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

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 148, 261, 266, 268, and

271

[EPA–F–98–2P4F–FFFFF; FRL–6010–5]

RIN 2050 AE05

Land Disposal Restrictions Phase IV:

Final Rule Promulgating Treatment

Standards for Metal Wastes and

Mineral Processing Wastes; Mineral

Processing Secondary Materials and

Bevill Exclusion Issues; Treatment

Standards for Hazardous Soils, and

Exclusion of Recycled Wood

Preserving Wastewaters

AGENCY: Environmental Protection

Agency.

ACTION: Final rule.

SUMMARY: This rule promulgates Land

Disposal Restrictions treatment

standards for metal-bearing wastes,

including toxicity characteristic metal

wastes, and hazardous wastes from

mineral processing. The set of standards

being applied to these wastes is the

universal treatment standards. These

standards are based upon the

performance of the Best Demonstrated

Available technologies for treating

these, or similar, wastes. This rule also

revises the universal treatment

standards for twelve metal constituents,

which means that listed and

characteristic wastes containing one or

more of these constituents may have to

meet different standards than they

currently do.

In a related section regarding wastes

and secondary materials from mineral

processing, EPA is amending the rules

to define which secondary materials

from mineral processing are considered

to be wastes and potentially subject to

Land Disposal Restrictions. The

intended effect is to encourage safe

recycling of mineral processing

secondary materials by reducing

regulatory obstacles to recycling, while

ensuring that hazardous wastes are

properly treated and disposed. EPA also

is finalizing decisions on a set of

mineral processing issues wastes which

courts have been remanded to EPA.

These include retaining the Toxicity

Characteristic Leaching Procedure as the

test for identifying the toxicity

characteristic for mineral processing

wastes, and readdressing the regulatory

status of a number of miscellaneous

mineral processing wastes.

This rule also amends the LDR

treatment standards for soil

contaminated with hazardous waste.

The purpose of this revision is to create

standards which are more technically

and environmentally appropriate to

contaminated soils than those which

currently apply.

Finally, this rule excludes from the

definition of solid waste certain

shredded circuit boards in recycling

operations, as well as certain materials

reused in wood preserving operations.

EFFECTIVE DATES: This final rule is

effective on August 24, 1998.

Compliance dates:

—For prohibition on underground

injection of certain wastes at 40 CFR

148.18: May 26, 2000;

—For definition of solid waste

provisions at 40 CFR 261.2,

261.4(a)(15), and 261.4(b): November

27, 1998;

—For exclusion of recycled wood

preserving wastewaters at 40 CFR

261.4(a)(9): May 26, 1998;

—For prohibition on land disposal of

wastes from elemental phosphorus

processing and on mixed radioactive

wastes at 40 CFR 268.34(b): May 26,

2000; and

—For land Disposal Restrictions

treatment standards at 40 CFR 268.49

for soil contaminated with previously

prohibited wastes: May 26, 1998.

ADDRESSES: Supporting materials are

available for viewing in the RCRA

Information Center (RIC), located at

Crystal Gateway I, First Floor, 1235

Jefferson Davis Highway, Arlington,

Virginia. The docket information

number is F–98–2P4F–FFFFF. 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, D.C. metropolitan area, call

(703) 412–9810 or TDD (703) 412–3323.

For more detailed information on

specific aspects of this rulemaking,

contact the Waste Treatment Branch

(5302W), Office of Solid Waste (OSW),

U.S. Environmental Protection Agency,

401 M Street S.W., Washington, D.C.

20460; phone (703) 308–8434. For

information on the issue of treatment

standards for metal-bearing wastes,

contact Elaine Eby (703) 308–8449 or

Anita Cummings at (703) 308–8303. For

questions on land disposal restrictions

(LDR) treatment standards for mineral

processing wastes, radioactive mixed

wastes, and grab versus composite

sampling methods, contact Anita

Cummings at (703) 308–8303. For

information on treatment standards for

manufactured gas plant wastes, contact

Rita Chow at (703) 308–6158. Contact

Rhonda Minnick at (703) 308–8771 for

information on improvements and

corrections to the Land Disposal

Restrictions. For information on

secondary mineral processing materials

and Bevill issues, call Ashley Allen at

703–308–8419 or Stephen Hoffman of

the Industrial and Extractive Wastes

Branch at (703) 308–8413. For questions

on treatment standards for hazardous

soil, contact Elizabeth McManus of the

Permits and State Programs Division at

(703) 308–8657. Contact Stephen

Bergman of the Hazardous Waste

Identification Division at (703) 308–

7262 for questions on the exclusion for

wood preserving wastewaters. For

information on the capacity analyses,

contact Bill Kline at (703) 308–8440 or

C. Pan Lee at (703) 308–8478. For

questions on the regulatory impact

analyses, contact Paul Borst at (703)

308–0481. For other questions, call Sue

Slotnick at (703) 308–8462.

SUPPLEMENTARY INFORMATION:

Availability of Rule on the Internet:

Please follow these instructions to

access the rule: From the World Wide

Web (WWW), type http://www.epa.gov/

rules and regulations. In addition,

several technical background

documents contained in the docket

supporting this rule will be available on

the Internet at http://www.epa.gov/

offices and regions/oswer.

Table of Contents

I. Introduction to the Phase IV Rule

II. Potentially Regulated Entities

III. Revised Land Disposal Restrictions (i.e.,

Universal Treatment Standards) for

Metal Constituents in all Hazardous

Wastes, Including Toxic Characteristic

Metals

A. History of Metal Treatment Standards

B. Applicability of Metal Treatment

Standards

C. Development of New Treatment

Standards for Hazardous Wastes

Containing Metals

1. Measuring Compliance by Grab or

Composite Sampling

2. Development of Treatment Standards for

Metal Wastes

a. Final Universal Treatment Standard for

Nonwastewater Forms of Antimony

b. Treatment Standard for Wastewater

Forms of Arsenic Waste

c. Treatment Standards for Barium Waste

d. Final Universal Treatment Standard for

Nonwastewater Forms of Beryllium

Waste
Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations 28557

e. Treatment Standards for Cadmium

Wastes

f. Treatment Standards for Chromium

Wastes

g. Final Treatment Standards for Lead

Wastes

h. Treatment Standards for Wastewater and

Nonwastewater Forms of Mercury Waste

i. Final Universal Treatment Standard for

Nonwastewater Forms of Nickel

j. Final Treatment Standards for Selenium

Wastes

k. Final Treatment Standards for Silver

Wastes

l. Final Universal Treatment Standard for

Nonwastewater Forms of Thallium

m. Final Treatment Standard for

Nonwastewater Forms of Vanadium in

P119 and P120 Wastes

n. Final Treatment Standard for

Nonwastewater Forms of Zinc in K061

Waste

D. Use of TCLP to Evaluate Performance of

Treatment Technology for Treating

Hazardous Metal Constituents

IV. Application of Land Disposal Restrictions

to Characteristic Mineral Processing

Wastes

A. Proposal, Comments, and Responses

B. Clarification That Universal Treatment

Standards Apply to Ignitable, Corrosive,

and Reactive Characteristic Mineral

Processing Wastes

C. Use of TCLP to Evaluate Performance of

Treatment Technology for Treating

Hazardous Metal Constituents in Mineral

Processing Wastes

V. Other LDR Issues That May Affect Both

Toxic Characteristic Metal Wastes and

Characteristic Mineral Processing Wastes

A. Treatment Standards for Soil

Contaminated with TC Metal Wastes or

Characteristic Mineral Processing Wastes

1. Summary

2. Discussion of Today’s Approach

B. LDR Treatment Standards for

Manufactured Gas Plant Waste (MGP)

1. Summary

2. Background

3. Public Comments and EPA Responses

C. Treatment Standards for Debris

Contaminated with Phase IV wastes

D. Treatment Standards for Radioactive

Mixed Waste

1. Background

2. Proposal and Issues Discussed by

Comments

E. Underlying Hazardous Constituents in

TC Metal Wastes and Characteristic

Mineral Processing Wastes

1. Background

2. Discussion of Today’s Approach

VI. Issues Relating to Newly-Identified

Mineral Processing Wastes

A. Introduction

B. Overview of Today’s Rule

1. Issues Related to Which Mineral

Processing Secondary Materials are

Subject to LDRs

2. Issues Related to Whether Materials are

Within the Scope of the Bevill Exclusion

a. Use of Non-Bevill Materials as

Feedstocks to Operations Whose Waste

is Bevill Exempt

b. Uniquely Associated

c. Bevill Mixtures

d. Response to Court Remands Dealing

with Other Issues Relating to Mineral

Processing and to Scope of Bevill

Exclusion

e. Reexamination of Bevill Exempt Wastes

C. Analysis of and Response to Public

Comments

1. Jurisdiction

a. EPA Authority to Regulate Mineral

Processing Secondary Materials

Reclaimed Within the Industry

b. Are There Limits on Jurisdiction?

(Response to Public Interest Group

Position)

c. Immediate Reuse

d. Relation to the Current Regulatory

Definition of Solid Waste

e. Otherwise Excluded Mineral Processing

Units Which Serve as Disposal Units

2. Scope of This Rule

a. Mineral Processing Wastes Covered by

This Rule

b. Wastewater Treatment Surface

Impoundments

c. Materials Outside the Scope

3. Mineral Processing Secondary Material

Volumes and Environmental Damages

a. Volume of Secondary Materials and

Large Volume Exemption

b. Reliability of Damage and

Environmental Release Reports

4. Conditions to the Exclusion

a. Legitimacy

b. Design and Construction Standards

c. Units Eligible for Conditional Exclusion

and Conditions Attached to Such Units

d. Speculative Accumulation

e. One Time Notification

5. Bevill Related Issues

a. Uniquely Associated

b. Addition of Mineral Processing

Secondary Materials to Units Processing

Bevill Raw Materials

c. Bevill Mixture Rule and Disposal

d. Remining

6. Responses to Court Remands

a. Applicability of the Toxicity

Characteristic Leaching Procedure

(TCLP) to Mineral Processing Wastes

b. Remanded Mineral Processing Wastes

c. Lightweight Aggregate Mineral

Processing Wastes

d. Mineral Processing Wastes From the

Production of Titanium Tetrachloride

VII. LDR Treatment Standards for Soil

VIII. Improvements and Corrections to LDR

Regulations

A. Typographical Error in § 261.1(c)(10)

B. Typographical Error in § 268.4(a)(2)(ii)

and (a)(2)(iii)

C. Clarifying Language Added to § 268.7

D. Correction to Section 268.40—

Treatment Standards for Hazardous

Waste

E. Removal of California List Requirements

and de minimis Provision from § 268.42

F. Typographical Errors and Outdated

Cross-references in § 268.45

G. Correction to § 268.48 to Explain That

Sulfides are not Regulated as Underlying

Hazardous Constituents in Characteristic

Wastes

H. Cross References in § 268.50(e)

I. Mistakes in Appendices VII and VIII

J. Clarification Regarding Point of

Generation of Boiler Cleanout Rinses

IX. Capacity Determination for Phase IV Land

Disposal Restrictions

A. Introduction

B. Available Capacity for Surface Disposed

Wastes

1. Stabilization

2. Vitrification

3. Metal Recovery

4. Thermal Treatment

C. Required Capacity and Variance

Determination for Surface Disposed TC

Metal Wastes

D. Required Capacity and Variance

Determination for Surface Disposed

Mineral Processing Wastes

E. Phase IV Mineral Processing and TC

Metal Wastes Injected Into Underground

Injection Control (UIC) Class I Wells

F. Mixed Radioactive Wastes

G. Summary

X. Change to Definition of Solid Waste to

Exclude Wood Preserving Wastewaters

and Spent Wood Preserving Solutions

From RCRA Jurisdiction

A. Summary of the Proposal

B. Modifications to the Proposal

1. Notification

2. Conditions Under Which the Exclusion

Would No Longer Apply

C. Other Comments

1. Oil Borne Facilities

2. Application of the Conditions to Units

Other Than the Drip Pad

3. Relationship of Today’s Exclusion to

Previous Industry Exclusions

4. Units That May Be Visually or

Otherwise Determined to Prevent

Release

5. CESQG Status

D. State Authorization

XI. Clarification of the RCRA Exclusion of

Shredded Circuit Boards

XII. Regulatory Requirements

A. Regulatory Impact Analysis Pursuant to

Executive Order 12866

1. Methodology Section

2. Results

B. Regulatory Flexibility

C. Unfunded Mandates Reform Act

D. Paperwork Reduction Act

XIII. Environmental Justice

A. Applicability of Executive Order 12898

B. Potential Effects

XIV. State Authority

A. Statutory Authority

B. Effect on State Authorization

C. Authorization Procedures

D. Streamlined Authorization Procedures

XV. Submission to Congress and General

Accounting Office

XVI. Executive Order 13045: Protection of

Children from Environmental Health

Risks and Safety Risks

XVII. National Technology Transfer and

Advancement Act

I. Introduction to the Phase IV Rule

In the 1984 Hazardous and Solid

Waste Amendments (HSWA) to the

Resource Conservation and Recovery

Act (RCRA), Congress specified that

land disposal of hazardous waste is

prohibited unless the waste first meets
28558 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations

treatment standards established by EPA

or is disposed in units from which there

will be no migration of hazardous

constituents for as long as the waste

remains hazardous. The HSWA

amendments require that treatment

standards must substantially diminish

the toxicity or mobility of hazardous

waste, so that short- and long-term

threats to human health and the

environment are minimized.

Today’s Phase IV final rule is the

latest in a series of LDR rules that

establish treatment standards for wastes

identified or listed as hazardous after

the date of the 1984 amendments. (See

RCRA § 3004(g)(4)). EPA proposed the

Phase IV rule in four Federal Register

notices, and issued three NODAs setting

out additional data relevant to this

proceeding. In two Federal Register

notices prior to today’s, EPA

promulgated various rules proposed in

the Phase IV proposals: treatment

standards for wood preserving wastes,

paperwork reduction, and clarification

of treatability variances. Today’s final

rule promulgates regulations addressing

most of the remaining issues discussed

in Phase IV proposals and NODAs. The

table at the end of this introduction lists

references for all the Phase IV Notices,

plus others cited frequently in the

preamble.

This final Phase IV preamble contains

five major, interrelated sections. The

first section explains the new land

disposal restrictions treatment standards

for wastes identified as hazardous

because they exhibit the toxicity

characteristic for metals (referred to as

‘‘TC metal wastes’’). The section also

revises the universal treatment

standards (UTS) for 12 metal

constituents in all hazardous wastes.

The TC metal wastes will now be

required to meet the universal treatment

standards as do most other hazardous

wastes. The second major preamble

section establishes the prohibition on

land disposal plus treatment standards

for a particular type of newly identified

hazardous waste: mineral processing

waste that exhibits a characteristic of

hazardous waste. The third section

addresses additional issues affecting

both TC metal wastes and characteristic

mineral processing wastes. The fourth

section amends the rules defining when

secondary materials being recycled are

solid wastes. It states that secondary

materials from mineral processing

which are generated and reclaimed

within that industry are not solid wastes

unless they are managed in land

disposal units before being reclaimed.

Such materials are not subject to

regulation as hazardous wastes. That

part of the preamble also addresses

other issues related to mineral

processing. The final major preamble

section promulgates amended treatment

standards for soil that contains

hazardous waste or which exhibits a

characteristic of hazardous waste.

Today’s rule also includes two brief

sections on hazardous waste issues

unrelated to the major sections. One

clarifies that a previously-promulgated

exclusion from hazardous waste

regulation for recycled shredded circuit

boards also applies to whole circuit

boards under certain conditions. The

other section promulgates an exclusion

from RCRA jurisdiction for certain wood

preserving wastewaters and spent wood

preserving solutions when recycled.

TABLE OF SELECTED LDR FEDERAL REGISTER NOTICES

Common name Title of rule in FEDERAL REGISTER Date Citation

Third Third LDR Final Rule ..... Land Disposal Restrictions for Third Third Scheduled Wastes;

Rule.

June 1, 1990 ...................... 55 FR 22520.

Phase II LDR Proposal ............ Land Disposal Restrictions for Newly Identified and Listed

hazardous Waste and hazardous soil; Proposed Rule.

September 14, 1993 .......... 58 FR 48092.

Phase III LDR Proposal ........... Land Disposal Restrictions Phase III: Decharacterized

Wastewaters, Carbamate and Organobromine Wastes, and

Spent Potliners; Proposed Rule.

March 2, 1995 .................... 60 FR 11702.

Phase IV Original Proposal ..... Land Disposal Restrictions—Phase IV: Issues Associated

With Clean Water Act Treatment Equivalency, and Treatment Standards for Wood Preserving Wastes and Toxicity

Characteristic Metal Wastes; Proposed Rule.

August 22, 1995 ................. 60 FR 43654.

Phase IV First Supplemental

Proposal.

Land Disposal Restrictions—Clarification of Bevill Exclusion

for Mining Wastes, to the Definition of Solid Waste for Mineral Processing Wastes, Treatment Standards for Characteristic Mineral Processing Wastes, and Associated

Issues.

January 25, 1996 ............... 61 FR 2338.

HWIR Media Proposal ............. Requirements for Management of Hazardous Contaminated

Media.

April 29, 1996 ..................... 61 FR 11804.

Phase IV NODA #1 ................. Land Disposal Restrictions Phase IV Proposed Rule—Issues

Associated With Clean Water Act Treatment Equivalency,

and Treatment Standards for Wood Preserving Wastes and

Toxicity Characteristic Metal Wastes; Notice of Data Availability.

May 10, 1996 ..................... 61 FR 21417.

Phase IV NODA #2 ................. Land Disposal Restrictions—Phase IV: Treatment Standards

for Characteristic Metal Wastes; Notice of Data Availability.

March 5, 1997 .................... FR 62 10004.

Phase IV LDR Wood Preserving Final Rule.Land Disposal Restrictions Phase IV: Treatment Standards for

Wood Preserving Waste, Paperwork Reduction and Streamlining, Exemptions from RCRA for Certain Processed Materials; and Miscellaneous Hazardous Waste Provisions; Final

Rule.

May 12, 1997 ..................... 62 FR 25998.

Phase IV Second Supplemental Proposal.Land Disposal Restrictions Phase IV: Second Supplemental

Proposal on Treatment Standards for Metal Wastes and

Mineral Processing Wastes, Mineral Processing and Bevill

Exclusion Issues, and the Use of Hazardous Waste as Fill.

May 12, 1997 ..................... 62 FR 26041.
Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations 28559

TABLE OF SELECTED LDR FEDERAL REGISTER NOTICES—Continued

Common name Title of rule in FEDERAL REGISTER Date Citation

Phase IV NODA #3 ................. Land Disposal Restrictions Phase IV: Second Supplemental

Proposal on Treatment Standards for Metal Wastes and

Mineral Processing Wastes, Mineral Processing and Bevill

Exclusion Issues, and the Use of Hazardous Waste as Fill;

Notice of Data Availability.

November 10, 1997 ........... 62 FR 60465.

Treatability Variance Final Rule Clarification of Standards for Hazardous Waste Land Disposal

Restriction Treatment Variances.

December 5, 1997 ............. 62 FR 64504.

II. Potentially Regulated Entities

Entities potentially regulated by this final rule vary according to the section of the rule. The following table shows

the industry categories that may be regulated according to each major section of the rule. The table is not intended

to be exhaustive or definitive with respect to every case-specific circumstance. Rather, it is a general guide for readers

regarding entities that EPA is now aware could potentially be regulated by this action. Other types of entities not

listed in the table could also be regulated, and failure to mention them in the table should not be taken as any

type of regulatory determination on the part of the Agency.

TABLE OF ENTITIES POTENTIALLY AFFECTED BY THE PHASE IV FINAL RULE

Section of the rule Category Examples of entities potentially affected

LDR treatment standards for TC metal

hazardous wastes, characteristic mineral processing wastes, and other

metal-bearing wastes.

Generators of Toxicity Characteristic (TC) metal hazardous

wastes (D004—D011), characteristic mineral processing

waste, or any hazardous waste required to meet the LDR

treatment standard for antimony, barium, beryllium, cadmium, chromium, lead, nickel, selenium, silver, thallium,

vanadium, or zinc.

Facilities in the following industries: primary mineral processing, chemical

manufacturers, pharmaceutical producers, paint producers, manufacturers of motor vehicle parts, blast furnaces and steel mills, metal plating

and polishing, and aircraft parts and

equipment.

Facilities that treat and/or dispose of TC metal hazardous

wastes, characteristic mineral processing wastes, and

other metal-bearing hazardous wastes.

Hazardous waste treatment and disposal facilities.

LDR treatment standards for hazardous

soil.

Entities managing hazardous soil .......................................... Private or public parties remediating

sites containing hazardous soil

Mineral Processing Secondary Materials Facilities that generate, store, and/or recycle secondary materials from primary mineral processing.Copper smelters, gold refiners, and

other primary metals producers that

return wastestreams to units for additional recovery

Exclusion for Recycled Wood Preserving Process Wastewaters.Wood Preserving Facilities .................................................... Facilities that generate and reclaim

drippage and wastewaters on-site

from the wood processing industry.

III. Revised Land Disposal Restrictions

(i.e., Universal Treatment Standards)

for Metal Constituents in all Hazardous

Wastes, Including Toxic Characteristic

Metals

Summary

There are two purposes to today’s

new treatment standards for metalcontaining wastes. First, EPA is revising

the numerical standards because new

data are available on which to base more

accurate standards. Second, EPA is

including a new set of wastes in the

current treatment standard regime,

continuing EPA’s efforts to apply the

same LDR treatment standards when

technically and legally possible. (In a

subsequent section of this rule, EPA is

expanding the treatment standard

regime to include yet another set of

wastes. These are characteristic mineral

processing wastes that are not currently

subject to land disposal restrictions.)

The numerical standards that EPA is

revising are the universal treatment

standards (UTS) for 12 metal

constituents. The new UTS will apply to

nonwastewater forms of any listed or

characteristic hazardous waste that is

already required to meet the UTS for

those constituents in the waste. The

revised UTS are less stringent for 7

constituents, and more stringent for 5.

The rule does not affect the UTS for

wastewater forms of these wastes, and

does not change the UTS for any other

constituents, including any of the

organics.

The new set of wastes that EPA is

bringing into the current LDR regime is

the group of 8 wastes known as TC

metal wastes—wastes identified as

hazardous because they exhibit the

toxicity characteristic due to the

presence of the metals enumerated in

261.24 (Waste codes D004–D011). These

are wastes that exhibit the toxicity

characteristic because of high toxic

metal content. By today’s rule, that key

metal must be treated to the UTS for

that metal. Furthermore, any underlying

hazardous constituents (UHCs) must be

treated to UTS levels as well, whether

these UHCs are organics or metals. Both

wastewater and nonwastewater forms of

the TC metal wastes are affected by

today’s rule, except for arsenic, for

which only the wastewater forms are

affected.

Hazardous wastes that exhibit both

the TC for metals and the predecessor

characteristic based on the Extraction

Procedure (EP) are presently only

required to be treated to reduce metal

levels to below the characteristic level.

Today’s rule, for the most part, will

require additional treatment of these

metal constituents before land disposal

can occur.

The Agency also finds that the

treatment standards established in
28560 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations

today’s rule are not established below

levels at which threats to human health

and the environment are minimized.

See Hazardous Waste Treatment

Council v. EPA, 886 F.2d 355, 362 (D.C.

Cir. 1990). That case held that the

statute can be read to allow either

technology-based or risk-based LDR

treatment standards, and further held

that technology-based standards are

permissible so long as they are not

established ‘‘beyond the point at which

there is no ‘threat’ to human health or

the environment.’’ Id. at 362. EPA’s

finding that today’s standards are not

below a ‘‘minimize threat’’ level is

based on the Agency’s inability at the

present time to establish concentration

levels for hazardous constituents which

represent levels at which threats to

human health and the environment are

minimized. As the Agency has

explained a number of times,

determining these levels on a national

basis—which requires determination of

relevant exposure pathways and

potential receptors for all hazardous

constituents in hazardous wastes, with

all the attendant uncertainties involved

in such a national determination—has

not yet proven possible. See, e.g., 55 FR

at 6642 (February 26, 1990). Thus, the

Agency continues to find that

technology-based standards remain the

best approach for the national treatment

standards since such standards

eliminate as much of the inherent

uncertainty of hazardous waste land

disposal and so fulfill the Congressional

intent in promulgating the land disposal

restrictions provisions. Id. However, the

Agency believes that it may be possible

to make valid determinations that

threats to human health and the

environment are minimized on an

individualized basis in the context of

certain site-specific remediations, and

accordingly has provided in this rule a

variance from technology-based

treatment requirements for

contaminated soils generated in certain

remediations. See section VII below.

A. History of Metal Treatment

Standards

Land disposal of hazardous wastes is

largely prohibited by statute, unless the

wastes meet the applicable treatment

standards established by EPA prior to

land disposal. See RCRA sections

3004(d)–(g), (m); (the exception for nomigration units is not relevant to today’s

rule). Until today’s rule, metals that

were characteristic because they failed

the Toxicity Characteristic Leaching

Procedure (TCLP) and also failed the

Extraction Procedure (EP)—which

preceded the use of the TCLP as a

means of identifying whether a waste

exhibited a characteristic of hazardous

waste—were subject to treatment

standards at levels equal to the TC

levels (55 FR 22520, June 1, 1990). (Note

that wastes that were characteristic

according to the TCLP but did not fail

the EP were considered, until

promulgation of today’s rule, to be

newly identified wastes, and were not

subject to the LDR requirements.

Today’s rule makes these wastes subject

to LDR). However, the TC levels are

typically higher than those treatment

levels for which threats posed by land

disposal of the wastes are minimized.

(Waste Management v. EPA, 976 F.2d 2,

13–14, 26–27, 32 (D.C. Cir. 1992).

Consequently, treatment to levels lower

than the characteristic levels normally is

required. Id.

In an effort to make treatment

standards as uniform as possible while

adhering to the fundamental

requirement that the standards must

minimize threats to human health and

the environment, EPA developed the

UTS. Under the UTS, whenever

technically and legally possible, the

Agency adopts the same technologybased numerical limit for a hazardous

constituent regardless of the type of

hazardous waste in which the

constituent is present (see 40 CFR

268.40; and 59 FR 47982, September 19,

1994). In the original Phase IV proposal,

EPA proposed to apply the metal UTS,

as measured by the TCLP (60 FR 43582,

August 22, 1995; see 40 CFR 261.24), to

all TC metal wastes. The TCLP measures

the possibility that a waste may leach

toxic metals above a designated

concentration level under certain

assumed disposal conditions, and so is

a measure of the potential mobility of

toxic metals in a waste.

Commenters in response to the

original proposal took issue with the

Agency’s use of data previously used to

establish metal UTS as a basis for

establishing the treatment standards for

characteristic metal wastes. The

commenters raised three basic issues

with regard to the data transfer. First,

they said that characteristic metal

wastes are extremely variable and the

data used to calculate the treatment

standards were not representative of the

diversity of TC metal wastes. Second,

the commenters said that although two

treatment technologies—high

temperature metals recovery (HTMR)

and stabilization—were determined to

be Best Demonstrated Available

Technology (BDAT), the current metals

UTS were based solely on HTMR, a

technology not commercially available

for many TC metal wastes. Finally,

commenters asserted that individual

metal UTS values were not uniformly

achievable when waste streams with

multiple toxic metals were being

treated. In light of these concerns, the

commenters urged the Agency to obtain

additional data that would demonstrate

the effectiveness of stabilization on TC

metal waste streams and more fully

characterize the diversity of treatment of

these nonwastewaters. The following

commenters provided the Agency with

stabilization performance data: Battery

Council International, American

Foundrymen’s Association, Chemical

Waste Management, and the

Environmental Treatment Council.

While extensive, the data unfortunately

was based on composite samples and

could not be used as the basis for

treatment standards (see USEPA, Final

Best Demonstrated Available

Technology (BDAT) Background

Document for Quality Assurance/

Quality Control Procedures and

Methodology, Office of Solid Waste,

October 23, 1991 and 62 FR 26041 for

a discussion of grab and composite

sampling).

The Agency, however, was convinced

that additional data were needed to

further assess the treatment of TC metal

nonwastewaters. During September

1996, EPA conducted site visits at three

hazardous waste treatment facilities and

collected additional treatment

performance data. One facility was a

large commercial TSDF that employed

conventional stabilization techniques to

treat a wide array of inorganic metal

wastes. Another was an on-site

treatment facility that focused on the

stabilization of inorganic metal slag. A

third facility was commercial and

focused on stabilization of inorganic

materials using non-conventional

stabilization techniques. During these

site visits, the Agency either gathered

performance data from company records

or requested the collection of actual

treatment performance data through

sampling and analysis.

Treatment data were collected for the

following types of hazardous waste:

mineral processing waste, baghouse

dust, battery slag, soils, pot solids,

recycling by-products, and sludge. See

the memorandum, Final Revised

Calculation of Treatment Standards

Using Data Obtained From Rollins

Environmental’s Highway 36

Commercial Waste Treatment Facility

and GNB’s Frisco, Texas Waste

Treatment Facility, March 10, 1997 and

the memorandum, Transferability of

UTS to Mineral Processing Wastes,

January 28, 1997 for a complete

description of the waste constituents

and concentrations. Most of the wastes

contained multiple metals in various

concentrations while some had
Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations 28561

significant concentrations of typically

two metal combinations, including lead

and cadmium, barium and lead, and

chromium and antimony. In addition,

between October 1994 and December

1995, the Agency obtained performance

data from one HTMR facility; (other

HTMR data became available very late

in 1997). The assessment of the new

data sets began with the calculation of

treatment standards for each of the two

data sets representing stabilization and

HTMR. The same methodology,

sometimes called ‘‘C 99,’’ and used in

past LDR rulemakings, was used to

calculate the treatment levels (see 56 FR

41164, August 18, 1991, and the BDAT

Background Document for K061, dated

August, 1991). Next, the Agency

compared the treatment levels for

stabilization verses HTMR. Based on

this comparison, the Agency selected

the highest level for each metal as the

proposed UTS to allow for waste and

process variability and detection limit

difficulties. This approach is consistent

with the legislative goal of providing

substantial treatment through standards

that are achievable by an array of wellperforming, available treatment

technologies. See 130 Cong. Rec. S 9184

(Daily ed., July 25, 1984) (statement of

Senator Chafee).

As a result, the Agency issued a

Second Supplemental Proposal on May

12, 1997 (62 FR 26041). In it, EPA

proposed to change the numerical limits

for all nonwastewater wastes containing

the following metal constituents:

antimony, barium, beryllium, cadmium,

chromium, lead, nickel, selenium,

silver, and thallium. (62 FR at 26047,

May 12, 1997). The Agency also

reproposed to change the numerical

limits for vanadium in P119 and P120

nonwastewaters, and for zinc in K061

nonwastewaters. (62 FR at 26047, May

12, 1997). EPA also proposed these

same UTS treatment standards for TC

metal wastes identified as hazardous

due to concentrations of barium,

cadmium, chromium, lead, selenium

and silver.

The Agency would like to correct in

today’s rule a prior error that was

discovered in calculating the metals

treatment levels using the HTMR

treatment data. As previously stated, in

the Second Supplemental and in today’s

preamble, in determining the treatment

levels for each metal constituent, the

Agency compared the treatment

standards calculated with data from

HTMR and stabilization. Based on this

comparison, the highest level for each

metal was chosen as the treatment

standard. In reviewing the calculations

from the HTMR data set, the Agency

discovered an error in the calculations.

When applying the methodology

presented in USEPA, ‘‘Final Best

Demonstrated Technology (BDAT)

Background Document for Quality

Assurance/Quality Control Procedures

and Methodology,’’ dated October 23,

1991, it was discovered that the Agency

failed to conduct a ‘‘Z-score test’’ to

remove any outliers—data that is either

so high or so low that it is not

considered to be representative of the

population from which the data are

drawn. EPA uses this statistical method

to confirm that certain data do not

represent treatment by a well-operated

system, or reflect anomalously low

levels which are not typically

achievable. This error was found to have

occurred only in the calculation of the

treatment standards based on the

performance of HTMR; the treatment

standards based on the performance of

stabilization were properly calculated.

The proposed treatment standards for

cadmium, chromium, nickel, and silver

were affected. The application of the Zscore outlier test resulted in 2 data

points out of 40 being eliminated as

outliers for both cadmium and

chromium. For nickel, 5 out of 122 data

points were identified as outliers.

For silver, 3 out of 114 data points

were identified as outliers. Three of the

resulting, calculated treatment

standards changed slightly and are

slightly more stringent than the

proposed standards: cadmium from

proposed 0.20 to corrected 0.11 mg/L

TCLP; chromium from proposed 0.85 to

corrected 0.60 mg/L TCLP; and nickel

from proposed 13.6 to corrected 11

mg/L TCLP. Silver, on the other hand,

changed from the proposed 0.11 mg/L

TCLP to a corrected, slightly less

stringent 0.14 mg/L TCLP. (Note: In recalculating this standard, the Agency

added an additional 74 data points

which were submitted by the INMETCO

Company (a high temperature metal

reclaimer) in their comments to the May

12 supplemental proposal.) The Agency

believes that these re-calculations are

not significant because these four

revised standards are each still

achievable. See Memorandum,

‘‘Calculation of Universal Treatment

Standard (UTS) for HTMR Residues

Using Data Submitted by Horsehead

Research Development (HRD) Co., Inc.

And INMETCO,’’ December 17, 1997.

B. Applicability of Metal Treatment

Standards

As noted earlier, today’s rule finalizes

LDR treatment standards in two ways.

First, it revises the UTS levels for 10

metal constituents in nonwastewater

forms of hazardous wastes. The 10

include antimony, barium, beryllium,

cadmium, chromium, lead, nickel,

selenium, silver, and thallium. These

treatment standards will replace the

existing UTS values. In addition, EPA is

applying UTS for the first time to 8 TC

metal wastes: arsenic, barium,

cadmium, chromium, lead, mercury,

selenium, and silver. The UTS apply to

both wastewater and nonwastewater

forms of the wastes (except for TC

arsenic wastes, for which the UTS apply

to wastewater forms only), and to both

organic and metal underlying hazardous

constituents in them. No TC metal

wastes have had to meet standards for

underlying hazardous constituents

before today, and wastes exhibiting only

the TC and not the EP were not yet

prohibited. (Note, some subcategories of

mercury and arsenic TC metal wastes

have treatment methods requiring use of

a specified technology, and are not

affected by today’s rule.) The Agency is

also adjusting the treatment standards

for vanadium in P019 and P020

nonwastewaters as well as zinc in K061

nonwastewaters.

The metal treatment standards being

promulgated today have broad

applicability. They apply to the

following metal-containing hazardous

wastes: (1) characteristic metal wastes,

including both the newly identified

wastes that, heretofore, were not

prohibited from land disposal; and

metal wastes that were identified as

hazardous under the predecessor

leaching protocol, the Extraction

Procedure (EP), which remain

hazardous because they also exhibit the

TC by the TCLP; (2) mineral processing

wastes which exhibit the toxicity

characteristic for metal (this is actually

a subset of wastes in (1) above); (3)

listed hazardous wastes which have

metal constituents; (4) underlying

hazardous constituents (UHCs) that are

metals in any characteristic hazardous

waste (including mineral processing

waste which exhibit a characteristic)

that is disposed in other than a Clean

Water Act (CWA) or CWA-equivalent

wastewater treatment system (see 40

CFR 268.2(i); 59 FR 47982, September

19, 1994); and (5) radioactive wastes

mixed with the wastes mentioned in

(1)–(4) above.

C. Development of New Treatment

Standards for Hazardous Wastes

Containing Metals

1. Measuring Compliance by Grab or

Composite Sampling

As explained in the May 12, 1997

Second Supplemental Phase IV

proposal, EPA establishes treatment

standards using data obtained by grab

sampling, not composite sampling, and
28562 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations

likewise assesses compliance with these

standards using grab sampling. 62 FR at

26047. This approach was sustained by

the D.C. Circuit Court of Appeals in

Chemical Waste Management v. EPA,

976 F. 2d at 34, and EPA did not and

is not reopening the issue in this

proceeding. The Agency has now

obtained requisite grab sampling data.

As a result, the treatment standards

promulgated in this rule are all based

upon treatment performance that was

measured through the use of grab

sampling. All compliance likewise will

be based on grab sampling.

