradation’’ goal.

The Canadian fertilizer standards are

based on a number of assumptions

regarding application rates, crop types,

background levels of metals in Canadian

agricultural soils, and other factors. In

fact, the standards are not expressed as

maximum concentrations allowed in

fertilizer products, but rather as limits

on the total amounts of metals that can

be added to farmland over time from

fertilizer applications. Although it

would be possible to make simplifying

assumptions (i.e., regarding application

rates) to derive product concentration

standards, translating the Canadian

standards into RCRA-style limits on

product contaminants might not be

entirely straightforward. This has, in

fact, been part of the State of

Washington’s experience with

implementing regulatory restrictions on

fertilizer contaminants based on the

Canadian standards. Since the

application rate of a fertilizer is a major

variable in determining the amount of

contaminants that are deposited on

farmland, it is possible for

manufacturers to simply lower the

recommended application rate for a

product in order to meet the standards.

In EPA’s view this complexity, and the

potential for manipulating application

rates to meet contaminant standards, is

inconsistent with the objective of

establishing contaminant limits in this

rule that are straightforward and easily

enforced.

Another issue that has been raised

regarding the Canadian standards is that

they do not reflect the highly variable

agricultural practices and

environmental conditions in the United

States. Though it might be possible to

modify the Canadian standards to fit

conditions prevalent in the United

States, doing so would be a major

undertaking that would exceed the

scope and purpose of this RCRA

rulemaking. In any case, to date there

has been little support expressed by

stakeholders for using the Canadian

standards (or some version of them) in

this rulemaking effort (‘‘EPA

Stakeholder Meetings on Hazardous

Waste Derived Fertilizers,’’ US EPA,

November 12–13, 1998). This may be

due to the fact that there has been some

controversy regarding the lack of a clear

scientific basis for the Canadian

standards. The standards were

originally developed through an expert

panel process that involved both

qualitative and quantitative evaluations

by a group of agronomists, soil scientists

and other experts. The standards

therefore are based at least in part on

expert judgment, rather than a specific,

replicable scientific methodology.

Despite these potential complications,

EPA requests comment on whether the

Canadian standards for the purpose of

this RCRA rulemaking could be a

feasible alternative, and justified on the

basis of incremental benefits and costs.

The standards are closer to the levels

that have been demonstrated as

achievable by fertilizer manufacturers,

and EPA is not aware of any studies

suggesting that the Canadian standards

are less than protective of human health

or the environment. Such standards

have been in effect for more than seven

years in Canada, and for two years in

the State of Washington. The State of

Washington reports that its experience

with implementing Canadian-based

standards has been generally positive, as

evidenced in a recent summary of

results from the state’s fertilizer review

process (‘‘Transparent Results of

Ecology’s Review Process in the 1999–

2000 Fertilizer Registration Cycle,’’

Washington Dept. of Ecology, August

2000). However, EPA chose not to

propose the Canadian fertilizer

standards as RCRA standards, largely

because we believe that the technologybased approach outlined in today’s

proposal is simpler and more

straightforward, and would result in

lower volumes of toxic metals in zinc

fertilizers.

• Background standards. The option

of setting contaminant limits for

conditionally excluded zinc fertilizers

based on naturally occurring (i.e.,

‘‘background’’) levels of metals in

agricultural soils has been advocated by

some stakeholder groups, and was also

considered by EPA in the development

of this proposal. In effect, this approach

would require that fertilizers contain

contaminants at concentrations no

greater than soil background levels. This

would ensure that no increase in soil

metal concentrations could occur due to

fertilizer use, regardless of how much or

how often the fertilizers were applied,

and regardless of the attendant risks.

The Agency chose not to propose this

approach, for several reasons. Achieving

these standards might be technically

feasible, but would likely require major

investments in new capital equipment

by manufacturers, which would likely

result in increased prices of zinc

fertilizers. Alternatively (and perhaps

more likely), manufacturers could

simply use non-hazardous feedstock

materials to make zinc fertilizer, thus

avoiding RCRA regulation altogether. It

70972 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules

should also be noted that the standards

being proposed today may not be

dramatically different from levels that

might be developed using a standard

based on background. EPA does not

think that it is necessary or appropriate

in this rulemaking to place new

economic burdens on industry, or to

discourage legitimate recycling

practices, without clear evidence of any

resulting environmental benefits.

EPA solicits comments on today’s

proposed standards, and on the

regulatory options outlined above.

b. Product Specifications for Dioxins

in Conditionally Excluded Zinc

Fertilizers.

Background. Dioxins are persistent

environmental pollutants that are

formed as byproducts during

combustion of chlorinated organic

compounds. Of the more than two

hundred dioxin compounds, 2,3,7,8-

tetrachlorodibenzo-p-dioxin (2,3,7,8-

TCDD) is the most toxic. Given the

number of different dioxin compounds

and their different health effects,

dioxins are typically measured

according to the ‘‘toxicity equivalence’’

method. This method assigns a ‘‘toxicity

equivalence factor’’ (TEF) of one (1) to

2,3,7,8-TCDD, while the less toxic

dioxin congeners are assigned values of

less than one. In calculating a TEQ

value, the concentration of each

congener in the measured sample is

multiplied by its TEF, and the products

of all the congeners are summed. Thus,

TEQ values essentially represent the

total toxicity of dioxins in a given

sample, rather than the actual

concentrations of dioxins in the sample.

The methodology for calculating TEFs

for dioxin congeners is presented in the

1994 EPA publication entitled

‘‘Estimating Exposures to Dioxin-like

Compounds’’ (EPA publication #600/6–

88/005 Ca).

Although dioxin toxicity has been

studied extensively, most studies have

used animal test data to extrapolate

adverse health effects in humans;

uncertainty remains with regard to the

actual human health effects of dioxins.

Once EPA completes its ongoing

reassessment of dioxin health effects,

the dioxin reassessment will serve as

the scientific and technical basis for

EPA dioxin policy and programs.

However, until the reassessment has

completed scientific peer review, and is

issued as a final EPA document, the

Agency will rely on the existing dioxin

assessment as a basis for its actions.

The presence of dioxins in wastederived fertilizers first came to light in

a sampling study done by the State of

Washington Department of Ecology

(‘‘Screening Survey for Metals and

Dioxins in Fertilizer Products and Soils

in Washington State,’’ Washington

Department of Ecology Publication #99–

309, April 1999). In that study, test

results from two samples of K061-

derived fertilizers indicated the highest

levels of dioxins of all fertilizers tested,

with one product measured at 240 parts

per trillion (TEQ). The source of dioxins

in K061 is not definitively known, but

may be formed from incomplete

combustion of chlorine-containing

contaminants in the scrap metals used

as feedstocks in electric arc steelmaking.

EPA requests data and analytical results

regarding the possible sources of such

dioxin contamination.

Proposed product specification for

dioxins. EPA is today proposing a

product specification of eight parts per

trillion (8 ppt) TEQ as a condition for

excluding hazardous waste derived zinc

fertilizers from regulation. Eight parts

per trillion is an estimate of the national

average background concentration of

dioxins in soils in the United States, as

presented in the EPA report ‘‘Estimating

Exposure to Dioxin-Like Compounds,

Review Draft’’ (EPA/600/6–88/000Ca;

June 1994). More detailed and more

recent data indicate that rural

background soil concentrations are

somewhat lower than 8 ppt, while urban

background soil concentrations are

somewhat higher. For purposes of this

rulemaking, the Agency believes that 8

ppt may be a reasonable, nationallyrepresentative background level for

dioxins in soils. We request comment

on the validity of the 8 ppt level as a

background level for the purpose of this

rulemaking, and any data that would

support an alternative national

background level for dioxins.

Today’s proposed exclusion level for

dioxins based on background soil levels

reflects a somewhat different approach

than the proposed exclusion levels for

metals, which are in essence

technology-based. We do not believe we

currently have sufficient data on dioxin

levels in ZSM products to establish a

technology-based limit on dioxins. The

Agency specifically solicits such data.

In the absence of additional data, we

believe that a background standard, as

proposed today, should be readily

achievable and would ensure no net

increase in national average dioxin

background levels. Other regulatory

alternatives are presented later in this

preamble. EPA requests comments, data

and analytical results that address the

proposed standard and the alternative

options (including the option of not

setting a standard).