2. Development of Treatment Standards

for Metal Wastes

All of the metals described below are

on the UTS list and some are also TC

metals. This section discusses

development of both the TC and UTS

treatment standard levels. The Agency

is presenting the metal treatment

standards alphabetically by constituent.

Depending on the constituent, one or

more treatment standards is discussed.

For example in the section entitled,

‘‘Treatment Standards for Barium

Waste,’’ the Agency discusses the

promulgation of three treatment

standards: (1) 21 mg/L TCLP for

nonwastewater forms of D005 waste

(based on the UTS); (2) 1.2 mg/L for

wastewater forms of D005 waste (also

based on the UTS); and (3) a revised

UTS of 21 mg/L TCLP for barium

nonwastewaters. If a metal constituent

is not one of the TC metals, its presence

cannot be the basis for determining if a

waste exhibits the toxicity

characteristic—but it could be an

underlying hazardous constituent in the

waste, in which case that constituent

would need to meet the standard for

that metal in today’s rule before the

waste could be land disposed.

a. Final Universal Treatment Standard

for Nonwastewater Forms of Antimony.

The Agency proposed in the Second

Supplemental (62 FR 26041, May 12,

1997), to change the UTS for

nonwastewaters containing antimony

from 2.1 mg/L TCLP to 0.07 mg/L TCLP.

This proposed change was a result of

new data collection efforts conducted by

the Agency to gather performance data

that was representative of the diversity

of metal-containing wastes.

In response, the Agency received

several comments. Two commenters

supported the proposed change;

however the remaining commenters

argued against the proposed level for

antimony of 0.07 mg/L TCLP for a

number of reasons. One commercial

waste management facility stated that

very few of the waste streams they treat

using conventional stabilization

techniques, including furnace ash,

incinerator ash, scrubber brine sludge,

furnace baghouse dust, and stripper

rinse waters, would meet the proposed

standard. The commenter submitted 48

data points supporting its claim. A third

commenter stated that meeting the

standard would significantly increase

their compliance costs. Another stated

that commercial stabilization techniques

were not capable of meeting the

proposed UTS for antimony. In general,

these commenters suggested a higher

UTS for antimony in the range of 1.3

mg/L TCLP to 2.98 mg/L TCLP.

In response to the commenters’

concerns regarding the difficulty in

treating antimony wastes, the Agency

has conducted a thorough review of its

BDAT data set and has determined that

while it represents a diverse collection

of waste streams containing metals, the

concentration of antimony in the 9 data

points used to calculate the proposed

standard may not be representative of

the most difficult to treat antimony

waste. The data used by the Agency to

calculate the proposed UTS of 0.07 mg/

L TCLP, showed a range of antimony

concentrations in the untreated waste of

between 0.2440 mg/L TCLP and 16.1

mg/L TCLP. While the Agency, at the

time, believed that these data were

sufficient to establish a treatment

standard, new data submitted by a

commercial hazardous waste treatment

facility provide a compelling argument

to amend this standard. The new data

consist of 48 additional data points

representing various multiple metal

waste streams, including incinerator or

furnace ash, scrubber brine sludge, lab

pack waste, stripper rinse water and

baghouse dust. These wastes have all

been treated with conventional

stabilization techniques and meet the

proposed UTS values for all metal

constituents except for antimony. The

Agency has reviewed the data, the

treatment technology, and the QA/QC

information submitted by the

commenter and believes that the data

should be incorporated into the existing

BDAT data set. After doing so, the

Agency recalculated the treatment

standard for antimony nonwastewaters

and is today promulgating a revised

standard of 1.15 mg/L TCLP. All data

available to the Agency indicate that the

revised treatment standard for antimony

nonwastewaters can be achieved by

either stabilization or HTMR processes

and addresses the commenter’s

concerns.

b. Treatment Standard for Wastewater

Forms of Arsenic Waste.The Agency

proposed in the original Phase IV

proposal (60 FR 43683, August 22,

1995), to change the treatment standard

for wastewater forms of toxicity

characteristic arsenic (D004) waste from

the characteristic level of 5.0 mg/L

established in the Third Third rule (55

FR 22520 June 1, 1990) to the previously

promulgated UTS for arsenic

wastewaters of 1.4 mg/L. The Agency

did not propose to change the treatment

standard for nonwastewater forms of

toxicity characteristic arsenic (D004)

waste in that the UTS of 5.0 mg/L TCLP

was the same as the TC level. The

Agency received no comment on the

proposed change to D004 wastewaters.

Therefore, the Agency is today

promulgating as proposed the UTS

standard of 1.4 mg/L for D004

wastewaters.

c. Treatment Standards for Barium

Waste. (i) Treatment standards for TC

Barium (D005) Waste. In 60 FR 43684

(August 22, 1995), EPA proposed to

change the treatment standards for

wastewater forms of TC metal barium

waste (D005) from the characteristic

level of 100 mg/L (established in the

Third Third rule, 55 FR 22520, June 1,

1990) to the previously promulgated

UTS for barium of 1.2 mg/L. Likewise,

EPA proposed for D005 nonwastewaters

a change from the characteristic level of

100 mg/L TCLP (55 FR 22520, June 1,

1990) to the previously promulgated

UTS of 7.6 mg/L TCLP. In support of

these revised treatment standards, the

Agency had performed a comprehensive

re-evaluation of the available treatment

performance data from wastes

containing significant concentrations of

barium.

For D005 wastewaters, the Agency

determined that the existing UTS level

for barium (1.2 mg/L) was appropriate,

based on the performance of lime

conditioning followed by sedimentation

and filtration as BDAT. For D005

nonwastewaters, the Agency determined

that the existing UTS level of 7.6 mg/L

TCLP, based on treatment of barium in

K061 (electric arc furnace dust) using

HTMR was also appropriate. The

Agency believed that these treatment

standards could be routinely met by

industry. Additionally, the Agency

reviewed stabilization data and

determined that the treatment standards

for barium could be achieved by

stabilization for a wide variety of waste

matrices. (See Proposed Best

Demonstrated Available Technology

(BDAT) Background Document for

Toxicity Characteristic Metal Wastes

D004–D011, July 26, 1995.)

The Agency received no significant

comment on the proposed change to the

wastewater standard for D005. However,

as previously discussed in Section III.A

of today’s rule, new data collection

efforts and new analysis of BDAT data
Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations 28563

for nonwastewaters resulted in a

reproposal of the barium treatment

standard in the Phase IV Second

Supplement (62 FR 26047) . In this

notice, the Agency proposed to revise

the treatment standard for barium

nonwastewaters to 21 mg/L TCLP based

on stabilization. The Agency received

no comments in response to the

reproposal. Therefore, the Agency today

is promulgating a nonwastewater

treatment standard of 21 mg/L TCLP as

proposed in 62 FR 26041. In addition,

the treatment standard of 1.2 mg/L for

wastewater forms of D005 is

promulgated as proposed in 60 FR

43654.

(ii) Universal Treatment Standard

(UTS) for Barium Nonwastewaters.

(Please refer to the discussion above

about the development of the treatment

standard for D005 for additional

information on the development of the

barium UTS levels.) The Agency

proposed to change the UTS for barium

nonwastewaters from 7.6 mg/L to 21

mg/L TCLP (see 62 FR 26041). It was

proposed that such a treatment standard

would better reflect the diversity of

metal-containing waste streams and

their treatment.

The Agency received no significant

comment in response to the reproposal.

Therefore, the Agency is today

promulgating a nonwastewater UTS of

21 mg/L TCLP, as proposed.

d. Final Universal Treatment

Standard for Nonwastewater Forms of

Beryllium Waste. The Agency proposed

in the original Phase IV proposal (60 FR

43683, August 22, 1995), to revise the

UTS for nonwastewaters containing

beryllium from 0.014 mg/L TCLP to 0.04

mg/L TCLP. As previously discussed,

new data collection efforts and new

analysis of BDAT data resulted in a

reproposal of the beryllium treatment

standard to 0.02 mg/L TCLP in the

Phase IV Second Supplemental (62 FR

26041, May 12, 1997).

The Agency received numerous

comments on the proposed revision.

One commenter supported the proposed

treatment level for beryllium, but stated

that current stabilization technologies

could achieve lower treatment levels.

Several other commenters stated that

while the proposed standard for

beryllium was consistent with the data

considered by the Agency, the

stabilization data for beryllium were

quite limited and reflected the treatment

of wastes having very low beryllium

content. Commenters further questioned

whether the proposed standard of 0.02

mg/L TCLP could be met by

conventional stabilization techniques if

higher concentrations of beryllium were

treated. Other commenters stated that

they could not support the treatment

standards because EPA has not

demonstrated that existing commercial

technologies were capable of achieving

the proposed standards or that

technologies were otherwise available.

In light of the comments received, the

Agency conducted a review of the data

set used to calculate the proposed

standard. The review indicated that,

consistent with the commenter’s

concerns, the data used by the Agency

to calculate the standard were based on

wastes containing low concentrations of

beryllium (between 0.0050 and 0.5 mg/

L TCLP). These concentration levels and

the subsequent treatment standard

developed from them does not appear to

adequately account for the difficulty in

treating wastes containing higher

concentrations of beryllium. Data

generated and submitted by Brush

Wellman, Inc., consisting of seven data

points, showed characteristic wastes

(D008) with concentrations of beryllium

ranging from 32 to 95 mg/L TCLP. When

treated with conventional stabilization

techniques, treatment resulted in

beryllium levels ranging from 0.05 mg/

L to 0.31 mg/L TCLP. As a result of

these data, the proposed UTS for

beryllium must be revised to reflect a

more difficult-to-treat or highconcentration beryllium waste.

Accordingly, the Agency is today

promulgating a revised UTS for

beryllium nonwastewaters of 1.22 mg/L

based on this newly acquired data. All

treatment performance data available to

the Agency indicates that this revised

treatment standard can be met, thereby

addressing concerns raised by the

commenters to the proposal. It should

be noted that the UTS for beryllium

wastewaters remains unchanged at 0.82

mg/L.

e. Treatment Standards for Cadmium

Wastes. (i) Treatment standards for TC

Cadmium (D006) Waste. The Agency

proposed to change the treatment

standards for wastewater forms of TC

cadmium (D006) waste from the

characteristic level of 1.0 mg/L

(established in the Third Third rule (55

FR 22520. June 1, 1990) to the

previously promulgated UTS for

cadmium wastewaters of 0.69 mg/L.

EPA also proposed to change the

treatment standard for D006

nonwastewaters from the characteristic

level of 1.0 mg/L TCLP (55 FR 22520

(June 1,1990)) to the previously

promulgated UTS for cadmium

nonwastewaters of 0.19 mg/L TCLP. In

support of these revised treatment

standards, the Agency had performed a

comprehensive re-evaluation of the

available treatment performance data

from wastes containing significant

concentrations of cadmium.

For D006 wastewaters, the Agency

determined that the existing UTS for

cadmium (0.69 mg/L) based on a BDAT

of lime conditioning followed by

sedimentation was appropriate. The

treatment standard for nonwastewater

forms of D006 wastes was based on a

transfer from the UTS for cadmium of

0.19 mg/L TCLP based on the K061–

HTMR treatment standard data. The

Agency chose to use these data because

they represented performance of an

HTMR treatment unit. The UTS based

on K061–HTMR could be routinely met

by industry. Additionally the Agency

reviewed stabilization performance data

and determined that the UTS for

cadmium could be achieved by

stabilization for a wide variety of waste

matrices. See Proposed Best

Demonstrated Available Technology

(BDAT) Background Document for

Toxicity Characteristic Metal Waste

D004–D011 ( July 26, 1995).

The Agency received no comments on

the proposed change to the wastewater

standard for D006. However, for reasons

previously discussed in Section III.A of

today’s preamble, the Agency in the

Phase IV Second Supplemental

proposed to revise the treatment

standard for cadmium nonwastewaters

to 0.20 mg/L TCLP based on HTMR.

All comments received in response to

the revised standard for cadmium

supported the change. However, as

discussed earlier in Section III.A of

today’s preamble, the Agency

discovered an error in the calculation of

the treatment standard. In applying the

LDR methodology for calculating a

treatment standard, the Agency failed to

conduct a ‘‘Z-score’’ outlier test. With

the application of this test, 2 out of the

40 data points were determined to be

outliers, resulting in a revised treatment

standard for cadmium nonwastewaters

of 0.11 mg/L TCLP. (The proposed

treatment standard of 0.20 mg/L TCLP

was based on all 40 data points.) The

Agency has reviewed the comments in

light of this amended treatment

standard and believes that it can be

achieved by both HTMR and

stabilization treatment. Data submitted

by commenters in support of this rule

does clearly indicate that the standard

can be achieved. See supporting

information contained in docket for this

rule. Therefore, the Agency is today

promulgating a nonwastewater

treatment standard of 0.11 mg/L TCLP

for D006. In addition, the treatment

standard of 0.69 mg/L for wastewater

forms of D006 waste is being

promulgated as proposed in 60 FR

43654.
28564 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations

(ii) Universal Treatment Standard

(UTS) for Nonwastewaters Containing

Cadmium. The reader is referred to the

above discussion about the development

of the treatment standard for D006

nonwastewaters for additional

information of the development of the

UTS level for cadmium nonwastewaters.

EPA is promulgating an UTS of 0.11 mg/

L TCLP for nonwastewaters containing

cadmium. No change was proposed for

the cadmium wastewater UTS; therefore

it remains at 0.69 mg/L.

f. Treatment Standards for Chromium

Wastes. (i) Treatment Standards for TC

Chromium Wastes (D007). In 60 FR

43654 (August 22, 1995), the Agency

proposed to change the treatment

standards for wastewater forms of

toxicity characteristic chromium (D007)

waste from the characteristic level of 5.0

mg/L (established in the Third Third

rule (55 FR 22520. June 1, 1990) to the

previously promulgated UTS for

chromium (total) wastewaters of 2.77

mg/L. EPA also proposed to change the

treatment standards for D007

nonwastewaters from the characteristic

level of 5.0 mg/L TCLP (55 FR 22520,

June 1,1990) (a standard remanded by

the D.C. Circuit as insufficiently

stringent in Chemical Waste

Management v. EPA, 976 F. 2d at 32) to

the previously promulgated UTS for

nonwastewater forms of chromium

(total) of 0.86 mg/L TCLP. In support of

these revised standards, the Agency had

performed a comprehensive reevaluation of the available treatment

performance data from wastes

containing significant concentrations of

chromium.

For D007 wastewaters, the Agency

determined that the existing UTS (2.77

mg/L) based on a BDAT of lime

conditioning followed by sedimentation

was appropriate. The treatment standard

for D007 nonwastewaters was based on

a transfer from the UTS for chromium

(total) of 0.86 mg/L TCLP based on the

K061–HTMR treatment standard data. In

addition, the Agency reviewed

stabilization performance data and

determined that the UTS for chromium

(total) could be achieved by stabilization

for a wide variety of waste matrices. See

Proposed Best Demonstrated Available

Technology (BDAT) Background

Document for Toxicity Characteristic

Wastes D004–D011, July 26, 1995.

The Agency received no comments on

the proposed change to the wastewater

standard for D007. However, as

previously discussed in Section III.A of

today’s preamble, new data collection

efforts and further analysis of BDAT

data, resulted in a proposed revision to

the treatment standard for

nonwastewater containing chromium to

0.85 mg/L TCLP based on a BDAT of

stabilization (62 FR 26041).

In response to the reproposal, the

Agency received no significant

comments. However, as discussed

earlier in Section III.A of today’s

preamble, the Agency discovered an

error in the calculation of the treatment

standard. In applying the LDR

methodology for calculating a treatment

standard, the Agency failed to conduct

a ‘‘Z-score’’ outlier test. With the

application of this test, 2 out of the 40

data points, originally used to calculate

the standard, were determined to be

outliers, resulting in a revised treatment

standard for chromium nonwastewaters

of 0.60 mg/L TCLP. The Agency has

reviewed the comments in light of this

amended standard and believes that it

can be achieved by both HTMR and

stabilization technologies. Data

submitted by commenters in response to

this proposal also support this

conclusion. See supporting information

contained in the docket for this rule.

Therefore, the Agency is today

promulgating an amended

nonwastewater treatment standard of

0.60 mg/L TCLP. In addition, EPA is

also promulgating a treatment standard

of 2.77 mg/L for wastewater forms of

D007 as proposed in 60 FR 43654.

(ii) Universal Treatment Standard

(UTS) for Chromium Nonwastewaters.

(Please refer to the discussion above

about the development of the treatment

standard for D007 for additional

information on the development of the

chromium UTS levels.) The Agency

proposed to change the UTS for

chromium (total) nonwastewaters to

0.85 mg/L TCLP to better reflect the

diversity of metal-containing waste

streams and their treatment (see 62 FR

26041). No change was proposed for the

chromium wastewater UTS.

The Agency received no significant

comments on the reproposal. However,

as a result of an error in the calculation

of the proposed treatment standard, as

previously discussed, the Agency is

today promulgating a revised chromium

nonwastewater UTS of 0.60 mg/L TCLP.

The chromium wastewater UTS remains

unchanged at 2.77 mg/L.

g. Final Treatment Standards for Lead

Wastes. (i) Treatment standards for TC

Lead Wastes (D008). In 60 FR 43654

(August 22, 1995), the Agency proposed

to change the treatment standards for

wastewater forms of toxicity

characteristic lead (D008) waste from

the characteristic level of 5.0 mg/L

established in the Third Third rule (55

FR 22520, June 1, 1990) to the

previously promulgated UTS for lead

wastewaters of 0.69 mg/L. EPA also

proposed to change the treatment

standard for D008 nonwastewaters from

the characteristic level of 5.0 mg/L

TCLP (55 FR 22520, June 1, 1990) (a

standard remanded by the D.C. Circuit

as insufficiently stringent in Chemical

Waste Management v. EPA, 976 F. 2d at

27) to the previously promulgated UTS

for lead nonwastewaters of 0.37 mg/L

TCLP. In support of these revised

treatment standards, the Agency had

performed a comprehensive reevaluation of the available treatment

performance data from wastes

containing significant concentrations of

lead.

For D008 wastewaters, the Agency

determined that the existing UTS for

lead (0.69 mg/L) based on a BDAT of

lime conditioning followed by

sedimentation was appropriate. The

treatment standard for nonwastewater

forms of D008 waste was based on a

transfer from the UTS for lead of 0.37

mg/L TCLP, which in turn, was based

on K061–HTMR treatment standard

data. The Agency believed that the UTS

could be routinely met by industry

using HTMR. Additionally, the Agency

reviewed stabilization performance data

and determined that the UTS for lead

could also be achieved by stabilization

for a wide variety of waste matrices. See

Proposed Best Demonstrated Available

Technology (BDAT) Background

Document for Toxicity Characteristic

Metal Wastes D004–D011, July 26, 1995.

The Agency did not receive any

comments on the proposed change for

D008 wastewaters. However as

previously discussed in today’s

preamble, numerous comments on the

proposed nonwastewater treatment

standard were submitted. As a result,

the Agency in the Phase IV Second

Supplemental proposed to change the

D008 nonwastewater standard to 0.75

mg/L TCLP based on new BDAT

stabilization data (62 FR 26047)

collected by the Agency. The Agency

felt that these data better reflected the

diversity of lead-containing waste

streams and their treatment.

Numerous commenters concurred

with the Agency’s reproposal. However,

other commenters, specifically those

representing various sectors of the

secondary lead industry, argued that

EPA’s proposed treatment standard for

lead was not achievable. In particular,

comments from Battery Council

International (BCI) and the Association

of Battery Recyclers (ABR) argued that

new data developed by their association

members showed that no facility in the

secondary lead industry could meet

EPA’s proposed treatment standard for

lead. Instead, they supported setting a

treatment standard of 8.39 mg/L TCLP

for D008 nonwastewaters based on
Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations 28565

stabilization. The commenters argued

that smelter slag has chemical and

physical characteristics distinctly

different from the wastes used to

develop the treatment standard and that

because of its physical variability,

treatment of secondary smelter slag

through stabilization was much less

effective than other types of D008

wastes. The commenter further

questioned EPA’s decision to ignore

data submitted by BCI, ABR and others

in response to the original Phase IV

proposal, stating that these data were

much more comprehensive and

representative. The commenter stated

that these data contained 276 composite

data points for lead from secondary

smelter slag, with a 99th percentile

confidence interval for stabilized slag of

2.97 mg/L TCLP. Another commenter,

which uses a chemical fixation process

on the generated blast furnace slag,

argued that they could only meet a 2.0

mg/L TCLP for lead, based on composite

rather than grab sampling.

In response to the commenters’

concerns, the Agency would first like to

respond to the commenters’ statement

that data previously submitted to the

Agency was ignored. The Agency is

careful to review and analyze all data

that are submitted in support or

response to its rulemakings. In fact, the

referenced data were analyzed

extensively, but were found to be so

seriously lacking in form and quality

assurance/quality control prerequisites

that it was impossible to use them for

BDAT development. (In the docket for

this rule see the documents, ‘‘Draft—

Overview of Five Data Sets Submitted in

Response to the Land Disposal

Restrictions Phase IV Proposed Rule:

Treatment of Metals,’’ November 1996;

and correspondence from Michael

Petruska, USEPA to David B. Weinberg,

Battery Council International Re:

Request for Additional Data in Support

of the Previous Submitted Data in

Response to the Land Disposal

Restriction Phase IV,’’ July 22, 1996).

Specifically, the data submitted to the

Agency were (1) based on composite

samples rather than grab samples, the

latter being the only type used to

develop treatment standards; (2) lacking

in any quality assurance/quality control

(QA/QC) documentation; and (3) not

accompanied with specific treatment

information, or any indication that

performance of the treatment process

was in fact optimized. As such, the

Agency was unable to utilize these data.

Other additional data were

subsequently submitted by the

commenter in response to the ‘‘Second

Supplemental’’ and analyzed by the

Agency. These data were based on grab

sampling, but there were no specifics on

the type of stabilization treatment

conducted on the waste. The data does

indicate that secondary smelter slags

can be treated to meet today’s treatment

standards for all metals except lead and

thallium. With respect to lead,

approximately 24 out of 83 samples

have treated lead values greater than

0.75 mg/L TCLP, but less than the

characteristic level of 5.0 mg/L TCLP.

No information was provided for the

majority of the thallium data sets. Based

on these data, the commenter proposed

a treatment standard of 8.39 mg/L TCLP

for lead nonwastewaters and 0.79 mg/L

TCLP for thallium nonwastewaters.

However, these data failed to show

effective treatment of the thallium and

lead constituents. (In the docket for this

rule, see memorandum to Nick Vizzone,

USEPA from Howard Finkel of ICF,

‘‘Calculation of Universal Treatment

Standard (UTS) for Stabilized

Secondary Lead Slag Using Data

Submitted by the Battery Council

International and Association of Battery

Recyclers,’’ December 5, 1997).

Commenters have failed to provide

reliable and convincing data or

information to persuade the Agency that

stabilization can not meet the proposed

treatment standard of 0.75 mg/L TCLP

for lead slags. While the physical

variability of the slag may indeed affect

treatment performance, the Agency is

unconvinced that the commenter’s data

were the result of optimized treatment

conditions and, therefore, are not

indicative of true treatment difficulties.

EPA’s own performance data from

treatment of D008 battery slags (which

were used in part for the calculation of

the treatment standard) clearly support

the view that slags from secondary

battery recyclers can be treated to meet

the nonwastewater standard of 0.75 mg/

L TCLP. These data indicate that slags

with lead concentrations ranging from 5

to 846 mg/L TCLP (a range similar to

that associated with the data submitted

in response to the May 12 Second

Supplemental proposal and which are

discussed above) can be treated with

stabilization techniques to levels less

than 0.01 mg/L to 0.3 mg/L TCLP.

Furthermore, data and information

available to the Agency suggest that

with optimized treatment these

standards should be achievable

regardless of the waste matrix. (See

‘‘Treatment Technology Background

Document’’, January 1991, for a

discussion of Waste Characteristics

Affecting Performance (WCAPS and

other pertinent material). As such, the

Agency is unpersuaded by the

commenter’s arguments and is today

promulgating as proposed a treatment

standard of 0.75 mg/L TCLP for D008

nonwastewaters and a standard of 0.69

mg/L for D008 wastewaters. The Agency

notes that if a particular waste is unique

or possesses properties making it

unusually difficult to treat by the

treatment technologies whose

performance was used to develop the

treatment standard, the affected party

may petition the Agency, on a case-bycase basis, for a treatment variance as

provided in 40 CFR 268.44.

(ii) Final Universal Treatment

Standard (UTS) for Nonwastewaters

Containing Lead. (Please refer to the

discussion above about the development

of the treatment standard for D008 for

additional information on the

development of the lead UTS levels.)

The Agency proposed to change the

UTS for lead nonwastewaters from 0.37

mg/L TCLP to 0.75 mg/L TCLP to better

reflect the diversity of metal-containing

waste streams and their treatment (see

62 FR 26041). In response to the

proposed revision, the Agency did

receive a number of comments on the

nonwastewater level, discussed above.

For reasons also discussed above, the

Agency is today promulgating a lead

nonwastewater UTS of 0.75 mg/L TCLP

as proposed.

(iii) Secondary Smelter Battery Slag—

Additional Issue. EPA published a

Notice of Data Availability (NODA) on

May 10, 1996 (61 FR 21419) that

discussed, among other things, an issue

regarding application of the LDR

standards to slags resulting from the

smelting of lead acid batteries. The LDR

treatment standard, established in the

Third Third Rule in 1990, for lead acid

batteries is RLEAD (see 40 CFR 268.40

and 268.42, Table 1), which means

recovery of lead. The NODA stated that

‘‘[o]nce the batteries are smelted, the

LDR requirements have been satisfied,

and, therefore, the slag resulting from

this smelting need not be treated

further. The standards proposed under

Phase IV (i.e., compliance with UTS)

would not apply to this slag, even if the

slag exhibits a characteristic of

hazardous waste (i.e., contains lead in

amounts greater than 5.0 mg/L).’’ This

position was based on EPA’s usual

interpretation that ‘‘when EPA specifies

a treatment method as the treatment

standard, residues resulting from the

required treatment method are no longer

prohibited from land disposal unless

EPA should otherwise specify.’’

(emphasis added) 55 FR at 22538 (June

1, 1990).

After the publication of the May 10,

1996 NODA, EPA realized that it had, in

fact, ‘‘otherwise specified’’ that lead

slags resulting from the smelting of lead
28566 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations

acid batteries would be a separate

treatability group in the Third Third

rule, and they would indeed require

further treatment if the slags exceeded

the TC for lead (5.0 mg/L) as generated.

See 55 FR at 22568 (June 1, 1990). The

Third Third rule states that ‘‘The

residuals from the recovery process are

a new treatability group (i.e., the

residues are not lead acid batteries) and,

therefore, their status as prohibited or

nonprohibited is determined at the

point the residues are generated. Such

residues would thus only be prohibited

and therefore require further treatment

if they exhibit a characteristic.’’ This

point was clarified both in person and

in a letter, dated July 31, 1996, sent to

representatives of Battery Council

International. The letter explained that

the Agency had mischaracterized the

status of lead slags in the May 10, 1996

NODA and requested comment on the

appropriate treatment standard for these

lead slags.

EPA published the Phase IV Second

Supplemental Proposed Rule on May

12, 1997, and among other things, used

new data from the treatment of lead

slags in revising the treatment standards

for lead. In response to this issue, one

commenter stated that EPA was

prohibited under RCRA 3004(m) from

requiring further treatment for residuals

that resulted from a treatment process

that was determined to be BDAT (such

as RLEAD). The commenter believes

RCRA 3004(m) states that once threats

are minimized, EPA cannot require

further treatment of the residuals after

the specified BDAT treatment has been

performed on the waste, or the BDAT

numerical level has been achieved.

Because the Agency’s data on lead slag

residuals show concentrations of 283

mg/L TCLP lead are not uncommon,

potential threats from treated lead slag

(using RLEAD only) are clearly not

minimized. In fact, the concentrations of

lead in these residuals resulting from

RLEAD of lead acid batteries are among

the most concentrated TC lead wastes

for which the Agency has data. The

Agency only is requiring further

treatment of slag residuals which

exhibit the characteristic for lead (i.e.,

contain lead in amounts greater than the

TC level of 5.0 mg/l). Those residuals,

by definition, are still hazardous and

potential threats posed by their land

disposal have not been minimized.

Another commenter raised the issue

of whether there had been adequate

notice and comment given regarding the

status of lead slag residuals. The Agency

believes that adequate notice and

opportunity to comment were given in

light of the facts recited. We note also

that all comments received on the Phase

IV second supplemental rule regarding

lead slag residuals took issue with the

treatment standard for lead and the data

used to develop the standard, but did

not question that the slags could be

required to be treated further.

Commenters appeared to clearly

understand that slags are covered by the

Phase IV rule establishing standards for

TC lead wastes.

Therefore, lead slag residuals

resulting from the smelting of lead acid

batteries are included under today’s

rulemaking. If such residuals exhibit a

lead toxicity characteristic (i.e., have

lead levels exceeding 5.0 mg/L) after

RLEAD is employed, they would have to

be treated again for lead and any other

underlying hazardous constituents

present in waste until the treatment

standards are achieved. For a discussion

on the development of these numerical

standards being promulgated today; see

the discussion in section (i) above.

(iv) Addition of Iron Filings to

Stabilize Lead-Containing Wastes.

Today, the Agency is codifying the

principle that the addition of iron metal,

in the form of fines, filings, or dust, for

the purpose of ostensibly achieving a

treatment standard for lead is

‘‘impermissible dilution’’ under 40 CFR

268.3. The Agency has determined that

this waste management practice does

not minimize threats posed by land

disposal of lead-containing hazardous

waste because the practice essentially

‘‘blinds’’ the analytic method but would

not in fact prevent lead from leaching

under actual disposal conditions.

Affected wastes include: toxic

characteristic lead wastes (D008), any

characteristic waste containing lead as

an underlying hazardous constituent,

and listed wastes for which lead is

regulated.

On March 2, 1995, EPA published the

LDR Phase III proposal (60 FR 11702).

Among other things EPA proposed that

the addition of iron dust to stabilize

lead in characteristic hazardous waste

constituted impermissible dilution,

rather than treatment legitimately

meeting the LDR treatment standards

(60 FR 11731). In the proposal, the

Agency stated that certain industries

were adding iron dust or iron fines to

some characteristic hazardous waste

(nonwastewaters) as an ostensible form

of treatment for lead. As an example, the

Agency noted that foundries were

known to mix iron dust or filings with

the D008 sand generated from their

spent casting molds, viewing this

practice as a form of stabilization. In the

proposal, the Agency stated that such

stabilization practices were inadequate

to minimize threats posed by land

disposal of metal-containing hazardous

waste, and proposed to clarify that

waste management practice as

‘‘impermissible dilution’’ under 40 CFR

268.3.

In response to the proposal, the

Agency received numerous comments.

Commenters in support of the

‘‘impermissible dilution’’ designation

agreed with EPA’s discussion in the

preamble that no chemical or

pozzolanic reaction was possible from

iron dust or filings and that standard

chemistry showed that metals such as

lead were not bound in a non-leachable

matrix when using iron dust or filings

as a stabilizing agent. One commenter

further mentioned many instances

where generators have avoided

treatment costs by adding iron to their

metal and cyanide-bearing waste

streams, thus providing the short-term

ability to, as the commenter stated,

‘‘fool’’ the test for both amenable

cyanide and leachable metals. The

commenter pointed out that EPA’s

adoption of a total cyanide treatment

standard had essentially solved the

issue of ineffective treatment of cyanide

using iron, but the issue of metals

treatment still remained. The

commenter concluded that the

prohibition on the use of iron dust and

filings would promote more treatment of

toxic metal-bearing wastes.

Other commenters discussed

analytical concerns with the TCLP test

when used on iron-treated wastes. One

commenter stated that the addition of

iron to D008 waste sand may mask the

presence of lead in two ways: first, iron

is more easily oxidized than lead so that

under the conditions of the TCLP test,

iron may be preferentially leached out

into solution, leaving the lead in an

insoluble, undetectable state. A second

problem with the presence of iron in the

TCLP test is spectral interference with

the analysis of lead, which could result

in positive interference and a raised

detection limit for lead.

Numerous commenters representing

the foundry industry, however, argued

extensively against the ‘‘impermissible

dilution’’ designation for iron treatment

of characteristic metal wastes. The

commenters stated that EPA’s position

was neither justified nor supported by

any technical documentation. The

commenters further stated that: (1) iron

added to lead bearing waste foundry

sand effectively immobilizes the lead

and yields a treatment residue that

consistently passes the TCLP; (2) TCLP

tests, run on foundry sand that was

treated with iron and landfilled 8–10

years ago, yielded lead results below the

5 ppm level; (3) analytical results for

total iron from landfill samples clearly

show the iron has not oxidized after
Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations 28567

several years; and (4) iron treatment has

long-term stability. The commenters

further stated that no evidence either

from leaching tests or from real-world

experience showed that iron treatment

is not a successful long-term treatment

for brass foundry sand when the

treatment is conducted in an

appropriate manner. On March 5, 1997,

the Agency addressed the issue and

industry arguments in Land Disposal

Restriction—Phase IV Treatment

Standards for Characteristic Metal

Wastes; Notice of Data Availability

(NODA) (62 FR 10004). In this NODA,

new studies and data were presented on

the issue of the treatment adequacy of

adding iron to characteristic metal

wastes as a method of treatment. As

explained in the Phase III proposed rule

(60 FR 11702), and again in the NODA

of March 5, 1997, the addition of iron

seems to temporarily retard the

leachability of lead in spent foundry

sand, thus allowing the waste to pass

the TCLP test, but not to be permanently

treated. At the time of the Phase III final

rule, EPA decided not to finalize a

determination that the practice was a

form of impermissible dilution in the

Phase III final rule without studying the

issue further. See 61 FR 15569, April 8,

1996. In the March 5, 1997 NODA, two

studies were noticed that had recently

been completed.

One study was developed by Dr. John

Drexler of the University of Colorado

and the other by Dr. Douglas Kendall of

the National Enforcement Investigation

Center (NEIC). The results of these

studies indicated that the addition of

iron filings or iron dust to spent foundry

sands (D008) did not constitute

adequate treatment of the waste because

high concentrations of lead remained

available to the environment and indeed

have been shown to leach in actual field

testing of units receiving the spent

foundry wastes. (The reader is referred

to 62 FR 10004, March 5, 1997 for a full

discussion of the studies).

Specifically, Dr. Drexler’s study

concluded: (1) the spent foundry wastes

placed in Nacodoches Municipal

Landfill remained hazardous; (2) the

addition of iron filings to spent foundry

sand does not cause chemical reduction

(i.e., the hazardous lead remains

oxidized); (3) the addition of iron filings

to the spent foundry sand promoted a

physicochemical dilution of the sample

during the TCLP by producing

significant increases in surface area

sorption sites; (4) the addition of iron

filings to the waste artificially altered

the environmental character of the TCLP

test by increasing pH and lowering Eh

(redox potential) and DO (dissolved

oxygen); and (5) in-vitro testing shows

that these ‘‘treated’’ wastes maintain a

high bioavailability of lead.

Dr. Kendall’s study concluded that

the addition of iron is not a permanent

way to treat lead-contaminated waste.

Specifically, he concluded that: (1) no

reaction occurs when metallic iron is

mixed with lead-contaminated foundry

sand (D008); (2) during the TCLP

process, lead begins to leach into the

solution and if metallic iron is present,

the lead concentration in solution will

decrease by an oxidation/reduction

reaction to levels below the lead

characteristic; (3) only if fresh metallic

iron is regularly introduced into the

mixture, can soluble lead be kept at low

levels; and (4) upon placement of the

waste in a landfill and left alone, the

iron will oxidize, losing its ability to

reduce lead ions.

Peer review of the studies concurred

with the findings that the addition of

iron filings to spent foundry sand is not

treatment of hazardous waste and that

the scientific data presented in the

studies were based on sound scientific

research and support the conclusions

made. (See ‘‘Peer Review Report,

September 3, 1996, submitted by A.T.

Kearney, Inc., Dallas, Texas to Rena

McClurg, Regional Project Officer,

USEPA, Dallas, Texas.)