The State of Washington’s dioxin

study included analyses of two samples

from one ZSM product, which indicated

dioxin levels of approximately one part

per trillion (TEQ) or less. More recent

analyses conducted by fertilizer

manufacturers on a small number of

ZSM product samples produced similar

results (letter from Lester Sotsky to

David Fagan, May 16, 2000). These very

low dioxin levels are not surprising,

since available data suggest that the

levels in ZSM feedstocks are typically

very low, and the manufacturing

process involves several chemical

refining processes. EPA assumes that

zinc fertilizers which meet the proposed

conditional limits on metals (which will

most likely be ZSM products) would be

expected to have only negligible

amounts of dioxin contaminants. We

believe, therefore, that the proposed

dioxin standard should be easily met by

fertilizers that meet the proposed limits

for metals, and should not impose

significant incremental economic

burdens on the industry. EPA invites

comment on today’s proposed limit for

dioxins, and its derivation.

Alternatives considered.

• No dioxin limits. EPA considered

the option of not setting a limit for

dioxins in this proposed rulemaking,

since the available evidence reviewed

by the Agency to date does not indicate

a compelling need to do so. We decided,

however, to propose a limit on dioxins

because of the two samples of K061-

derived fertilizer that showed high

levels of dioxins relative to other

fertilizers, the public’s high level of

concern generally over dioxins in the

environment, and the uncertainties

inherent in existing risk assessments.

EPA solicits comments as to whether a

limit on dioxins in excluded zinc

fertilizers is necessary and appropriate,

and whether any such limit on dioxins

should be included in the final rule.

• Risk-based limits for dioxins in

fertilizers. Another option was to

develop risk-based limits specifically for

zinc fertilizers, similar to the standards

that have been proposed by EPA for

dioxins in cement kiln dust (64 FR

45631, August 20, 1999) and in

biosolids (64 FR 72045, December 23,

1999) used in agriculture. Based on

admittedly limited data, it appears that

a typical dioxin TEQ level in ZSM is

approximately one part per trillion or

less. It is probable that a risk-based

dioxin standard for zinc fertilizers

would be considerably higher than the

actual levels of dioxins currently

present in high-quality zinc fertilizers.

We do not believe that the regulatory

standards in this proposed rule should

reflect substantially higher risk-based

levels than the levels commonly found

in ZSM fertilizers. In addition,

developing risk-based dioxin standard

Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules 70973

for this rulemaking would likely require

considerable additional risk assessment

studies. We question the need for such

an investment in time and resources

without a compelling need to pursue

this regulatory alternative. Nevertheless,

we are interested in comments and

supporting information relating to this

issue.

• Limits based on the proposed

dioxin standard for land-applied

biosolids. EPA currently regulates the

land application of biosolids (e.g.,

sewage sludge) under the authority of

the Clean Water Act (Section 405(d) of

the Clean Water Act codified at 40 CFR

Part 503). These regulations have

established concentration limits for

metals in biosolids. In 1999, EPA also

proposed a rule that included a

numerical standard of 300 parts per

trillion TEQ for dioxins and dioxin-like

compounds for land-applied biosolids.

The numerical standard includes seven

2,3,7,8-substituted dioxins, ten 2,3,7,8-

substituted dibenzofurans, and 12 coplanar polychlorinated biphenyl (PCB)

congeners. The proposed standard was

based on a multi-pathway risk

assessment which evaluates human

health impacts and the fate and

transport of these compounds through

the environment. The proposed rule

also included monitoring requirements

for these compounds to ensure that the

numerical standard is met. The

proposed rule excluded certain small

size categories of biosolids generators.

EPA believes that the proposed

standards for dioxins and the existing

standards for metals in land-applied

biosolids are protective of human health

and the environment. The standards

have been developed based on statutory

direction given under section 405(d) of

the Clean Water Act, and obligations

imposed under the terms of a Consent

Decree, which also established

December 15, 2001 as the date by which

the Agency must promulgate a final

rule. EPA is currently evaluating the

comments submitted on the proposed

rule for dioxins in biosolids, in

preparing the final rulemaking action.

EPA chose not to base today’s

proposed fertilizer dioxin limits on the

proposed biosolids standard for dioxins,

for several reasons. The Agency

received a number of comments on the

proposed biosolids that are still being

evaluated, and some additional

assessment work is being conducted to

support development of the final

standard. Given the uncertainty about

the final outcome of the proposed

standard, we do not think it appropriate

to use it as the basis for a dioxin

standard in today’s rule.

In addition, the proposed 300 ppt

biosolids standard for dioxin is

considerably higher than today’s

proposed limit of 8 ppt for fertilizers.

We believe that the 8 ppt limit for zinc

fertilizers should be easily achievable,

and are concerned about establishing

much higher limits than are in current

fertilizers. EPA requests comment on

this issue.

• Limits based on proposed dioxin

standards for cement kiln dust. EPA’s

proposed rule for cement kiln dust

proposed a dioxin standard of 40 ppt for

agriculturally applied CKD. The CKD

standard was also based on a risk

assessment, analogous to the study done

to support the proposed dioxin standard

for land-applied biosolids. EPA chose

not to develop a dioxin limit for

fertilizers based on the proposed CKD

standard, for essentially the same

reasons (discussed above) that we chose

not to set limits on metals based on that

proposed rule. We request comment on

the appropriateness of setting a dioxin

limit for fertilizers based on the

proposed CKD standard.

• Complete ban on dioxins in

fertilizers. Some stakeholders have

argued for a complete ban on making

fertilizer from any hazardous waste that

is generated from an industrial process

known to create or release dioxin. The

Agency is not proposing such a ban,

primarily because we do not believe that

there is a convincing environmental

rationale for doing so. A complete ban

would likely eliminate, for example, the

use of K061 as a fertilizer feedstock

material. As explained previously, we

believe that K061 can be legitimately

processed and recycled to make high

quality zinc fertilizer. We are not aware

of any evidence that (for example) ZSM

products made from recycled K061

contain higher levels of dioxin than

other ZSM products.

A complete ban would also require

some means of determining which

industrial processes create or release

dioxins. This could become a highly

complex technical issue involving the

detection limits of various dioxin test

methods, and resolving it would be

beyond the scope of this rulemaking

effort. In addition, it is possible, if not

likely, that a complete ban would

eliminate all recycling of hazardous

wastes to make zinc fertilizer. The

Washington dioxin study detected

levels of dioxin in the low parts per

trillion for many of the fertilizers tested,

most of which were not waste-derived.

It is therefore possible that almost all

zinc fertilizer feedstocks could have

detectable levels of dioxins, especially

given the extraordinarily sensitive

analytical methods available today. A

complete ban in this rulemaking might

thus prohibit the use of any hazardous

secondary material as a zinc fertilizer

feedstock, even if their dioxin levels

were no higher than those in other

available feedstock materials. This

would be an arbitrary result, and would

serve no real environmental purpose.

EPA solicits comments and relevant

data on the option of a complete ban on

the use of hazardous secondary

materials generated from industrial

processes known to create or release

dioxins, and on the other regulatory

options discussed above.

2. Testing and Recordkeeping

Testing. Under today’s proposal,

manufacturers of conditionally

excluded zinc fertilizer products would

need to periodically sample and analyze

their products to determine whether or

not they meet the exclusion

contaminant limits. If analyses show

that one or more contaminants in the

fertilizer exceeds an exclusion limit, the

manufacturer could choose to reprocess

the fertilizer so that it meets the limits.

An alternative would be to manage the

manufactured material as a hazardous

waste, in compliance with all applicable

management standards.

EPA is proposing that manufacturers

test their fertilizer products for metals at

least once every six months, and at least

once per year for dioxins. As a practical

matter, EPA believes that fertilizer

manufacturers typically sample and

analyze their products for metal

contaminants on more or less an

ongoing basis, as a means of monitoring

quality control. Thus, we believe that

twice-yearly testing for metal

contaminants in excluded zinc

fertilizers is reasonable, and would

likely impose few, if any, additional

testing burdens on manufacturers. We

solicit comment on whether twice

yearly testing of fertilizer products is

appropriate in the context of this rule,

or if more frequent or less frequent

testing should be required.

For dioxins, less frequent (once-peryear) testing of excluded fertilizers is

proposed today, for several reasons. For

one thing, zinc fertilizer manufacturers

do not routinely test for dioxins, so any

such testing requirement would impose

an additional burden on industry.

Dioxin testing is relatively expensive

($2,000 or more per sample), so the

costs would not be inconsequential.

Further, we believe more frequent

testing for dioxins in excluded zinc

fertilizers may not be necessary, since

(as explained earlier) it is likely that

fertilizers meeting the proposed metals

standards would easily meet the 8 ppt

limit for dioxins.

70974 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules

With regard to the frequency of

required dioxin testing, we considered

several options. One option was to not

require testing for dioxins as long as the

limits for metal contaminants were not

exceeded, based on the assumption that

meeting the limits for metals would

ensure that the dioxin limit is met.

Other options could be to specify a onetime only test to verify that the excluded

zinc fertilizer product meets the dioxin

standard, to allow less frequent dioxin

testing (e.g., once every five years), or

testing only when there is a

manufacturing process change that

could affect dioxin levels. We solicit

comment on the proposed once-per-year

testing condition for dioxins in

excluded fertilizers, the alternative

regulatory options outlined above, and

other potential options.

Test methods. Today’s proposal

would not require manufacturers to use

any specific sampling and analytical

procedures in demonstrating

compliance with product specification

limits for metals or dioxins. The

proposal would instead set a

performance standard for sampling and

analysis-manufacturers would have the

flexibility to select appropriate methods

and procedures, provided they can

demonstrate that they are unbiased,

precise and representative of their

products. Examples of EPArecommended testing methods and

procedures are contained in the EPA

publication (‘‘Test Methods for

Evaluating Solid Waste, Physical/

Chemical Methods,’’ EPA publication

SW–846, 1986). EPA solicits comment

and supporting data as to whether the

final rule should specify the analytical

procedures to be used (such as one or

more of those in SW–846, cited above),

the methods used to ensure that

fertilizer samples are representative, or

otherwise specify in more detail

methods for compliance sampling and

analysis of fertilizer products.

V. Mining Wastes Used To Make

Fertilizer: Request for Comments

Although zinc fertilizers are the

primary focus of today’s proposed rule,

EPA is aware of one iron micro nutrient

fertilizer product that is made from

mining wastes and has been the subject

of some concern by state regulators and

others. This material, which is marketed

under the brand name ‘‘Aeronaut,’’ is an

iron micro nutrient fertilizer made from

wastes generated from beneficiation

zinc ores at a mine (now inactive)

located in Humboldt, Arizona. The

mining waste material that is used is

exempt from regulation as hazardous

waste, under the so-called ‘‘Belville

exemption.’’

The primary reason for requesting

comment on the use of mining wastes to

make fertilizers has to do with the very

high levels of contaminants such as

arsenic in Ironite, relative to other

fertilizers. Data compiled by EPA on

fertilizer contaminants indicates that

Ironite contains, by a wide margin, the

highest levels of arsenic of all fertilizer

products surveyed. A 1998 study by the

Arizona Department of Health Services

indicated mean arsenic concentrations

in Ironite of 4400 ppm, and mean lead

concentrations of 2850 ppm (‘‘Human

Health Risk Assessment for Long-Term

Residential Use of Ironite Lawn and

Garden Nutrient Supplement,’’ Arizona

Department of Health Services, October

8, 1998). In comparison, the California

Department of Food and Agriculture’s

1997 study indicated average arsenic

concentrations in zinc micronutrient

fertilizers (many of which are also waste

derived) of approximately 30 ppm.

In 1998, a TCLP analysis done by the

Oregon Department of Environmental

Quality found that Ironite exhibited the

hazardous characteristic of toxicity for

arsenic (Oregon Department of

Environmental Quality Laboratory, Case

Number 980474, July 31, 1998).

Subsequent TCLP testing of Ironite

performed by Washington State’s

Department of Ecology generated the

same result, indicating at least the

potential for arsenic to leach into

groundwater at levels of concern.

Arsenic is a highly toxic metal, and is

also classified as a probable human

carcinogen by EPA. Recent information

indicates that arsenic may be of concern

at levels below existing regulatory

standards. A 1999 report by the National

Research Council of the National

Academy of Sciences, entitled Arsenic

in Drinking Water concluded that EPA’s

drinking water standard of 50 ppb was

not protective of human health, and

should be revised downward.

Subsequently, the Agency has proposed

to revise the arsenic standard, to 5 ppb

(65 FR 38887, June 22, 2000), although

this standard has not been finalized.

In May 1998 Washington State’s

Department of Ecology and Department

of Health commissioned in vitro

bioavailability tests on Ironite. The

results of these tests indicated an up to

36% and 81% bioavailability of arsenic

and lead, respectively. These results

were similar to the data initially

supplied by the company to the State of

Washington. From these results, the

State of Washington’s Department of

Health concluded that this level of

bioavailability could pose an acute risk

from direct ingestion of the product by

children. In view of this conclusion, and

the fact that no warning labels were on

the product at the time, the State of

Washington Department of Health

issued a news release advising the

public that Ironite ‘‘could be dangerous

to health’’ under certain circumstances

(Washington Department of Ecology

press release, June 5, 1998). The product

is now labeled in accordance with the

State of Washington’s requirements.

Arsenic concentrations such as those

in Ironite clearly have the potential to

substantially increase soil arsenic levels,

especially if the product is improperly

applied (the average background level of

arsenic in soils in the United States is

less than 10 ppm). Ingestion of Ironiteamended soils (or worse, ingestion of

the product itself) by children is also a

possible concern, and could potentially

cause serious adverse health effects. As

mentioned above, contamination of

ground water from contaminants in

Ironite may be another potential

exposure pathway.

Ironite is marketed nationally,

primarily as a home and garden

fertilizer. The company has defended

the safety of the product, citing several

studies that generally support its

contention. The Arizona Department of

Health Services report cited above

concluded that ‘‘ * * * the

accumulation of metals that may occur

following prolonged use of Ironite does

not appear to represent a health risk to

child or adult residents of homes where

it is used if the product is applied in

accordance with the recommendations

on the label.’’ A separate analysis

prepared for the Ironite Products

Company reached a similar conclusion

(‘‘Product Safety Risk Assessment of

Ironite, a Nutritional Lawn

Supplement,’’ RUST Environment and

Infrastructure, June 1998). These

studies, and other studies

commissioned by the company based

their findings in large part on the fact

that much of the arsenic and lead in the

product are present in naturally

occurring arsenopyrite and galena

mineral forms, respectively, which

(according to the company and its

supporting studies) are relatively nonbioavailable and non-toxic to humans.

EPA has not studied this particular

issue in depth, and has not reached any

scientific conclusions as to the potential

health effects of Ironite use.

EPA is not currently aware of any

fertilizers other than Ironite that are

being made from zinc extraction/

beneficiation wastes; it is possible,

however, that other fertilizers that

exhibit a hazardous characteristic could

be made from other exempted

extraction/beneficiation wastes. In any

case, at issue in this matter is that

Ironite is made from mining wastes that

Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules 70975

are currently exempt from regulation as

hazardous wastes.

The Bevill exemption (RCRA section

3001(b)(3)(A)(ii)) is codified in

regulations at § 261.4(b)(7), and applies

generally to solid wastes from extraction

and beneficiation of minerals, as well as

the so-called ‘‘special twenty’’ mineral

processing wastes. These types of

wastes are therefore not regulated as

hazardous under RCRA, even if they

exhibit a hazardous waste characteristic

(e.g., are toxic as measured by the

TCLP). However, under RCRA section

3001(b)(2)(C), such exempted wastes

may be subjected to RCRA regulation,

based on a finding by EPA that such

regulation is warranted.

In making determinations as to

whether Bevill-exempt wastes (which

would include these types of fertilizers)

should be regulated under RCRA

Subtitle C, the RCRA statute specifies in

section 8002(f) certain criteria that EPA

must evaluate:

(1) The sources and volume of

discarded material generated per year

from mining;

(2) Present disposal practices;

(3) Potential dangers to human health

and the environment from surface

runoff of leachate and air pollution by

dust;

(4) Alternatives to current disposal

methods;

(5) The cost of those alternatives in

terms of the impact on mine product

costs; and

(6) Potential for use of discarded

material as a secondary source of the

mine product.

After extensive study, on July 3, 1986,

EPA published its final regulatory

determination for mining wastes,

according to RCRA section 3001(b)(2)(C)

(51 FR 24496). This determination

concluded that extraction/beneficiation

wastes should be regulated as nonhazardous solid wastes under RCRA

Subtitle D. However, the Agency noted

that if a Subtitle D program with

appropriate federal enforcement and

oversight authority is not developed for

these wastes, the Agency may find it

necessary to reexamine use of Subtitle C

authority, with modified mining waste

standards (51 FR 24501). EPA did not

specifically address the practice of

manufacturing fertilizers from these

wastes in the 1986 regulatory

determination, nor was the issue

examined as part of the study prepared

in support of the determination.

It should be understood that if EPA

were to determine that removing the

§ 261.4(b)(7) exemption for these types

of fertilizer products is warranted, such

a decision would affect only a very

small portion of the universe of Bevillexempt mining wastes. Removing the

exemption in this case would apply

only to the micronutrient fertilizer

products that are made from extraction/

beneficiation wastes; it would not affect

the regulatory status of any exempted

mining wastes prior to being recycled

into fertilizers.