The Agency received several

comments in response to the NODA.

One State agency commented that based

on the evidence gathered by the EPA,

the addition of iron fines as treatment of

lead containing wastes appears to be

unacceptable under most disposal

criteria. Furthermore, it was the

commenter’s contention that the method

in question should be rejected where

disposal of wastes so treated may be

subjected to acid leaching and chemical

oxidation, in particular disposing of

wastes in a municipal solid waste

landfill. The commenter did note

however that data exist to support the

contention that the treatment may be

acceptable for brass foundries under

specified monofill disposal criteria.

Another commenter requested

clarification as to whether iron-bearing

lead waste products, i.e., from the steel

bridge blast cleaning and painting

industry, would be impacted. The

commenter recommended that all waste

debris from any lead abatement project

be deemed hazardous and treated

appropriately regardless of the type of

abrasive blast media used.

Two commenters argued that the

conclusions drawn from the studies

conducted by Drs. Kendall and Drexler

were erroneous or misplaced from a

regulatory standpoint. In particular the

commenters argued, among other things,

that given the biased sampling, i.e.,

sampling of only ‘‘hot spots’’ in the

landfill and disregard for SW–846

statistical analysis, EPA should

reconsider its view on the treatment of

foundry sands with iron filings. (The

reader is referred to the ‘‘Comment

Response Document’’ for this final rule

for a more complete discussion of the

comments received on this issue.)

EPA has evaluated all the comments

on the subject studies and on the issue

of iron filings as a treatment method for

lead nonwastewaters. The regulatory

issue at hand—and the focus of the

studies—is whether or not adding iron

metal is adequate treatment for LDR

purposes. Several commenters have

elected to take issue with points that are

not the central focus of the two studies.

While a statistical evaluation is used to

determine if a waste is hazardous, all

parts of the waste must be treated to

meet the applicable standards, not just

a representative sample. Thus, if results

show that ‘‘hot spots’’ remain, this is

presumptive evidence that treatment

was not effective and there is

noncompliance with the LDR treatment

requirements. In the preceding

determination of whether a waste is

hazardous, the Agency guidance in SW–

846 provides basic sampling strategies

for simple and stratified random

sampling of the waste as a whole.

However, in application of the land

disposal treatment standards, all

portions of the waste must meet the

applicable treatment standards, i.e., no

portion may exceed the regulatory limit.

See 40 CFR 268.40. Hence, commenters

that focused on the SW–846 sampling

issue largely misconstrued the central

findings of the studies.

In response to comments pointing to

the disposal of a waste in a monofill,

while data may suggest that disposal of

iron treated waste in this type of

controlled environment may be

protective in some scenarios, RCRA

section 3004(m)(1) requires treatment to

substantially diminish the toxicity of

the waste or substantially reduce the

likelihood of migration of hazardous

constituents from the waste so that

short-term and long-term threats to

human health and the environment are

minimized. This statutory requirement

has not been met with iron addition

plus placement in a monofill since

ultimate placement of the waste in a

monofill is not germane to the key issue

at hand—is the treatment prior to land

placement effective.

With respect to this key issue, the

Agency’s determination that the

addition of elemental iron in the form

of fines, filings, etc., constitutes

impermissible dilution is predicated on

the fact that the adsorption of soluble
28568 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations

lead on to the iron surface is a reversible

reaction and once the iron surfaces

oxidize (which naturally occurs when

the treated waste is exposed to air), the

ability of the additive (iron) to scavenge

soluble metals is diminished. Therefore,

the treatment is not permanent. In

addition, adsorption alone is not a

reliable method of permanently

immobilizing lead which both studies

conclude. The authors have also

concluded, and the Agency agrees, that

the prohibition should apply to any

lead-containing waste. As stated by Dr.

Kendall in his response to comments,

‘‘Lead-contaminated foundry sand is no

different from any other waste which

fails the TCLP test because of excessive

amount of extractable lead. The addition

of iron metal (zero valence iron) is not

a permanent treatment because iron

oxidizes. Since iron addition is not a

permanent treatment, it should not be

allowed for hazardous wastes which are

to be land disposed, regardless of their

origin.’’ (See memorandum from Samuel

Coleman, USEPA to James R. Berlow,

USEPA Re: ‘‘Reply to Comments

Concerning Prohibition of Land

Disposal of Iron Treated Lead

Contaminated Wastes’’. November 17,

1997.)

As indicated above, the addition of

iron metal is not a permanent treatment

because the iron inevitably oxidizes and

loses its adsorptivity for soluble lead

ions. After oxidation of the iron

surfaces, surface adsorption of lead ions

ceases and the lead-bearing waste

returns to its original state; all pretext of

treatment is lost. Since iron addition is

not effective, it cannot be allowed for

hazardous lead-containing hazardous

wastes that are to be land disposed,

regardless of their origin (i.e., all leadbearing wastes, not just foundry sands).

The Agency concludes that addition

of iron metal, in the form of fines,

filings, or dust, fails to provide longterm treatment for lead-containing

hazardous wastes. EPA is codifying this

determination by calling the practice

impermissible dilution, and so

invalidating it as a means of treating

lead in lead-containing hazardous

wastes. It can also be simply viewed as

a type of treatment that fails to

minimize the threats to human health

and the environment posed by disposal

of lead-containing hazardous wastes,

because lead mobility is not

substantially reduced when the waste is

disposed.

In response to comments whether use

of iron-containing abrasives to remove

lead-based paint, for example from the

steel bridge blast cleaning and painting

industry, may be a type of

impermissible dilution, the Agency

notes that the dilution prohibition does

not apply to processes which generate a

waste, only to processes that treat a

waste which already has been

generated. See S. Rep. No. 284, 98th

Cong. 2d Sess. 17 (1984). As such, it

would not appear that abrasive blasting

is impermissible dilution since it is part

of the process generating the waste, i.e.,

the removed paint. If generators added

iron filings/dust or discarded, off

specification steel shots to lead-based

paint waste (similar to the current

foundry practices), it is analogous to

impermissible dilution and this rule

bans such practice. However, addition

of iron filing/dust to a hazardous waste

(before the hazardous waste

determination) is a lot different from

using steel pellets/shots, silicacontaining products, and other abrasive

materials for paint removal.

The Agency has been pursuing several

specific efforts to evaluate the

environmental hazards caused by

disposal of lead-containing wastes,

including evaluation of damage case

information included in the 1996

Hazardous Waste Characteristic Scoping

Study, re-examination of the risk

modeling used for the 1995-proposed

Hazardous Waste Identification rule,

and evaluation of fate and transport in

other environmental media from

industrial nonhazardous solid waste

disposal facilities. Upon completion of

these activities, the Agency will be in a

better position to decide whether

disposal of lead-containing waste is a

health and environmental concern

warranting listing or whether revising

the TC regulatory limit would be more

appropriate.

In addition, the Agency notes that a

determination that a waste is not

hazardous (here because addition of

iron during a generating process results

in a determination that paint waste does

not exhibit a characteristic) may not be

a shield against future liability, if the

disposal results in environmental

damage. Note that under CERCLA, not

just generators are liable for any

environmental damage caused by the

release of hazardous material into the

environment. CERCLA liability is

independent of any hazardous waste

determination that previously may have

been made. EPA believes that in light of

CERCLA liability and the available

environmental contamination data, it

would be prudent for generators to

examine their waste generation and

management practices with an eye

toward segregation of lead-based paint

waste and iron dust/flakes or steel shots,

and potential re-smelting of the leadbearing residuals.

As a final matter, it has been argued

to the Agency that the proposed (and

now final) action regarding addition of

iron filings is analogous to treatment of

fluoride in a process for treating

aluminum spent potliner waste (K088)

operated by Reynolds Metals Company.

See generally Docket P33F–S0069 p. 6

(July 7, 1997) and 62 FR 37694, 37697

(July 14, 1997) (responding to comment

and establishing October 8, 1997 as the

date prohibition of land disposal of

K088 wastes takes effect). The argument

goes that in the Reynolds treatment

process, reagents are added to the

process that only allow the fluoride to

meet the LDR treatment standard by

blinding the analytical method (the

TCLP), but do not result in permanent

reduction of fluoride mobility in the

treated wastes. See 62 FR at 37695,

noting that levels of fluoride in the

leachate from actual disposal are well in

excess of the levels established in the

treatment standard (as measured by the

TCLP). Hence, it is asserted, this process

must be an example of impermissible

dilution.

The Agency disagrees. First, EPA

calculated that the process did reduce

fluoride mobility on the order of 28%.

Docket P33F–S0064. This estimate may

in fact understate the extent of

treatment. The maximum amount of

fluoride detected in actual leachate from

the disposed treatment residue is 2228

mg/L. 62 FR 37695. However, untreated

potliners leached fluoride at

concentrations ranging from 7730–8860

mg/L when exposed to the same type of

leaching medium (simulated monofill

leaching medium). Docket P33F–S0049

data set J. Thus, EPA finds that the

process is resulting in non-dilutive

treatment of fluoride. In addition, the

reagent used for fluoride treatment

serves another legitimate function in the

process—as a fluxing agent to prevent

agglomeration of material in the rotary

kiln. 62 FR at 37695. Dilution which is

a necessary part of a treatment process

is normally permissible. 51 FR at 40592

(November 7, 1986); 62 FR at 37697.

Consequently, EPA does not regard the

treatment of fluoride in the Reynolds

K088 treatment process to be a form of

impermissible dilution.

h. Treatment Standards for

Wastewater and Nonwastewater Forms

of Mercury Waste. The Agency, in the

original Phase IV rule, proposed to

change the treatment standard for one

subcategory of TC mercury wastewaters

(D009—All Others) from the

characteristic level of 0.20 mg/L

(established in the Third Third rule (55

FR 22520. June 1, 1990) to the

previously promulgated UTS for

mercury wastewaters (Mercury—All
Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations 28569

Others) of 0.15 mg/L. (60 FR 43654,

August 22, 1995.) The Agency received

no comments on this proposed change.

As such, the Agency is promulgating a

treatment standard of 0.15 mg/L for

wastewater forms of D009—All Others.

The Agency also proposed to revise

the treatment standard for TC mercury

nonwastewaters (D009—All Others)

from the characteristic level of 0.20 mg/

L TCLP to 0.025 mg/L TCLP. The

nonwastewater UTS for mercury is

based on the mercury standard

developed from K071 waste treatment

data. The only comments received on

the achievability of this proposed

change were regarding the application

of this treatment standard to TC

mercury soil. TC soils are subject to

specific treatment standards being

finalized elsewhere in today’s rule.

More detail can be found on the

mercury soil comments in the Response

to Comments Background Document.

Therefore, the Agency is promulgating a

treatment standard of 0.025 mg/L TCLP

for nonwastewater forms of D009—All

Others in today’s rule.

With respect to the broader issue of

mercury treatment, the Agency plans to

conduct an intensive review of

traditional and innovative technologies

over the next year or so. Outreach to

various industry, academic, and other

groups is also being investigated as to its

feasibility. Key information, when

available, on this effort can be obtained

from the RCRA Hotline, and notices of

significant public events will be placed

in the Federal Register and on EPA’s

Internet home page.

i. Final Universal Treatment Standard

for Nonwastewater Forms of Nickel. The

Agency proposed in the Phase IV

Second Supplemental to change the

UTS for nonwastewaters containing

nickel from 5.0 mg/L TCLP to 13.6 mg/

L TCLP. This revision to the UTS was

based on new performance data

obtained by the Agency and presented

in that notice. The Agency did not

receive any significant comments on

this issue. However, as discussed in an

earlier section of today’s preamble, the

Agency discovered an error in the

calculation of the treatment standard. In

applying the LDR methodology for

calculation of a treatment standard, the

Agency failed to conduct a ‘‘Z-score’’

outlier test. With the application of this

test, 5 out of the 122 data points

originally used in the calculation of the

standard, were determined to be

outliers. This error resulted in a revised

treatment standard for nickel

nonwastewaters of 11.0 mg/L TCLP. In

light of this amended standard, the

Agency has reviewed all of the

comments and data submittals, and has

determined that all the treatment data

for nickel is below 11.0 mg/L TCLP.

Accordingly, the Agency is today

promulgating a final UTS for nickel

nonwastewaters of 11.0 mg/L TCLP. No

change was proposed for nickel

wastewater; therefore, the UTS remains

at 3.98 mg/L for these wastes.

j. Final Treatment Standards for

Selenium Wastes. (i) Treatment

standards for TC Selenium Wastes

(D010). The majority of commenters

supported the Agency proposal to

maintain the 5.7 mg/L TCLP level for

D010 nonwastewaters. They strongly

agreed with the Agency’s reasoning, and

urged EPA to adopt the proposed

treatment standard.

One commenter, however, maintains

that the Agency should establish a

‘‘High Selenium Greater Than 200 ppm’’

subcategory for nonwastewaters, with a

corresponding treatment standard of 10

mg/L TCLP. The commenter has cited

technical problems in achieving the

proposed treatment standard level for

highly contaminated selenium wastes.

The commenter states that, since 1995,

they have consistently experienced

problems treating waste streams from

glass manufacturing companies with

wastes that contain high concentrations

of selenium. The commenter provided

treatability testing data from a selenium

waste stream, containing 80 mg/L TCLP,

which showed that 16 different

treatment recipes were tested prior to

finding one that would treat a selenium

waste to below 5.7 mg/L TCLP. The

other data, from three different

generators of selenium waste, suggest

TCLP values of untreated waste of

between 465–1064 ppm TCLP, with

treated wastes achieving between 2.5

and 45.6 mg/L TCLP.

The Agency has reviewed all the

treatment data and, for the most part,

waste streams containing selenium exist

either in relatively low concentrations

(0.1–0.13 mg/L TCLP) or in extremely

high concentrations (greater than 450

mg/L TCLP). Because of the highly

divergent nature of these wastes and the

difficulty in treating selenium with

multiple metals at almost any

concentration, it seems unreasonable to

mandate that one treatment standard

could be applicable to both.

Calculations of a revised treatment

standard, based only on the newly

submitted treatment data for the high

selenium concentration wastes, would

yield a standard of 77.0 mg/L TCLP for

selenium nonwastewaters. If a

calculation is done after pooling all

selenium data (including low

concentration selenium data), a

standard of 261 mg/L TCLP would

result. The Agency is reluctant to

establish a treatment standard for

selenium nonwastewaters of either 77.0

mg/L or 261 mg/L TCLP on a national

level. Earlier data suggest and

commenters concur that for the majority

of selenium wastes the proposed

standard of 5.7 mg/L TCLP for selenium

nonwastewaters is appropriate.

Furthermore, only three high selenium

concentration waste streams that could

apparently not be treated to this level.

Therefore, there is little reason to pool

all treatment data or to engage in

bifurcation of the selenium standard.

Accordingly, the Agency is

promulgating a treatment standard of

5.7 mg/L TCLP for nonwastewaters

containing selenium. The Agency,

however, is convinced that the highlevel selenium waste streams for which

data were submitted to EPA will be

unable to be treated to achieve the 5.7

mg/L TCLP standard. Therefore, in a

Federal Register notice that will be

published shortly, the Agency will be

requesting comment on a proposal to

grant a site-specific treatment variance

for Waste Management, Inc. for the

treatment of some D010 wastes

containing high concentrations of

selenium.

The Agency also is promulgating as

proposed a wastewater treatment

standard of 0.82 mg/L for D010

wastewaters. No comments were

received on this issue.

(ii) Universal Treatment Standard

(UTS) for Selenium. As noted above, in

the May 12, l997 reproposal of the Phase

IV rule, the Agency proposed to change

the UTS for selenium nonwastewaters

from 0.16 mg/L to 5.7 mg/L TCLP. For

the reasons discussed above for D010

nonwastewaters, 5.7 mg/L TCLP is a

better reflection of treatability of

difficult-to-treat selenium waste streams

than 0.16 mg/L TCLP. This is the level

being promulgated today for the

selenium nonwastewater UTS. (It

should be noted that because the UTS

is above the TC level for selenium,

selenium is not considered an

‘‘underlying hazardous constituent’’

(UHC) in characteristic waste, according

to the definition at 268.2(i)). The

wastewater UTS for selenium remains

unchanged at 0.82 mg/L.

k. Final Treatment Standards for

Silver Wastes. (i) Treatment standards

for TC Silver Wastes (D011). In today’s

final rule, EPA is promulgating a

nonwastewater treatment standard of

0.14 mg/L TCLP for characteristic silver

(D011). For wastewaters, EPA is

promulgating a treatment standard of

0.43 mg/L as proposed in the original

Phase IV proposal on August 22, 1995

(60 FR 43684). EPA is in the process of

determining whether silver should
28570 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations

remain on the TC list at 40 CFR

261.24(b) Table 1 or whether the current

TC level should be altered. If EPA alters

the status of silver on that TC list, EPA

will revisit the treatment standards for

silver.

(ii) Proposals, Comments, and

Responses. Until today’s notice, the

treatment standards for wastewater and

nonwastewater forms of D011 have both

been 5.0 mg/L TCLP, which is the TC

level. In 1995, EPA proposed a

treatment standard of 0.43 for

wastewaters and 0.30 mg/L for

nonwastewater, based on the best

treatment data in EPA’s possession at

that time (60 FR 43684). EPA received

comments urging the Agency to refrain

from setting a treatment standard lower

than the TC level and instead suggesting

that EPA remove silver from the TC list

altogether due to new information on

the low risk of silver to human health.

In a 1996 Notice of Data Availability

(NODA), EPA presented the option of

retaining the 5.0 mg/L treatment

standard for D011 wastes (61 FR 21420,

May 10, 1996). Comments were divided

in two groups: those which supported

the option, and those which stated that

EPA had no firm basis for such a

decision, given the potential toxicity of

silver to aquatic life.

Since receipt of the comments on the

NODA, EPA acquired more recent

treatment data on TC metals, including

silver. Based on these data, EPA learned

that D011 nonwastewaters could be

successfully treated to a level of 0.11

mg/L using HTMR, and EPA proposed

revising the UTS for silver in its Phase

IV Second Supplemental proposal. The

grab data used to establish this

treatment standard was submitted to the

Agency by an HTMR facility (62 FR

26041) (Background Documents from

Second Supplemental proposal).

Commenters on the Second

Supplemental reiterated that silver

should not be on the TC list. However,

the commenters continued, if silver

remains on the list for now, EPA should

not set a more stringent standard than

the current one of 5.0 mg/L, but rather

it should choose a risk-based standard.

Commenters explained further that little

D011 is disposed, because silver is

generally recovered from silver wastes.

In response to the reproposal, the

Agency received no significant

comment on the technical aspects of

achieving the proposed treatment

standard; however the Agency did

receive from International Metals

Company (INMETCO) an additional 74

grab data points on the treatment of

silver using HTMR. (See memorandum

from Howard Finkel, ICF, Inc., to Nick

Vizzone, USEPA Re: ‘‘Calculation of

Universal Treatment Standards (UTS)

for HTMR Residues Using Data

Submitted by Horsehead Research

Development Company, Inc. and

INMETCO,’’ December 17, 1997.) The

Agency used INMETCO data for the

calculation of the proposed treatment

standard and determined that this

additional data should be included in

the data pool. As previously discussed

in Section III.A. of today’s preamble, the

Agency discovered an error in the

calculation of the treatment standard. In

applying the LDR methodology for

calculating a treatment standard, the

Agency failed to conduct a ‘‘Z-score’’

outlier test. With the application of this

test and the inclusion of the 74

additional data points, 3 out of the 114

data points, were determined to be

outliers, resulting in a revised treatment

standard for silver nonwastewaters of

0.14 mg/L TCLP. The Agency has

reviewed the comments in light of this

amended standard and believes that it

can be achieved by both HTMR and

stabilization technologies. Data

submitted by commenters in response to

this proposal also support this

conclusion. See supporting information

contained in the docket for this rule.

The Agency does not have an

adequate basis for taking the actions

recommended by some commenters, i.e.

to remove silver from the TC list, or

regulate it at a less stringent level than

the proposed technology-based

treatment standard. EPA is in the

process of determining whether silver

should remain on the TC list at 40 CFR

261.24(b) Table 1, or whether the

current TC level should be altered. In

addition, EPA continues its work on the

Hazardous Waste Identification Rule

(HWIR) to establish risk-based exit

levels for hazardous wastes. The Agency

is not yet able to establish a nationallyapplicable risk-based level for silver that

fulfills the statutory charge of

minimizing threats of hazardous waste

to human health and the environment.

The process of establishing such a

level is technically complex; EPA is

currently modeling the ecological and

human health effects of exposure to

silver through numerous pathways.

Several issues remain unresolved

concerning human health and

environmental risk. EPA is continuing

to investigate these issues. The Agency

recently acquired studies indicating that

silver may be connected to central

nervous system and other non-cancer

effects in humans. The draft Reference

Dose for these effects have not been

finalized by the Agency for use in risk

assessments. (A Reference Dose is a

benchmark level for chronic toxicity

that is protective of human health.) In

addition to potential adverse human

health effects, uncertainties and

concerns also remain for potential

adverse environmental effects. Although

EPA removed the Maximum

Contaminant Level (MCL) for silver in

drinking water, the Ambient Water

Quality Criteria remain in effect due to

potential aquatic toxicity. Further areas

of uncertainty are how silver speciates

after release (i.e. which valence state of

silver would be present). The issue

could be important since potential toxic

effects differ depending on the species

of silver present. In short, EPA’s work

on understanding risks from disposal of

silver-containing hazardous wastes is

ongoing, and it would be premature to

establish a treatment standard based on

risk at this time.

In the absence of such ‘‘minimize

threat’’ levels for hazardous

constituents, the Agency establishes

standards based on Best Demonstrated

Available Technology (BDAT). (See full

explanation in the preamble of the

Phase II Final LDR rule at 59 FR 47986,

September 19, 1994.) The fact that the

UTS for nonwastewater forms of silver

is being lowered (made more stringent)

from the existing level of 0.30mg/L to

0.14 mg/L is due to new data on what

treatment technology achieves. As

explained in the summary of this

preamble section (Section III: Revised

Land Disposal Restrictions for Metal

Constituents in All Hazardous Wastes,

Including Toxic Characteristic Metals),

technology-based standards are the best

assurance that threat is minimized,

given the uncertainty as to the level at

which threats of hazardous waste

disposal are minimized.

EPA expects that the new treatment

standard for silver wastes will have

little, if any impact on the regulated

community. As stated by commenters,

high-silver wastes are generally recycled

due to their economic value and are

covered by the special streamlined

standards for recyclable materials

utilized for precious metal recovery at

40 CFR Part 266.70 Subpart F.

Moreover, the Regulatory Impact

Analysis for this rule estimated that the

new, more stringent UTS levels for

metal constituents, including silver, will

not increase compliance costs. This is

because the current treatment methods

already achieve the new standard of

0.14 mg/L in silver nonwastewaters.

(Achievability of the UTS for TC silver

wastewaters is not an issue; EPA

received no comments nor data on its

proposal to apply the existing UTS of

0.43 mg/L.)

Thus, the Agency is promulgating the

wastewater standard of 0.43 mg/L as

proposed and the nonwastewater
Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations 28571

standard of 0.14 mg/L. If EPA changes

the status of silver on the TC list, EPA

will revisit the treatment standards for

silver wastes.

(iii) Universal Treatment Standard

(UTS) for Silver Nonwastewaters.

(Please refer to the discussion above

about the development of the treatment

standard for characteristic silver for

information on the development of the

UTS levels.) In today’s final rule, EPA

is promulgating a nonwastewater UTS

of 0.14 mg/L TCLP for silver.

l. Final Universal Treatment Standard

for Nonwastewater Forms of Thallium.

The Agency proposed in the Second

Supplemental Proposed Rule to change

the UTS for thallium-containing

nonwastewaters from 0.078 mg/L TCLP

to 0.20 mg/L. (The original standard was

based on composite sampling from an

HTMR facility). This proposal was

based on new data obtained by the

Agency and presented in that notice.

Several commenters supported the

change. However, two commenters

argued that EPA had not demonstrated

that existing commercial technologies

were capable of achieving the proposed

standards or that technologies were

otherwise available. The Agency

remains unconvinced by the arguments

of the commenters and notes that they

supplied no treatment data in support of

their contentions. Accordingly, the

Agency is today promulgating as

proposed a revised UTS for

nonwastewaters containing thallium of

0.20 mg/L TCLP. No change was

proposed for wastewater containing

thallium; therefore the UTS remains 1.4

mg/L.

m. Final Treatment Standard for

Nonwastewater Forms of Vanadium in

P119 and P120 Wastes. The Agency

proposed in the Second Supplemental

Proposed rule to change the UTS for

nonwastewaters containing vanadium in

P119 and P120 wastes from 0.23 mg/L

TCLP to 1.6 mg/L TCLP. This proposal

was based on new data obtained by the

Agency and presented in that notice.

Commenters were supportive of the

change. The treatment standard of 1.6

mg/L TCLP is being promulgated as

proposed. No change was proposed for

wastewater containing vanadium in

P119 and P120 wastes, therefore, the

UTS remains 4.3 mg/L. The Agency

would like to point out that vanadium

is not an ‘‘underlying hazardous

constituent’’ in characteristic waste,

according to the definition at 268.2(i).

n. Final Treatment Standard for

Nonwastewater Forms of Zinc in K061

Waste. The Agency proposed in the

Second Supplemental Proposed rule to

change the treatment standard for zinc

nonwastewaters in K061 waste from 5.3

mg/L to 4.3 mg/L . This proposal was

based on new data obtained by the

Agency and presented in that notice.

One commenter was supportive of the

change, while two other commenters

were concerned with zinc being

identified as an UHC. Still another

commenter, a major HTMR facility,

submitted data (152 data points)

showing 100% compliance with the

standard after 6 high statistical outliers

were removed. Indeed, the great

majority of these data showed zinc at

levels an order of magnitude below the

promulgated standards. EPA believes

these data confirm the achievability of

today’s standard. Therefore, the Agency

is today promulgating a revised

nonwastewater treatment standard of

4.3 mg/L TCLP for K061 waste. No

change was proposed for wastewater

containing zinc in K061; therefore the

UTS remains 2.61 mg/L. In response to

the comments regarding zinc as an UHC,

the Agency would like to point out that

zinc is only regulated in K061 waste; it

is not defined as an ‘‘underlying

hazardous constituent’’ in characteristic

waste, according to the definition at

268.(i).

UNIVERSAL TREATMENT STANDARDS FOR TWELVE METAL CONSTITUENTS

[Affecting Nonwastewater TC Metal Wastes and Nonwastewater Metal Constituents in All Wastes]

Waste code Constituent TC level (mg/

L)

Existing UTS

level (mg/L

TCLP)

2nd supplemental proposed UTS

level (mg/L

TCLP)

Final UTS

level (mg/L

TCLP)

D005 .......................... Barium .............................................................................. 100 7.6 21.0 21.0

D006 .......................... Cadmium .......................................................................... 1.0 0.19 0.20 0.11

D007 .......................... Chromium ......................................................................... 5.0 0.86 0.85 0.60

D008 .......................... Lead .................................................................................. 5.0 0.37 0.75 0.75

D009- all others ......... Mercury ............................................................................. 0.2 0.025 0.025 0.025

D010 .......................... Selenium ........................................................................... 1.0 0.16 5.7 5.7

D011 .......................... Silver ................................................................................. 5.0 0.30 0.11 0.14

Antimony ........................................................................... 2.1 * 0.07 1.15

Beryllium ........................................................................... 0.014 * 0.02 1.22

Nickel ................................................................................ 5.0 13.6 11.0

Thallium ............................................................................ 0.078 0.20 0.20

Vanadium ** ...................................................................... 0.23 1.6 1.6

Zinc ** ............................................................................... 5.3 4.3 4.3

* The proposed UTS levels for antimony and beryllium were rounded up to the nearest 0.01 mg/L TCLP.

**Vanadium and zinc are not underlying hazardous constituents.

Note: Treatment standards for TC metal wastewaters have also been revised in today’s rule, but are not reflected in this table.

D. Use of TCLP to Evaluate Performance

of Treatment Technology for Treating

Hazardous Metal Constituents

Commenters did not question the

appropriateness of using the TCLP as a

means of evaluating the performance of

the treatment technology used to treat

metal hazardous constituents in

hazardous wastes. EPA is addressing the

issue sua sponte to set out why the

recent opinion of the D.C. Circuit in

Columbia Falls Aluminum Co. v. EPA

(No. 96–1234, April 3, 1998) does not

affect use of the TCLP for this purpose.

Columbia Falls presented an unusual

set of facts. EPA had established

treatment standards for spent aluminum

liners (waste K088), which standards

used the TCLP to measure performance

of the treatment technology for several

hazardous constituents, including

arsenic and fluoride. All of the

commercial treatment capacity for this

waste was provided by a single facility,

and all of the treatment residue from

this single process was disposed at a

single location. Slip op. at p. 6; 62 FR
28572 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations

1Nor is there a legitimate argument that the TCLP

is impermissibly overpredictive. Indeed, since the

TCLP has already been upheld as a means of

identifying many of these metal-containing wastes

as hazardous, Edison Electric Inst. v. EPA, 2 F.3d

438, 444–45 (D.C. Cir. 1993), and since the

‘minimize threat’ requirement in section 3004(m) is

a more stringent test, HWTC III, 886 F.2d at 363,

a fortiorari it is reasonable to use the TCLP as part

of the process of assuring that threats posed by land

disposal of these wastes are minimized.

at 1993 (Jan. 14, 1997). Notwithstanding

that the treatment process was able to

achieve the treatment standards for

arsenic and fluoride as measured by the

TCLP (i.e., the treatment residue, when

tested with the TCLP, never exceeded

the regulatory levels), actual leachate

from the disposal site contained

significantly higher levels of these

constituents. Id. EPA also had not

offered any substantive explanation for

continued use of the TCLP to measure

performance of the treatment process for

these constituents after the extreme

disparities in actual performance in the

field became known. Id. p. 18. Under

these circumstances, the court held that

it was arbitrary and capricious to

continue to use the TCLP because it

bore no rational relationship to what

was actually occurring. Id. p. 19.

None of these circumstances are

present here. The TCLP has not been

shown here to be underpredictive of

performance of treatment technology for

key hazardous constituents for any

wastes, much less, as in Columbia Falls,

to be drastically underpredictive (for

two constituents) for 100 % of the

wastes to which the test applied.

Moreover, the wastes affected by the

standard in today’s rule will not

uniformly be going to a single disposal

environment where actual leaching of

key constituents is shown to be higher

than the regulatory level. Rather, the

wastes will be decharacterized and so

can be disposed in any landfill:

municipal, subtitle D or subtitle C.

Given the enormous diversity of

characteristic wastes and the diversity

of likely disposal environments, the

TCLP will not pervasively underpredict

as was the case with spent potliners.

Unlike the situation in Columbia Falls,

therefore, there is no argument that

application of the TCLP to measure

treatment performance will fail to

minimize threats posed by these wastes’

land disposal.1

EPA also emphasizes that the LDR

treatment standards are technologybased, not risk-based. A key role of the

TCLP in the treatment standard is to

measure whether the best demonstrated

treatment technology has been properly

applied to the waste. Thus, unlike the

situation when the test is used as a

means of identifying whether or not

wastes are hazardous, the TCLP is not

principally serving a predictive function

when it is used as a component of an

LDR treatment standard. The test is

normally a good measure of evaluating

the performance of treatment technology

both because it is a widely-available test

for metal mobility, and also because it

is typically somewhat aggressive

(Edison Electric, 2 F.3d at 445). Thus, it

is a useful tool for measuring whether

metal mobility has been substantially

reduced in order that threats posed by

land disposal be minimized (as required

by section 3004 (m)). In the Agency’s

view, therefore, questions as to the

validity of the TCLP as a component of

LDR treatment standards are raised only

under the extreme circumstances

present in Columbia Falls, where, for all

wastes and all disposal scenarios

affected by the standard, large

disparities between actual

environmental field results and the

treatment standard raise significant

questions as to whether treatment is

minimizing threats. These questions are

not present for the metal-containing

wastes here.

IV. Application of Land Disposal

Restrictions to Characteristic Mineral

Processing Wastes

Summary

EPA is today finalizing its proposal to

apply the Universal Treatment

Standards (UTS), as revised in part

today, to the newly identified

characteristic mineral processing

wastes. In earlier rules and a Report to

Congress, EPA has determined which

mineral processing wastes are not

excluded in the Bevill Amendment and

are thus considered ‘‘newly identified’’

wastes subject to RCRA regulations. (See

54 FR 36592, September 1, 1989; 55 FR

2322, January 23, 1990; and Report to

Congress on Special Wastes from

Mineral Processing, USEPA, July 31,

1990.) The treatment standards being

promulgated today are located in the

table ‘‘Treatment Standards for

Hazardous Wastes’’ at 268.40 in the

regulatory language for today’s rule. The

wastes are identified by characteristic

waste code (e.g. D002 corrosive waste,

or D008 TC lead waste); there is no

separate section in that table for

characteristic mineral processing

wastes.

A. Proposal, Comments, and Responses

In the original Phase IV, EPA

proposed to apply the metal UTS, as

measured by the TCLP (60 FR 43582,

August 22, 1995) to all TC metal wastes.

On January 25, 1996, EPA further

proposed to apply the existing UTS to

the newly identified mineral processing

wastes, i.e., mineral processing wastes

that exhibit a characteristic and do not

have Bevill status and are not excluded

from being a solid wastes due to

recycling. The Agency stated in this

proposal that existing data showed that

these ‘‘newly identified’’ mineral

processing wastes were similar to those

wastes for which the UTS was

achievable, and consequently the UTS

fairly reflected the performance of Best

Demonstrated Available Technology

(BDAT) for these wastes. (See 61 FR

2338 for a complete discussion of the

Agency’s rationale for extending the

UTS to both wastewater and

nonwastewater forms of ‘‘newly

identified’’ mineral processing wastes.)

Many commenters in response to this

proposal took issue with the Agency’s

conclusions that the existing data

demonstrated that the UTS was

achievable for the newly identified

mineral processing wastes and stated

that the record for the rulemaking

reflected no such showing. The

commenters further argued that to

develop representative treatment

standards for mineral processing wastes,

the Agency must: (1) Collect and

analyze a representative mineral

processing waste characterization and

treatability data set; (2) analyze that data

using well-reasoned and documented

methods for determining the treatability

of the subject wastes; (3) make a

determination as to whether the UTS or

some other LDR treatment standards are

appropriately applied to mineral

processing wastes; and (4) provide

notice and an opportunity to comment

on that determination prior to imposing

any LDR treatment standards on such

wastes. Several other commenters took

issue with the Agency’s use of only

HTMR data to develop the treatment

standards.

As a result of these comments and

others received in response to the

original Phase IV rule, the Agency

decided to further assess the treatment

of TC metal wastes and mineral

processing wastes. As previously

discussed in today’s preamble, the

Agency collected actual stabilization

performance data during three site visits

conducted in September 1997. In

particular, treatment data were collected

for the following primary mineral

processing wastes: cadmium sponge

residue, cupel and crucibles from fire

assay laboratories, slag from fire assay

laboratory, soil and debris contaminated

with sulfuric acid, blast furnace slag,

baghouse dust, lead/bromide residue,

and gold ore leach tailings. In addition,

treatment data from the following

secondary mineral processing wastes
Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations 28573

were also collected: lead slag waste,

lead-bearing assay laboratory wastes,

lead contaminated wastes, cupels, and

debris; blast furnace slag, lead recycling

by-products, lead contaminated soils,

and lead battery recycling slag waste.

Many of these wastes were particularly

difficult to treat due to high total and

leachable levels of metals, extreme Ph,

and presence of multiple hazardous

metal constituents.

As previously discussed in an earlier

section of today’s preamble, the Agency

assessed two data sets representing

performance of stabilization and HTMR

for the treatment of metal-containing

waste streams. This assessment began

with the calculation of treatment

standards for each of the two data sets.

Next, the Agency compared the

treatment levels for stabilization versus

HTMR. Based on this comparison, the

Agency selected the highest level for

each metal as the proposed UTS to

allow for process variability and

detection limit difficulties. As noted

earlier, this approach is consistent with

the legislative goal of providing

substantial treatment through standards

that are achievable by an array of wellperforming available treatment

technologies.