EPA has not at this time reached any

definitive conclusions as to whether

Ironite and similar fertilizer products (if

any) merit regulation under RCRA

Subtitle C. We believe, however, that

concerns over potential adverse health

effects from exposure to fertilizers with

extremely high arsenic levels, such as

Ironite, are worthy of serious

consideration. We therefore are

requesting comments and additional

information that may assist the Agency

in making such a determination, either

positive or negative. Comments and

information that directly address the

criteria listed above would be

particularly useful, as would specific

information on related issues, such as

the following:

• Additional information on potential

human health or ecological effects from

exposure to Ironite.

• Exposure pathways that may be

particularly relevant to assessing risks

associated with the use and handling of

this type of product.

• Information on any actual damage

cases arising from use or misuse of

Ironite or similar products.

• Information on any other fertilizers

(including primary nutrient fertilizers

containing potassium, nitrogen or

phosphorous) that are made from Bevillexempt hazardous extraction,

beneficiation or mineral processing

wastes.

• Information on how and where

Ironite or other iron fertilizers are

actually used, and by whom.

• Other relevant information.

The Agency will consider all relevant

comments and information submitted

on these issues. At the time EPA

finalizes today’s proposal, we may also

issue a proposed determination as to

whether or not micronutrient fertilizer

products that exhibit a hazardous

characteristic, and that are made from

Bevill-exempt extraction/beneficiation

wastes, should be subject to regulation

as hazardous wastes under RCRA

Subtitle C, as provided under section

3001(b)(3). Alternatively, the Agency

may decide that further data and/or

analysis is required before such a

determination can be made.

VI. Relationship With Other Regulatory

Programs

A. Cement Kiln Dust Regulatory

Proposal

On August 20, 1999, EPA proposed

Standards for the Management of

Cement Kiln Dust (CKD) (64 FR 45631).

As part of that rulemaking we proposed

to exclude from regulation under RCRA

CKD that is used as a liming agent on

agricultural fields, provided that such

CKD meet specified levels for

concentrations of certain hazardous

constituents. CKD is currently used as a

substitute for agricultural lime. Liming

materials are added to agricultural soils

to maintain optimum pH for crop

production and offset the effects of

fertilizers that lower soil pH. CKD used

for pH control is applied in high

volumes relative to fertilizers and other

soil nutrients. The application rate

needed to maintain the desired increase

in soil pH is 2 to 5 tons of CKD per acre

every 2 to 3 years. EPA has a relatively

large amount of data on the chemical

composition of CKD. This data was

collected and used as part of EPA’s

Report to Congress (RTC) on CKD (59 FR

709, January 6, 1994), its 1994 Notice of

Data Availability (NODA) (59 FR 47133,

September 14, 1994), and its 1995

Regulatory Determination on CKD (60

FR 7366, February 7, 1995).

While EPA encourages

environmentally sound beneficial use of

production process waste streams,

including CKD, we believe that the

benefits from recycling CKD must be

balanced against the potential hazards

which agricultural use of CKD may

present. Consequently, we conducted a

screening level analysis of agricultural

use as part of the RTC and NODA. That

analysis suggested that some CKD, when

used at plausible application rates,

might contain sufficiently high

concentrations of metals and dioxins to

cause food chain risks. Based on these

initial findings, EPA conducted a more

detailed analysis of potential risks from

use of CKD as an agricultural liming

agent. Given our data on the chemical

composition of CKD, and the

preliminary results of the risk

assessment, we concluded that use of a

risk assessment conducted to identify

protective levels of potentially

hazardous constituents in CKD used as

a liming agent provided the most

appropriate way to allow for safe

beneficial use of CKD.

Results of EPA’s more detailed risk

assessment suggest that concentrations

of arsenic, thallium, lead, cadmium and

chlorinated dioxins and furans may be

present in CKD above levels that pose

potential risk to human health. Based on

70976 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules

these findings, EPA proposed to limit

the concentrations of these compounds

that can be present in CKD used to

adjust soil pH. In other words, EPA

proposed standards to limit

concentrations of these constituents in

CKD used as agricultural lime because

our risk analysis indicated that these

compounds are present in CKD in

excess of levels that may pose risk to

human health when CKD is applied at

rates necessary to attain desired soil pH.

Based on these risk findings, EPA

expressed concern in the proposal that

unregulated use of CKD as an

agricultural liming agent may cause

adverse effects on human health.

EPA received substantial comments

on this aspect of the 1999 CKD proposal,

and is now evaluating them.

B. EPA Standards for Biosolids

EPA currently regulates the land

application of biosolids (e.g., sewage

sludge) under the authority of the Clean

Water Act (Section 405(d) of the Clean

Water Act codified at 40 CFR Part 503).

These regulations have established

concentration limits for metals in

biosolids. In 1999, EPA also proposed a

rule that included a numerical standard

of 300 parts per trillion TEQ for dioxins

and dioxin-like compounds for landapplied biosolids. The numerical

standard includes seven 2,3,7,8-

substituted dioxins, ten 2,3,7,8-

substituted dibenzofurans, and 12 coplanar polychlorinated biphenyl (PCB)

congeners. The proposed standard was

based on a multi-pathway risk

assessment which evaluates human

health impacts and the fate and

transport of these compounds through

the environment. The proposed rule

also included monitoring requirements

for these compounds to ensure that the

numerical standard is met. The

proposed rule excluded certain small

size categories of biosolids generators.

EPA believes that the proposed

standards for dioxins and the existing

standards for metals in land-applied

biosolids are protective of human health

and the environment. The standards

have been developed based on statutory

direction given under section 405 (d) of

the Clean Water Act, and obligations

imposed under the terms of a Consent

Decree, which also established

December 15, 2001 as the date by which

the Agency must promulgate a final

rule. EPA is currently evaluating the

comments submitted on the proposed

rule for dioxins in biosolids, in

preparing the final rulemaking action.

C. State Fertilizer Regulations

Virtually all States have regulatory

programs for fertilizers, which are

usually administered by state

agricultural agencies. Traditionally, the

primary focus of these regulatory

programs has been to ensure that

fertilizers are accurately classified and

labeled, and meet manufacturers’ plant

nutrient claims. Until quite recently,

state regulatory programs did not

explicitly address the issue of

controlling contaminants such as heavy

metals in fertilizer products. In 1998 the

State of Washington enacted legislation

to create this country’s first

comprehensive system for regulating

fertilizer contaminants, to include limits

on metal contaminants in fertilizers,

labeling requirements, and a mandate

for several research projects to study the

effects of metal contaminants on food

crop plants. The specific standards for

metals in fertilizers were adapted from

the Canadian standards. The

Washington regulations, which apply to

all fertilizers marketed in the state, also

mandate that waste-derived fertilizers

receive additional scrutiny as to their

content and origin, as part of the

fertilizer registration process.

Washington also now maintains a

publicly accessible internet website

containing data on all fertilizers

registered in the State of Washington,

including data on levels of non-nutrient

metals in each registered product. This

database can be accessed at hhtp://

www.wa.gov/80/ecology/hwtr/fertilizer/

reports/products.html.

The State of Texas has enacted similar

regulations based on the federal

standards for biosolids. The State of

California has also done extensive

research into fertilizer contaminants,

and is currently developing a California

regulatory program. A number of other

states are likewise considering

regulatory initiatives in this area.

EPA supports State efforts to regulate

contaminants in fertilizers. EPA

regulates only a small percentage of the

fertilizers currently on the market

(perhaps as little as one percent or less

of all fertilizers are derived from

hazardous wastes, subject to RCRA

requirements), and the potential

certainly exists for contaminant

problems in other types of fertilizers.

For example, cadmium levels in certain

phosphate fertilizers (which typically

are not waste derived) have been the

subject of some concern recently by

researchers, state regulators and others.

We believe that the State of

Washington’s fertilizer regulatory

program has been highly successful in

controlling, and in a number of cases

reducing, contaminants in fertilizer

products sold in that state. Washington

has also successfully pioneered the idea

of making fertilizer contaminant data

available to the public, farmers and

others through the internet.

As more states develop

comprehensive regulatory programs for

fertilizers, the consistency between

RCRA standards and more broadly

applicable state standards is expected to

become more and more at issue. We do

not believe that such regulatory

inconsistency makes sense

environmentally or from a public policy

perspective, and the Agency urges states

at a minimum to adopt consistent

regulatory standards for all zinc

fertilizers.

VII. State Authority

A. Statutory Authority

Under section 3006 of RCRA, EPA

may authorize qualified States to

administer the RCRA hazardous waste

program within the State. See 40 CFR

part 271 for the overall standards and

requirements for authorization.

Following authorization, the State

requirements authorized by EPA apply

in lieu of equivalent Federal

requirements and become Federally

enforceable as requirements of RCRA.

EPA maintains independent authority to

bring enforcement actions under RCRA

sections 3007, 3008, 3013, and 7003.

Authorized States also have

independent authority to bring

enforcement actions under State law. A

State may receive authorization by

following the approval process

described under 40 CFR 271.