On May 12, 1997, the Agency issued

a Second Supplemental Proposal (62 FR

26041). In it, EPA proposed to change

the numerical limits for all

nonwastewater wastes containing the

following metal constituents: antimony,

arsenic, barium, beryllium, cadmium,

chromium, lead, mercury, nickel,

selenium, silver, thallium, vanadium,

and zinc. EPA also proposed these same

UTS treatment standards for TC metal

wastes identified as hazardous due to

the concentration of barium, cadmium,

chromium, lead, selenium, or silver.

Based on the data collection efforts, the

methodology used to develop these

revised standards, and the

preponderance of mineral processing

treatment data used to calculate the

standards, the Agency was convinced

that the transferability of the universal

treatment standards to mineral

processing wastes was well supported.

In response to these revised treatment

standards and their application to

mineral processing wastes, the Agency

received few comments. Several

commenters supported the Agency’s

decision to apply the LDR treatment

standards to mineral processing wastes.

A limited few, however, continued to

argue that EPA’s application of the LDR

program to mineral processing wastes

was not supported by the record. The

commenters’ position is

unsubstantiated, relying entirely upon

assertions that the standards are not

achievable. No data was submitted to

support the commenters’ position.

Conversely, the data in hand (some of

which reflect successful treatment of

hard-to-treat mineral processing wastes)

show that the treatment standards are

achievable using either stabilization or

HTMR for mineral processing wastes.

As a result, the Agency is today

finalizing the applicability of the

existing UTS to the newly identified

mineral processing wastes.

The reader is referred to an earlier

section of today’s preamble for a

complete discussion of treatment

standards for metal wastes being

promulgated today.

B. Clarification That Universal

Treatment Standards Apply to Ignitable,

Corrosive, and Reactive Characteristic

Mineral Processing Wastes

As discussed above, the treatment

standards promulgated in this rule will

apply to all the newly identified

characteristic wastes from mineral

processing operations. This includes not

only the mineral processing wastes

exhibiting the toxicity characteristic

(TC), but also wastes that exhibit the

characteristic of ignitability (D001);

corrosivity (D002); or reactivity (D003).

(See definitions of these characteristics

at 40 CFR 261.20 through 261.23.) The

treatment standards found in 40 CFR

268.40 require removal of the

characteristic as well as meeting the

treatment standards for all underlying

hazardous constituents (UHCs)

reasonably expected to be present at

levels above the UTS. The Agency

received no comment on this issue at

proposal (see 61 FR 2338, January 25,

1996). Therefore, the Agency has no

reason to believe that the UTS are not

achievable for mineral processing

wastes also exhibiting the characteristic

of ignitability, corrosivity and/or

reactivity. As such, the Agency is today

promulgating the application of UTS to

D001, D002, and D003 mineral

processing wastes.

C. Use of TCLP to Evaluate Performance

of Treatment Technology for Treating

Hazardous Metal Constituents in

Mineral Processing Wastes

Part of this rulemaking involves

consideration of what the appropriate

regulatory test is to determine if mineral

processing wastes exhibit the toxicity

characteristic. The Agency addresses

this issue in detail later in this preamble

when discussing retention of the TCLP

for this purpose. Here, we confirm that

the Agency will also continue to use the

TCLP as part of the LDR treatment

standard for these wastes. Although

commenters did not raise this issue, the

Agency feels that addressing it is

appropriate in light of the D.C. Circuit’s

recent decision in Columbia Falls

Aluminum Co. v. EPA (No. 96–1234,

April 3, 1998).

The critical component in making

waste identification determinations (i.e.,

to determine whether a waste should be

regulated) is ascertaining a plausible

mismanagement scenario for the waste

if unregulated, and finding a predictive

model that can reasonably evaluate

whether the waste is capable of posing

substantial present or potential harm to

human health and the environment

under those conditions. Edison Electric

Inst., 2 F. 3d at 444. This issue simply

does not arise in the LDR context since

the wastes subject to LDR are regulated

hazardous wastes, and the issue of

where and how they would have been

managed absent Subtitle C regulation is

irrelevant.

In the LDR context, all land disposal

(except that occurring in no-migration

units) is defined as being unprotective

(see, e.g. RCRA section 3004(d)(1)),

largely due to the ‘‘long-term

uncertainties associated with land

disposal’’ (id.). For this reason,

treatment standards reflecting

performance of Best Demonstrated

Available Technology provide an

objective means of removing as much of

this inherent ‘‘long-term uncertainty’’ as

possible, and so permissibly achieve the

ultimate requirement of minimizing

threats posed by land disposal of

hazardous wastes. HWTC III, 886 F. 2d

at 362–65; 55 FR at 6642 (Feb. 26, 1990).

The principal role of the TCLP in these

treatment standards is assuring the

performance levels achievable from use

of these best treatment technologies, not

predicting environmental fate in the

disposal environment.

As discussed earlier, the TCLP is

historically accepted as being wellsuited for evaluating performance of

treatment technology for metals given

its availability and general

aggressiveness for mobilizing metals.

Also, we note that since the TCLP serves

a different purpose in the LDR treatment

standards than it serves for identifying

wastes as hazardous, and since it is

well-suited for that purpose, there

would be no contradiction in using it as

part of the LDR standard even if a

different test were to be used

(presumably in the future) for waste

identification.

Nor does the Columbia Falls opinion

undercut use of the TCLP as a

component of treatment standards for

mineral processing wastes. As noted

earlier with respect to other toxic metalcontaining wastes, EPA does not view

Columbia Falls as requiring a change in
28574 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations

use of the TCLP as part of the LDR

treatment standards. The TCLP has not

been shown generally to be

underpredictive of performance of

treatment technology for key hazardous

constituents for any wastes, much less,

as in Columbia Falls, to be drastically

underpredictive (for two constituents)

for 100% of the wastes to which the test

applied. For all mineral processing

wastes to which it was applied, the

TCLP test has not been shown to be

underpredictive either, and so would be

part of the mechanism for assuring that

treatment minimizes threats posed by

land disposal of these wastes. Moreover,

it should be noted that mineral

processing wastes can be and are treated

commercially, and the treatment

residues are then disposed along with

other wastes in different types of

disposal units. See, e.g. the document

entitled, ‘‘Background Documents

Supporting the Phase IV Final Rule:

Metal Treatment Standards’’ in the

RCRA Docket (commercial treatment

company treating mineral processing

wastes along with other metalcontaining wastes and disposing of

commingled treatment residues). These

units certainly can generate mildly

acidic leachate. 51 FR at 40594 (Nov. 7,

1986). Given these circumstances, the

TCLP is an appropriate part of a

standard which minimizes threats posed

by land disposal of these wastes.

V. Other LDR Issues That May Affect

Both Toxic Characteristic Metal Wastes

and Characteristic Mineral Processing

Wastes

A. Treatment Standards for Soil

Contaminated With TC Metal Wastes or

Characteristic Mineral Processing

Wastes

1. Summary

EPA has decided that the LDR

treatment standards (i.e., UTS) for

toxicity characteristic metals (D004–

D011) and newly identified mineral

processing wastes being promulgated in

today’s rulemaking will not apply to

soils contaminated with these

hazardous wastes. Instead, these

contaminated soils will be subject to the

treatment standards for soil originally

proposed in a separate rulemaking

entitled the Hazardous Waste

Identification Rule for Contaminated

Media (‘‘HWIR-Media’’) (61 FR 11804,

April 29, 1996). These treatment

standards are being finalized in a

separate section of today’s rule.

However, because of their impacts on

TC metal and mineral processing

wastes, a brief introductory discussion

is warranted at this point.

2. Discussion of Today’s Approach

In the Phase IV proposed rule (60 FR

43682, August 22, 1995), the Agency did

not specifically exempt soil

contaminated with TC metal wastes

from the newly proposed LDR

standards; thus, the UTS standards for

metals would have applied to TC metal

soils. In the Phase IV First

Supplemental Proposal (61 FR 2338,

January 25, 1996), the Agency proposed

applying existing universal treatment

standards to newly identified mineral

processing wastes, i.e., to mineral

processing wastes that exhibit a

characteristic, do not have Bevill status,

and are not excluded from being solid

wastes due to recycling. As a

consequence, soils contaminated with

these newly identified mineral

processing wastes would also have been

subject to UTS.

In today’s rule, the Agency is

finalizing alternative treatment

standards for contaminated soil

reproposed in the HWIR-Media

rulemaking. (See the section of this

preamble on treatment standards for

contaminated soil.) These treatment

standards for hazardous contaminated

soils are being finalized for all

hazardous wastes, including TC metal

and newly identified mineral processing

wastes.

B. LDR Treatment Standards for

Manufactured Gas Plant Waste (MGP)

1. Summary

Today, the Agency is promulgating

treatment standards for hazardous MGP

wastes and soils, i.e., wastes and

contaminated soils that resulted from

processing coal to produce gas and that

exhibit a characteristic of hazardous

waste. Typically these operations were

conducted at manufactured gas plants

until the 1950s, and wastes remain at

those closed MGP sites. MGP wastes are

among the mineral processing wastes

which the Agency determined in 1989

and 1990 to be subject to RCRA

jurisdiction because they are not

excluded from RCRA by the Bevill

Amendment. See 54 FR 36592

(September 1, 1989). Hence, they are a

subset of the newly identified mineral

processing wastes covered by the

prohibitions and treatment standards

promulgated in this rule.

On January 25, 1996, EPA proposed to

apply LDR treatment standards to MGP

wastes (61 FR 2360). MGP wastes are no

longer being produced, since

manufactured gas plants are no longer

in operation. The Agency notes that the

LDRs only apply at closed MGP sites

that are excavated and managed in a

way that constitutes placement in a land

disposal unit (See 61 FR 18805, April

29, 1996.) The LDRs would require that

actively managed MGP wastes be treated

to eliminate any characteristics and to

achieve the UTS for any underlying

hazardous constituents prior to land

disposal. Today’s rule finalizes the UTS

for MGP wastes that exhibit the toxicity

characteristic. However, for soils

contaminated with MGP wastes, EPA is

today promulgating treatment standards

specifically for hazardous soil. These

soil standards, generally, require

treatment to achieve 90 percent

reduction of hazardous constituent

levels, or 10 times the UTS levels. See

Section VII of this preamble.

Today’s rule does not alter the

Agency’s 1993 memorandum that

interpreted existing rules to say that the

ash that results from burning MGP

remediation wastes along with coal in

utility boilers remains covered by the

Bevill amendment and hence is not

regulated under Subtitle C rules. (See

memorandum, dated April 26, 1993,

entitled ‘‘Remediation of Historic

Manufactured Gas Plant Sites’’, from

Sylvia K. Lowrance, Director of the

Office of Solid Waste, to EPA Regional

Waste Management Division Directors.

The memorandum is located in the

RCRA docket for the Phase IV

Supplemental Proposal dated January

25, 1996; 61 FR 2338.) Such residuals

are considered to be covered by the

Bevill amendment because they result

primarily from the combustion of coal

(assuming, if the MGP remediation

wastes that are co-burned are hazardous,

the residues are not significantly

affected by burning the MGP wastes,

within the meaning of 40 CFR section

266.112).

2. Background

Manufactured gas plants were

designed to generate gas from coal. The

coal tar residuals generated from the

process remain at these historic MGP

sites. Many of these sites have soils

contaminated with these coal tar

residuals. The majority of these

contaminated soils will come from the

cleanup of historic MGP sites. A

significant portion of the soil is

nonhazardous, but approximately 15

percent of the soils fail the toxicity

characteristic leaching procedure test

for benzene. These toxicity

characteristic (TC) soils also typically

contain PAHs, heavy metals, inorganics,

volatile aromatics, and phenolics. At

certain closed MGP sites, there can be

non-soil hazardous wastes, e.g., coal tars

in tar holders, which may need to be

treated to UTS levels if they are actively

managed and land disposed.
Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations 28575

3. Public Comments and EPA Responses

Commenters expressed several major

concerns about the Phase IV proposal to

apply UTS to MGP wastes. First, they

urged the Agency to delay

implementing the soil standards until

the final HWIR-media rule becomes

effective. In addition, commenters

requested that EPA re-affirm the

Agency’s 1993 co-burning memorandum

for MGP wastes. Finally, commenters

urged the Agency to establish specified

treatment methods for those MGP

wastes that will not be managed

according to the Agency’s 1993 coburning memorandum, rather than

making the wastes subject to the UTS

concentration levels as proposed. One

commenter identified several methods

of management that could be specified:

‘‘recycling technologies including the

use of coal tar residuals to manufacture

asphalt, bricks, and cement; and

combustion technologies that include

utility boiler co-burning, incineration

and thermal desorption.’’ The

commenter stated that specified

methods would preserve flexibility for

managing MGP site remediations and

remove regulatory barriers to

expeditious site cleanups.

Regarding the commenter’s concern

about the coordination of Phase IV

standards and the HWIR-media rule, the

Agency is finalizing treatment standards

for hazardous contaminated soils in a

separate section of today’s rule. Also,

although the Agency did not reopen the

issue, the Agency confirms that the 1993

co-burning interpretation remains in

effect.

The Agency has studied carefully the

comment urging the Agency to specify

incorporation of MGP waste into

asphalt, bricks, or concrete as a

designated method of treatment, which

would have the effect of making wastes

so treated not subject to meeting

numerical treatment standards for

hazardous constituents. The recycling of

hazardous waste-contaminated soil in

asphalt, brick, or cement manufacturing

produces products that potentially

could be applied or placed on the land.

These recycling practices incorporate

the contaminated soils into the

products, and, thus, are considered to be

a ‘‘use constituting disposal’’ (see

section 261.2 (c) (1)). The use

constituting disposal practice (assuming

legitimate recycling is occurring) is

regulated per the provisions of 40 CFR

sections 266.20 through 266.23. This

issue is discussed in more detail in

section VII of the preamble.

At this time, the Agency does not

have adequate information on asphalt,

brick, or cement produced from MGP

hazardous waste to determine whether

these waste-derived products minimize

threats posed by land disposal of MGP

wastes. (See also response to USWAG

comment #00035 in ‘‘Phase IV Response

to Comments’’ in the docket to this

rule.) Until the Agency can further

study the issue, it is not designating

production of these materials from MGP

soils as a specified method of treatment.

Existing 266.23 (a) continues to apply.

And, as noted earlier, for MGP sites in

particular, the Bevill exclusion still

applies for MGP wastes co-burned in

coal-fired utility boilers.

EPA is aware that the regulated

community has requested various types

of flexibility from LDR treatment

standards in managing their site-specific

cleanup, remediation, and/or removal

activities of these wastes and

contaminated soils. With the possible

exception of use consituting disposal

scenarios, the Agency continues to

believe that more complete relief for

remediation wastes is needed,

particularly with respect to the land

disposal restrictions and is best

provided by targeted statutory change.

Thus, the Agency will continue to

participate in discussion of potential

legislative solutions on this important

issue.

Please refer to the Phase IV response

to comments document that is available

at the RCRA docket for responses to

other issues raised by commenters.

C. Treatment Standards for Debris

Contaminated With Phase IV wastes

The Agency is clarifying that debris

contaminated with TC metal or

characteristic mineral processing wastes

can be disposed if it meets the treatment

standards established in this rule, but

also can be disposed if it meets the

standards for debris set out at 40 CFR

268.45.

D. Treatment Standards for Radioactive

Mixed Waste

1. Background

Radioactive mixed wastes are wastes

which satisfy the definition of

radioactive waste subject to the Atomic

Energy Act (AEA) 10 CFR Part 61 and

also contain waste that is either listed as

a hazardous waste in Subpart D of 40

CFR Part 261, or that exhibits any of the

hazardous characteristics identified in

Subpart C of 40 CFR Part 261. Since the

hazardous portions of the mixed waste

are subject to RCRA, the land disposal

restrictions apply to the mixed waste.

Today’s rule promulgates revised

treatment standards for radioactive

wastes that are mixed with metal

characteristic wastes and do not

currently have a method of treatment

(i.e. HLVIT) specified as BDAT.

Treatment standards for radioactive

waste mixed with metal-bearing waste

were first promulgated in the Third

Third rule at 55 FR 22626 (June 1,

1990). That rule established a

subcategory of mixed wastes for a

specific high level wastestream at the

Savannah River site, for which a

specified method of treatment is

currently required. This method is

HLVIT (vitrification of high-level

radioactive waste) for radioactive highlevel wastes generated during the

reprocessing of fuel rods mixed with

characteristic metal wastes. This was

done because of the human health

hazards associated with sampling that

would be required if numerical

standards were applied. The Third

Third rule stated that all the

promulgated treatment standards in that

rule for RCRA listed and characteristic

wastes apply to the RCRA hazardous

portion of mixed radioactive (high-level,

TRU, and low-level) wastes, unless EPA

has specifically established a separate

treatability group for a specific category

of mixed waste. Thus, that rule required

that radioactive waste mixed with metal

characteristic waste would have to

comply with the LDR treatment

standard for the metal characteristic

waste, as well as any requirements set

forth by the NRC for the radioactive

component of the mixed waste.

Because today’s rule revises the

treatment standards for metal

characteristic wastes (i.e., revising

certain metal numeric treatment

standards, and applying UTS levels to

underlying hazardous constituents in

the characteristic waste), the treatment

standards for radioactive waste mixed

with metal characteristic waste that

were not specifically subcategorized in

the Third Third rule are also affected.

Today’s rule also revises treatment

standards for twelve metal constituents

in all wastes, including radioactive

mixed wastes. In conclusion, unless

specifically noted in Section 268, the

treatment standards promulgated today

apply to all mixed wastes.

2. Proposal and Issues Discussed by

Comments

In addition to revising metal

characteristic treatment standards that

apply to mixed waste, the Phase IV

proposal also discussed mixed

radioactive and characteristic metal

wastes which have been previously

stabilized to meet the LDR

requirements, and are now being stored

until disposal capacity becomes

available. The rule proposed to allow

this particular category of stabilized
28576 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations

characteristic metal mixed wastes to

comply with the LDR metal standards

that were in effect at the time the waste

was stabilized. More simply, they would

require no further treatment to comply

with the newly promulgated TC metal

standards. The proposal stated that

mixed radioactive/characteristic metal

wastes that are stabilized after the

effective date of Phase IV would be

subject to the metal treatment standards

promulgated in the Phase IV

rulemaking.

The majority of commenters agreed

with this approach. The Agency

believes that requiring facilities to retreat the wastes could pose significant

threats to human health and the

environment (worker exposure,

environmental releases). Essentially,

requiring these wastes to meet the

newly promulgated treatment standards

could necessitate treaters opening

sealed drums of stabilized mixed waste,

grinding the stabilized material, and retreating to comply with the treatment

standards for the few constituents for

which EPA is lowering the standards.

One commenter wanted the exemption

to be broadened to include wastes that

were treated by methods other than

stabilization. Because the exposure

concerns of re-treating the previously

stabilized waste primarily center around

the idea of first grinding up the

stabilized material to retreat it and the

potential added radiological exposures

attendant thereto, the broadening of this

exemption without more specific

information is not warranted at this

point. Of course, if any wastes already

meet the applicable treatment standards,

for example macroencapsulation, then

there is no need to initiate further

treatment. It is important to emphasize

that the Agency does not want any more

handling of this material than is

necessary, and we will entertain sitespecific treatment variances to ensure

that the appropriate balance is struck to

ensure minimization of threats.

As noted, the majority of commenters

agreed that hazards from added worker

radiation exposure associated with retreatment (i.e., opening drums, grinding

already treated masses of mixed waste)

would probably offset any gain in

protection of human health and the

environment resulting from compliance

with the new metal treatment standards

proposed in Phase IV. It was pointed out

by one commenter that this is consistent

with the Storage Prohibition (40 CFR

268.50(e) ), where wastes that have met

the applicable treatment standards are

excluded from the storage prohibition.

In addition, one commenter stated that

these wastes have been treated to meet

the LDR standards in place at the time

of treatment, and the only reason they

have not already been land disposed is

that capacity has not been available. The

one commenter who disagreed with the

proposal stated that neither retreatment

nor an exemption from the new

standards are reasonable options, but

prefers retreatment. The commenter did

not provide support, and the Agency is

not persuaded that retreatment is

environmentally preferable. Thus, the

Agency is promulgating the exemption

as proposed. In response to comments,

EPA is also indicating that the same

principle applies with regard to listed

wastes stabilized to meet a previous

treatment standard, which standard is

affected by this rule because the metal

UTS have changed. Again, retreating

these wastes would likely create new

threats, not minimize them.

One DOE facility requested that the

Agency clarify whether a waste required

to be treated by a specific technology

(i.e., HLVIT) would be required to be

further treated for any UHCs present in

the waste above UTS levels. The Agency

is not imposing additional treatment

requirements on those wastes for which

a method of treatment (HLVIT) is

specified.

Four facilities are concerned that

uranium mills tailings will not remain

exempt under RCRA. These wastes are

by-product materials from uranium

mining (i.e., waste acids from solvent

extractions, barren lixiviants, slimes

from solvent extraction and waste

solvents generated in the beneficiation

process during the extraction of

uranium ore) and, therefore, are

excluded from the treatment standards

being promulgated today for TC metal

wastes. With respect to the radioactive

mineral processing wastes, RCRA

Section 1004 (27) as codified in 40 CFR

261.4(a)(4) states that ‘‘...source, special

nuclear or by-product material as

defined by the Atomic Energy Act of

1954 as amended, 42 U.S.C. 2100 et

seq...’’ are not solid wastes. Therefore,

such excluded materials are not subject

to this rule. However, all other wastes

not excluded under 40 CFR 261.4 are

subject to today’s rulemaking (assuming

the waste is otherwise subject to today’s

rule).

Therefore, the Agency is today

finalizing as proposed numerical

treatment standards for radioactive

waste mixed with metal-bearing

characteristic waste for which no

method of treatment has been

established as the treatment standard.

E. Underlying Hazardous Constituents

in TC Metal Wastes and Characteristic

Mineral Processing Wastes

Summary: As with other

characteristic wastes, TC metal wastes

(D004—D011) and newly identified

mineral processing wastes cannot be

land disposed until the characteristic is

removed and any underlying hazardous

constituents (UHCs) are below universal

treatment standards.

1. Background

In 1993, EPA began requiring that, in

addition to removing the characteristic

in the characteristic wastes, treatment

must ensure that UHCs are below their

UTS levels. (58 FR 29860; see also 59 FR

47982. See also Chemical Waste

Management v. EPA, 976 F. 2d at 13–

14, 16–18 (treatment standards may be

lower than the level at which waste is

identified as hazardous, and underlying

hazardous constituents must be treated

to minimize threats posed by land

disposal)). UHCs are any constituents in

40 CFR 268.48 that are reasonably

expected to be present at levels above

the UTS at the point of generation of the

characteristic waste. See 40 CFR

268.2(i). EPA’s review of the treatment

data on TC metal and mineral

processing wastes shows that these

wastes often contain underlying

hazardous constituents, and that UTS

are achievable for the UHCs.

2. Discussion of Today’s Approach

In the August 22, 1995 Phase IV

proposed rule, EPA proposed to apply

treatment standards to all TC metal

wastes, and on January 25, 1996, EPA

further proposed the same for

characteristic mineral processing

wastes. See 60 FR 43654 and 61 FR

2338. Furthermore, EPA proposed that

when the new treatment standards were

promulgated, all of those newly

identified wastes would have to be

treated not only to meet the proposed

treatment standards, but also to meet

treatment standards for any UHCs

reasonably expected to be present (at

levels above UTS) in those wastes at the

wastes’ point of generation. See 60 FR

43654.

One commenter disagreed with the

Agency’s proposal, stating that the TC

metal wastes that also contain organic

UHCs would have to be treated by

combustion technologies to achieve the

organic UTS levels. The Agency

disagrees. The organic UTS levels were

based on the performance of combustion

as well as other removal and destruction

technologies. These other removal and

destruction technologies can be used to

treat organic UHCs to UTS levels in TC
Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations 28577

metal wastes. Thus, pretreatment of the

waste can be used to achieve the organic

UTS levels. In addition, the commenter

believed there would be difficulties in

stabilizing incinerator ash to meet the

finalized UTS levels for the metals. The

Agency does not agree. In determining

the UTS numbers for each metal, the

wastes with the most difficult to treat

metal constituents were treated by

HTMR and stabilization technologies.

The higher value between the two

technologies was selected as the

treatment standard. Thus, treatment

using either HTMR or stabilization is

expected to achieve the final metal UTS

levels. It should be noted that selenium

is not being regarded as a UHC since its

treatment standard is above its

characteristic level. Thus, a selenium

characteristic waste will always be

hazardous unless the selenium

concentration is below the characteristic

level of 1 mg/L TCLP. Fluoride,

vanadium, and zinc are other metals not

considered UHCs in characteristic

wastes because these three metals are

not on the Hazardous Constituents

Table, 40 CFR 261 Appendix VIII (i.e.,

they are not ‘‘hazardous constituents’’).

(See Background Document for Phase IV

Second Supplemental Proposed Rule.)

VI. Issues Relating to Newly-Identified

Mineral Processing Wastes

As explained above, EPA considers

mineral processing hazardous wastes to

be newly identified or listed for

purposes of determining when LDR

prohibitions apply, since their status as

hazardous wastes was not established

until after 1984. Today’s rule establishes

prohibitions and treatment standards for

these wastes, pursuant to RCRA section

3004(g)(4).

However, there are a series of

important threshold issues in

determining what these prohibitions

and treatment standards apply to,

generally involving the issues of

whether primary mineral processing

secondary materials are solid and

hazardous wastes. There are three main

issues. A fundamental first issue is

whether, if a mineral processing

secondary material (which would

otherwise be a hazardous waste) is

recycled within the mineral processing

industry sector, it is a solid waste. Of

particular importance in assessing

applicability of the LDR program, is a

second issue: whether there is land

placement of the mineral processing

secondary material before recycling, or

during the recycling process. If the

material is a waste, a third issue is

relevant: is the waste a beneficiation/

extraction waste or one of 20 mineral

processing wastes that are excluded

from subtitle C regulation under the

Bevill exclusion (see RCRA 3001

(b)(3)(A)(ii)).

In this rulemaking, EPA also is

addressing certain sub-issues that are

related to determining whether a

particular mining waste is subject to the

Bevill exclusion, including whether a

waste is ‘‘uniquely associated’’ with

mining, how the introduction of nonexempt, mineral processing feedstocks

into a Bevill process may affect the

Bevill status of the waste generated from

the process, and how the mixture of

Bevill wastes with other hazardous

wastes affects the Bevill status of the

resulting wastes when disposed.

As stated in the January 1996

proposal, EPA is not reopening in any

respect the Bevill determinations

previously made by the Agency,

including the Agency’s articulation in

1989 of the functional distinctions

between beneficiation and mineral

processing. See 61 Fed. Reg. 2354. Some

commenters misinterpreted EPA’s

statements in the proposal generally

describing the beneficiation/processing

distinction as somehow reinterpreting

the scope of the Bevill amendment. That

discussion was intended, however,

merely to restate principles articulated

by EPA in 1989 (see 54 Fed. Reg.

36619), not to reopen in any way the

distinctions as articulated previously by

the Agency. Whether a particular waste

is from beneficiation or mineral

processing will continue to be

determined based on 40 CFR 261.4(b)(7)

and criteria articulated by EPA in the

1989 preamble.

The following sections of the

preamble discuss these threshold issues.

A. Introduction

In July of 1988, the U.S. Court of

Appeals, for the D.C. Circuit in

Environmental Defense Fund v. EPA

(EDF II), 852 F.2d 1316 (D.C. Cir. 1988),

cert. denied, 489 U.S. 1011(1989),

ordered EPA to restrict the scope of the

Bevill mining waste exclusion, as it

applied to mineral processing wastes, to

include only ‘‘large volume, low

hazard’’ wastes. In response, the Agency

promulgated several rules that

delineated the scope of the Bevill

exemption for extraction/beneficiation

and mineral processing wastes. In these

rulemakings, the Agency applied highvolume/low toxicity criteria for

determining whether a particular waste

was subject to the Bevill exemption. The

Agency also described the general

characteristics that would distinguish

extraction/beneficiation wastes from

mineral processing wastes. The rules

also evaluated which specific mineral

processing wastes were in conformance

with these high volume/low toxicity

criteria and thus were eligible for the

exclusion provided by RCRA

3001(b)(3)(A)(ii) (the ‘‘Bevill

exclusion’’).

These rules were promulgated on

September 1, 1989 (54 FR 36592) and on

January 23, 1990 (55 FR 2322). EPA was

required to prepare a Report to Congress

which further studied mineral

processing wastes identified in the 1990

rule to determine their regulatory status

under the Bevill exclusion. This report

was issued on July 31, 1990 (Report to

Congress on Wastes from Mineral

Processing). EPA fully considered

information from, and comments on, the

Report to Congress in a regulatory

determination published on June 13,

1991(56 FR 27300). The list of Bevill

exempt activities and wastes is set out

at 40 CFR 261.4(b)(7).

Many mineral processing wastes that

EPA determined did not fall within the

Bevill exclusion as a result of the 1991

rule appear to exhibit the toxicity

characteristic due to metal content

(D004–D011), and also exhibit

corrosivity (D002), and/or reactivity

(D003). For purposes of LDR

applicability, these wastes are ‘‘newly

identified’’ because they were brought

into the RCRA Subtitle C system after

the date of enactment of the Hazardous

and Solid Waste Act Amendments on

November 8, 1984. (See 55 FR at 22667

(June 1, 1990). Hence, their land

disposal has not been prohibited until

today’s rule.

The Agency is currently required by

a court approved consent decree (EDF v.

Browner, No. 89–0598 (D.D.C.)) to

promulgate LDR restrictions for

characteristic and listed mineral

processing wastes, and metal wastes

hazardous under the revised toxicity

characteristic, by April 15, 1998. On

April 14, 1998, EPA filed an unopposed

motion requesting the Court to extend

the deadline to April 30, 1998 to

establish Land Disposal Restrictions for

newly identified mineral processing

wastes by April, 1998. The legal

obligation to establish prohibitions on

land disposal and treatment standards

for newly identified mineral processing

wastes is established by statute. RCRA

section 3004(g)(4).

B. Overview of Today’s Rule

1. Issues Related to Which Mineral

Processing Secondary Materials are

Subject to LDRs

As noted above, a threshold question

when considering whether wastes are

prohibited from land disposal is

whether the mineral processing

secondary materials are ‘‘solid wastes’’
28578 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations

under RCRA. The issue is of importance

with respect to land disposal

prohibitions for the mineral processing

industry because this industry recycles

mineral processing secondary materials

that exhibit hazardous waste

characteristics, and sometimes uses

land-based units—piles and

impoundments—to store these materials

before recycling. Thus, there is an issue

as to whether such materials are solid

wastes subject to the land disposal

prohibition (as well as to the rest of

Subtitle C). The Agency issued two

proposals (61 FR 2338, January 25,

1996, and 62 FR 26041, May 12, 1997)

which discussed potential RCRA

jurisdiction over secondary materials

from mineral processing that are

reclaimed within the industry sector

and sought comment on a proposed

conditional exclusion from the

definition of solid waste.

We now further summarize how

today’s rule deals with issues raised by

whether and when mineral processing

secondary materials, when placed in

land-based storage units, are subject to

the LDR standards and other Subtitle C

controls. The rationale for the Agency’s

decisions are described below.

To be a hazardous waste, a material

must first be a solid waste. RCRA

section 1004 (5). To be a ‘‘solid waste’’

a material must in some sense be

‘‘discarded.’’ RCRA section 1004 (27). A

material is not ‘‘discarded’’ if it is

‘‘destined for immediate reuse in

another phase of the industry’s ongoing

production process and [has] not yet

become part of the waste disposal

problem.’’ American Mining Congress v.

EPA, 907 F. 2d 1179, 1186 (D.C. Cir.

1990).

This rule amends the current RCRA

rules (existing 40 CFR 261.2(c)(3))

defining which ‘‘secondary materials’’—

sludges, by-products and spent

materials—being generated by and

reclaimed by mineral processing or

beneficiation facilities are solid wastes.

The rule does so by creating a

conditional exclusion to the regulatory

definition of solid waste, so that:

(a) Mineral processing secondary

materials may not be stored on the land

before they are reclaimed. The rule

provides a partial exception to this

principle: if the pile is placed on a pad

which has been approved as protective

by an EPA Region or a State with an

authorized program, the pile would not

be considered to be storing solid or

hazardous waste, and so would be

outside RCRA jurisdiction. Thus, if

storage is used prior to reentry into a

mineral processing reclamation process,

to be excluded, all mineral processing

secondary materials must be placed in

tanks, containers, buildings, or

approved piles resting on pads;

(b) Mineral processing secondary

materials must be legitimately recycled

to recover metal, acid, cyanide, water, or

other values:

(c) Mineral processing secondary

materials cannot be accumulated

speculatively; and

(d) Facilities utilizing this conditional

exclusion must submit a one-time

notification of their recycling activities

to EPA or the authorized State

describing: the materials being recycled

and the processes into which they are

recycled; where storage units are located

and their design. Facilities must update

the notification if their recycling

activities change.

EPA is thus essentially disclaiming

authority over mineral processing

secondary materials that are reclaimed

within the mineral processing or

mining/beneficiation industry sector, so

long as there is no land-based storage

preceding reclamation. Further,

potential jurisdiction affects only

storage. EPA is not asserting authority

over any mineral processing production

unit, even if the unit is land-based.

2. Issues Related to Whether Materials

are Within the Scope of the Bevill

Exclusion

a. Use of Non-Bevill Materials as

Feedstocks to Operations Whose Waste

is Bevill Exempt. Today’s rule also

allows secondary materials from

mineral processing to be co-processed

with normal raw materials in

beneficiation operations which generate

Bevill exempt wastes, without changing

the exempt status of the resulting Bevill

waste, provided that legitimate recovery

of the mineral processing secondary

material is occurring, and provided that

primary ores and minerals account for at

least 50 percent of the feedstock. The

Agency voiced concern at proposal that

the addition of mineral processing

secondary materials into a Bevill

exempt extraction/beneficiation process

could have the potential to increase the

risk of the resulting wastes. The Agency

proposed adding a condition—the use of

a significantly affected test (similar to

the existing test used in the Burning in

Industrial Furnaces (BIF) Rule (see 40

CFR 266.112))—as a means of assuring

that resultant Bevill wastes were not

adversely impacted by co-processing.

EPA also considered simply limiting

eligibility for Bevill status to situations

where Bevill raw materials comprised

the sole feedstock to the process.

After considering public comments,

the Agency has decided to adopt the

general approach proposed in January

1996, with one change. The Agency now

does not believe that the use of the

‘‘significantly affected’’ test would

appreciably reduce risks posed by the

resulting wastes, and the Agency is

concerned that it would severely disrupt

legitimate recycling practices within

beneficiation and mineral processing

industries. Even in situations where a

constituent may increase due to

recycling, the increase may not be

environmentally significant, may be

balanced by the lowering of other

constituents, or may be off-set by having

to dispose of the material and utilize

additional raw material feedstocks.

b. Uniquely Associated. The Bevill

exclusion for the primary metal sector is

limited to extraction/beneficiation

wastes and 20 mineral processing

wastes. Under Section 3001(b)(3)(A)(ii)

of RCRA, the Bevill exclusion is

available for ‘‘solid waste from the

extraction, beneficiation and processing

of ores and minerals.’’ Under the

Agency’s longstanding interpretation, a

waste must be ‘‘uniquely associated’’

with mining and processing of ores and

minerals to be subject to the Bevill

exclusion. The Agency currently uses a

qualitative approach (see 45 FR 76619

and 54 FR 36623) to determine if a

waste is uniquely associated. Because of

public interest in how the Agency

makes these determinations, the Agency

sought comment on alternative

approaches for making ‘‘uniquely

associated’’ determinations.

The Agency is retaining and clarifying

in this rule its use of its qualitative

approach. The Agency recognizes that

determining whether a particular waste

is uniquely associated with extraction,

beneficiation, and processing involves

an evaluation of the specific facts of

each case. While the Agency discussed,

in the May 1997 proposal, several

options that would establish a bright

line for making this determination, the

Agency is concerned that any of these

tests could potentially be either over- or

under-inclusive of the wastes that, in

EPA’s view, are best viewed as uniquely

associated.

In the Agency’s view the following

qualitative criteria should be used to

make such determinations on a case-bycase basis:

(1) Any waste from ancillary

operations are not ‘‘uniquely

associated’’ because they are not

properly viewed as being ‘‘from’’ mining

or mineral processing.

(2) In evaluating wastes from nonancillary operations, one must consider

the extent to which the waste originates

or derives from processes that serve to

remove mineral values from the ground,

concentrate or otherwise enhance their

characteristics to remove impurities,
Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations 28579

and the extent to which the mineral

recovery process imparts its chemical

characteristics to the waste.

c. Bevill Mixtures. EPA first addressed

mixing of hazardous wastes with Bevill

wastes in 1989 (see 54 FR 36622–23).

That rule provided that mixtures of

Bevill wastes and listed wastes would

be considered a hazardous waste unless

and until the mixture was delisted. A

mixture of Bevill waste and nonexcluded characteristic hazardous

waste, however, would be considered

hazardous if it exhibited a characteristic

of the non-excluded waste, but not if it

exhibited a characteristic imparted to it

by the Bevill waste. As explained in the

proposal, this Bevill mixture rule was

remanded to the Agency in Solite Corp

v. EPA, 952 F.2d 472, 493–94 (D.C. Cir.

1991), and an emergency reinstatement

of that rule was vacated on procedural

grounds in Mobil Oil v. EPA, 35 F.3d

579 (D.C. Cir. 1994). Today EPA is

reinstating the 1989 Bevill mixture rule.

Under this 1989 rule, a mixture of a

Bevill-exempt waste and a characteristic

hazardous waste (or a waste listed solely

because it exhibits a hazardous

characteristic) is a hazardous waste if it

continues to exhibit the characteristic of

the non-excluded waste. Mixtures of

Bevill wastes and other listed wastes are

hazardous wastes unless and until

delisted. In addition, the act of mixing

Bevill and and non-Bevill wastes is

subject to all normal Subtitle C

consequences (i.e., requires a permit if

it constitutes treatment, storage of

disposal of hazardous wastes). EPA is

adopting this approach because it

preserves the Bevill exclusion for

mixtures that are characteristically

hazardous due to Bevill wastes, but

nonetheless ensures that the Bevill

Amendment is not used to allow Bevill

wastes to shield/immunize non-Bevill

hazardous wastes from regulatory

controls that would otherwise apply to

those wastes.

d. Response to Court Remands

Dealing with Other Issues Relating to

Mineral Processing and to Scope of

Bevill Exclusion. (i) Toxicity

Characteristic Leaching Procedure

(TCLP) The applicability of the TCLP

test to mineral processing wastes was

challenged in Edison Electric Institute v.

EPA, 2 F.3d 438 (D.C. Cir. 1993). In that

case the Court held that the Agency

must provide at least some factual

support that the mismanagement

scenario assumed in developing the

TCLP is plausible when applied to

mineral processing wastes or,

alternatively, that mining wastes are

exposed to conditions similar to those

simulated by the TCLP, namely ‘‘contact

with some form of acidic leaching

media’’. 2 F. 3d at 447. EPA prepared a

technical background document in

support of the January, 1996 proposal,

which presented data on this issue. This

report concluded that mineral

processing wastes had in the past been

co-disposed with municipal wastes, and

due to the location of mineral

processing plants near large urban areas,

it was plausible that these wastes could

be mismanaged with municipal wastes.

EPA also solicited information from the

public that would help the Agency

evaluate industry comments that the

Synthetic Precipitation Leaching

Procedure (SPLP) would provide a more

accurate measure of how mineral

processing wastes behave in the

environment. EPA received extremely

limited data from the public on this

issue.

EPA has concluded, based on the

information available to the Agency and

review of public comments, that codisposal of mineral processing wastes

with municipal wastes is a plausible

mismanagement scenario and that,

therefore, application of the TCLP to

these wastes continues to be

appropriate. Moreover, comments from

industry during the rulemaking stated

that certain facilities co-manage mineral

processing wastes with extraction and

beneficiation wastes. Given the welldocumented, acidic nature of some

extraction and beneficiation wastes,

mineral processing wastes disposed of

in this manner may be subject to the

kinds of low pH conditions that are

reflected in the TCLP. For this

additional reason, EPA finds that, under

the plausible mismanagement standard

articulated in Edison Electric,

application of the TCLP to mineral

processing wastes is appropriate in light

of the information at the Agency’s

disposal. While the Agency has received

comments seeking to compare the TCLP

and the SPLP, the Agency has

concluded, for reasons discussed later

in this preamble, that this information is

not sufficient to support adopting the

SPLP as the appropriate test for mineral

processing wastes at this time.

The Agency recognizes that the

methodology underlying the TCLP may

not reflect the variety of conditions

under which some types of mineral

processing wastes are disposed. As a

result, the Agency will undertake, and

within three to five years, conclude a

review of the appropriateness of using

the TCLP and other leaching protocols

in this and other contexts.

(ii) Listed Hazardous Wastes. In

American Mining Congress v. EPA, 907

F.2d 1179 (D.C. Cir. 1990), the Court

found that the Agency’s record

regarding the listings of five waste

streams (K064, K065, K066, K090, K091)

did not adequately address certain

issues raised in comments. EPA

indicated its intent not to list these five

waste streams in the January, 1996

proposal and placed a technical

background document in the docket

enumerating the reasons for those

decisions. Many of these wastes are

either no longer generated, or managed

in a fashion not warranting listing. EPA

did not receive any comments

challenging those proposed decisions.

Therefore, in this rule, EPA is not listing

these five smelting wastes as hazardous

wastes. Instead, EPA will rely on the

RCRA hazardous waste characteristics

to identify those portions of the wastes

requiring management as hazardous

wastes.

(iii) Titanium Tetrachloride. In 1989,

EPA determined that wastes from the

production of titanium tetrachloride

were mineral processing wastes. DuPont

challenged this decision, and the Court

remanded EPA’s decision for further

consideration on grounds that the

Agency’s decision was unclear (see

Solite Corporation v. EPA, 952 F.2d at

494–95 (D.C. Cir. 1991)). EPA

reevaluated data on wastes from the

production of titanium tetrachloride,

and placed results of this reevaluation

in the docket in support of the January

1996 proposal. EPA also has met with

representatives of DuPont to discuss

their process further. Based on the

Agency’s reevaluation of this issue,

EPA, in this rule, concludes that iron

chloride waste acid generated from the

chloride-ilmenite process of titanium

tetrachloride production should be

classified as a mineral processing waste.

The Agency has reached this decision

because this process significantly affects

the physical/chemical structure of the

raw feedstock through chlorination and

this reaction creates new chemicals

(iron chloride and titanium

tetrachloride gases). This meets the

definition of mineral processing rather

than beneficiation.

(iv) Air Pollution Control Dust and

Sludges Generated From Lightweight

Aggregate Production. Finally, since

1995, the Agency has conducted

reviews of air pollution control dust and

sludges generated from lightweight

aggregate production, and has met with

representatives of this industry sector.

The Agency also has issued a Report to

Congress and a regulatory determination

on Cement Kiln Dust (CKD) (59 FR at

709, January 6, 1994 and 60 FR at 7366,

February 7, 1995). EPA has found that

some aggregate kilns and cement kilns

use hazardous waste fuels to fire their

units. Both types of facilities generate

dusts which may be either reintroduced
28580 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations

2The other cases which have similarly stressed

this narrow reading of AMC I are American

Petroleum Inst. v. EPA, 906 F. 2d 726, 741 (D.C. Cir.

1990); Shell Oil v. EPA, 950 F. 2d 741, 755–56 (D.C.

Cir. 1991); Chemical Waste Management v. EPA,

976 F. 2d 2, 14 (D.C. Cir. 1992); United States v.

Ilco, Inc., 996 F. 2d 1126, 1131 (5th Cir. 1993); and

Owen Electric Steel Co. v. Browner. 37 F. 3d 146,

149–50 (4th Cir. 1994).

into the kiln or blended into the final

product. While these dusts rarely

exhibit any of the RCRA hazardous

waste characteristics, the resultant

product could be classified as hazardous

waste due to the ‘‘derived from’’ rule if

listed hazardous wastes are combusted.

The Agency is seeking a way to

encourage the legitimate and

environmentally sound reuse of dusts,

from both cement and lightweight

aggregate manufacture. In an effort to

develop a consistent regulatory

approach, EPA, therefore, has decided

to defer any decision on the Bevill

status of air pollution control dust and

sludges generated from lightweight

aggregate production until evaluation of

issues related to CKD and lightweight

aggregate dust handling, use, and

disposal can be completed.

e. Reexamination of Bevill Exempt

Wastes. The May 12 proposal sought

general comment on whether a

reexamination of some Bevill waste is

warranted given that additional risk

assessment techniques and additional

information are available since making

the 1986 Bevill regulatory determination

(51 FR at 24496, July 3, 1986) on mining

and the 1991 Bevill regulatory

determination on mineral processing (56

FR 27300, June 13, 1991). EPA

presented information from Superfund

sites and other sources which indicate

that some Bevill wastes continue to

cause environmental damage (see

environmental damage and risk

technical background documents placed

in the January 1996, and April, 1997

dockets). The Agency also posed the

question of whether some waste streams

require additional study or regulatory

controls. Today’s rule is not making any

changes to the status of Bevill exempt

extraction and beneficiation wastes or

the 20 exempt mineral processing

wastes.

C. Analysis of and Response to Public

Comments

1. Jurisdiction

a. EPA Authority to Regulate Mineral

Processing Secondary Materials

Reclaimed Within the Industry. Many

industry commenters maintained that

EPA lacks jurisdiction over mineral

processing secondary materials

reclaimed within the industry because

such materials cannot be ‘‘solid wastes.’’

The argument is straight-forward: a

solid waste regulated under RCRA must

be a ‘‘discarded material,’’ RCRA section

1004 (27), and these materials are not

discarded. The comments suggest that,

under the case law, (in particular

American Mining Congress v. EPA, 824

F. 2d 1177 (D.C. Cir. 1987) (‘‘AMC I’’)),

these materials are part of an on-going

production process within the

generating industry, and so cannot be

‘‘discarded.’’

EPA disagrees that there is an

absolute jurisdictional barrier to

regulating any management of mineral

processing secondary materials which

are reclaimed within the industry.

Although the AMC I court found that, in

some respects EPA’s 1985 rules

exceeded the statutory grant of

authority, subsequent judicial opinions

have sharply limited the scope of AMC

I. The only absolute bar on the Agency’s

authority to define recycled mineral

processing secondary materials as solid

wastes is for ‘‘materials that are

‘destined for immediate reuse in another

phase of the industry’s ongoing

production process’ and that ‘have not

yet become part of the waste disposal

problem.’’’ American Mining Congress

v. EPA, 907 F. 2d 1179, 1186 (D.C. Cir.

1990) (‘‘AMC II’’) quoting AMC I, 824 F.

2d at 1186.2) The case law likewise

makes clear that ‘‘discarded’’ is an

ambiguous term, within EPA’s

discretion to interpret, consistent with

RCRA’s overall goals and purposes.

AMC II, 907 F.2d at 1179; American

Petroleum Inst. v. EPA, 906 F.2d 726,

741(D.C. Cir. 1990).

Applying this test, today’s rule states

that any mineral processing secondary

materials which are being reclaimed

immediately within the mineral

processing industry (or within

beneficiation) are not a solid waste.

However, as explained below, EPA does

not view mineral processing secondary

materials which have been removed

from a production process for storage as

being ‘‘immediately reused,’’ and so

such materials are not automatically

excluded from jurisdiction. EPA

reiterates that there is a jurisdictional

bar against regulating the actual

production process (see Steel

Manufacturers Association v. EPA, 27

F.3d 642, 647 (D.C. Cir. 1994); EPA also

interprets the holding of AMC I to

mandate this result), so today’s rule

does not assert authority over mineral

processing production units. However,

if production units are also used to

dispose of hazardous wastes, those units

are subject to RCRA Subtitle C.

With respect to mineral processing

secondary materials which are stored

before being reclaimed at mineral

processing or beneficiation facilities—

i.e. that are not being immediately

reused—the Agency has established a

conditional exclusion from the

definition of solid waste, the conditions

being designed to assure that

management of these materials are not

‘‘part of the waste disposal problem.’’

The main condition is that mineral

processing secondary materials not be

stored on the land (except for storage on

approved pads) and not be stored in

disposal units.

In considering the question of scope

of jurisdiction, it is useful to remember

that this rule applies to a continuum of

potential recovery practices. At the one

end of the continuum, where EPA’s

authority is most certain, would be the

situation where mineral processing

company A sends its secondary

materials to unrelated mineral

processing company B processing a

different metal than company A. The

case law indicates that EPA retains

discretion to classify the material as a

solid waste. API, 906 F.2d at 741

(transfer of steel industry dust to a metal

reclaimer processing exclusively steel

industry secondary materials can

involve a RCRA solid waste). It should

be remembered that EPA views

‘‘mineral processing’’ broadly in this

rule to include all primary mineral

processing sectors (see, e.g., the

Agency’s 1996 Identification and

Description of Mineral Processing

Sectors and Waste Streams). This

document identified 41 different sectors

involved in primary mineral processing.

Primary mineral processing involves

changing the physical and chemical

structure of ores and minerals. For

example, mineral processing includes

the production of steel and the

production of gold. These sectors

generate very different types of wastes

and recycle them under different

conditions. Thus, the API principle of

no absolute jurisdictional bar applies.

Points further in on the continuum

would be if companies A and B process

the same metal but are unrelated

companies (also potentially within the

API framework), and where companies

A and B are under common ownership

but not at the same site. The point on

the continuum closest to on-going

production is where secondary

materials are reclaimed at the generating

site, but where the process is noncontinuous due to storage of materials.

Immediate recovery on-site without

storage would then mark the other end

of the continuum, and would illustrate

when materials are immediately reused

within a continuous process, and so
Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations 28581

3The Agency indicated in its January 1996

proposal that some lower value mineral processing

secondary materials are from ancillary production

operations and that those materials were often

placed in land-based storage units. 61 FR at 2340.

Industry comments challenged this discussion as

over broad and misplaced. Upon review, the

Agency acknowledges that mineral processing

facilities generate a wide range of secondary

materials, which also have a wide range of values

to the facility owner.

absolutely outside Subtitle C

jurisdiction.3

EPA believes that it has discretion to

consider whether any of these situations

short of immediate reuse involve solid

wastes, this discretion being limited by

the second part of the Court’s

articulated test: is the non-continuous

management of the mineral processing

secondary materials part of the waste

disposal problem. Thus, EPA in today’s

rule has focused on the storage of these

materials. The leading authority for this

approach is AMC II, where the Court

found that secondary materials

generated and reclaimed on-site could

be classified as solid wastes because

they were stored in surface

impoundments. 907 F. 2d at 1186. The

case involved a single plant which

stored its secondary materials

—sludges—in an impoundment before

reclaiming all of the accumulated

sludges in its own smelting process. 50

FR at 40292, 40296 (October 1985).

Several comenters argued that AMC II

involved only specutlative

accumulation. This is not the case. The

wastes generated in the impoundment

were actually recycled 100 percent, not

stored with expectation of recycling. 50

FR at 40292, 40296; Brief of Petitioner

Amercian Mining Congress in AMC II

(filed March 30, 1990) pp. 18, 29. The

Court nonetheless held that the sludges

were discarded, stressing the special

sensitivity in RCRA to land-based units

such as surface impoundments, and

explaining how storage of secondary

materials in such units can be part of

the waste disposal problem (907 F. 2d

at 1186–87). Thus, EPA believes that

mineral processing secondary materials

stored on the land are discarded.

Land-based storage of mineral

processing sludges, spent materials, and

by-products can be viewed by EPA as

being part of the waste disposal

problem. There is no dispute that a

considerable amount of mineral

processing secondary materials contain

hazardous constituents that can threaten

human health and the environment (see

U.S. EPA, Office of Solid Waste, Human

Health and Environmental Damages

from Mining and Mineral Processing

Wastes, 1995, and Damage Cases and

Environmental Releases, 1997). Landbased units, and impoundments in

particular, have certain inherent indicia

of discard due to their inability to

prevent releases of contained materials.

RCRA section 1002(b)(7); AMC II, 907

F.2d at 1187; 53 FR at 521, 525 (Jan. 8,

1988). Surface impoundments pose

essentially inherent risks of

groundwater contamination due to the

hydraulic pressure created by the

contained liquids. Chemical Waste

Management v. EPA, 919 F. 2d 158, 166

(D.C. Cir. 1992). There are many damage

incidents which involve storage of

mineral processing wastes in piles and

surface impoundments, some of which

involve mineral processing secondary

materials stored in land-based units

before eventual reclamation. These

damage incidents confirm that this

potential harm is not hypothetical.

It should be noted that there is

Agency precedent for the limitation on

land based storage as part of withinindustry recycling practices. The

Agency established the principle of

encouraging recycling without allowing

land-based storage at 40 CFR

261.4(a)(10). Any wastes from coke byproduct production are not solid wastes

if recycled to coke ovens conditioned on

there being no land disposal from the

point of generation to the point of

recycling. The Agency also has

promulgated a rule where recovered oil

generated by any facet of petroleum

exploration, production, and retailing is

not a solid waste conditioned on no

management of these materials in landbased units (see 59 FR 58936, July 28,

1994). The Agency has also proposed to

extend this principle to a wider range of

oil-bearing secondary materials (see 60

FR 57747, 57753, November 20, 1995).

The condition likewise appears in

current rules at 40 CFR 261.2(e)(iii)

where it qualifies the exclusion for

materials returned for reclamation in the

process from which they are generated.

The application of a no land placement

condition in today’s rule is, therefore,

building on an established policy of

encouraging recycling conditioned on

no land placement.

Putting this together, the Agency

reads the statute as creating an absolute

jurisdictional bar in two situations:

where mineral processing or

beneficiation is occurring, and where

reclamation is continuous in the sense

that there is no interdiction in time—i.e.

materials moving from one step of a

recovery process to another without a

break in the process, as for storage. As

one moves back along the continuum,

EPA has discretion to interpret whether

secondary materials may be considered

discarded. The Agency is exercising that

discretion here by putting its focus on

whether the reclamation, or more

precisely, the storage which precedes

reclamation, is part of the waste

disposal problem because it involves

storage which can be and has been part

of that problem.

b. Are There Limits on Jurisdiction?

(Response to Public Interest Group

Position). In contrast, representatives of

public interest groups argued that the

Agency’s authority was essentially

unlimited. They believe that the

authority should be extended, at a

minimum, to all land-based units

because such units are a type of disposal

unit. With respect to mineral processing

secondary materials that are managed in

tanks, containers, or buildings (i.e. in

other than land-based units), EPA sees

no principle that compels the materials

to be designated as solid wastes. As

explained above, case law indicates that

EPA has discretion to interpret which

materials are ‘‘discarded’’ consistent

with the overall statutory objective, API,

906 F.2d at 742. These objectives

include not only assuring safe

management of hazardous wastes, but

also ‘‘encouraging . . . materials

recovery, [and] properly conducted

recycling and reuse . . . .’’ RCRA

section 1003(a)(6). EPA’s construction

in today’s rule, which rests largely on

the distinction between land-based

storage and more environmentally

protective storage of secondary

materials, is consistent with this object

by encouraging ‘‘properly conducted

recycling. . . .’’ In addition, EPA reads

the case law as allowing the Agency to

make reasonable distinctions among

secondary material handling practices

in determining when a particular

recycling practice may be considered to

be ‘‘part of the waste disposal problem.’’

Finally, as EPA explained at proposal,

there are potential jurisdictional

constraints given that the mineral

processing industry exists to recover

mineral values from an initial raw

material, and some aspects of recovery

of mineral values from secondary

materials can be like sequential

processing of an initial raw material. 61

FR at 2342. Where there is no obvious

element of discard present, such as

land-based storage, the Agency does not

believe that it should exercise its

interpretive discretion to assert

authority.

With respect to intra-industry

reclamation practices involving landbased units, EPA largely is asserting

authority. EPA proposed a series of

conditions that would have allowed

land-based storage units on the idea that

there were certain unique necessities

within this industry compelling use of

such units. 61 FR at 2341. However, as

the rulemaking progressed, it became
28582 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations

4 It should be noted that EPA is not using ‘‘reuse’’

as a term of art in this section of the preamble (i.e.

is not using the term as defined in 40 CFR

261.1(a)(5)), but rather is referring to immediate

reclamation of materials (i.e. material recovery) at

a mineral processing facility. The key concept here

is actually ‘‘immediate,’’ which EPA is using to

interpret the phrase ‘‘continuous process’’ used in

the case law.

5 It should be noted that since no land-based

storage is involved, these gold slags are not solid

wastes under the final rule in any case (assuming

that the recovery is legitimate and that the other

conditions in the rule are satisfied).

apparent that there are no such

production-related necessities. Agency

reevaluation of mineral processing

secondary material volumes indicated

that, in addition to volumes being lower

than EPA initially believed, comparison

to volumes of other industrial hazardous

wastes indicated that these wastes were

often higher in volume than mineral

processing secondary materials and

were being stored off the land.

Consequently, the Agency is claiming

authority over most land-based storage

units.

The Agency is not, however, asserting

authority over piles resting on pads

determined by a state or EPA to be

protective. The reasoning is similar to

that for not claiming authority over

within-industry secondary materials

stored in tanks, containers or buildings.

Such materials need not be viewed as

‘‘part of the waste disposal problem,’’

and so, given the intra-industry

recycling, need not be considered

‘‘discarded.’’ The practice also can be

viewed as a type of ‘‘properly conducted

recycling’’ which should be encouraged.

Again, EPA views this determination to

be within its interpretive discretion.

EPA also disagrees that it is

compelled to assert control over landbased units that are actual production

units, i.e. that actually recover product.

The Agency is aware of only two landbased units which recover metals: gold

heap leach piles and copper dump leach

piles. Under prior rulemakings (54 FR

36592 and 55 FR 2322), the Agency has

defined these land-based units as

extraction/beneficiation activities. The

Agency is unaware of any other land

based process units which actually

recover metals. The Agency believes

that regulating such units could pose

the possibility of interdicting actual

production steps which was the

particular focus of the AMC I court. EPA

notes, however, that storage units which

also make secondary materials more

suitable for actual recovery, such as

equalization basins, can remain within

Subtitle C jurisdiction. These units, in

the Agency’s view, are not the part of

the process which actually produces an

end product (such as the smelter at a

smelting facility). At most, they

facilitate eventual recovery. The Agency

does not read the case law to say that

such storage units are in all cases

outside the authority of Subtitle C.

EPA also is not asserting authority

over mineral processing secondary

materials once they are removed from

approved storage for reclamation. Thus,

should a mineral processing plant

reclaim mineral processing secondary

materials after those materials are stored

in land-based units (i.e. the materials

defined as hazardous wastes in today’s

rule), they would no longer be solid and

hazardous wastes. EPA believes it

would be counterproductive to retain

the hazardous waste status for mineral

processing secondary materials entering

reclamation. If the materials remain

hazardous wastes, for example, the

smelting process itself could be subject

to Subtitle C regulation. EPA believes

that it retains discretion to classify the

removed materials as no longer being

solid and hazardous wastes.

The Agency believes it has discretion

to adopt this classification

notwithstanding the court’s decision in

American Petroleum Institute. v. EPA,

906 F.2d 726 (D.C. Cir. 1990). In that

case, the Court held that EPA had

adopted the so-called indigenous

principle, whereby secondary materials

stopped being wastes at the point they

were utilized as feedstock in a

production process related to the one

that generated it, without sufficient

justification. 906 F.2d at 741–42.

However, in that case, EPA had made no

attempt to determine which materials

were part of the waste disposal problem,

and which were not. Here, the Agency

is making clear that storage on the land

of mineral processing secondary

materials is the environmental concern,

and that reclaiming mineral processing

secondary materials within the industry

is ordinarily a form of proper recycling

which may permissibly be encouraged.

RCRA section 1003(a)(6).

EPA also notes that it is possible that

no mineral processing secondary

materials will be placed in

impoundments or in unapproved piles.

Under today’s rule, if a facility wishes

to use a pile for storage (assuming the

pile has not been adjudicated to be

protective), the wastes would first have

to be treated to meet Land Disposal

Restrictions standards, probably

rendering them unrecoverable. If an

impoundment is utilized, wastes need

not be pretreated, but the impoundment

would have to meet minimum

technology design standards and be

dredged annually (RCRA section

3005(j)(11) and 40 CFR section 268.5)

and, of course, ultimately obtain a

RCRA permit. The Agency anticipates

that facilities will use a non land-based

form of storage instead.

c. Immediate Reuse.4 In the May 1997

proposal, EPA suggested a different way

of defining absolute jurisdictional

limits, namely to say that secondary

minerals generated by and

‘‘immediately reused’’ within the

mineral processing industry, were not

solid wastes. The reference to

‘‘immediate’’ was suggested as a means

of interpreting the ‘‘immediate reuse in

another phase of the industry’s ongoing

process’’ standard articulated in the case

law. AMC I, at 824 F. 2d at 1185. The

Agency proposed that secondary

materials that were legitimately recycled

within 48 hours would be outside RCRA

jurisdiction, regardless of whether they

were stored between process steps

(including storage in land-based units).

See 62 FR at 26051.

Industry and public interest groups

both opposed the use of the 48-hour

time limit included in the January 1996

proposal to define immediate reuse.

Industry renewed its categorical

objections based on AMC I, and noted

that many secondary materials are

legitimately reclaimed long after they

are generated and the time period

between generation and reclamation in

no way affected their value. For

example, commenters stated that the

gold industry generates retort slags

which contain gold values. Comments

stated that these slags are stored off the

ground for periods up to six months

after which they are reintroduced into

their recovery process.5

Public interest groups objected to the

48-hour limit on the basis that an

absolute waiver of RCRA jurisdiction

based on time does not translate to any

reduction of environmental risk. Public

interest groups also noted that the Court

in AMC II granted jurisdiction to units

holding secondary materials with the

propensity to leak, and that the Court’s

opinion would extend to all land

placement, since the continuous

placement of materials on piles or other

land-based units would result in the

same ‘‘discard’’ underlying the Court’s

opinion.

Although the Agency necessarily

accepts that materials immediately

reused in another phase of the

industry’s ongoing production process

are beyond EPA’s jurisdiction, AMC I,

824 F.2d at 1185, the Agency is not

adopting in today’s rule the proposed

48-hour approach to define immediate

reuse. The Agency is defining

‘‘immediate reuse’’ as the continuous

recirculation of secondary materials
Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations 28583

6Put another way, the fact that a mineral

processing secondary material is a sludge, rather

than a spent material or by-product, does not

convey any meaningful information as to the types

of risks the material might pose if reclaimed.

7EPA does note the potential anomaly that nonmineral processing secondary materials, at least for

the moment, will be regulated in some cases

stringently than those generated and reclaimed

within the mineral processing industry. This could

come about because non-mineral processing

industry sludges and by-products would still not be

solid wastes if reclaimed, and so could be stored in

land-based units before reclamation without being

solid wastes. EPA has chosen, however, to address

the broader issues regarding the regulatory

definition of solid waste in a different rulemaking

effort, which is proceeding on a different schedule

from this rule. EPA believes that if may legitimately

proceed one step at a time on these issues, and so

is not precluded from making needed changes to

the regulatory definition that affect only discrete

industry segments, in this case, the mineral

processing industry.

8This example assumes that legitimate recycling

is occurring.

9The exclusion for return of secondary materials

as feedstock was in fact adopted largely in order to

exclude certain direct reclamation practices in the

mineral processing industry. 50 FR at 639–40.

back into recovery processes without

prior storage. The plain reading of the

words ‘‘continuous,’’ 824 F.2d at 1193,

and ‘‘immediate’’ preclude storage.

Storage by its very nature means that

processes are not continuous; rather,

storage means that materials are

generated which must be held apart for

some period of time prior to reentry into

a process. Storage, therefore, breaks the

continuous and immediate nature of

production and reentry. In addition,

land-based storage units have inherent

elements of discard. AMC II, 907 F. 2d

at 1186–87.

The definition of ‘‘immediate reuse’’

in today’s rule does not bar storage prior

to recycling. Mineral processing

industries will be able to store and

recycle their mineral processing

secondary materials outside RCRA

Subtitle C requirements if they do so

while meeting the conditions of the

exclusion from the definition of solid

waste contained in today’s rule.

In the May 1997 proposal, the Agency

discussed the possibility that some

molten metals that spill onto the ground

could be classified as materials

undergoing immediate reuse (see 62 FR

at 26051). The Agency noted that copper

reverts (refined copper material) can be

spilled in the process of being

transferred from one part of the smelting

process to another. Such reverts are

picked up as soon as they can be safely

handled and are placed directly back

into the smelting process. The Agency

has reviewed smelting processes in

other metal sectors and finds that

spillage from ladles is common and that

these materials are routinely picked up

within a short time and placed back into

the process. The Agency thus concludes

that molten metal spilled onto smelter

floors is not a solid waste if it is picked

up as practical (given heat and worker

safety factors) and is then placed back

into the smelting process. Such a

material is not a secondary material (i.e.

sludge, by-product, or spent material),

but rather remains in process. This

interpretation parallels existing rules,

which say that a spilled commercial

chemical product is not a solid waste if

it is recycled within a reasonable

amount of time (see 40 CFR 261.33 and

55 FR at 22671).

Industry commenters stated that spent

smelter brick was similar to reverts

since they are often returned back into

recovery processes. If such spent bricks

are stored before being recycled, they

are not being immediately reused (nor

are they still in process, since they are

spent and physically removed). As

noted in the Agency’s May 1997

proposal, copper flue dusts, also are

stored sometimes and not immediately

recycled. Flue dusts not meeting the

immediate reuse definition are defined

as mineral processing secondary

materials (usually a sludge, since these

dusts are usually air pollution control

residue) and would be eligible for the

conditional exclusion to the definition

of solid waste.

d. Relation to the Current Regulatory

Definition of Solid Waste. (i)

Distinctions among Sludges, Byproducts, and Spent Materials. The

existing regulatory definition of solid

waste classifies metal recovery

operations as a type of reclamation

activity, and then states that certain

secondary materials being reclaimed

are, or are not, solid wastes depending

on the type of material being reclaimed.

Spent materials being reclaimed are

solid wastes, while characteristic

sludges and by-products being

reclaimed are not solid wastes. See,

generally, 40 CFR 261.2(c)(3) and 50 FR

at 633–34, 639–41 (January 4, 1985).

As EPA noted at proposal, these

distinctions among types of secondary

materials being reclaimed are not

needed because they are not directly

based on environmental distinctions. 61

FR at 2342. In this industry, at least, the

distinctions do not relate to which of

these materials may be part of the waste

disposal problem.6 The more

environmentally meaningful distinction,

and the one adopted here, is between

land-based storage and storage in tanks,

containers, and buildings.

In this rule, the Agency is, therefore,

eliminating the regulatory distinctions

between by-products, sludges and spent

materials from mineral processing when

these materials are reclaimed. Thus,

under the amended rule, if any

secondary material—sludge, by-product,

or spent material—is legitimately

reclaimed within the mineral processing

industry, it is not a solid waste as long

as all other conditions to the exclusion

to the definition of solid waste are

satisfied. EPA believes that this

principle not only should encourage

properly conducted recycling within the

industry, but also fulfills an Agency

objective of reducing some of the

complexity in the existing regulatory

definition of solid waste.7

(ii) Other existing regulatory

exclusions. The existing regulatory

definition of solid waste also contains a

series of exclusions in 40 CFR 261.2(e),

two of which could apply to the mineral

processing industry. Section 261.2(e)(1)

(ii) excludes from the definition of solid

waste sludges, by-products and spent

materials (i.e. secondary materials)

which are ‘‘used or reused as effective

substitutes for commercial products.’’

An example could be mineral

processing acid plant blowdown

substituting for commercial acid in

another process (either mineral

processing or a process in a different

industrial category).8 Commenters from

industry questioned whether this

provision is affected by the amendments

relating to mineral processing secondary

materials being reclaimed. The answer

is that the provision remains as an

independent basis for excluding

secondary materials from Subtitle C.

EPA did not propose to change it, and

the issues involved, in any case, would

be broader than the present proceeding

since the basis for the exclusion does

not rest on the notion of a continued

process within an industry, but on

comparability of secondary and virgin

materials (see 50 FR at 619–20 and 637–

41 (Jan. 4, 1985)).

The second existing exclusion, found

at 261.2(e)(1)(iii), does overlap with the

present rule. The exclusion is for

secondary materials ‘‘returned [as a

substitute for feedstock materials] to the

original process from which they are

generated, without first being reclaimed

or land disposed.’’ An example could be

an emission control dust from primary

smelting which is returned directly to

the smelter for metal recovery without

any interim land disposal.

This provision is essentially

consistent with, but also subsumed by,

today’s final rule (with respect to the

mineral processing industry). It is

subsumed because the activity involved,

return as a feedstock to a smelter, is a

type of reclamation activity (see 50 FR

at 639–40), the subject of this final rule.9

The existing rule also contains a ‘‘no
28584 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations

land disposal’’ condition similar to the

conditions in this final rule (although

today’s rule excludes storage in piles in

some circumstances, and so is more

flexible than the current 261.2(e)(1)(iii)

in this respect).

In light of this overlap, EPA is adding

language to 261.2(e)(1)(iii) to indicate

that there are special provisions relating

to reclamation within the mineral

processing industry (namely those

adopted in today’s final rule), and that

these provisions define the scope of the

exclusion for mineral processing

secondary materials generated and

reclaimed within the industry,

including those which are returned to a

mineral processing operation from

which they are generated without first

being reclaimed.

Today’s rule also does not alter the

regulatory status of recyclable materials

that are reclaimed to recover

economically significant amounts of

gold, silver, platinum, iridium, osmium,

rhodium, ruthenium, or any

combination of them. 40 CFR 266.70.

This rule was established to encourage

recycling of precious metals.

Commenters from the gold industry

questioned whether this provision is

affected by the amendments relating to

mineral processing secondary materials

being reclaimed. The answer is that

today’s rule redefines which secondary

materials generated and reclaimed

within the mineral processing industry

are wastes, and so could exclude certain

materials reclaimed within the precious

metal industry which are now defined

as solid wastes. However, to the extent

any precious metal recovery operations

remain subject to regulation after

today’s rule, the tailored regulatory

provisions in 266.70 continue to apply.

e. Otherwise Excluded Mineral

Processing Units Which Serve as

Disposal Units. As the Agency noted in

the original proposal, land-based units

in the mineral processing industry not

only can be related to a recovery process

but also can serve as repositories of

conventional wastes. 61 FR at 2340,

2342, 2347. That is, unusable solids

settle in surface impoundments or are

left in piles and in many cases these

units become the ultimate repositories

for these wastes. Id.

Under current rules, when an

operating product storage unit that is a

tank also contains a hazardous waste,

the waste is not subject to regulation

until it exits the unit. 40 CFR section

261.4 (c). An example would be a listed

distillation column bottom remaining

within the distillation column.

Section 261.4(c) does not apply to

hazardous wastes which accumulate in

land-based units. Thus, if wastes

accumulate in piles or impoundments,

if those wastes are hazardous (i.e. are

listed or exhibit a characteristic of

hazardous waste), and the wastes are

not legitimately recycled, then the units

are Subtitle C regulated units because

they are being used to store or dispose

of hazardous waste. The Agency is not

altering this long-standing principle in

the present rule (particularly given the

central statutory finding that land-based

units, and especially surface

impoundments, ‘‘should be the least

favored method for managing hazardous

wastes’; RCRA section 1002(b)(7)).

Consequently, any process

impoundment that holds un-recycled

hazardous accumulated solids, the

impoundment is a regulated unit (i.e.

subject to Subtitle C) because it is

disposing of a hazardous waste. In

addition, the same principle would

apply to storage or process piles, which

likewise are ineligible for the 261.4(c)

exemption.