After a State receives initial

authorization, new Federal

requirements promulgated under RCRA

authority existing prior to the 1984

Hazardous and Solid Waste

Amendments (HSWA) do not apply in

that State until the State adopts and

receives authorization for equivalent

State requirements. The State must

adopt such requirements to maintain

authorization.

In contrast, under RCRA section

3006(g) (42 U.S.C. 6926(g)), new Federal

requirements and prohibitions imposed

pursuant to HSWA provisions take

effect in authorized States at the same

time that they take effect in

unauthorized States. Although

authorized States are still required to

update their hazardous waste programs

to remain equivalent to the Federal

program, EPA carries out HSWA

requirements and prohibitions in

authorized States, including the

issuance of new permits implementing

those requirements, until EPA

authorizes the State to do so.

Authorized States are required to

modify their programs only when EPA

promulgates Federal requirements that

Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules 70977

are more stringent or broader in scope

than existing Federal requirements.

RCRA section 3009 allows the States to

impose standards more stringent than

those in the Federal program. See also

40 CFR 271.1(i). Therefore, authorized

States are not required to adopt Federal

regulations, both HSWA and nonHSWA, that are considered less

stringent.

B. Effect on State Authorization

Today’s proposal would be

promulgated pursuant to non-HSWA

authority, and contains provisions that

are both more stringent and less

stringent than the current Federal

program. The elimination of the

exemption for K061 derived fertilizers

and the proposed product specification

limits are more stringent provisions

which the States would have to adopt if

promulgated. The conditional exclusion

for hazardous waste used in zinc

fertilizers is less stringent. EPA strongly

encourages States to adopt all of the

provisions of the rule once they are

finalized.

VIII. Administrative Assessments

A. Executive Order 12866

Under Executive Order 12866, (58 FR

51735 October 4, 1993) the Agency must

determine whether a regulatory action is

‘‘significant’’ and therefore subject to

OMB review and the requirements of

the Executive Order. The Order defines

‘‘significant regulatory action’’ as one

that is likely to result in a rule that may:

(1) Have an annual effect on the

economy of $100 million or more or

adversely affect, in a material way, the

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, or

State, local, or tribal governments or

communities; (2) create serious

inconsistency or otherwise interfere

with an action taken or planned by

another agency; (3) materially alter the

budgetary impact of entitlements,

grants, user fees, or loan programs or the

rights and obligations of recipients; or

(4) raise novel legal or policy issues

arising out of legal mandates, the

President’s priorities, or the principles

set forth in the Executive Order.

The economic analysis suggest that

this rule is not economically significant

under Executive Order 12866. OMB has

deemed this rule to be significant for

novel legal or policy issues. As such,

this action was submitted to OMB for

review. Changes made in response to

OMB suggestions or recommendations

will be documented in the public

record.’’

Detailed discussions of the

methodology used for estimating the

costs, economic impacts and the

benefits attributable to today’s proposed

rule for regulatory modifications to the

definition of solid waste for zinccontaining hazardous waste-derived

fertilizers, followed by a presentation of

the cost, economic impact and benefit

results, may be found in the background

document: ‘‘Economic Analysis for

Regulatory Modifications to the

Definition of Solid Waste For ZincContaining Hazardous Waste-Derived

Fertilizers, Notice of Proposed

Rulemaking,’’ which was placed in the

docket for today’s proposed rule.

1. Methodology Section

To estimate the cost, economic

impacts to potentially affected firms and

benefits to society from this proposed

rulemaking, we analyzed data from zinc

micronutrient producers, firm financial

reports, trade associations and chemical

production data. The Agency has used

both model facilities and actual

facilities in analyzing the effects of this

proposed regulation. To estimate the incremental cost of

this rule making, we reviewed baseline

management practices and costs of

potentially affected firms. The Agency

has modeled the most likely postregulatory scenario resulting from the

listing (e.g., shifts to non-hazardous

fertilizer feedstocks, shifting from zinc

oxysulfate to zinc sulfate monohydrate

production) and the estimated the cost

of complying with it. The difference

between the baseline management cost

and the post-regulatory cost is the

incremental cost of the rulemaking. To estimate the economic impact of

today’s proposed rulemaking, we

compared the incremental cost of the

rulemaking with model firm sales. The

Agency has also considered the ability

of potentially affected firms to pass

compliance costs on in the form of

higher prices. To characterize the benefits of today’s

proposal, we evaluated available data

and presented a qualitative assessment

of benefits including ecological benefits

and protection of natural resources such

as groundwater.

2. Results

a. Volume Results. Data reviewed by

the Agency indicates that there are 3 to

4 zinc micronutrient producers, one

zinc producer, one steel mill, one wasteto-energy facility and 23 brass fume dust

generators (ingot makers, mills, and

foundries) potentially affected by

today’s proposed rule. Although the

exact amount of hazardous waste used

in zinc micronutrient fertilizer

production an annual basis varies from

year to year, in 1997, data indicate that

approximately 46,000 tons of hazardous

waste were used in the production of

zinc micronutrient fertilizer. The

principal hazardous waste feedstocks

were tire ash, electric arc furnace dust

(K061) and brass fume dust from ingot

makers, mills and foundries.

b. Cost Results. For the part of today’s

proposed rule pertaining to zinc

micronutrient fertilizers, we estimate

the total annual cost savings from

today’s proposal to be $3.24 million for

all facilities. Costs savings for different

groups are summarized in Table 1.

TABLE 1.—ESTIMATED INCREMENTAL

COSTS AND COST SAVINGS BY FACILITY CATEGORY

Potentially Affected

Facility

Incremental

Annual Costs

(Cost

Savings)

(1999$)

Zinc Oxysulfate Producers ......................... ($0.29 million)

Zinc Sulfate Monohydrate

Producers .................... ($0.75 million)

Primary Zinc Products .... ($1.0 million)

Tire Ash Generators ....... ($0.2 million)

Brass Fume Dust Generators ......................... ($1.4 million)

Total ..................... ($3.24 million)

Costs and cost savings to zinc

oxysulfate producers are estimated from

either shifting production to zinc sulfate

monohydrate or shifting to

nonhazardous sources of oxysulfate

feedstocks. Zinc sulfate monohydrate

producers and primary zinc producers

are estimated to realize cost savings

from shifting brass fume dust currently

used in animal feed production to

fertilizer production. Under current zinc

sulfate markets, fertilizers are sold at a

higher price than animal feed. Waste-toEnergy facilities that generate tire ash

are expected to incur additional cost

from having to shift their ash from

fertilizer production to zinc oxide

reclamation. And brass fume dust

generators (mills, ingot makers,

foundries) are estimated to incur cost

savings from shifting their dust from

zinc reclamation and animal feed to

fertilizer production.

c. Economic Impact Results. To

estimate potential economic impacts

resulting from today’s proposed rule, we

use a first order economic impacts

measure: the estimated incremental

costs or cost savings of today’s proposed

rule as a percentage of affected firms

sales. Because of data limitations, EPA

was unable to obtain profit information

for potentially affected firms. EPA

solicits comment about the availability

and usefulness of profit data in

70978 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules

evaluating the economic impact of this

proposal on these entities. For two zinc

oxysulfate producers the estimated

impact of the rule is 1.42 percent in

incremental costs for one firm and 0.64

percent in cost savings for the other.

Two zinc sulfate monohydrate

producers are estimated to realize cost

savings of 0.1 and 15 percent of

revenue. For the primary zinc producer,

the rule is estimated to result in cost

savings equal to 1 percent of firm sales.

The waste-to-energy facility is estimated

to incur costs of 1.22 percent of annual

revenues. More detailed information on

this estimate can be found in the

economic analysis placed into today’s

docket.

d. Benefits Assessment. Because EPA

did not use any risk assessments of

current or projected metals and dioxin

concentrations in zinc fertilizers in the

development of this rulemaking, the

Agency cannot make any quantitative

conclusions about the risk reduction

from today’s proposal. To estimate the

benefits resulting from today’s rule, EPA

looked at available literature and

records regarding hazardous waste

feedstocks used to make zinc

micronutrient fertilizers. The data

suggest that today’s rule will reduce

loading of toxic non-nutritive

constituents to the soil. Two zinc

oxysulfate samples produced from

hazardous waste and analyzed by the

State of Washington had dioxin

concentrations between 17 and 42 times

background level (‘‘Final Report

Screening Survey for Metals and

Dioxins in Fertilizer Products and Soils

in Washington State,’’ Washington State

Department of Ecology, April 1999,

Figures 1–1 and 1–2). In addition, the

zinc oxysulfate manufacturing process

does not remove any of the lead or

cadmium from the feedstock material. If

promulgated, today’s proposal would

reduce annual loadings of these metals

to the soil.

In addition, today’s proposal may

reduce natural resource damage and

contamination to groundwater. EPA is

aware of at least two damage incidents

caused by land placement of hazardous

waste prior to fertilizer production that

resulted in contamination of either

groundwater or surrounding surface

water bodies adjacent to the site.

(‘‘Report of RCRA Compliance

Inspection at American Microtrace

Corporation,’’ US EPA Region VII,

December 4, 1996, Editorial, The

Atlanta Journal/Constitution, April 11,

1993). Today’s proposal may increase

non-use values for these environmental

amenities as well.

The Agency also believes that this

rule has the potential for reducing what

may be considered low probability but

high consequence adverse human health

or environmental impact if

contamination from hazardous

secondary material used in fertilizer

production should, because of

geological conditions such as karst

terrain, reach a major population

drinking water source or sensitive

environmental location. This proposed

rule should lessen the chances of this

type of event even though the

probabilities of such occurrences and

the magnitude of any impacts are not

known.

B. Regulatory Flexibility Act (RFA), as

Amended by the Small Business

Regulatory Enforcement Fairness Act of

1996 (SBREFA), 5 U.S.C. 601 et seq.

The RFA generally requires an agency

to prepare a regulatory flexibility

analysis of any rule subject to notice

and comment rulemaking requirements

under the Administrative Procedure Act

or any other statute, unless the agency

certifies that the rule will not have a

significant economic impact on a

substantial number of small entities.

Small entities include small businesses,

small organizations, and small

governmental jurisdictions.

For purposes of assessing the impacts

of today’s rule on small entities, small

entity is defined as: (1) A small business

that has fewer than 1000, 750, or 500

employees per firm depending upon the

SIC code the firm is primarily classified

in; (2) a small governmental jurisdiction

that is a government of a city, county,

town, school district or special district

with a population of less than 50,000; or

(3) a small organization that is any notfor-profit enterprise which is

independently owned and operated and

is not dominant in its field.

After considering the economic

impacts of today’s final rule on small

entities, we have determined that this

action will not have a significant

economic impact on a substantial

number of small entities. In determining

whether a rule has a significant

economic impact on a substantial

number of small entities, the impact of

concern is any significant adverse

economic impact on small entities,

since the primary purpose of the

regulatory flexibility analyses is to

identify and address regulatory

alternatives ‘‘which minimize any

significant economic impact of the

proposed rule on small entities’’ (5

U.S.C. Sections 603 and 604). Thus, an

agency may certify that a rule will not

have a significant economic impact on

a substantial number of small entities if

the rule relieves regulatory burden, or

otherwise has a positive economic effect

on all of the small entities subject to the

rule.

There are three small entities

incurring incremental costs resulting

from this rulemaking. This first firm is

Exeter Energy, a waste-to-energy facility

that burns tires. It is estimated to incur

annual costs of $220,000 which is

slightly more than one percent of its

annual sales. Exeter Energy is only one

of two waste-to-energy facilities in the

United States that burns tires for energy.

It is therefore likely that this firm will

be able to pass on much of this cost

through price increases for its services.

EPA does not believe that this firm will

be significantly impacted. The second

firm, Bay Zinc, is a zinc sulfate/zinc

oxysulfate producer. The firm is

estimated to realize costs equal to

slightly more than one percent of

revenues for its zinc oxysulfate line.

However, EPA does not believe that Bay

Zinc will be significantly impacted

because its increased costs will be offset

to some extent by the increased

availability of less expensive

(previously hazardous waste) feedstocks

such as brass fume dust for its zinc

sulfate monohydrate line. EPA has only

analyzed the impact of the rule on this

firm’s zinc oxysulfate line. However the

rule will affect both zinc fertilizer lines.

The net economic impact of the rule on

Bay Zinc is likely to be far less than 1

percent of the firm’s sales

notwithstanding the cost to its

oxysulfate line. EPA also notes that

there is currently a market trend away

from zinc oxysulfate in favor of zinc

sulfate monohydrate due to the former’s

higher heavy metal content (see

www.chemexpo.com/news/

newsframe.cfm?framebody=/news/

profile.cfm as obtained August 27, 2000

for zinc sulfate). Therefore, it is likely

that even in the absence of this

proposed rulemaking, the marketability

of zinc oxysulfate is declining in favor

of zinc sulfate monohydrate production.

For the reasons discussed above, I

hereby certify that this rule will not

have a significant adverse economic

impact on a substantial number of small

entities. This rule, therefore, does not

require a regulatory flexibility analysis.

C. Paperwork Reduction Act

The information collection

requirements in this proposed rule have

been submitted for approval to the

Office of Management and Budget

(OMB) under the Paperwork Reduction

Act, 44 U.S.C. 3501 et seq. An

Information Collection Request (ICR)

document has been prepared by EPA

(ICR No. 1189.08) and a copy may be

obtained from Sandy Farmer by mail at

OPPE Regulatory Information Division;

Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules 70979

U.S. Environmental Protection Agency,

Office of Environmental Information,

Collection Strategies Division (2822),

1200 Pennsylvania Avenue, NW.,

Washington, DC 20460; by email at

farmer.sandy@epa.epa.gov, or by calling

(202) 260–2740. A copy may also be

downloaded off the internet at http://

www.epa.gov/icr.

EPA is proposing the following

conditions for reporting and

recordkeeping by generators and

manufacturers: The proposed rule

would require generators to submit a

one-time notice to the EPA Regional

Administrator (or the state Director in

an authorized state) and to maintain all

records of all shipments of excluded

hazardous secondary materials for a

minimum of three years.

As a condition of the exclusion,

manufacturers would be required to

submit a one-time notice, retain for a

minimum of three years records of all

shipments of excluded hazardous

secondary materials that were received

by the zinc fertilizer manufacturer

during that period, and submit an

annual report identifying the types,

quantities and origins of all such

excluded materials that were received

by the manufacturer in the preceding

year. The manufacturer would also be

required to perform sampling and

analysis of the fertilizer product to

determine compliance with the

contaminant limits for metals no less

than every six months, and for dioxins

no less than every twelve months. These

conditions would replace the current

hazardous waste regulatory

requirements for reporting and

recordkeeping and are designed to

improve the accountability system, and

government oversight capabilities over

the handling of secondary materials

used to make zinc fertilizers.

EPA estimates that the total annual

respondent burden for the new

paperwork requirements in the rule is

approximately 45 hours per year and the

annual respondent cost for the new

paperwork requirements in the rule is

approximately $9,875. However, in

addition to the new paperwork

requirements in the proposed rule, EPA

also estimated the burden and cost

savings that generators and

manufacturers could expect as a result

of no longer needing to comply with the

existing RCRA information collection

requirements for the excluded materials.

This cost savings of $21,149 minus the

$9,875 cost for the new paperwork

requirements would result in an overall

cost savings $11,275 from the proposed

rule. The net cost to EPA of

administering the rule was estimated at

approximately $244 per year.

Burden means the total time, effort, or

financial resources expended by persons

to generate, maintain, retain, or disclose

or provide information to or for a

Federal agency. This includes the time

needed to review instructions; develop,

acquire, install, and utilize technology

and systems for the purposes of

collecting, validating, and verifying

information, processing and

maintaining information, and disclosing

and providing information; adjust the

existing ways to comply with any

previously applicable instructions and

requirements; train personnel to be able

to respond to a collection of

information; search data sources;

complete and review the collection of

information; and transmit or otherwise

disclose the information.

An Agency may not conduct or

sponsor, and a person is not required to

respond to a collection of information

unless it displays a currently valid OMB

control number. The OMB control

numbers for EPA’s regulations are listed

in 40 CFR Part 9 and 48 CFR Chapter

15.

Comments are requested on the

Agency’s need for this information, the

accuracy of the provided burden

estimates, and any suggested methods

for minimizing respondent burden,

including through the use of automated

collection techniques. Send comments

on the ICR to the U.S. Environmental

Protection Agency, Office of

Environmental Information, Collection

Strategies Division (2822), 1200

Pennsylvania Avenue, NW.,

Washington, DC 20460 and to the Office

of Information and Regulatory Affairs,

Office of Management and Budget, 725

17th St., NW., Washington, DC 20503,

marked ‘‘Attention: Desk Officer for

EPA.’’ Include the ICR number in any

correspondence. Since OMB is required

to make a decision concerning the ICR

between 30 and 60 days after November

28, 2000, a comment to OMB is best

assured of having its full effect if OMB

receives it by December 28, 2000. The

final rule will respond to any OMB or

public comments on the information

collection requirements contained in

this proposal.

D. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), Public

Law 104–4, establishes requirements for

Federal Agencies to assess the effects of

their regulatory actions on State, local,

and tribal governments and the private

sector. Under section 202 of the UMRA,

EPA must prepare a written analysis,

including a cost-benefit analysis, for

proposed and final rules with ‘‘Federal

mandates’’ that may result in

expenditures to State, local, and tribal

governments, in the aggregate, or to the

private sector, of $100 million or more

in any one year. Before promulgating an

EPA rule for which a written statement

is needed, section 205 of the UMRA

requires EPA to identify and consider a

reasonable number of regulatory

alternatives and adopt the least costly,

most cost-effective, or least burdensome

alternative that achieves the objectives

of the rule. The provisions of section

205 do not apply when they are

inconsistent with applicable law. Before

EPA establishes any regulatory

requirements that may significantly or

uniquely affect small governments,

including tribal governments, it must

have developed under section 203 of the

UMRA a small government agency plan.

The plan must provide for notifying

potentially affected small governments,

enabling officials to have meaningful

and timely input in the development of

regulatory proposals, and informing,

educating, and advising small

governments on compliance with the

regulatory requirements.

This rule does not include a Federal

mandate that may result in expenditures

of $100 million or more to State, local,

or tribal governments in the aggregate,

because this rule imposes no

enforceable duty on any State, local, or

tribal governments. EPA also has

determined that this rule contains no

regulatory requirements that might

significantly or uniquely affect small

governments. In addition, as discussed

above, the private sector is not expected

to incur costs exceeding $100 million.

Therefore, today’s proposed rule is not

subject to the requirements of sections

202, 203, and 205 of UMRA.

E. Federalism—Applicability of

Executive Order 13132

Executive Order 13132, entitled

‘‘Federalism’’ (64 FR 43255, August 10,

1999), requires EPA to develop an

accountable process to ensure

‘‘meaningful and timely input by State

and local officials in the development of

regulatory policies that have federalism

implications.’’ ‘‘Policies that have

federalism implications’’ is defined in

the Executive Order to include

regulations that have ‘‘substantial direct

effects on the States, on the relationship

between the national government and

the States, or on the distribution of

power and responsibilities among the

various levels of government.’’

Under section 6 of Executive Order

13132, EPA may not issue a regulation

that has federalism implications, that

imposes substantial direct compliance

costs, and that is not required by statute,

unless the Federal government provides

70980 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules

the funds necessary to pay the direct

compliance costs incurred by State and

local governments, or EPA consults with

State and local officials early in the

process of developing the proposed

regulation. EPA also may not issue a

regulation that has federalism

implications and that preempts State

law, unless the Agency consults with

State and local officials early in the

process of developing the proposed

regulation.

Section 4 of the Executive Order

contains additional requirements for

rules that preempt State or local law,

even if those rules do not have

federalism implications (i.e., the rules

will not have substantial direct effects

on the States, on the relationship

between the national government and

the states, or on the distribution of

power and responsibilities among the

various levels of government). Those

requirements include providing all

affected State and local officials notice

and an opportunity for appropriate

participation in the development of the

regulation. If the preemption is not

based on express or implied statutory

authority, EPA also must consult, to the

extent practicable, with appropriate

State and local officials regarding the

conflict between State law and

Federally protected interests within the

agency’s area of regulatory

responsibility.

This proposed rule does not have

federalism implications. It will not have

substantial direct effects on the States,

on the relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132. This proposed

rule directly affects primarily zinc

micronutrient producers and generators

of hazardous wastes used in zinc

fertilizer production. There are no State

and local government bodies that incur

direct compliance costs by this

rulemaking. And State and local

government implementation

expenditures are expected to be less

than $500,000 in any one year (for more

information, please refer to the

background document entitled

‘‘Federalism Analysis (Executive Order

13132) for Zinc-Containing Hazardous

Waste-Derived Fertilizers, Notice of

Proposed Rulemaking: Substantial

Direct Effects’’, August 2000). Thus, the

requirements of section 6 of the

Executive Order do not apply to this

rule.

This proposed rule would preempt

State and local law that is less stringent

for these zinc-bearing hazardous wastes.

Under the Resource Conservation and

Recovery Act (RCRA), 42 U.S.C. 6901 to

6992k, the relationship between the

States and the national government with

respect to hazardous waste management

is established for authorized State

hazardous waste programs, 42 U.S.C.

6926 (§ 3006), and retention of State

authority, 42 U.S.C. 6929 (section 3009).

Under section 3009 of RCRA, States and

their political subdivisions may not

impose requirements less stringent for

hazardous waste management than the

national government. By publishing and

inviting comment on this proposed rule,

we hereby provide State and local

officials notice and an opportunity for

appropriate participation. Thus, we

have complied with the requirements of

section 4 of the Executive Order.

F. Executive Order 13084: Consultation

and Coordination With Indian Tribal

Governments

Under Executive Order 13084, EPA

may not issue a regulation that is not

required by statute, that significantly or

uniquely affects the communities of

Indian Tribal governments, and that

imposes substantial direct compliance

costs on those communities of Indian

Tribal governments, unless the Federal

government provides the funds

necessary to pay the direct compliance

costs incurred by the tribal

governments, or EPA consults with

those governments. If EPA complies by

consulting, Executive Order 13084

requires EPA to provide to the Office of

Management and Budget, in a separately

identified section of the preamble to the

rule, a description of the extent of EPA’s

prior consultation with representatives

of affected tribal governments, a

summary of the nature of their concerns,

and a statement supporting the need to

issue the regulation. In addition,

Executive Order 13084 requires EPA to

develop an effective process permitting

elected officials and other

representatives of Indian tribal

governments ‘‘to provide meaningful

and timely input in the development of

regulatory policies on matters that

significantly or uniquely affect their

communities.’’

Today’s proposal would not

significantly or uniquely affect the

communities of Indian tribal

governments, nor would it impose

substantial direct compliance costs on

them.

G. Executive Order 13045: Protection of

Children From Environmental Risks and

Safety Risks

The Executive Order 13045, entitled

‘‘Protection of Children from

Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997)

applies to any rule that EPA determines:

(1) Is ‘‘economically significant’’ as

defined under Executive Order 12866;

and (2) the environmental health or

safety risk addressed by the rule has a

disproportionate effect on children. If

the regulatory action meets both criteria,

the Agency must evaluate the

environmental health or safety effects of

the planned rule on children; and

explain why the planned regulation is

preferable to other potentially effective

and reasonably feasible alternatives

considered. This proposal is not

economically significant under

Executive Order 12866.

H. National Technology Transfer and

Advancement Act of 1995

Section 12(d) of the National

Technology Transfer and Advancement

Act of 1995 (‘‘NTTAA’’), Public Law No.

104–113, section 12(d) (15 U.S.C. 272

note) directs EPA to use voluntary

consensus standards in its regulatory

activities unless to do so would be

inconsistent with applicable law or

otherwise impractical. Voluntary

consensus standards are technical

standards (e.g., materials specifications,

test methods, sampling procedures, and

business practices) that are developed or

adopted by voluntary consensus

standards bodies. The NTTAA directs

EPA to provide Congress, through OMB,

explanations when the Agency decides

not to use available and applicable

voluntary consensus standards. EPA has

proposed to condition exclusion on the

fertilizer material based on contaminant

levels for metals and dioxins. And after

considering alternatives, EPA has

determined that it would be impractical

to use voluntary consensus standards

for the reasons stated in Section C

above.

I. Executive Order 12898

EPA is committed to addressing

environmental justice concerns and is

assuming a leadership role in

environmental justice initiatives to

enhance environmental quality for all

populations in the United States. The

Agency’s goals are to ensure that no

segment of the population, regardless of

race, color, national origin, or income

bears disproportionately high and

adverse human health or environmental

impacts as a result of EPA’s policies,

programs, and activities, and that all

people live in safe and healthful

environments. In response to Executive

Order 12898 and to concerns voiced by

many groups outside the Agency, EPA’s

Office of Solid Waste and Emergency

Response formed an Environmental

Justice Task Force to analyze the array

of environmental justice issues specific

Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules 70981

to waste programs and to develop an

overall strategy to identify and address

these issues (OSWER Directive No.

9200.3–17).

Today’s proposed rule pertains to

hazardous wastes used in zinc

micronutrient production. It is not

certain whether the environmental

problems addressed by this rule could

disproportionately affect minority or

low-income communities. Today’s

proposed rule is intended to reduce

risks of excluded hazardous secondary

materials as proposed, and to benefit all

populations. As such, this rule is not

expected to cause any

disproportionately high and adverse

impacts to minority or low-income

communities versus non-minority or

affluent communities.