2. Scope of This Rule

This section of the preamble

addresses the issue of which secondary

materials come from ‘‘mineral

processing’’ operations, and so are

potentially within the scope of the

conditional exclusion for mineral

processing wastes being reclaimed

within the mineral processing industry

sector or in extraction/beneficiation

operations. Newly identified wastes

from mineral processing also are subject

to the LDR prohibitions and treatment

standards adopted today, and so this

preamble section also clarifies the

applicability of these LDR provisions.

a. Mineral Processing Wastes Covered

by This Rule. The Agency’s 1989 rule

(see 54 FR 36592) applied the high

volume/low toxicity criteria to

determine which primary mineral

processing wastes would retain the

Bevill exclusion. This rule also clarified

the Bevill status of beneficiation

operations. Those mineral processing

waste streams not meeting the high

volume/low toxicity criteria are no

longer Bevill exempt wastes and are

subject to regulation under Subtitle C

(except 20 mineral processing waste

streams noted at 40 CFR 261.4). Nonexempt Bevill mineral processing

wastes are ‘‘newly identified,’’ and are

now subject to the Land Disposal

Restrictions, when land disposed.

Therefore, only ‘‘newly identified’’

characteristic hazardous mineral

processing wastes are potentially

eligible for the conditional exclusion

from the definition of solid waste.

EPA established in the 1989

rulemaking the factors it would use to

determine whether a waste is generated

from extraction/beneficiation versus

mineral processing (see 54 FR 36592,

36616–20). The Agency has not and is

not reopening this standard. However,

EPA prepared and noticed a report—

Identification and Description of

Mineral Processing Sectors and Waste

Streams—which tentatively applied this

existing test on a waste-by-waste basis

to wastes from 41 mineral sectors (62 FR

at 2354).

There are two principal issues raised

by this report: its legal status and its

accuracy. First, the Agency has decided

that the Identification and Description

of Mineral Processing Sectors and Waste

Streams report should be a guidance

document. Thus, the Report is not a

rule, and it, therefore, cannot be

invoked as a definitive determination as

to whether or not a particular waste is

to be classified as being from mineral

processing or from extraction/

beneficiation. In addition, this report

should not be viewed as an exclusive

list of mineral processing and associated

waste streams: other mineral processing

waste streams may exist. Mineral

processing facilities are obligated to

determine the Bevill status of their

wastes by utilizing applicable regulatory

provisions, as clarified by the criteria

articulated in 1989 in the Federal

Register preamble cited above. Thus,

because the document is guidance, no

party could rely upon that document as

the definitive basis for a regulatory

determination.

The Agency has fully evaluated

comments suggesting that the report

contains factual inaccuracies, and

believes that the Report, as now revised

after review of public comments, is

accurate and should therefore, provide

useful guidance to the public. EPA

disagrees with comments contenting

that the Agency adopted new criteria in

reaching the tentative conclusions set

out in the Report. This is not the case—

the same general approach used in 1989

was applied in the Report, and would

have to be applied in making any actual

regulatory determination.

One commenter argued that

considering these determinations to be

advisory would violate EPA’s duty

under section 3001(b)(3) of RCRA, as

construed by the Court in EDF V. EPA,

852 F.2d 1316, 1331 (D.C. CIR 1988) to

have made final determinations as to

which mining wastes are subject to the

Bevill exclusion. According to this

commenter, reaching one conclusion at

headquarters and a potentially different

conclusion at EPA regions or States

would undermine the intent of the

Court’s order in EDF. This commenter

also asserted that such an approach

would effectively allow States to
Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations 28585

10Waters in these impoundments are often

recycled back into processes for their value as

water. Recycling of wastewaters may be currently

allowed under the effective substitute clause in the

regulatory definition of solid waste (see 40 CFR

261.2(e)(1)(ii)), a provision unaffected by today’s

amendments. However, EPA reads AMC II and its

regulations to state that impoundments where some

wastewaters are returned to a process as an effective

substitute for a commercial product, but which also

function as wastewater treatment impoundments,

would be regulated units (assuming there are

hazardous wastes in the unit). This is because the

unit would necessarily be functioning at least

partially as a disposal unit (since wastewaters are

ultimately discharged). In addition, the product

storage regulatory exemption at 40 CFR 261.4(c)

does not apply to surface impoundments.

Notwithstanding industry comments that recycling

of wastewater should be encouraged, the Agency

notes the stronger policy in RCRA to assure that

surface impoundments managing hazardous waste

are managed so as to operate protectively. AMC II,

907 F.2d at 1187 and sources there cited.

regulate less stringently than EPA, in

violation of sections 3006 and 3009 of

RCRA.

EPA believes that these comments are

erroneous. EPA fulfilled some time ago

its obligations under section 3001(b)(3)

generally, and under the EDF decision

in particular, to define the scope of the

Bevill exclusion as it applied to mining

wastes. See 51 Fed. Reg. 24496 (July 3,

1986); 54 Fed. Reg. 36592 (Sept. 1,

1989); 55 Fed. Reg. 2322 (Jan. 23, 1990);

56 Fed. Reg. 27300 (June 13, 1991). As

discussed in those notices and rules,

EPA’s regulatory determination did not

obviate the need to evaluate whether a

particular waste was from mineral

processing which, unless one of the 20

identified special mineral processing

wastes, would not be exempt from

Subtitle C under Bevill. Indeed, the

Agency has extensively discussed the

distinctions between beneficiation and

mineral processing precisely to assist

industry, EPA and the States in making

such case-specific determinations. See

54 Fed. Reg. 36618–36619 (Sept. 1,

1989). Issuance of the Identification

document in the record for this

rulemaking is simply intended to aid

the industry and regulators in making

these decisions.

EPA acknowledges that the potential

for inconsistent determinations exist; for

this reason, EPA headquarters has

assisted regional offices and States in

making these determinations over the

past decade. Section 3001(b)(3) does

not, however, require the Agency to use

rulemaking to make each and every

decision. Those decisions that are very

fact-specific may need to be made on a

case-by-case basis using general criteria

articulated nationally by EPA. It is

precisely because of the fact-specific

nature of such inquiries that EPA

believes adopting the guidance

document as ‘‘binding’’ would not be

appropriate. Finally, nothing in EPA’s

approach is inconsistent with the RCRA

requirement that authorized State

programs be at least equivalent to and

no less stringent than the federal

program (see RCRA 3006 (b)).

b. Wastewater Treatment Surface

Impoundments. EPA indicated at

proposal that wastes managed in

wastewater treatment surface

impoundments would never be eligible

for a conditional exclusion from the

definition of solid waste. 62 FR at 2348.

(A wastewater treatment surface

impoundment is one whose ultimate

discharge is regulated by the Clean

Water Act, and can include zero

discharge facilities.) This remains EPA’s

position, although the issue is no longer

directly relevant to the final rule

because no impoundments are eligible

for exclusion. As the Agency noted at

proposal, the essential purpose of these

units is waste management rather than

production. 62 FR at 2348. See also

AMC II, where the D.C. Circuit held that

wastewater treatment surface

impoundments can be classified as

waste management units,

notwithstanding that all of the entrained

solids in the unit were eventually

recycled as feedstock at the generating

plant. 907 F. 2d at 1186–87.18 10

c. Materials Outside the Scope. This

rule limits the use of the conditional

exclusion to the definition of solid

waste to only those secondary mineral

processing materials generated within

primary mineral processing. The

Agency identified over 40 mineral

sectors which potentially generate

mineral processing secondary materials

subject to this rule. The scope of this

rule is therefore quite broad. The

Agency did not receive comments

opposed to the Agency including them

in this rule.

This rule also restricts the use of the

conditional exclusion from the

definition of solid waste to

characteristically hazardous mineral

processing materials. Thus, no listed

hazardous wastes can qualify for the

conditional exclusion.

The National Mining Association

(NMA) and the Metals Industry

Recycling Coalition submitted

comments urging the Agency to broaden

the scope of the rule to include metalbearing wastes generated outside of

primary mineral processing as well as

allowing the reprocessing of listed

hazardous wastes. The Agency is not

extending the exclusion contained in

this rule because the Agency did not

propose addressing wastes generated

outside of primary mineral processing,

since at the time of proposal the Agency

indicated that these wastes would be

addressed under a different rulemaking.

While metal-bearing wastes generated

outside of primary mineral processing,

and listed hazardous wastes are not

within the scope of this rule, the Agency

will continue to assess how best to

encourage their legitimate recycling.

Commenters indicated they were

unsure how this rule would affect the

application of 40 CFR 261.2 to

secondary materials generated from

outside the mineral processing industry

sector. As discussed earlier in the

preamble, today’s rule does not amend

§ 261.2 for any secondary materials

other than those generated within the

mineral processing sector. Thus, when

fully implemented, a mineral processing

facility can use the conditional

exclusion to the definition of solid

wastes and can utilize § 261.2 to recycle

other wastes.

3. Mineral Processing Secondary

Material Volumes and Environmental

Damages

a. Volume of Secondary Materials and

Large Volume Exemption. In the

Agency’s May 1997 proposal, land

placement of secondary mineral

processing materials would be

prohibited except for materials

exceeding the high volume criteria

(45,000 tons per facility waste stream

per year for solid wastes and one

million tons per facility per waste

stream per year for liquids). The May

1997 proposal would have allowed high

volume secondary materials to be

placed in land-based units if those units

meet the integrity standards noted in the

January proposal and meet other

proposed conditions. In today’s rule, the

Agency is adopting a no land placement

condition for mineral processing

secondary materials without any

volume exemption.

As noted in the May 1997 proposal

(see 62 FR at 26049), the Agency

reevaluated the volumes of mineral

processing secondary materials as a

result of comments submitted by public

interest groups which asserted that

volumes of these materials were

considerably less than EPA originally

believed (see Characterization of

Mineral Processing Wastes and

Materials, U.S. EPA, 1998). Based on

this reevaluation, the Agency finds that

mineral processing wastes are not

generated in the high volumes that we

previously believed to be the case. EPA

found that of the 119 hazardous wastes

streams it studied, 117 were generated

in volumes lower than the proposed

high volume cutoff. Further, comments

from public interest groups on the

Agency’s May 1997 proposal indicate

that two remaining waste streams that
28586 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations

11Of course, those mineral processing facilities

that have in fact improved their storage practices for

mineral processing secondary materials being

reclaimed by using tanks, containers, or buildings

instead of impoundments to store secondary

materials would be essentially unaffected by this

rule, since such units would be excluded from

regulations.

the Agency had classified as high

volume may not in fact meet the high

volume cutoff. The Agency reassessed

how it estimated the volumes of these

waste streams and acknowledges that it

used very conservative approaches to

estimate these volumes. It is, therefore,

possible that none of the 119 waste

streams studied meet the high volume

cutoff. The Agency proposed using the

high volume cutoff as an indicator that

land storage may be an economic

necessity because when volumes are

high, alternatives to land placement are

costly and not practical. In fact, the

Agency now finds that mineral

processing secondary materials are

generated at volumes where there is no

reason that they cannot be managed in

non-land based units (except for solids

placed on approved pads).

Industry comments maintained that it

is impractical to place mineral

processing secondary materials in tanks,

containers, and buildings. Based on the

storage of similar volumes and types of

hazardous wastes generated in other

industries, the Agency does not agree.

The Agency presented its analyses of

volumes in its report entitled,

Characterization of Mineral Processing

Wastes and Materials, 1997. This report

noted that listed hazardous wastes, such

as spent potliners, and electric arc

furnace dusts, are generated at volumes

which generally exceed that of mineral

processing secondary materials yet are

stored in tanks and buildings. Further,

this report noted that the volumes

generated by other industries that use

tanks, containers, and buildings to store

hazardous wastes are not substantially

different than volumes generated by the

mineral processing industry.

b. Reliability of Damage and

Environmental Release Reports.

Industry commenters to the May 12,

1997 proposal sought to refute or

minimize the degree of contamination

caused by the land storage of mineral

processing secondary materials. Despite

these objections, the Agency still finds

that land-based storage and management

practices of mineral processing

secondary materials and wastes can or

may create or exacerbate soil and

ground water contamination.

The Agency issued two separate

reports in 1995 and 1997 (Office of

Solid Waste, U.S. EPA, Human Health

and Environmental Damages from

Mining and Mineral Processing Wastes

(1995), and Office of Solid Waste, U.S.

EPA, Damage Cases and Environmental

Releases (1997)) which presented

information on damage cases and

environmental releases of mineral

processing and mining wastes. The data

tended to fall into two general classes:

(1) information that illustrates that

environmental damages have occurred,

and (2) information that discusses the

types and magnitude of mineral

processing materials that have been

released into the environment. In some

cases, a combination of feedstock, inprocess materials, secondary materials,

and wastes contribute to ground water,

surface water, or soil contamination.

Also, in some cases, contamination

occurred through episodic or continuing

mismanagement of hazardous and other

solid wastes (e.g., commercial chemical

spills). Industry commenters objected to

the use of these damage cases

contending that they reflect historic

practices and not current operations.

The Agency disagrees that storage of

mineral processing wastes, and in some

cases secondary materials, on the

ground, which was reflected in these

reports, no longer occurs. After careful

reevaluation, the Agency finds that the

record and, in particular, these reports,

clearly indicate that the storage on the

ground of mineral processing wastes

and secondary materials continues as a

management practice and has caused

environmental damage or has the

potential to do so. These reports identify

cases where mineral processing wastes

and secondary materials were eroded by

rain, were carried by wind, or, in the

case of surface impoundments, migrated

to contaminate ground water. The vast

majority of newly identified mineral

processing wastes are liquids and their

placement in impoundments presents

actual or potential threats to the

environment. The Agency concludes

that placement of secondary mineral

processing materials in impoundments

may contribute to the waste

management problem.11

EPA is also not impressed by

comments stating that most of the

damage incidents involved wastes no

longer utilized within a process, not

secondary materials awaiting

reclamation, and therefore are irrelevant

to this rule. The damage incidents

certainly show that when hazardous

mining and mineral processing wastes

and mineral processing secondary

materials are stored in piles or in

surface impoundments, hazardous

constituent releases and consequent

damage has occurred in this industry.

Piles and impoundments do not

automatically become safer if the

materials stored in them are secondary

materials awaiting recycling rather than

wastes. Rather, the risk comes from the

nature of the storage unit.

The Agency compared the toxic and

hazardous properties of newly

identified mineral processing wastes

with a limited number of RCRA listed

hazardous wastes in the 1997 technical

background document, Characterization

of Mineral Processing Wastes and

Materials. This report was used to

support the May 1997 proposal. In order

to easily compare the listed waste

leachate concentrations with the

leachate concentrations of the newly

identified mineral processing wastes, a

combined mean and maximum range of

chromium, cadmium, and lead

concentrations for the seven listed

wastes were calculated. The mean

leachate concentrations for chromium,

cadmium, and lead range from 6.03 mg/

l to 273.23 mg/l, <0.01 mg/l to 117.5

mg/l, and 1.47 mg/l to 259.83 mg/l,

respectively. Likewise, the maximum

leachate concentrations for chromium,

cadmium, and lead range from 12 mg/

l to 4250 mg/l, <0.01 mg/l to 268 mg/

l, and 2.10 mg/l to 1550 mg/l,

respectively. The report then compared

the ranges in constituent concentrations

exhibited by the listed wastes and the

newly identified mineral processing

wastes. The report states that 15 of the

23 mineral processing wastes exhibit

leachate concentrations of chromium,

cadmium, and lead at levels that are

equal to or greater than those levels

exhibited by the seven listed wastes.

Therefore, the Agency has concluded

that some mineral processing secondary

materials exhibit hazardous properties

similar to listed hazardous wastes, and

have the same or greater potential of

leaching metals into the environment

when they are improperly placed on the

land.

In addition, mineral processing

secondary materials often contain metal

compounds and other constituents

which, due to processing steps, become

more mobile in the environment (see 54

FR 36614–36619, September 1, 1989).

By the very nature of mineral

processing, heavy metals are

continuously concentrated and waste

streams tend to contain higher metal

loadings than those found in raw ore.

Since the resultant wastes have higher

concentrations of metals, they likewise

have a higher potential to leach higher

concentrations of metals into the

environment if they are not adequately

stored. Finally, the record also shows

that a wide range of mineral processing

secondary materials are released into

the environment. Such releases do not

necessarily mean that environmental
Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations 28587

damage has occurred; however, the

Agency believes it must take

appropriate steps to minimize such

releases to reduce the potential for

damage to occur, just as the Agency

does with other hazardous wastes.

RCRA is a preventive statute, designed

to assure safe management of hazardous

waste from cradle to grave to prevent

the need for remediating releases. Based

on the information noted above, the

Agency therefore has finalized in

today’s rule a ‘‘no land placement’’

condition for the storage of mineral

processing secondary materials.

Comments from public interest groups

pointed out that a considerable amount

of information shows that releases result

from fugitive dusts and that control of

dusts was not adequately addressed in

the proposals. The Agency agrees that

the release of fugitive dust should be

addressed and believes that placement

in tanks, containers or buildings will

adequately address this concern.

Mineral processing secondary materials

stored in tanks or containers must be

stored in a manner which effectively

manages fugitive emissions. Moreover,

as at proposal, if the site-specific pile

approval process is utilized, the

possibility of harm via an air exposure

must be considered, and, if necessary,

controlled. See 62 FR at 2372 (proposed

261.4(a)(15)(iv)(A)(3)).

4. Conditions to the Exclusion

In the January 1996 and May 1997

proposals, the Agency sought comment

on how to establish a conditional

exclusion to the definition of solid

waste which would encourage recycling

of mineral processing secondary

materials and be protective. In today’s

rule the Agency is establishing a

conditional exclusion to the definition

of solid waste. The conditions relate to

legitimacy of recycling, land placement,

speculative accumulation, and

notification, and are discussed below.

a. Legitimacy. It goes virtually

without saying that only mineral

processing secondary materials which

are reclaimed legitimately would be

excluded under today’s rule. This is

because sham recycling is simply waste

treatment or disposal conducted under

the guise of recycling. See U.S. v. Self,

2 F. 3d 1071, 1079 (10th Cir. 1993).

The Agency currently uses a

qualitative approach for determining

whether a material is being legitimately

recycled. Factors the Agency considers

typically relevant in making such

determinations are found at 50 FR 638

(Jan. 4, 1985); 53 FR 522(Jan. 8, 1988);

56 FR 7145, 7185 (Feb. 21. 1991). Use

of these factors to assess whether a

particular activity is to be viewed as

recycling rather than treatment or

disposal was emphatically sustained by

the Court in Marine Shale Processors v.

EPA, 81 F. 3d 1371, 1381–83 (5th Cir.

1996) and United States v. Marine Shale

Processors, 81 F. 3d 1361, 1366(5th Cir.

1996).

The main issue in this rulemaking

was whether the Agency should develop

quantified criteria for use in assessing

legitimacy of reclamation activities

within the mineral processing industry.

The Agency proposed quantitative

criteria including the potential use of an

ore grade cut-off, normal operating

range, efficiency standard, and an

economic test. 62 FR at 2342–44. In

addition to metal values, the Agency

also solicited comment on legitimate

recycling of acid, water, and other

values.

The mineral processing industry

noted in their comments that their

products must meet international

quality standards and they would not

risk affecting product quality by

introducing materials which would

adversely affect that quality, and

therefore that legitimacy can be

assumed in essentially all cases. They

also opposed the proposed quantified

criteria.

While the Agency agrees that market

forces generally may limit the

introduction of materials which could

adversely affect product quality, mineral

processing facilities by their nature

process large volumes of materials, EPA

is concerned that small volumes of

wastes could be placed into processes

without contributing mineral values in

order to treat or dispose of them.

Obviously, this is not recycling, as

noted by the Court in U.S. v. Marine

Shale Processors, 81 F. 3d at 1366. The

Agency, therefore, does not agree that

there is no need to apply some type of

reasonable legitimacy criteria.

Industry commenters also noted that

application of quantitative criteria

would be burdensome, are not

necessary, and could not be effectively

implemented. The Agency agrees that

implementation of the proposed

quantitative tests would have required

significant testing of materials (and

resultant costs) and that due to

uncertainty in evaluating test results,

companies may decide not to recycle

any materials to protect the Bevill status

of their resultant wastes. Application of

an ore grade cutoff criteria could restrict

the gold industry’s ability to recover

gold values from secondary materials

that contain gold at levels below those

found in ore. Such recovery could

nevertheless be cost effective. Industry

commenters stated that the application

of a normal operating range test would

be difficult to implement since

operating parameters at large mineral

processing facilities change often related

to differences in feed. There also was

little support from industry for the

proposed efficiency test because such

facilities may be recovering a specific

metal at one recovery rate while they are

recovering other metals at a different

rates. Industry commenters also rejected

the proposed use of an economic test

because recycling need not be profitable

to be legitimate. They specifically

pointed out the cases where recycling

was economical only relative to

disposal, and yet, the company was

legitimately reusing the recycled

materials.

For these reasons the Agency has

declined to adopt any of the proposed

quantitative tests. In today’s rule, the

Agency is not adopting quantitative

criteria and will continue to use the

qualitative approach for evaluating

whether an activity is legitimate

recycling. In addition, the Agency

believes that legitimate recycling may

occur for reasons other than to recover

metal values— recovery of acids,

cyanide, or water, for example. With no

quantitative tests for such recycling, the

Agency believes the qualitative criteria

best cover the broad array of situations

being addressed. Situations most likely

to be deemed sham recycling would,

thus, be those involving low amounts of

recoverable material plus the presence

of non-contributing hazardous

constituents in the waste (particularly

hazardous constituents not otherwise

present in the normal feedstock of the

process). See generally, 53 FR at

522(January 8, 1988).

b. Design and Construction

Standards. In the January 1996

proposal, the Agency assumed that

land-based storage of mineral processing

secondary materials was a necessity

within the mineral processing sector,

and proposed three different types of

conditional mechanisms whereby these

land-based units could be deemed

‘‘process units’’ that would be excluded

from Subtitle C jurisdiction. 62 FR at

2345–48. More specifically, these

alternative conditions were an

environmental performance standard, a

design and operating standard, or an ad

hoc, site-specific standard developed by

an EPA Region or authorized State. The

environmental performance standard

would have used a ground water

protection standard as a determinant of

whether a land-based unit was involved

in discard. If ground water monitoring

determined that there was an

exceedance of the MCL (background

levels if background exceeded the MCL)

at a designated point of compliance,
28588 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations

then the unit would be required to

implement unit-specific corrective

action. 62 FR at 2345–46.

The Agency also proposed, in lieu of

compliance with the ground water

standard, design and construction

standards. EPA proposed that surface

impoundments be constructed with a

transmissivity equivalent to a 40 mil

geomembrane liner placed on top of 12

inches of a material with a 10–5

hydraulic conductivity. Piles could be

constructed on concrete, asphalt, or soil

any of which would have to have the

equivalent transmissivity of three feet of

clay with 10–7 cm/sec hydraulic

conductivity. Id. at 2346.

The final alternative allowed for an

authorized State or EPA Region to make

a site-specific determination that the

unit can be operated in a manner that

is protective. The Agency proposed this

option to allow for flexibility because

there are a range of site-specific

characteristics, such as depth to

groundwater and rainfall, which can

affect the design of a unit and affect the

risks posed by such units. Id. at 2347.

EPA finds now, however, that the

premise of volumetric necessity was

mistaken (see the earlier section of this

preamble). As such, the Agency is

adopting its traditional jurisdictional

demarcation point of not allowing

exclusions for land-based storage units.

As discussed earlier, land-based storage

units are so fraught with indicia of

discard—including elements of outright

disposal via both air and groundwater

exposure pathways (borne out by

damage cases as well), plus no longer

being part of the actual production

operation—that EPA views this

demarcation as strongly justified once it

is clear that there is no necessity to use

such units. The sole exception in the

final rule which allows for conditional

exclusion for a land-based storage unit

is for piles resting on pads which are

approved by an authorized State or EPA

Region, as discussed in the section

below.

c. Units Eligible for Conditional

Exclusion and Conditions Attached to

Such Units. (i) Tanks, Containers and

Buildings. Today’s rule states that

mineral processing secondary materials

reclaimed within the industry can be

excluded if they are stored in any of the

following: tanks, containers, buildings,

or piles resting on pads when such piles

are evaluated and approved on a sitespecific basis by an authorized State or

EPA Region. (As noted in the May 12,

1997 proposal, this is conceptually the

same as the rule EPA proposed for the

oil-bearing secondary materials

generated by and recycled within the

petroleum industry. See 62 FR at 26048

(May 12, 1997) and 60 FR 57753

(November 20, 1995)). Tanks,

containers, building, and approved pads

do not have to meet the design and

operating standards for units storing

RCRA Subtitle C wastes.

EPA also is adopting certain minimal

conditions on these units’ design to

assure basic unit integrity and so assure

that tanks, containers, and buildings do

not serve as conduits for massive

material release (i.e. disposal units). An

acceptable tank must be free standing

and not be a surface impoundment, and

be manufactured of a material suitable

for containment of its contents. An

acceptable container must be free

standing and be manufactured of a

material suitable for containment of its

contents. An acceptable building must

be a man-made structure and have floors

constructed from non-earthen materials,

have walls, and have a roof suitable for

diverting rainwater away from the

foundation. A building may also have

doors or removable sections to enable

trucks or machines access. The Agency’s

technical report Non-RCRA Tanks,

Containers, and Buildings, U.S. EPA,

1998, provides examples of acceptable

units for the storage of mineral

processing secondary materials.

EPA disagrees with comments from

public interest groups stating that

nothing short of RCRA Subtitle C

standards could assure protectiveness

and so demonstrate that these non-landbased storage units were not part of the

waste management problem. The

plenary conditions urged by the public

interest group commenters are indeed

those necessary for protective

management of hazardous wastes, but

the Agency’s task here is different. It is

to delineate discard from non-discard

(i.e. wastes from non-wastes), and, as

noted at proposal, not only is this a

different test than determining

protective waste management

conditions, but there are jurisdictional

constraints on the types of conditions

EPA can impose when considering the

situation presented here, i.e., secondary

materials generated and reclaimed

within a single industry sector. 62 FR at

2342. Thus, the conditions EPA is

adopting are designed to assure that

these units are not essentially sieves

functioning as means of disposal.

The Agency discussed its definition of

non-RCRA tanks, containers and

buildings in its Technical Background

Document (See 62 FR at 26050, NonRCRA Tanks Containers, and Buildings,

1997). Industry commenters requested

clarification on whether their smelter or

refiner buildings would meet the

definition of ‘‘building’’ if tanks,

containers or buildings were required.

As set out in the final rule, a building

is a structure with four walls, a roof, and

floor constructed of non-earthen

materials. Smelter and refinery

buildings are quite large and include

floor areas which, in part, use earthen

materials. As long as mineral processing

secondary materials (i.e. those sludges,

by-products, and spent materials which

would otherwise be identified as

hazardous wastes) are stored in those

sections of the smelter and refinery

building that do have floors constructed

of non-earthen materials, these

structures would qualify for the

exclusion included in today’s rule as

non-RCRA buildings.

Industry commenters also noted that

the Agency made reference to tanks and

containers having to meet applicable

industry standards for their construction

and operation, such as those established

by the American Society of Testing

Materials (ASTM) or the American

Petroleum Institute (API)(See 62 FR at

26050). They pointed out that API

standards deal specifically with tanks,

while ASTM standards relate more

specifically to testing procedures. The

commenters argued that units storing

mineral processing secondary materials

do not need to comply with these

standards to be safe. The Agency agrees

that the references to applicable

industry standards such as ASTM and

API were overly broad and has not

included them in today’s rule. Industry

commenters requested clarification on

whether tanks and containers needed

covers to meet the condition of ‘‘no land

placement.’’ The Agency expects that

the storage of mineral processing

secondary materials will prevent

uncontrolled fugitive emissions. Tanks

and containers do not need covers as

long as the materials stored in them are

managed to reduce fugitive emissions.

The facility operator will therefore need

to determine if covers are needed to

effectively control fugitive emissions.

For example, tanks and containers

placed inside buildings may not need

covers.

The gold and copper industries stated

that their secondary materials would

meet legitimacy conditions and that

they do not need to store these materials

prior to placement back onto gold heap

leaches or copper dump leaches. The

final rule indicates that process units, as

opposed to storage units, are excluded

from RCRA Subtitle C. EPA believes that

the heap and dump leach units are

process units, notwithstanding the fact

that they are land-based. This is because

dump and heap leach piles

simultaneously produce products and

waste. The issue is also academic with

respect to these units. This is because
Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations 28589

12EPA has not provided for this type of sitespecific approval of land-based storage units in

other rules providing for conditioned exclusion

from the regulatory definition of solid waste. In

some cases, this is because management of solids

was not at issue (proposed petroleum listing rule

and rules on recovered oil), or the industry sector

did not use piles for solids management (steel

industry coke-byproducts listing rule). As noted in

the text above, EPA believes that there are certain

factors peculiar to the mineral processing industry

that have persuaded EPA to allow for a site-specific

authorization process, but this provision should not

be considered to be a precedent for any other

industry sector.

13As proposed, these general decision factors are

drawn from the environmental performance

standard in the row-revoked 40 CFR 267.10.62 FR

at 2347. Commenters noted correctly that Part 267

is no longer codified, so that these requirements

should not be placed in regulatory language (or

preamble) by means of a cross-reference to the

revoked provisions.

the Agency determined that these units

are extraction/beneficiation activities in

1986 and reiterated that position in

1989 (see 51 FR 24496 and 54 FR

36592), and their Bevill regulatory

status is unchanged by today’s rule.

Thus, if the heap leach pile becomes a

disposal unit because wastes remain

there permanently, those wastes

presently have Bevill status. The

Agency continues to be concerned that

there may be environmental risks

related to dump and heap leaching, but

has determined that this rule is not the

appropriate means to address those

concerns.

Industry commenters also raised

concern that under the ‘‘no land

placement’’ option, described in the

May 1997 proposal, they would no

longer be able to place slags on the

ground. This is an incorrect reading of

the regulations and the proposals since

at 40 CFR 261.4(b)(7), iron and steel,

copper, lead, zinc, and elemental

phosphorus slags are all classified as

Bevill exempt mineral processing

wastes and would not be affected by this

rule. The management of these slags on

the ground can continue as long as they

meet other applicable federal and state

regulations.

(ii) Solid Mineral Processing

Secondary Materials Resting On Pads.

As noted, EPA proposed at 61 FR 2346

to allow land-based units which had

been approved as protective on a sitespecific basis by an authorized State or

EPA Region. The Agency is retaining a

portion of that proposal in the final rule

in order to allow solid mineral

processing secondary materials resting

on pads to be used for storage of mineral

processing secondary materials being

reclaimed within the industry. The

Agency defines ‘‘solid mineral

processing secondary materials’’ as

those mineral processing secondary

materials containing no free liquids. The

provision functions effectively as a

variance to allow conditionally

excluded storage using pads to occur.

Industry comments pointed out that

there are materials which can be placed

on concrete or asphalt pads in a manner

that provides the equivalent protection

of a tank, container, or building. The

Agency is aware that in the arid

Southwest, the copper industry places

materials on pads to dry them prior to

their reentry into processes. The Agency

agrees with industry comments that a

degree of flexibility is needed regarding

the storage of solid mineral processing

secondary materials in this sector,

particularly given the number of such

storage units presently used in arid

conditions, and (to a lesser degree of

importance) given the number of

existing piles used by this industry

which conceivably could be upgraded to

operate protectively and for which a

more flexible approach could be

warranted.12

In today’s rule EPA is adopting a

provision whereby persons storing only

solid mineral processing secondary

materials (those mineral processing

secondary materials containing no free

liquids) on pads prior to legitimate

reclamation in a mineral processing

process may seek a determination from

an authorized State or (if the pile is

located in an unauthorized State) EPA

Region such that the unit is approved as

protective and materials stored in the

unit are conditionally excluded from the

regulatory definition of solid waste

provided that the pad is not serving as

a mode of discard.

Minimum design criteria for pads are

as follows; (1) Pads must be designed of

non-earthen materials which are

compatible with the chemical nature of

the mineral processing secondary

material being stored, (2) Pads must be

capable of withstanding physical

stresses associated with placement and

removal, (3) Pads must have run on/

runoff controls, (4) Pads must be

operated in a manner which controls

fugitive dust, and (5) Owner/operators

must conduct inspections and

maintenance programs to ensure the

integrity of the pads.

The decision-maker would evaluate

the application for storage on pads

against a general environmental

performance standard: whether the pad

is located, designed, constructed and

operated so as to be protective of human

health and the environment and is not

used for disposal. A broad benchmark of

performance would be that the

approved pad must afford the same

degree of protectiveness as non-RCRA

tanks, containers and buildings eligible

for exclusion.

The decision-maker would have to

consider potential releases via

groundwater, surface water, and air

exposure pathways. Factors to be

considered for assessing the

groundwater, surface water, air

exposure pathways are:

—The volume and physical and

chemical properties of the secondary

material, including its potential for

migration off the pad;

—The potential for human or

environmental exposure to hazardous

constituents migrating from the pad

via each exposure pathway, and the

possibility and extent of harm to

human and environmental receptors

via each exposure pathway.13

Thus, under this regime, a State could

approve placement of solid mineral

processing secondary materials (those

materials containing no free liquids) on

a pad where, after consideration of

relevant exposure pathways, a

determination is made that the mode of

storage will not adversely affect human

health and the environment, and where

the operator has demonstrated

compliance with the minimum design

and operating criteria. Approval would

be more problematic if a pad was

located in an area which experiences

flooding, or in an area where ground

water was close to the surface and used

for drinking water purposes.

The Agency is confident that sitespecific determinations can be

accomplished as part of existing State

regulatory programs. The situations

eligible for this variance are

considerably more circumscribed than

at proposal, and the decision criteria

consequently more focused, meeting

some of the objections in comments

from public interest groups on the

proposals. Today’s rule only allows the

placement of mineral processing

secondary materials that are physical

solids, and the rule also specifies certain

minimum conditions such pads must

meet to be approved. Further, the rule

identifies the factors a State must

consider prior to making such

determinations. The Agency will review

a State’s regulatory authorities it intends

to use in implementing this

determination to assure that an

authorized state can effectively

implement this element of the rule.

As proposed, EPA is requiring that

there be opportunity for public

participation in the evaluation and

approval process of pads storing solid

mineral processing secondary materials.

62 FR at 2366. The Agency believes it

is important that those citizens who

may be directly affected by these

determinations be notified of them and
28590 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations

participate in the process, and notes

further that this requirement is fully

consistent with RCRA’s strong

preference for public participation. See

RCRA section 7004(b).

On the other hand, EPA is not

adopting any site-specific approval

process for storage of mineral processing

secondary materials in surface

impoundments. The Agency has

concluded that storage in

impoundments would likely lead to

their contributing to the waste

management problem. Many damage

incidents in this industry involve the

use of impoundments (see damage case

on phosphorus impoundments in

Idaho). Furthermore, the Agency has

determined that there are no

engineering or economic constraints on

requiring liquid mineral processing

secondary materials to be placed in

tanks.

d. Speculative Accumulation. In this

rule, the Agency is establishing a

condition that mineral processing

secondary materials cannot be

accumulated speculatively as defined in

40 CFR 261.1(c)(8). EPA proposed this

condition, 61 FR at 2372, and indeed,

this condition already applies to every

other secondary material being recycled

which is excluded from being a solid

waste. See, e.g., 261.2 (e). Industry

comments noted that the 12-month limit

on speculative accumulation was overly

restrictive and that many mineral

processing secondary materials need to

be stored until economic conditions

warrant their recycling. The Agency

rejects these comments because no data

were presented that would indicate that

the volumes of materials being

generated could not be efficiently

recycled within a 12-month period. In

the 12 years the speculative

accumulation provision has been in

effect, the Agency is unaware of other

industries suffering economic burdens

by complying with the limits placed on

speculative accumulation. Nor is EPA

aware of any mineral processing facility

which has applied, pursuant to the

variance provision in 40 CFR 260.30(a)

and 260.31(a) (which allow an extension

of the 12-month speculative

accumulation period), to extend the

existing 12-month requirement for

currently excluded mineral processing

secondary materials (like unlisted

sludges and by-products). The Agency

infers that the existing 12-month

requirement is not imposing any type of

significant constraint on this industry.

e. One Time Notification. EPA

proposed that mineral processing plants

generating mineral processing

secondary materials and utilizing the

conditional exclusion to the definition

of solid waste provide EPA (or an

authorized State) with a one-time

notification which describes the mineral

processing materials to be recycled and

the recycling processes being used. (See

61 FR at 2345). The Agency is finalizing

this provision in today’s rule. It applies

to any facility utilizing the conditional

exclusion.

Today’s rule requires that the one

time notification must specify the types

and amounts of mineral processing

secondary materials to be recycled and

the location and type of unit storing

mineral processing secondary material.