The wastes proposed for exclusion

will be subject to protective conditions

regardless of where they are generated

and regardless of where they may be

managed. Although the Agency

understands that the proposed

exclusion, if finalized, may affect where

these wastes are managed in the future,

the Agency’s decision to conditionally

exclude these materials is independent

of any decisions regarding the location

of waste generators and the siting of

waste management facilities. Today’s

proposed rule will reduce loadings of

toxic non-nutritive constituents to the

soil. It will also preclude outdoor

storage of hazardous secondary

materials used in zinc fertilizer

production. EPA believes that these

provisions of the proposal will benefit

all populations in the United States,

including low-income and minority

communities.

We encourage all stakeholders

including members of the

environmental justice community and

members of the regulated community to

provide comments or further

information related to potential

environmental justice concerns or

impacts, including information and data

on facilities that have evaluated

potential ecological and human health

impacts (taking into account subsistence

patterns and sensitive populations) to

minority or low-income communities.

List of Subjects

40 CFR Part 261

Environmental protection, Hazardous

waste, Recycling, Reporting and

recordkeeping requirements.

40 CFR Part 266

Environmental protection, Energy,

Hazardous waste, Recycling, Reporting

and recordkeeping requirements.

40 CFR Part 268

Environmental protection, Hazardous

waste, Reporting and recordkeeping

requirements.

Dated: November 15, 2000.

Carol M. Browner,

Administrator.

For the reasons set out in the

preamble, title 40, chapter I of the Code

of Federal Regulations is proposed to be

amended as follows:

PART 261—IDENTIFICATION AND

LISTING OF HAZARDOUS WASTE

1. The authority citation for part 261

continues to read as follows:

Authority: 42 U.S.C. 6905, 6912(a), 6921,

6922, 6924y, and 6938.

Subpart A—General

2. Section 261.4 is amended by

adding new paragraphs (a)(20) and (21)

to read as follows:

§ 261.4 Exclusions.

(a) * * *

(20) Hazardous secondary materials

used to make zinc fertilizers, provided

that the following conditions are

satisfied:

(i) Hazardous secondary materials

used to make zinc micronutrient

fertilizers must not be accumulated

speculatively.

(ii) Generators of zinc-bearing

hazardous secondary materials that are

to be incorporated into zinc fertilizers

must:

(A) Store the excluded secondary

material in tanks, containers, or in

buildings. The tanks, containers or

buildings must be constructed and

maintained in a way that prevents

releases of the secondary materials into

the environment. At a minimum, any

building used for this purpose must be

an engineered structure made of nonearthen materials that provide structural

support, and must have a floor, walls

and a roof that prevent against wind

dispersal or contact with rainwater.

Tanks used for this purpose must be

structurally sound and must have roofs

or covers that prevent contact with wind

or rain. Containers used for this purpose

that are not located in buildings must be

made of metal or other rigid material

that has structural integrity, and must

have lids or covers that prevent wind or

water dispersal of the stored materials.

(B) Submit a one-time notice to the

Regional Administrator or State Director

in whose jurisdiction the exclusion is

being claimed, which contains the

following information:

(1) Name, address and EPA ID number

of the generator facility;

(2) Name and address of the fertilizer

manufacturer(s) to which excluded

secondary materials are expected to be

shipped;

(3) A brief description of the

industrial process(s) which generated

the secondary material, and estimated

annual quantity of excluded secondary

materials that are expected to be

shipped to each fertilizer manufacturer;

and

(4) If excluded secondary materials

are to be shipped off-site, a certification

that the state in which the receiving

facility(s) is located is authorized to

administer the provisions of this

section.

(C) Maintain at the generating facility

for no less than three years records of

all shipments of excluded hazardous

secondary materials. For each shipment

these records must at a minimum

contain the following information:

(1) Name of the transporter and date

of the shipment;

(2) Name and address of the fertilizer

manufacturer who received the

excluded material, documentation

confirming the manufacturer’s receipt of

the shipment, and a notice to the

receiving manufacturer that the shipped

materials are excluded from regulation,

subject to the conditions specified in

this paragraph (a)(20);

(3) Type and quantity of excluded

secondary material in each shipment.

(iii) Manufacturers of zinc fertilizers

or zinc fertilizer ingredients made from

excluded hazardous secondary materials

must:

(A) Store excluded hazardous

secondary materials in accordance with

the storage requirements for generators,

as specified in paragraph (a)(20)(ii)(A) of

this section.

(B) Submit a one-time notification to

the Regional Administrator or State

Director that, at a minimum, contains

the following information:

(1) Name, address and EPA ID number

of the manufacturing facility.

(2) Estimated annual quantities of

excluded hazardous secondary materials

to be used, and the industrial processes

from which they are expected to be

generated.

(3) Names, locations and EPA ID

numbers of generator facilities expected

to supply such materials.

(C) Maintain for a minimum of three

years records of all shipments of

excluded secondary materials received

by the manufacturer, which must at a

minimum identify for each shipment

the name and address of the generating

facility, name of transporter and date

the materials were received, type and

quantity received, and a brief

70982 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules

description of the industrial process that

generated the waste.

(D) Submit to the Regional

Administrator or State Director an

annual report that identifies the total

quantities of all excluded hazardous

secondary materials that were used to

manufacture zinc fertilizer or zinc

fertilizer ingredients in the previous

year, the name and address of each

generating facility, and the industrial

process(s) from which they were

generated.

(iv) Nothing in this section preempts,

overrides or otherwise negates the

provision in § 262.11 of this chapter,

which requires any person who

generates a solid waste to determine if

that waste is a hazardous waste.

(21) Zinc fertilizers made from

hazardous wastes, or hazardous

secondary materials excluded under

paragraph (a)(20) of this section,

provided that:

(i) The fertilizers meet the following

contaminant limits:

(A) For metal contaminants:

Constituent Total 1

1. Lead ............................................ 2.8

2. Cadmium .................................... 1.4

3. Arsenic ........................................ 0.6

4. Mercury ....................................... 0.3

5. Nickel .......................................... 1.4

6. Chromium ................................... 0.6

1 Maximum Allowable Total Concentration in

Fertilizer, per Unit (1%) of Zinc (ppm).

(B) For dioxin contaminants the

fertilizer must contain no more than

eight (8) parts per trillion of dioxin,

measured as toxic equivalent (TEQ).

(ii) The manufacturer performs

sampling and analysis of the fertilizer

product to determine compliance with

the contaminant limits for metals no

less than every six months, and for

dioxins no less than every twelve

months. The manufacturer may use any

reliable analytical method to

demonstrate that no constituent of

concern is present in the product at

concentrations above the applicable

limits. It is the responsibility of the

manufacturer to ensure that the

sampling and analysis are unbiased,

precise, and representative of the

product(s) that is introduced into

commerce.

(iii) The manufacturer maintains for

no less than three years records of all

sampling and analyses performed for

purposes of determining compliance

with the requirements of (a)(21)(ii) of

this section. Such records must at a

minimum include:

(A) The dates and times product

samples were taken, and the dates the

samples were analyzed;

(B) The names and qualifications of

the person(s) taking the samples;

(C) A description of the methods and

equipment used to take the samples;

(D) The name and address of the

laboratory facility at which analyses of

the samples were performed;

(E) A description of the analytical

methods used, including any cleanup

and sample preparation methods; and

(F) All laboratory analytical results

used to determine compliance with the

contaminant limits specified in this

paragraph (a)(21)(iii)(F).

(iv) In an enforcement action, the

burden of proof to establish

conformance with the conditions in this

paragraph (a)(21)(iv) and in paragraph

(a)(20) of this section, shall be on the

generator or manufacturer claiming the

exclusion.

* * * * *

PART 266—[AMENDED]

3. The authority citation for Part 266

continues to read as follows:

Authority: 42 U.S.C. 1006, 2002(a), 3004,

and 3014, 6905, 6906, 6912, 6922, 6924,

6925, and 6937.

Subpart C—Recyclable Materials Used

in a Manner Constituting Disposal

4. Section 266.20 is amended by

removing the last two sentences of

paragraph (b), and adding a new

paragraph (d) to read as follows:

§ 266.20 Applicability.

* * * * *

(d) Fertilizers that contain recyclable

materials are not subject to regulation

provided that:

(1) They are zinc fertilizers excluded

from the definition of solid waste

according to § 261.4(a)(21) of this

chapter; or

(2) For non-zinc fertilizers, the

fertilizers meet the applicable treatment

standards in subpart D of Part 268 of

this chapter for each hazardous waste

that they contain.

PART 268—[AMENDED]

5. The authority citation for part 268

continues to read as follows:

Authority: 42 U.S.C. 6905, 6912(a), 6921,

and 6921.

Subpart D—Treatment Standards

§ 268.40 [Amended]

6. Section 268.40 is amended by

removing paragraphs (i) and (j).

[FR Doc. 00–29876 Filed 11–27–00; 8:45 am]

BILLING CODE 6560–50–P