The notice should be submitted to the

appropriate EPA regional office or

authorized State. An amended

notification would not be required

unless the facility has significant

process changes affecting the

generation, location, or recovery of

mineral processing secondary materials.

The reason the provision is needed is

to assure that the conditioned-exclusion

approach in today’s rule can be feasibly

implemented. To do so, EPA or States

must know what secondary materials

are being stored, and where storage is

occurring, in order to determine

whether the other conditions in the rule

are being satisfied. As described above,

these other conditions are necessary to

assure that secondary material storage

within the industry does not become

part of the waste management problem.

In this very real sense, the notification

condition is likewise necessary to assure

that the storage is not part of the waste

management problem, since notification

is necessary to successfully implement

the other conditions.

Industry comments opposed this

condition, not so much on grounds of

unreasonable burden, but based on the

argument that the Agency lacks legal

authority over non-waste activities.

Since EPA finds that the notification

condition is an integral part of a group

of conditions necessary to assure that

storage of these hazardous secondary

materials does not become part of the

waste management problem, EPA has

legal authority to adopt it. In addition,

the Agency notes that RCRA section

3007(a) provides authority to enter

facilities and obtain information needed

to assist in the enforcing of provisions

of Subtitle C. This provision can

reasonably be read to apply to gathering

information to determine whether or not

a particular hazardous secondary

material is a waste. The notification

condition obtains this same type of

information by regulatory condition.

The Agency thus believes that section

3007(a) (implemented here by rule,

pursuant to the Agency’s general

rulemaking authority under RCRA

section 2002(a)) likewise provides

authority to adopt this condition.

In the January 1996 proposal, the

Agency solicited comment on whether a

Facility Operating Plan should be

required for facilities that generate,

store, or process hazardous mineral

processing secondary materials. (See 61

FR at 2345) Under this approach, a

Facility Operating Plan would include:

a spill prevention plan and procedures;

types, quantities, and analysis of

recycled materials; product

specifications; speculative accumulation

and storage requirements; closure plan;

and record keeping and reporting for

off-site shipments. In today’s rule, the

Agency is not requiring the preparation

of such a plan. This requirement is not

necessary given the burden of proof

under existing 40 CFR section 261.2(f)

that a facility must meet to comply with

the conditions of legitimacy,

containment, and speculative

accumulation. The Agency does,

however, strongly encourage facilities to

develop a plan or at least components

of a plan as part of responsible

environmental management.

5. Bevill Related Issues

a. Uniquely Associated. Under the

Agency’s longstanding interpretation of

the Act, the Bevill amendment applies

to special wastes that are uniquely

associated with extraction/beneficiation

and certain mineral processing

activities. Because the decision whether

a particular waste is uniquely associated

may determine whether a particular

waste is subject to Subtitle C controls,

the Agency believed that it was

important and useful to receive public

input regarding the manner in which

EPA and authorized States apply this

principle and solicited comment

regarding the criterion for determining

whether a waste is uniquely associated

with mineral operations. The Agency

has described non-uniquely associated

wastes at 45 FR 76619, November 19,

1980 and 54 FR 36623, September 1,

1989. In the May 1997 proposal, the

Agency noted examples of non-uniquely

associated wastes, which include spent

solvents, pesticide wastes, and

discarded commercial chemicals. As

stated in the May 1997 proposal, in the

Agency’s view, these wastes are

logically viewed as not being ‘‘from’’

extraction, beneficiation, or mineral

processing, and, therefore, are not

subject to the Bevill exclusion. (See 62

FR 26054–56, May 12, 1997).

In May 1997, the Agency proposed

several alternative approaches to

determining whether a waste was

uniquely associated. One option to

determine if a waste is uniquely
Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations 28591

associated was the simple application of

the high volume threshold used in the

Agency’s 1989 rulemaking. Under this

option, the volume criterion would

obviate the need to consider the

uniquely associated principle further.

The Agency based this option on the

fact that Congress and the courts have

established that only large volume

special wastes should be eligible for the

Bevill exclusion (62 FR 26041, May 12,

1991; Environmental Defense Fund v.

EPA, 852 F.2d 1316 (D.C. Cir 1988), cert.

denied 489 U.S. 1011, Solite

Corporation v. EPA, 952 F.2d 473, 494–

495 (D.C. Cir 1991)). The Agency

reasoned that a large volume criterion is

simple to apply and is consistent with

the broad parameters of Congressional

intent. Further, this approach would

help prevent additional toxic

constituents from being disposed with

Bevill wastes, potentially encouraging

recycling, and may result in reduction

of cleanup costs.

Industry commenters voiced strong

opposition to the use of a volume

criterion to determine whether a waste

was uniquely associated. Commenters

stated that the Bevill exclusion was

intended to exempt all mining wastes,

regardless of their volume or toxicity.

As the regulatory history of EPA’s

implementation of the Bevill exemption

makes clear, however, this is not the

case. (see 54 FR 36592, September 1,

1989).

Nonetheless, while the Agency has

used volume to make certain Bevill

determinations, it has not in the past

used the high volume criterion to make

uniquely associated determinations. The

Agency assessed the impact of applying

a high volume criteria in making

uniquely associated determinations and

found that such an application would

make virtually all such wastes nonuniquely associated and subject to

Subtitle C controls, regardless of the

extent to which the waste was, in fact,

associated with mining and mineral

processing. EPA does not believe that it

would be appropriate to ignore

altogether the extent to which a

particular waste is associated with

mining and mineral processing

activities that are subject to the Bevill

exclusion, since that exclusion on its

face applies to wastes from those

processes. In addition, the Agency

believes that a certain degree of

flexibility is needed for making

uniquely associated determinations due

to the complex and varied mineral

operations and site-specific factors that

must be considered in making these

decisions. In today’s rule, the Agency is,

therefore, not adopting the use of a

volume criterion to determine whether

a waste is uniquely associated.

The Agency also proposed an option

where a waste would be uniquely

associated if it came into direct contact

with an ore or mineral or wastes from

the extraction, beneficiation, or

processing of ores and minerals. Several

commenters expressed the view that,

while contact can be one useful

indicator of whether a waste is uniquely

associated with mining, such contact

should not be required in all cases.

These commenters believed that the test

should be whether the conduct of

mining and mineral processing

necessitates the generation of a

particular waste; if so, then the waste

should be considered uniquely

associated. Other commenters believed

that the ‘‘contact’’ principle was

potentially overly broad, since it would

have the potential to sweep into Bevill

wastes that typically would not be

considered uniquely associated. As

proposed, however, the contact option

would consider only contact that

occurred as part of a processing

operation.

After consideration of public

comments, the Agency has concluded

that a strict application of the ‘‘contact’’

principle, while appealing because of its

simplicity, would not provide the best

means of determining whether a waste

is uniquely associated with mining or

mineral processing. The Agency is

concerned that, while contact may be

one indicator of when a waste is

associated with the mineral recovery

process where, for example, the contact

with the process imparts chemical

characteristics to the waste, EPA agrees

with commenters that simple

application of the contact principle has

the potential to be over-inclusive of

wastes that are properly viewed as

‘‘uniquely associated.’’ The Agency has

not, therefore, adopted that criterion as

being determinative of whether a waste

is uniquely associated.

The other option in the May 1997

proposal would modify the contact

principle to exclude, as non-uniquely

associated, wastes that only exhibit the

same hazardous characteristic both

before and after contact with the Bevill

waste, feedstock, or product. This

‘‘modified contact’’ approach may

reduce the potential for Bevill wastes to

be dumping grounds for non-Bevill

hazardous wastes. Under this approach,

wastes that are inherently hazardous

prior to contact with a Bevill waste, and

which retain the same hazardous

characteristic after contact, would be

subject to Subtitle C regulation when

discarded.

Commenters pointed out that the

Agency had never before proposed to

use the hazardous characteristic to

determine whether a waste was

uniquely associated, nor had the Agency

used this criterion in making uniquely

associated determinations since 1980.

They also pointed out that the Agency

had already studied the hazardous

characteristics of uniquely associated

wastes but nevertheless stated that these

wastes should not be subject to RCRA

Subtitle C (51 FR 24496).

Some commenters also contended

that the real issue is whether the waste

is indigenous to the mining and mineral

recovery process—i.e., whether it is

necessary to generate the waste in order

to conduct the process—and that the

hazardousness of a material prior to its

use in the process is, therefore,

irrelevant.

EPA agrees, in part, with these

commenters that the characteristics of a

material (i.e., whether it is hazardous)

prior to use in mineral recovery

processes should not be solely

determinative of whether the wastes are

‘‘uniquely associated.’’ As a general

matter, the closer the nexus between a

particular waste and the mineral

recovery process, the more likely it is

‘‘uniquely associated’’ within the

meaning of Bevill. The Agency

recognizes, however, that one fact that

might help evaluate the relationship

between a particular waste and the

mineral recovery process is the extent to

which the properties of a particular

waste can be attributed to the process

itself. Thus, while the Agency does not

believe that hazardousness of a material

prior to use in the mineral recovery

process should be determinative of its

Bevill status after use, the extent to

which the material has acquired

attributes through its involvement in

that process is relevant.

Based on consideration of all the

public comments, the Agency believes

that it is appropriate to evaluate

whether a particular waste is uniquely

associated with mining and mineral

processing as follows. First, any waste

from ancillary operations are not

‘‘uniquely associated’’ because they are

not properly viewed as being ‘‘from’’

mining or mineral processing. In

evaluating wastes from non-ancillary

operations, one must consider the extent

to which the waste originates or derives

from processes that serve to remove

mineral values from the ground,

concentrate or otherwise enhance their

characteristics or remove impurities,

and the extent to which the mineral

recovery process imparts its chemical

characteristics to the waste. Under this

test, the greater the extent to which the
28592 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations

waste results from the mineral recovery

process itself, and the more the process

imparts to the waste its chemical

characteristics, the more likely the

waste is ‘‘uniquely associated.’’

The Agency believes that this

approach provides a reasonable basis to

determine whether a waste is ‘‘uniquely

associated.’’ The Agency believes that

these factors touch on the full range of

facts that are likely to be relevant in any

particular case. As is evident from the

criteria summarized above, judgment

must be exercised where the question is

whether a waste from a non-ancillary

operation is uniquely associated. EPA

believes that this is appropriate because

of the fact-specific nature of this

determination and the myriad

circumstances that can arise. However,

as noted above, the Agency believes that

wastes generated from ancillary

operations (such as truck maintenance

shops at a mine and not from the mining

or mineral recovery process itself), are

not uniquely associated. Such

circumstances would likely present the

most readily identifiable cases of nonuniquely associated wastes.

The approach noted above reflects the

longstanding principle, based on the

clear language in Section 3001 of RCRA,

that uniquely associated wastes must

result from mining and mineral

processes themselves. This approach

also is generally consistent with

industry’s underlying contention that

the uniquely associated concept should

exempt wastes that are ‘‘indigenous’’ to

mining. EPA disagrees, however, with

industry’s contention that uniquely

associated wastes are any wastes that

are unavoidably generated by mining

operations. For example, arguably, it is

unavoidably necessary to conduct

maintenance on machinery that

supports mining at a site (e.g., used to

transport ores and minerals among

processes); however, such maintenance

is not necessarily part of the mining or

mineral recovery process itself. EPA

believes that the proper focus should be

the extent to which a waste is generated

as part of the mining and mineral

recovery process, not the extent to

which a facility must conduct an

activity as part of its operation.

The elements of the ‘‘contact’’ options

discussed in the preamble to the

proposal, as well as regulatory language

contained in the May 1997 proposed

rule (see proposed 40 CFR 261.4(b)(7)

(stating that exempt extraction and

beneficiation wastes must ‘‘originate

from the extracted ore or mineral’’)) may

affect uniquely associated

determinations. While, as discussed

above, the Agency believes that sole

reliance on a contact principle would be

unjustifiably rigid, consideration of the

extent to which the mineral recovery

imparts to the waste its chemical

characteristics provides a useful means

of evaluating whether a waste is

uniquely associated. The greater the

extent to which the waste acquires its

chemical characteristics from the

process from the processing of an ore or

mineral, the more likely that waste

would be uniquely associated with the

Bevill process. Conversely, the less a

particular waste originated from or

acquired its characteristics from such

processes, the less likely it is uniquely

associated.

Some commenters asserted that the

Agency’s proposal represented a sharp

departure from past Agency practice

under the uniquely associated principle

and would constitute, in effect, a

revision of prior Bevill regulatory

determinations. Neither contention is

correct. While the Agency has

articulated here its approach to the

uniquely associated principle in more

detail than previously, the Agency

believes that the approach is

fundamentally the same as how the

Agency has applied the uniquely

associated principle in the past. Second,

the Agency is not, through the uniquely

associated principle, seeking to revise

past regulatory determinations that

exempted extraction and beneficiation

wastes and certain mineral processing

wastes from Subtitle C regulation. The

list of exempt extraction/beneficiation

processes and mineral processing

wastes in section 261.4(b)(7) is not

altered by this approach. Even under

these existing regulatory provisions, it

was necessary to determine in certain

cases whether a particular waste stream

was, in fact, ‘‘from’’ (i.e., ‘‘uniquely

associated’’ with) one of the enumerated

Bevill processes. EPA’s past regulatory

determinations did not, therefore,

obviate the need for determining the

applicability of Bevill to particular

waste streams. In this rule, EPA is

simply ensuring that the uniquely

associated criteria have the benefit of

full public notice and comment; we

have not, however, altered the scope of

prior regulatory determinations through

this process.

Industry commenters nonetheless had

concerns about certain applications of

the uniquely associated principle

articulated in the mineral processing

identification document contained in

the docket at proposal. In particular,

commenters expressed concerns that the

document concluded that spent

kerosene in copper solvent extraction,

crud from electrowinning, crucibles and

cupels, and acid cleaning solutions from

gold heap leaches are not uniquely

associated. All of the wastes just noted

are generated as a result of

beneficiation. It should be noted that all

wastes generated after the

commencement of mineral processing

are mineral processing wastes. As a

result of the Agency’s 1989 rule (54 FR

2322), all mineral processing wastes,

except those noted in 40 CFR

261.4(b)(7), are subject to RCRA Subtitle

C, if they exhibit a hazardous

characteristic. Therefore, the effect of

the uniquely associated principle is of

less import than at beneficiation

facilities.

The Agency received numerous

comments challenging the Agency’s

position that these wastes were not

uniquely associated. Comments from

the copper industry noted that slimes/

muds, crud, and spent kerosene

generated from copper solvent

extraction and electrowinning were

uniquely associated because these

wastes had been determined by the

Agency in 1989 (see 54 FR 36592) to be

wastes from extraction and

beneficiation. Based on these comments,

the Agency has reassessed its prior

conclusions regarding these wastes and

agrees with the copper industry that

slimes/muds, crud, and spent kerosene

generated from copper solvent

extraction and electrowinning are

uniquely associated. 40 CFR 261.4 states

that wastes from solvent extraction and

electrowinning are extraction/

beneficiation wastes and are not subject

to regulation under Subtitle C. Applying

the approach described above, it is clear

that solvent extraction and

electrowinning are clearly not ancillary

activities since their sole purpose is to

concentrate copper values out of

pregnant leach solution. The ‘‘uniquely

associated’’ nature of these wastes is

also supported by the degree to which

the wastes originate and derive from the

mineral recovery process. Thus, the

Agency’s view is that these wastes are

‘‘uniquely associated’’ with

beneficiation.

Comments received from the gold

industry noted that acid wash solutions

are generated solely from processes used

to concentrate gold values from cyanide

leach solutions. Again, the Agency has

reassessed its earlier interpretation and

now believes that acid wash solutions

from gold heap leaching are uniquely

associated. The Agency came to this

conclusion in light of the non-ancillary

nature of the process generating these

wastes (carbon columns must be kept

‘‘clean’’ for the gold to be effectively

recovered), the extent to which the

wastes originate and derive from this

mineral recovery process, as well as the

fact that the process imparts some
Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations 28593

chemical characteristics to the waste

(i.e., the ore material that is cleaned

from the carbon).

Based on the approach articulated

above, the Agency now believes that

other wastes are best viewed as nonuniquely associated. For example, the

Agency believes that lead anodes used

in the electrowinning process are not

non-uniquely associated wastes. While

lead anodes are used in the mineral

recovery process and thus could be

viewed as uniquely associated based on

this consideration in isolation, a

countervailing consideration is that the

mineral recovery process imparts

virtually no characteristics to these

materials. Lead anodes are virtually

identical both before and after being

used in the process. On balance, the

Agency concludes that lead anodes are

not uniquely associated with mining

and mineral processing.

The Agency also reassessed the status

of cupels and crucibles and finds that

they remain non-uniquely associated

wastes. These wastes are the result of

laboratory testing. Cupels and crucibles

are also used in other industries (e.g.,

jewelry companies test the precious

metal content of metals using cupels).

These wastes are from an ancillary

operation, laboratory analyses, and are

not generated due to the direct recovery

of gold and, therefore, fail to meet the

Agency’s uniquely associated criteria. It

should also be noted that the Agency

has consistently found that laboratory

wastes are generally non-uniquely

associated.

As stated previously, the applications

of the ‘‘uniquely associated’’ principle

articulated here reflect the Agency’s

interpretation of the criteria as applied

to those particular wastes based on the

best current information available to

EPA. Like the positions articulated in

the Identification Document, these calls

represent the Agency’s current best

evaluation of whether these wastes are

‘‘uniquely associated,’’ based on

available information. However, the

discussion above and in the

Identification Document simply

provides guidance on these issues, and

therefore, the determinations are not

legally binding on decisionmakers, the

public, or the courts.

Finally, one commenter argued that

the uniquely associated principle as

discussed by EPA is an impermissible

reading of the Act to the extent it would

authorize EPA to consider factors other

than high volume/low toxicity in

making Bevill determinations. The

Agency disagrees with this position.

The Court in EDF II directed the Agency

to apply a high volume/low toxicity

criteria to determine if a mineral

processing waste would retain the Bevill

exclusion. The uniquely associated

inquiry is somewhat different. The

question here is the threshold issue

whether a particular waste is ‘‘from’’

extraction, beneficiation or mineral

processing in the first place. The

Agency does not believe that the

decision in EDF II spoke to that inquiry.

Rather, EDF II was concerned solely

with the circumstances under which a

waste that is ‘‘from’’ these processes

qualifies for the Bevill exclusion. Stated

another way, a waste is only subject to

the Bevill exclusion if it is, in fact,

‘‘uniquely associated’’ with extraction/

beneficiation or one of the 20 exempt

mineral processing wastes. Thus, the

uniquely associated principle does not

expand the scope of the Bevill

exemption, and the Agency’s approach

is, therefore, entirely consistent with the

decision in EDF II.

b. Addition of Mineral Processing

Secondary Materials to Units Processing

Bevill Raw Materials. The question

addressed in this section is: if a Bevill

extraction/beneficiation process uses as

feedstock a mineral processing

secondary material which otherwise

would be a hazardous waste, would the

resulting wastes still be considered to be

from extraction/beneficiation and hence

Bevill exempt?

There are two bases for potential

environmental concern prompting this

question. The narrower issue is that if

otherwise-hazardous wastes are used as

partial feedstocks, could they change

the resulting wastes’ character in a

manner such that the existing exclusion

should no longer apply, or, put another

way, is the Bevill exemption being used

to shield disposal of non-exempt

hazardous wastes? The broader issue is

whether the Bevill amendment, which

creates an exemption from rules

designed to protect the public and the

environment from unsafe hazardous

waste disposal practices, should be

interpreted any more broadly than

necessary given that the effect is to

exempt more waste from protective

controls.

EPA proposed two different answers

to these questions. In the January 1996

proposal, the Agency proposed to apply

the same ‘‘significantly affected’’ test

used in the partially analogous context

of a Bevill device which co-processes

hazardous waste along with normal raw

material feedstock. 61 FR at 2351 and 40

CFR section 266.112. So long as

resulting wastes from the extraction/

beneficiation process were not

‘‘significantly affected’’ by the addition

of hazardous secondary materials,

resulting wastes would remain exempt.

Id. Significantly affected meant either

that the resulting wastes reflecting coprocessing were statistically different

over the non-waste baseline, or that

there was an environmentally

significant increase in hazardous

constituents over the non-waste

baseline. Id.

The May 1997 proposal would have

gone further and interpreted the Bevill

amendment narrowly (a common rule of

construction when construing

exceptions to plenary protective

regulatory schemes to apply only to

situations when extraction/beneficiation

raw material feedstocks are utilized) to

apply only to situations when

extraction/beneficiation raw material

feedstocks are utilized (see 62 FR at

26052).

After reviewing the public comments,

the Agency has decided not to adopt

either of these alternatives. As

explained below, EPA ultimately has

decided that the likely result of either

proposal would be unwarranted

disruption to legitimate (and desirable)

recovery practices within the industry.

Nonetheless, as discussed in the final

subsection of this part of the preamble,

the Agency retains concerns that the

Bevill amendment not be used as a

means of shielding disposal of nonBevill hazardous wastes, and therefore

cautions that the Agency intends to

scrutinize especially carefully claims of

legitimate recycling when hazardous

secondary materials are co-processed in

extraction/beneficiation operations.

(i) Should the Bevill amendment

apply only when virgin materials are

processed in extraction/beneficiation

operations? In the Agency’s May 1997

proposal, EPA sought comment on

whether a narrow reading of the Bevill

exclusion should be implemented

which would limit the availability of the

Bevill exemption to wastes generated

exclusively from the use of Bevill raw

materials, namely ores and minerals.

Under this approach only virgin ores

used as a feedstock to a beneficiation

operation and only concentrates derived

from beneficiation and then used as a

feedstock to mineral processing would

be eligible for the Bevill exclusion. If

any alternative materials were used as

feedstocks, the resulting waste would

not be eligible for the Bevill exclusion.

62 FR at 26052.

In today’s rule, the Agency is

declining to pursue this option. Industry

comments were uniformly opposed.

Industry noted that since 1989, the

Agency has established a clear use of

the 50 percent rule and was well aware

that the co-processing of a range of

materials was occurring at both

extraction/beneficiation and mineral

processing facilities when it finalized its
28594 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations

1989 rulemaking (see 54 FR 33620,

September 1, 1989). Industry further

pointed out that in the 1989 rulemaking

the Agency found that 20 mineral

processing wastes (see 40 CFR

261.4(b)(7)) would retain their Bevill

exempt status even though coprocessing was occurring. Industry also

noted that the Agency had not presented

any data to confirm that the coprocessing of virgin and non-virgin

materials would actually increase risks

to the environment. Public interest

groups on the other hand indicated that

the proposed option more closely

follows the intent of Congress to limit

the Bevill exemption to high volume,

low toxicity wastes.

The Agency has reviewed the data on

co-processing of non-virgin and virgin

material and finds that it did evaluate

co-processing issues in its 1990 Report

to Congress on Wastes from Mineral

Processing (EPA Office of Solid Waste,

July 31, 1990). This review, as it relates

to the 20 mineral processing waste

streams that are still exempt, found that

co-processing had not significantly

changed the hazardous properties of the

resultant wastes.

The Agency noted in its proposal that

it was unaware of the extent of coprocessing at extraction/beneficiation

facilities, particularly after 1985.

Industry comments noted that

background reports to the Agency’s

1985 ‘‘Report to Congress on Extraction

and Beneficiation Wastes’’ (EPA Office

of Solid Waste, December 31, 1985)

discussed this co-processing issue.

Agency review of these documents

indicates that while some references to

feedstocks are discussed, the Agency

was not aware of the extent of this

practice until it began to restudy mining

and mineral waste management

practices in 1989 and initiated a series

of visits to mines and mineral

processing facilities in 1991–92.

Industry also submitted comments

indicating that implementing this

option would have significant adverse

impacts on the mining and mineral

processing industries. The Agency

assessed industry comments and

conducted its own economic analysis.

The Agency found that implementation

of this option may reduce current

recycling in the copper and lead sectors,

and could cause potentially serious

economic disruption to industry. (See

EPA’s Regulatory Risk Impact

Analyses.) Both the gold and copper

sectors pointed out that they routinely

reintroduce mineral-bearing streams

from their processing activities into

their beneficiation plants to further

recover metal values. Such practices

would diminish if this option were

implemented, since affected extraction/

beneficiation operations would not

recycle secondary materials if the result

is to lose Bevill status of the resulting

wastes. It makes little sense for the

Agency to implement a program which

may reduce recycling where its

knowledge of the environmental benefit

of the approach is limited.

(ii) Significantly Affected. Under the

Agency’s January 1996 proposal,

mineral processing secondary materials

could be introduced into beneficiation

units generating Bevill-exempt wastes

(without affecting the wastes’ Bevill

status) if they were legitimately

recycled, secondary materials

comprised less than 50% of the total

feed to the unit, and the resulting wastes

were not ‘‘significantly affected’’ by the

recycling practice.

EPA has decided to adopt the

proposed approach except the Agency

has decided not to adopt the proposed

‘‘significantly affected’’ test in today’s

final rule. It should be pointed out that

small volumes of mineral processing

secondary materials likely to be

recycled at beneficiation facilities

would be processed along with

enormous quantities of raw ore.

Therefore, the probability that the

introduction of such materials would

affect the characteristic of the resultant

wastes is very low.

Given the likelihood of minimal

environmental effect, the Agency must

therefore judge whether the benefits of

encouraging recycling these materials

outweigh the potential additive risks

that, however unlikely, could

potentially occur in unusual cases. The

Agency has decided that, from both an

implementation and an overall

environmental perspective, not

requiring a ‘‘significantly affected’’

evaluation makes sense. While it is

possible that adoption of a

‘‘significantly affected’’ test might catch

the unusual circumstance where

addition of secondary materials

substantially changes the characteristics

of the resultant wastes, imposing such a

requirement could potentially have a

chilling effect on the amount of

secondary material that the industry

recycles. This is because industry would

not risk imperilling Bevill status, since

a consequence could be RCRA

permitting and facility-wide corrective

action potentially affecting areas of

historic contamination. From an

environmental perspective, EPA

believes that the benefits of recycling

such materials are substantial, and far

outweigh the largely marginal benefits

that could be associated with requiring

a ‘‘significantly affected’’ analysis on a

waste stream by waste stream basis.

EPA originally viewed the situation

presented here as analogous to when

hazardous wastes are co-processed in

Bevill units, and so proposed the

identical test for resulting residues. 61

FR at 2351. On reflection, there are

important distinctions between the two

fact patterns. EPA applies the

‘‘significantly affected’’ tests when what

are admittedly hazardous wastes are coprocessed. The usual case is when a

hazardous waste fuel is burned in a

Bevill unit (like a cement kiln) which

also processes normal raw materials.

The hazardous wastes can contribute

more and different hazardous

constituents not normally found in the

raw materials. In the extraction/

beneficiation example, however, the

mineral processing secondary materials

are being used as feedstock precisely

because those materials share attributes

found in raw materials (i.e., recoverable

amounts of metals). Because the rule

limits co-processing to mineral

processing secondary materials, such

materials would typically be similar in

nature to the raw materials being

processed, making it far less likely that

co-processing would significantly alter

the attributes of resulting wastes. In

addition, unlike the burning in furnaces

example noted above, the mineral

processing secondary materials being

recycled are not hazardous wastes.

Although they are secondary materials,

the Agency has decided to exclude them

from the regulatory definition of solid

waste (assuming legitimate recycling)

because the activity resembles normal

reclamation practices within the

industry. Put another way, since the

mineral processing secondary materials

are from the same industry sector and

are being reclaimed within the same

industry, they can be viewed as

secondary materials which are not

wastes. It is, thus, less appropriate to

apply a significantly affected test to

these non-waste feedstocks.

EPA also was unable to apply the

‘‘significantly affected’’ test in a manner

that would focus on those secondary

materials that actually could cause

significantly increased environmental

risks. The proposed test was the

Burning in Furnaces (BIF) 2-part test,

which would function in a different

manner in this rule. Under the BIF rule,

the concern was with the use of

hazardous wastes from outside

industries, and residuals rarely fail the

second part of the test, exceeding the

hazardous characteristic. Here, we are

dealing with materials from within the

industry, metal values are reclaimed,

and wastes typically exhibit a hazardous

characteristic. Since mineral processing
Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations 28595

secondary materials often contain other

metals in them, the resultant wastes

from co-processing may show statistical

increases or decreases in the metals

content of the resultant wastes. The

increases or decreases in metal

constituents, however, does not

necessarily mean that risk has

increased. An increase in one

constituent may be offset by a decrease

in another constituent or by additional

volumes of raw material feedstocks that

would be needed to replace the mineral

processing secondary materials. The

application of the proposed test

therefore could not be effectively used

to determine if risks would increase if

secondary materials are co-processed at

beneficiation facilities.

(iii) Conclusion. For these reasons, the

Agency has decided to retain as a

condition for retaining Bevill status the

standard requirement that an extraction/

beneficiation unit processes at least 50

percent raw material. 54 FR at 33620

(Sept. 1, 1989); 50 FR at 49190 (Nov. 25,

1985); and 56 FR at 7198 (Feb. 21, 1991)

(previous instances where EPA has used

this test); 61 FR at 2351 (proposal of that

test here). If the 50 percent criterion is

met, the resulting waste would still be

from extraction/beneficiation and hence

exempt. Raw materials can be mineral

processing secondary materials and be

placed into units generating Bevillexempt wastes provided that the facility

legitimately recycles these materials.

The proviso is important. EPA repeats

that the Bevill amendment is not to

serve as a means of disposing of nonBevill hazardous wastes. As explained

later in the preamble, if a hazardous

waste is mixed with a Bevill waste, the

mixing is regulated under RCRA

Subtitle C, and the mixed wastes may be

Subtitle C hazardous wastes. While the

mixture rule does not apply when

materials are placed in a beneficiation

unit for legitimate recycling, it would

apply if a hazardous secondary material

is not being recycled legitimately. See

U.S. v. Self, 2 F.3d at 1071, 1079 (10th

Cir. 1993)(sham recycling is simply

hazardous waste disposal or treatment).

It should also be pointed out that

today’s rule prohibits the storage on the

ground of any characteristically

hazardous mineral processing secondary

material. Should a beneficiation facility

wish to legitimately reclaim such

materials, it should be aware that

placement of these materials in raw

material piles may change the RCRA

status of the pile.

c. Bevill Mixture Rule and Disposal.

Disposal of waste mixtures is the focus

of this section. The Agency promulgated

the Bevill mixture rule in 1989 (see 54

FR 36592). That rule was remanded to

the Agency in Solite Corp v. EPA, 952

F.2d 473, 493–94 (D.C. Cir. 1991). EPA

reinstated the mixture rule in 1992;

however, this reinstatement was found

to be procedurally defective in Mobil Oil

v. EPA, 35 F. 3d 579 (D.C. Cir. 1994).

In the January 1996 proposal, the

Agency proposed that if any mineral

processing hazardous waste, or indeed

any hazardous waste, is mixed with and

disposed with a Bevill waste, the

resulting waste is, under certain

circumstances, regulated under RCRA

Subtitle C. The Agency further stated

that the mixture of Bevill wastes and

hazardous wastes would normally be

regulated as a form of treatment subject

to regulation under Subtitle C. The

Agency stated its concern about the

potential human health and

environmental risks due to increased

hazardous constituents resulting from

the disposal of mixtures of hazardous

waste with Bevill-exempt wastes. The

Agency based the proposal on the policy

that Bevill wastes not be allowed to

serve as an unregulated dumping

ground for hazardous wastes. Cf.

Horsehead Resource Development Co. v.

Browner, 16 F. 3d at 1258.

The rule being adopted today is a

reinstatement of the mixture rule

promulgated in 1989. The Agency

continues to believe that the approach

adopted in 1989 is sound, and properly

balances the objectives of the Bevill

amendment with those of RCRA as a

whole. While commenters criticized

EPA on the grounds that the prior

mixture rule has twice been struck

down by the courts, those decisions did

not address the merits of the Bevill

mixture rule.

One clarification of statements in the

1996 proposal is in order. The Agency

stated that the proposed rule differed

from the 1989 Bevill mixture rule in that

the earlier rule had exempted mixtures

of Bevill wastes and characteristic

hazardous wastes from requirements

pertaining to treatment. See 61 Fed. Reg.

2352. This statement was, however, in

error. The Agency stated in the 1989

rulemaking that such mixing would, in

fact, constitute treatment of a hazardous

waste, and would be subject to the

appropriate regulation for treatment

storage and disposal of hazardous

wastes, including obtaining a permit. 54

Fed. Reg. 36622. Thus, the Agency is

not taking a more stringent approach to

regulating mixtures than was taken in

1989. As in 1989, moreover, the Agency

is not amending in any way the

definition of treatment, storage, or

disposal of hazardous wastes; nor is the

Agency promulgating any specific

provisions related to how those

definitions apply to mineral processing

wastes. The Agency is simply stating

that mixtures of Bevill and non-Bevill

wastes can, depending upon the

particular facts, constitute treatment,

storage or disposal under the existing

regulatory program.

Industry commenters generally

opposed the proposed mixture rule.

Several commenters argued that the

proposed rule was contrary to the Act

because it undermined the protection

that the Bevill amendment was intended

to provide the industry. These

commenters argued that the legislative

history indicates Congress intended the

Bevill amendment to be read broadly, to

incorporate waste products generated in

the ‘‘real world,’’ and that Congress

recognized co-management of wastes

practiced by the industry occurred in

the ‘‘real world.’’ According to these

commenters, integrated facilities

conducting extraction, beneficiation and

processing operations at a single

location have historically co-managed

wastes from these operations, including

certain newly identified mineral

processing wastes, and the proposed

rule would effectively undermine the

protections of the Bevill amendment for

these operations. One commenter

contended that the mixture rule would

subject ‘‘high volume/low hazard’’

waste mixtures from the mining and

mineral processing industry to Subtitle

C regulation without having conducted

the special study and regulatory

determination process set forth in

section 3001 of RCRA. Since such

mixtures of wastes are ‘‘high volume/

low hazard,’’ these commenters argued

that section 3001, as construed by the

Court in EDF v. EPA, 852 F.2d 1316

(D.C. Cir. 1988), mandates exclusion of

those wastes from regulation under

Subtitle C.

After careful consideration of these

comments, EPA has concluded that they

misconstrue the scope of the Bevill

amendment, and that the proposed

approach to Bevill mixtures is a

reasonable one. First, the Agency

disagrees with these commenters’

interpretation of the Bevill amendment

as applying to not only to ‘‘special

wastes’’ themselves, but also to any

other hazardous waste that may be comanaged with them. Congress simply

provided that ‘‘solid waste from

extraction, beneficiation and processing

of ores and minerals’’ are not subject to

Subtitle C. RCRA § 3001(b)(3)(A).

Congress did not, as these commenters

suggested, apply this exclusion to such

wastes ‘‘and other hazardous wastes that

may be co-managed’’ with them. Rather,

Congress endorsed EPA’s conclusion

that high volume/low toxicity ‘‘special

wastes’’ deserved special treatment
28596 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations

under the Act by virtue of the

difficulties that would be associated

with managing these wastes under the

Subtitle C program. Moreover, EPA’s

decade-long effort to demarcate the line

between special wastes and nonexcluded wastes was premised on the

notion that the line between them is of

some significance. If any hazardous

waste can come within the scope of the

Bevill amendment simply by being

mixed with Bevill waste, that line

becomes blurred, potentially creating a

universe of excluded wastes far beyond

that envisioned by Congress when it

enacted the Bevill amendment.

The Court in EDF II indicated that

those mineral processing wastes which

did not meet the high volume/low

toxicity criteria should be fully subject

to Subtitle C. The Agency, in today’s

rule, has taken prudent steps to

encourage the legitimate recycling of

hazardous secondary materials. If

hazardous mineral processing wastes

can not be recycled and must be

disposed, the Agency finds nothing in

EDF II which precludes the Agency from

treating these hazardous wastes like any

other hazardous wastes. It should also

be pointed out that today’s rule does not

affect the disposal of extraction/

beneficiation wastes as long as there is

no mixing of non-exempt hazardous

wastes with them. EPA believes that this

rule is consistent with the scope of the

Bevill amendment because it maintains

the Bevill exclusion for mixtures that

are hazardous due solely to any

hazardous constituents of the Bevill

waste. The fact that these resulting

wastes retain their Bevill status does not

mean, however, that the act of storing,

treating, or disposing of hazardous

wastes with Bevill wastes should be

exempted from normal Subtitle C

controls.

EPA also disagrees with the notion

advanced by some commenters that EPA

is required by section 3001 to conduct

a study to determine whether mixtures

of Bevill and other wastes meet the high

volume/low toxicity test and thereby

merit being covered by the Bevill

amendment. EPA reads section 3001 as

mandating that EPA study wastes

generated by the mining and mineral

processing industry for purposes of

determining whether particular waste

streams are subject to the Bevill

amendment. EPA has done so and

determined that mineral processing

wastes that do not meet the high

volume/low toxicity threshold are not

subject to Bevill. EPA’s orderly

decision-making (see 54 FR 36592 and

55 FR 2322), would be undermined if

the Agency were then required to revisit

these determinations based upon how

facilities happen to manage their wastes.

Stated another way, EPA reasonably

based its Bevill regulatory

determinations on the volumes of each

type of mineral processing waste

generated within the industry; the

Agency does not believe it is reasonable

to interpret section 3001 as mandating

that EPA disregard the volumes in

which wastes are generated and instead

base its determinations on the vagaries

of how those waste streams may be

aggregated through industry’s disposal

practices. Such a result would be

counter to EPA’s special waste concept,

and ignore the fact that mineral

processing wastes streams that are not

generated above Bevill’s high volume/

low toxicity threshold would, in fact, be

amenable to management under Subtitle

C. Thus, the commenter’s interpretation

would effectively allow the mining and

mineral processing industry to

‘‘bootstrap’’ smaller volume wastes into

Bevill simply by co-disposing them with

Bevill wastes. The Agency and the

courts have never interpreted Bevill in

such an awkward fashion, and the

Agency declines to follow such an

approach here.

The Agency does not agree with

comments that any change to the Bevill

mixture rule would effectively eliminate

Bevill for integrated facilities. Today’s

rule does not change the Bevill status of

extraction/beneficiation wastes nor does

it alter the Bevill status of 20 mineral

processing wastes (see 40 CFR 261.4).

Since a large number of ‘‘newly

identified’’ mineral processing waste

streams become subject to the LDR, the

Agency took steps to clarify the status

of non-exempt ‘‘Bevill’’ wastes (i.e.

mineral processing wastes not within

the scope of the Bevill amendment) in

this rulemaking. The Identification

report, placed in the docket in January

1996, was developed by the Agency to

assist companies in determining if

wastes were or were not exempt. The

Agency sought comment on the draft

Identification document and has

finalized this report. This report is,

however, guidance. Mineral processing

companies now have the ability to

identify the status of each waste stream

and to cease mixing non-exempt

hazardous wastes with exempt waste

streams.

Regarding commenters’ critique of the

concerns expressed by EPA in the

proposal justifying the proposed

mixture rule, the Agency continues to

be concerned about the mixture of

hazardous wastes with Bevill exempt

wastes for treatment, storage or disposal.

The Agency has noted earlier that it is

not imposing the significantly affected

option because the mixture of hazardous

secondary materials with feedstocks

does not appear to adversely affect risk.

This is so because the mixtures are

destined for legitimate recovery of

metal, acid, water or cyanide, or other

values. Mixtures destined for disposal

will not have any of their hazardous

constituents removed or other values

utilized and may contribute to the waste

disposal problem. Nor is there the

slightest indication in law that normal

Subtitle C rules should not apply to

disposal of normal Subtitle C hazardous

wastes.

Commenters did point out several

errors made by EPA in the proposed

rule language. Many commenters noted

that there was an inconsistency between

the preamble of the January proposal

and its proposed regulatory language.

The proposed regulatory language

inadvertently omitted language in the

general mixture rule stating that mixture

of a solid waste with a hazardous

wasted listed solely because it exhibits

a characteristic identified in Part 261

subpart C is a hazardous waste ‘‘unless

the resultant mixture no longer exhibits

any characteristic of hazardous

waste. . . ‘‘ 40 C.F.R. 261.3(a)(2)(iii). It

was not EPA’s intent to propose deleting

this language, and it therefore is

included in the final rule.

In addition, as pointed out by

commenters, the proposed language

failed to track the preamble discussion

of mixtures of Bevill wastes and

characteristic hazardous wastes (as well

as wastes that are listed because they

exhibit a hazardous characteristic).

Under the proposed rule language,

mixtures of Bevill wastes and hazardous

wastes would be a hazardous waste

whenever it exhibited a hazardous

waste characteristic, even where that

characteristic was imparted to it solely

from the Bevill waste. (See proposed

section 261.3(i).) As shown by the

preamble, this was clearly not EPA’s

intent, which was to preserve the Bevill

exclusion for mixtures that are

hazardous solely because of the Bevill

component of the mixture. See 61 FR

2352–53.

Conversely, the preamble, although

ambiguous in spots on this issue, did

say at one point that mixtures of

characteristic hazardous waste and

Bevill wastes would be considered

hazardous waste only if the mixture

continued to be hazardous due to

characteristics imparted to it by the nonBevill waste. 61 FR at 2352. If the

mixture exhibited a hazardous

characteristic due solely to the Bevill

waste, the Agency did not intend to

designate the mixture as a hazardous

waste.
Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations 28597

Consistent with that discussion,

under today’s rule, the Agency has

decided that if Subtitle C hazardous

waste exhibiting a characteristic is

mixed with Bevill-exempt waste

exhibiting the same characteristic and

the mixture continues to exhibit that

common characteristic, then the entire

mixture should be considered to be nonexempt hazardous waste. This result is

consistent with normal rules on when

wastes are hazardous, which state that

if a waste exhibits a hazardous waste

characteristic, it remains a hazardous

waste unless and until it no longer

exhibits a characteristic. 40 CFR

261.3(d)(1). In addition, such a principle

will make this rule easier to administer

(should this situation actually occur),

since enforcement officials will not have

to parse out which portion of the waste

mixture is imparting the characteristic

property. Finally, the result is consistent

with the overall object of today’s rule:

not to let Bevill wastes be used as a

means of allowing unregulated

management of normal Subtitle C

hazardous wastes.

Several commenters noted concern

that existing exemptions to the Agency’s

mixture rule, such as that given to

totally enclosed treatment facilities and

elementary neutralization units, would

be eliminated under this rule. The

Agency reiterates that this rule does not

alter in any way the current Agency

mixture rule. The purpose of this

rulemaking is to place the mixing of

hazardous wastes that may occur at

mineral processing plants on the same

status as all other hazardous waste

management.

(i) Illustrations of how today’s rule

operates. Although the regulatory

parlance for today’s rule has always

been the ‘‘Bevill mixture rule’’, the

greatest practical consequence of the

rule is probably on the units where

mixing occurs. This is because units (i.e.

tanks, impoundments, piles, landfills,

etc.) where hazardous wastes are placed

will (absent some exemption or

exclusion other than that provided by

the Bevill amendment) be regulated

units, i.e. units subject to Subtitle C

standards for treatment, storage, and/or

disposal. This point is illustrated by the

following examples, which also

illustrate the effect of the rule on the

resulting mixtures:

Example 1. Facility A generates F 001

listed spent solvents which it mixes with a

solid waste that has Bevill exempt-status.

The mixing occurs in a landfill.

The landfill is a regulated unit because

hazardous waste—F 001—is being disposed

in it. (Among other things, this means that

the F 001 wastes could not be placed in the

landfill until the LDR treatment standard is

satisfied.) In addition, all of the wastes with

which the F 001 wastes are mixed are

hazardous wastes carrying the F 001 waste

code by application of the mixture rule.

Example 1a. Same facts as in example 1,

except that the waste being mixed is F 003

spent solvent, a waste listed only because it

exhibits a characteristic of hazardous waste.

The landfill becomes a regulated unit for

the same reason as in example 1. (See

Chemical Waste Management v. EPA, 976

F.2d at 20 n.4 and 24 n. 10 (placement of

waste which is hazardous for any amount of

time in a unit subject that unit to Subtitle C

regulation); 61 FR at 2352 (same). However,

the status of the resulting waste mixture is

determined by the principles for

characteristic hazardous wastes, illustrated

below.

Example 2. Facility B generates a

characteristic ignitable solvent which it adds

to a surface impoundment containing a

Bevill-exempt waste that would exhibit the

TC for lead. The resulting mixture exhibits

TC for lead but is no longer ignitable.

The surface impoundment is a regulated

unit, since it is engaged in treatment

(elimination of the ignitability characteristic)

and disposal (the placement of the ignitable

waste). The remaining wastes in the unit

retain their Bevill-exempt status because they

do not exhibit the characteristic property of

the non-Bevill hazardous waste. Thus, if the

waste were to be removed from the

impoundment and disposed elsewhere,

disposal need not occur in a regulated unit.

Example 3. Facility C generates a

characteristic hazardous waste exhibiting TC

for lead which it mixes in a tank with Bevillexempt wastes which also would exhibit the

TC for lead. The resulting mixture continues

to be TC for lead.

The tank is engaged at least in storage of

hazardous waste, and possibly treatment

(depending on how the D008 hazardous

waste is affected by the mixing). If waste is

removed from the tank, it remains subject to

Subtitle C because it continues to exhibit the

characteristic of the non-exempt hazardous

waste.

d. Remining. The Agency clarified in

its January 1996 proposal that the

removal of historically land placed

mineral processing wastes for the

purposes of mineral recovery would not

constitute disposal for purposes of

triggering Subtitle C. Moreover, removal

of wastes would not render the historic

disposal unit subject to RCRA

hazardous waste requirements (see 53

FR at 51444, December 21, 1988). The

Agency is today again clarifying that

removal of waste from a unit does not

constitute disposal for the purposes of

triggering Subtitle C regulation.

Commenters noted that the proposed

mixture rule would in effect eliminate

opportunities for remining. The Agency

disagrees. As noted previously, the

mixture restrictions in today’s rule deals

primarily with disposal of mixtures. The

mixture rule therefore, will not affect

the co-processing of historically

disposed mineral processing secondary

materials with other feedstocks.

6. Responses to Court Remands

a. Applicability of the Toxicity

Characteristic Leaching Procedure

(TCLP) to Mineral Processing Wastes. In

the January 1996 proposal, the Agency

proposed to continue using the TCLP

(SW–846 Test Method 1311) as the basis

for determining whether mineral

processing wastes and manufactured gas

plant wastes exhibit the toxicity

characteristic (TC) of hazardous wastes,

and developed a record supporting this

position. When the Agency promulgated

the TCLP method for testing whether

wastes exhibit the toxicity

characteristic, the applicability of the

TCLP test to mineral processing wastes

was challenged in Edison Electric

Institute v. EPA, 2 F.3d 438 (D.C. Cir.

1993) (‘‘Edison’’). The Court held that

the information in the record at the time

was insufficient to show a rational

relationship between the TCLP and a

likely mismanagement scenario for

mineral processing wastes.

Under the Court’s holding, the

Agency must at least provide some

factual support that such a

mismanagement scenario is plausible (2

F.3d at 446–47). The Agency is

addressing this remand in today’s final

rule because any applicable land

disposal restrictions would have little

meaning unless the Agency has a basis

for determining whether these mineral

processing wastes are hazardous, and,

therefore, subject to the restrictions.

Under the Court’s ruling in Edison,

the application of the TCLP test to

mineral processing wastes is

appropriate if the evidence available to

EPA shows that disposal of such wastes

in municipal solid waste landfills

(MSWLF) is a ‘‘plausible’’

mismanagement scenario (not

necessarily requiring that it be typical or

common) 2 F.3d at 446. Moreover, it is

sufficient if there is ‘‘evidence or

explanation on the record to justify a

conclusion that mineral wastes ever

come into contact with any form of

acidic leaching medium.’’ Id. at 447.

In considering the plausibility of this

mismanagement scenario, the Agency

has first carefully evaluated those

circumstances that industry has argued

make such mismanagement implausible.

Industry has argued that co-disposal

with municipal solid waste is not

plausible because the huge volumes in

which the wastes are generated could

simply not be handled by an MSWLF.

EPA has, however, conducted a

comprehensive review of such wastes

and concluded that many wastestreams

are generated at low volumes. (See
28598 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations

Characterization of Mining and Mineral

Processing Wastestreams, USEPA,

1998.) Thus, the volumes in which

mineral processing wastes are generated

do not render disposal in an MSWLF

implausible.

Industry comments also indicated that

the location of its facilities were remote

and not close to municipal landfills.

Based on physical location alone,

industry suggested that disposal of their

wastes in municipal landfills was very

unlikely. This contention is not,

however, supported by the facts. The

Agency evaluated the location of

mineral processing facilities and found

that a considerable number of them are

located east of the Mississippi River and

some are located in or near urban areas.

(see Population Studies of Mines and

Mineral Processing Sites, 1998, U.S.

EPA.) This report indicates that there is

factual information which rebuts the

industry’s position that the location of

mineral processing facilities is routinely

so remote so as to make co-disposal

with municipal solid waste implausible.

Thus, based on the Agency’s population

study noted above, the Agency

concludes that some mineral processing

facilities are in fact located in or near

urban areas and their location in such

urban areas means that it is plausible

that their wastes could be disposed of in

urban landfills.

Factual information collected by the

Agency (made available for public

comment) supports the conclusion that

mineral processing wastes may

plausibly be disposed of with municipal

solid wastes. Industry comments

contested EPA’s factual basis for the

landfill disposal cases found in

Applicability of the Toxicity

Characteristic Leaching Procedure to

Mineral Processing Waste, U.S. EPA,

1998. Industry commenters contended

that the cases presented by the Agency

do not reflect current waste

management practices (which primarily

involve on-site disposal). Industry

commenters also argued that the facts of

particular cases did not, in fact, support

the conclusion that co-disposal had

occurred. EPA has reviewed the

information and concluded some of

these comments had merit, and EPA has

deleted from the final document those

cases for which there was not sufficient

information to be relied upon by the

Agency. However, even after a careful

sifting of the case studies, there

continues to be evidence to support the

conclusion that co-disposal of mineral

processing wastes with municipal solid

waste is plausible. While most mineral

processing wastes are generated in large

volumes and disposed on-site as

industry contends, the Agency has

found that some mineral processing

wastes are placed in dumpsters, or

similar containers, and shipped off-site

for commercial disposal.

These cases include, but are not

limited to, co-disposal of mineral

processing wastes from the refining of

alumina, copper, gold, ferrous metals,

lead, silver, and zinc. Such wastes have

been disposed in MSWLFs in various

states throughout the United States. The

Agency also found several cases where

manufactured gas plant wastes were

disposed in MSWLFs. (See Applicability

of the Toxicity Characteristic Leaching

Procedure to Mineral Processing Waste,

U.S. EPA, 1998.)

EPA acknowledges that the

information obtained by the Agency

does not show that the mismanagement

scenario is either typical or common,

but such a level of proof is not required.

Edison, 2 F.3d at 446. It is, moreover,

not surprising that the practice does not

appear to be widespread because, since

1989, disposal of any non-Bevill

hazardous mineral processing wastes in

a municipal solid waste landfill has

been illegal. Nonetheless, since some

mineral processing facilities are located

near urban areas and generate low

volume wastes, and some of these

facilities appear to have, in fact, codisposed of these wastes in this manner,

EPA believes it is reasonable to

conclude that application of its

mismanagement scenario to mineral

processing wastes is reasonable; that is,

if these wastes were no longer identified

as hazardous by means of the TCLP,

then the type of improper disposal

which occurred in the past could

resume.

Industry commenters further contend

that an alternative test, the Synthetic

Precipitation Leaching Procedure

(SPLP), is more appropriate for mineral

processing wastes. The National Mining

Association (NMA) noted in its

comments that the leach solution used

in the SPLP test protocol would more

accurately reflect the environmental

exposure of mineral processing wastes.

The SPLP test uses a leach solution

which mimics acid rain, while the TCLP

uses a leach solution which mimics

acids formed in municipal landfills. The

TCLP test therefore uses a leach solution

which is more acidic that the SPLP test.

However, ‘‘[n]othing in [RCRA] requires

EPA to tailor the TCLP to the conditions

to which mineral wastes are typically

exposed.’’ Edison, 2 F.3d at 443. If that

were the case, it would not have been

appropriate for EPA to even have

adopted a generic mismanagement

scenario as the basis for establishing its

approach for testing for the hazardous

characteristic. This approach has,

however, been upheld as a reasonable

exercise of the Agency’s discretion. Id.

Industry commenters supplied data

indicating that the TCLP is more

aggressive than the SPLP for most

metals and especially lead. Certain

states supported use of the test under all

or limited circumstances. EPA received

very limited data comparing the leach

tests. Because these data were extremely

limited, the Agency still does not have

data broadly comparing TCLP results to

SPLP results for a range of mineral

processing waste streams. Industrysupplied data appear to indicate that the

SPLP test generates results which show

lower levels of lead than comparable

results using the TCLP. Thus, due to the

limited amount of data, the Agency is

unable to determine if the SPLP would

routinely show lower levels of lead, or

how the two tests compare when

analyzing other metals or whether such

lower levels would, in fact, better reflect

actual field conditions than would the

TCLP. At bottom, the fundamental issue

is not whether one test is more

conservative than the other. Rather, the

issue is whether it is plausible that

mineral processing wastes may be

disposed of in environments reflected

by the conditions mimicked in the

TCLP.

Aside from the plausibility of the

Agency’s mismanagement scenario,

application of the TCLP to mineral

processing wastes is supported by

comments from industry submitted

during the rulemaking regarding

disposal practices that are taking place

or advantageous at integrated mineral

processing/beneficiation facilities in the

industry. The proposed (and now final)

rule regarding mixtures of Bevill wastes

with non-Bevill hazardous wastes

(including mineral processing

hazardous wastes) effectively prohibits

such mixing. Some commenters

opposed the proposed mixture rule on

the grounds that integrated facilities

typically co-dispose of hazardous

mineral processing wastes (including

those exhibiting the TC) with extraction

and beneficiation wastes, and desired to

continue this practice or to have mixing

available as a management option for

these mineral processing hazardous

wastes. It is well-documented that

extraction and beneficiation wastes can

often generate highly acidic

environments. (See Acid Rock Drainage

Prediction, U.S. EPA, 1994) Disposal of

mineral processing wastes with such

wastes means that the mineral

processing wastes would be subject to

acidic conditions that, in some cases,

may be comparable to the acidic

leacheate medium utilized in the TCLP

(if not somewhat more aggressive). This
Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations 28599

is because water contacting the acidic

waste would thereupon become acidic

itself (an example being acid mine

drainage). EPA’s concern is that if the

mineral processing wastes are no longer

identified as hazardous because a test

other than the TCLP is used, then these

wastes could be disposed with the

acidic extraction/beneficiation wastes

and be exposed to metal-mobilizing

acidic leaching conditions as water

percolates through the mixture. Given

the evident economies noted in the

public comments in disposing of

mineral processing wastes along with

extraction/beneficiation wastes, such a

scenario is at least plausible. Such a

disposal scenario, which industry states

is not only plausible, but is typical of

some facilities, provides an additional

justification for the application of the

acidic leachate approach reflected in the

TCLP.

EPA recognizes that the TCLP utilizes

organic acids, while the disposal

scenario discussed above would involve

exposure to mineral acids. In part

because of this difference, EPA utilized

the SPLP in screening low hazard

wastes as part of its 1989 Bevill

determination. See 54 FR 36592 (Sept 1,

1989). Commenters have pointed to this

statement as undercutting any

application of TCLP to mineral

processing wastes.

EPA made clear in 1989, however,

that the TCLP was still the appropriate

test for determining whether a particular

mineral processing waste is a hazardous

waste subject to Subtitle C. Morever,

EPA believes that the general statement

contained in the 1989 preamble

arguably swept too broadly in its

conclusions. Notwithstanding that

statement, standard chemistry texts

establish that certain metals are highly

soluble in acidic environments,

including inorganic acids. Numerous

factors can affect the precise solubility

of a particular metal, and it is generally

not possible to generalize whether

organic or inorganic acids would cause

more or less of a particular metal

compound to solubilize. Based on

generally accepted chemistry principles,

however, a highly acidic environment,

whether organic or mineral in nature,

can be aggressive towards certain metals

typically found in mineral processing

wastes. Given that acidic leaching

media can result when mineral

processing wastes are co-disposed with

extraction/beneficiation wastes, EPA

believes that the acidic leachate

procedure utilized in the TCLP can be

appropriate for characterizing mineral

processing wastes.

EPA also notes a further policy

justification in its choice of the TCLP.

The final rule seeks to encourage

properly conducted recycling of mineral

processing secondary materials, and the

scheme in the final rule (whereby

recovery can occur provided facilities

do not utilize land-based storage units)

can be implemented at reasonable cost.

(See the Regulatory Impact Analysis for

the final rule, summarized later in this

preamble.) However, the Agency is

concerned that if integrated facilities

have a lower cost option of simply

disposing these mineral processing

secondary materials with extraction/

beneficiation wastes, facilities will

choose this alternative. Thus, not only

will the mineral processing wastes be

potentially exposed to acidic leaching

conditions, but properly conducted

metal recovery will be foregone. (See

RCRA section 1003 (a) (6) noting the

statutory goal to encourage properly

conducted recycling of hazardous

wastes.)

In addition to questioning the choice

of a leaching medium, commenters

questioned certain other features of the

test, notably a particle size feature

which mirrors freeze/thaw cycles, and a

dilution/attenuation factor which is

premised on human receptors

potentially living relatively proximate to

the disposal site. These issues are

addressed in greater detail in responses

to comments and technical background

documents. However, the Agency has

documented in the record that many

mineral processing facilities are located

in parts of the country where freeze/

thaw cycles which reduce particle size

occur, and are also located near

populations reflecting the degree of

dilution and attenuation used in the

model. (See Population Studies of Mines

and Mineral Processing Sites, 1998, U.S.

EPA)

Finally, EPA notes that nothing in the

recent decision Columbia Falls

Aluminum Co. v. EPA (no. 96–1234)

(April 3, 1998) is contrary to this

determination. Columbia Falls does not

stand for the proposition that EPA must

customize a test for particular wastes to

reflect individual or even typical

disposal circumstances, a proposition

expressly rejected in Edison, 2 F. 3d at

445. Rather, Columbia Falls approvingly

cites Edison for the proposition that

‘‘the TCLP must bear some rational

relationship to mineral wastes in order

for the Agency to justify the application

of the toxicity test to those wastes.’ ’’

Columbia Falls, slip op. at 18; see also

Huls America Inc. v. Browner, 83 F. 3d

445, 454 (Edison involved an instance

‘‘where the record was barren of any

rational relationship between the

methodology used by the EPA to set

regulatory levels and the known

behavior of the substance to which this

methodology was applied’’). EPA has

rectified the record deficiencies noted in

Edison, showing how the TCLP ‘‘bears

a rational relationship to the reality it

purports to represent.’’ Columbia Falls,

slip op. at 18. Today’s action is thus

consistent with both Edison and

Columbia Falls.

EPA is making the decision to retain

the TCLP as the test for identifying

mineral processing wastes effective

within 90 days, co-extensive with the

LDR prohibition effective date. This

effective date can be complied with

feasibly within 90 days since the TCLP

is already the applicable test for mineral

processing wastes (since it was

remanded, not vacated, by the Edison

ruling). Thus, the regulated community

does not need six months to come into

compliance. See RCRA section

3010(b)(1).

b. Remanded Mineral Processing

Wastes. In the January 1996 proposal,

the Agency proposed to revoke the

current hazardous waste listings for five

court-remanded smelting wastes. The

Agency also proposed not to re-list them

as hazardous stating that these wastes

would be regulated as hazardous wastes

if they exhibit a characteristic of a

hazardous waste.

In 1980, the Agency listed as

hazardous eight wastes generated by

primary metal smelters (45 FR 33066,

33124, 47832–34, (1980)). The Agency

listed the wastes pursuant to 40 CFR

261.11(a)(3) because they contained one

or more of the hazardous constituents

listed in 40 CFR 261, Appendix VIII.

The eight wastes are described as

follows:

K064—Acid plant blowdown slurry/sludge

resulting from the thickening of

blowdown slurry from primary copper

production.

K065—Surface impoundment solids

contained in and dredged from surface

impoundments at primary lead smelting

facilities.

K066—Sludge from treatment of process

wastewater and/or acid plant blowdown

from primary zinc production.

K067—Electrolytic anode slimes/sludges

from primary zinc production.

K068—Cadmium plant leach residue (from

oxide) from primary zinc production.

K088—Spent potliners from primary

aluminum reduction.

K090—Emission control dust or sludge from

ferrochromium-silicon production.

K091—Emission control dust or sludge from

ferrochromium production.

In October of 1980, in response to

Congressional enactment of the Bevill

Exclusion, the Agency suspended its

listing of the eight wastes (46 FR 4614–

15, 27473 October, 1980). In 1985, EPA

proposed a new rule that would relist
28600 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations

six of the eight wastes (50 FR 40292,

40295, October 2, 1985). (The Agency

chose not to propose to re-list two of the

original eight waste streams (electrolytic

anode slimes/sludges, K067, and

cadmium plant leach residue, K068,

from primary zinc production) because

it found that industry was routinely

recycling these secondary materials in

an environmentally sound manner.)

However, the Agency withdrew its 1985

proposal on October 9, 1986 (51 FR

36233).

In Environmental Defense Fund v.

EPA, 852 F.2d 1316 (D.C. Cir. 1988) EPA

was ordered to make a final decision

regarding whether to re-list the six metal

smelting wastes that it had proposed to

list in 1985, and to reduce the scope of

the Bevill exemption as it applies to

mineral processing wastes. The Agency

complied with this order when it relisted the six wastes.

The American Mining Congress

(AMC) challenged these listings. In

American Mining Congress v. EPA, 907

F.2d 1179 (D.C. Cir., 1990) the Court

upheld the Agency’s decision to re-list

waste K088, spent potliners from

primary aluminum reduction, but found

that the Agency’s record for the five

remaining waste streams did not

adequately address certain issues raised

in comments during the rulemaking.

Since the Court did not vacate the

listings, they technically remain in

effect.

In today’s rule, the Agency is revoking

the five remanded waste listings. The

Agency has found that several of these

wastes are still generated and in some

cases land disposed, but there is a lack

of information demonstrating threats to

human health or the environment that

would justify a listing at this time. The

Agency believe that some wastes,

specifically copper acid plant

blowdown (K064) and surface

impoundment solids at primary lead

smelters (K065), are inherently

hazardous due to the presence of arsenic

and lead, respectively. These wastes can

be effectively regulated under RCRA

Subtitle C if they exhibit a hazardous

characteristic.

The Agency received no comments

opposing the proposed rule. To

summarize, the Agency is revoking the

listing for, and is not re-listing: copper

acid plant blowdown (K064); surface

impoundment solids at primary lead

smelters (K065); acid plant blowdown

from primary zinc production (K066);

emission control dust and sludge from

ferrochromium-silicon production

(K090); and emission control dust or

sludge from ferrochromium production

(K091). However, as explained

previously, should these wastes exhibit

a characteristic of a hazardous waste,

they will be subject to hazardous waste

regulations, including the hazardous

waste mixture rule.

c. Lightweight Aggregate Mineral

Processing Wastes. In the January 1996

proposal, the Agency proposed that air

pollution control dust and sludge from

the production of lightweight aggregate

be classified as a mineral processing

waste that is no longer eligible for the

Bevill exemption. Lightweight aggregate

air pollution control (APC) dust and

sludge were among the many mineral

processing wastes made conditionally

exempt from RCRA Subtitle C

requirements under the 1980 Bevill

Amendment to RCRA. In 1990,

following more detailed study of the

generation rates for this waste, the

Agency determined that it did not

qualify for the Bevill exemption (55 FR

2322, 2340, January 23, 1990). In 1991,

the D.C. Circuit directed the Agency to

reconsider, after providing notice and

soliciting comments, whether these

wastes qualify for the Bevill exemption.

(Solite Corporation v. EPA, 952 F.2d at

500 (D.C. Cir. 1991)).

In the January 1996 proposal, the

Agency stated that the wastes from

lightweight aggregate production do not

meet the high volume criterion for

excluded mineral processing wastes. For

purposes of EPA’s 1989 and 1990 rules

concerning Bevill eligibility for mineral

processing wastes, high volume is

defined as greater than 45,000 metric

tons per year per facility, for a solid

waste, or 1,000,000 metric tons per year

per facility, for a liquid waste, averaged

across all facilities generating a

particular waste.

To determine whether APC dust and

sludge from lightweight aggregate

production satisfied the high volume

criterion, the Agency analyzed data

from its 1989 National Survey of Solid

Wastes from Mineral Processing

Facilities (SWMPF Survey) and data

from public comments submitted by

affected companies. The Agency finds

that the lightweight aggregate wastes do

not meet the high volume criterion.

None of the methods used resulted in

a volume estimate that is greater than

45,000 metric tons per year per facility,

the high volume criterion for mineral

processing wastes. SWMPF survey data,

which includes Confidential Business

Information (CBI) from two facilities

have been included in a separate

analysis. The results, which remain

confidential, are not substantially

different from the results presented

previously.

Solite acknowledged in comments

that data do not support a determination

that lightweight aggregate air pollution

control (APC) dust and sludge is

generated in volumes that meet the high

volume cutoff. However, Solite

requested that the Agency delay making

a final determination on the Bevill

status of its wastes due to other Agency

rulemaking activities dealing with

cement kiln dusts, which Solite

contends would be addressing similar

issues to those posed by lightweight

aggregate air pollution control (APC)

dust and sludge.

The Agency is aware that both cement

kiln and aggregate kilns may both burn

hazardous wastes fuels and that the

dusts from air pollution control devices

are often blended into final products.

Under existing regulations, if these

dusts resulting from burning listed

hazardous waste fuels are blended into

products that are used on the land, the

product would be subject to RCRA’s

‘‘derived from’’ rules which would

render the product a hazardous waste.

Since both cement and light weight

aggregate products are usually placed on

the land, the potential impacts on their

use could be significant. The Agency

noted in its 1993 Report to Congress on

Cement Kiln Dust (CKD) that it did not

have evidence that CKD was materially

different when generated from kilns

burning hazardous wastes as fuel and

those which did not. The Agency does

not have similar comparable analysis of

light weight aggregate dusts and

sludges, and can not at this point in

time conclude that there is no difference

between dusts and sludges from units

burning hazardous waste fuels and

those that do not. The Agency wants to

encourage the sound recycling of these

dusts and requires additional time to

assess how to ensure that aggregate and

cement kiln dusts are managed to

ensure protection of human health and

the environment. The Agency is

currently developing a regulatory

program for the safe management of

cement kiln dusts and anticipates

issuing a proposed rule in 1998. The

Agency further anticipates that it will

seek comment on how to best manage

both wastes in this proposal and will

seek information it needs to make a final

determination on the status of

lightweight aggregate wastes. The

Agency is not finalizing its technical

background document, Lightweight

Aggregate Production and Air Pollution

Control Wastes (1995), at this time.

d. Mineral Processing Wastes From

the Production of Titanium

Tetrachloride. (i) Summary. In 1989,

following a study of this waste’s

circumstances of generation, the Agency

determined that titanium tetrachloride

waste acid did not qualify for the Bevill

exemption because it was a mineral
Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations 28601

processing waste, not an extraction/

beneficiation waste, and did not meet

the high volume/low hazard criteria for

determining eligibility for the Bevill

exemption. (See 54 FR 36592,

September 1, 1989.) One producer of

titanium tetrachloride, DuPont,

requested a determination that waste

from its production process be

categorized as beneficiation waste on

the ground that, unlike processes used

by other manufacturers, their process

included a beneficiation step which

generated the wastes at issue. However,

EPA determined that DuPont’s waste

acids were mineral processing wastes.

DuPont challenged this decision, and

the Court remanded EPA’s decision for

further consideration on the grounds

that the Agency’s explanation for its

decision was unclear. Solite Corporation

v. EPA, 952 F.2d 473,494–95 (D.C. Cir.

1991).

DuPont submitted comments on the

January 1996 proposal that contend its

processes do not destroy the structure of

the mineral as it is placed into its

processes. The Agency does not accept

this contention, and, as described

below, finds that the waste iron chloride

acid is a mineral processing wastes.

There are four sequential steps in

DuPont’s chloride-ilmenite process, the

first two of which occur within the same

vessel: (1) chlorine gas reacts with iron

from the ilmenite ore to form iron

chloride gas; (2) chlorine gas reacts with

titanium in the ilmenite ore to form

titanium tetrachloride gas; (3) the iron

chloride is condensed and separated to

form a waste iron chloride acid; and

finally (4) the titanium tetrachloride is

condensed and processed to form

titanium oxide pigment, the saleable

product. The issue remanded in Solite is

whether the iron chloride acid waste,

which is produced in gaseous form at

step (1) but removed from the vessel as

a liquid at step (3), is a mineral

processing waste that does not qualify

for the Bevill exemption, or is a

beneficiation waste covered by the

Bevill exclusion under 40 CFR

261.4(b)(7).

(ii) Proposal. In the January 1996

proposal, the Agency proposed that iron

chloride waste acid from the production

of titanium tetrachloride be classified as

a mineral processing waste that is not

eligible for the Bevill exemption. In the

chloride-ilmenite production of

titanium tetrachloride, the Agency

found that mineral processing began

with the chlorination of the iron in the

ilmenite ore and the resulting acid is a

waste from mineral processing.

Specifically, the Agency found that the

acid wastes from this process are not

physically or chemically similar to the

feedstocks entering the operation, which

is indicative that mineral processing has

occurred.

(iii) Response to Comments. One

commenter agreed with EPA’s proposed

conclusion that Du Pont’s process is

properly classified as mineral

processing because the reaction of

ilmenite ore with chlorine gas forms

new chemical compounds, namely

titanium tetrachloride and ferric or

ferrous chloride. The commenter

remarked that such a reaction is a

chemical processing step that

fundamentally alters the make-up of the

feedstock ore. The commenter said that

EPA correctly drew the analogy between

the mineral processing that occurs in

the chloride-ilmenite operation and the

mineral processing that occurs in other

metallurgical operations.

One commenter noted that no

beneficiation occurs in the chlorideilmenite process at all and that the iron

chloride waste stream is not eligible for

the Bevill exemption. The commenter

said that it too produces a waste iron

chloride acid in the production of

titanium tetrachloride but its waste acid

is neutralized in a waste treatment unit.

The commenter provided data showing

that its treatment of waste iron chloride

acid meets all proposed Land Disposal

Restrictions (LDR) treatment standards

for underlying hazardous

characteristics.

DuPont objected to the Agency’s

proposed classification. DuPont claims

that the removal of iron from the

ilmenite ore is more appropriately

classified as beneficiation. DuPont

remarked that the separation of the iron

chloride from the titanium ore grains

results in a beneficiated ore, similar in

nature to commercially available

beneficiated ores that EPA has

determined are Bevill exempt. The

Agency disagrees with this

characterization, and concludes that

since the ore is chlorinated, that

chlorination step changes the physical

and chemical structure of ore. The

Agency’s rationale for this decision is

discussed below.

The Agency reiterates its broad

standard for making mineral processing

determinations described in 54 Fed.

Reg. 36592, 36616, September 1, 1989.

Specifically, beneficiation operations

typically serve to separate and

concentrate the mineral values from

waste material, remove impurities, or

prepare the ore for further refinement.

Beneficiation activities do not, however,

change the chemical structure of the ore.

Mineral processing operations, in

contrast, generally follow beneficiation

and serve to change the concentrated

mineral value into a more useful

chemical form and change the chemical

composition of the waste. In contrast to

beneficiation operations, processing

activities often destroy the physical

structure of the incoming ore or mineral

feedstock such that the materials leaving

the operation do not closely resemble

those that entered the operation.

Typically, beneficiation wastes are

earthen in character, whereas mineral

processing wastes are derived from

melting or other chemical changes.

Today, the Agency again finds that

DuPont’s chloride-ilmenite operation is

mineral processing. In DuPont’s process,

chlorine gas is reacted with the iron in

the ore in the first step to produce a new

and significantly different chemical

compound than the feedstock ore,

namely liquid waste iron chloride acid.

The iron is more than simply removed;

the solid iron in the ore undergoes a

chemical reaction with the chlorine gas

to form a new compound that is highly

reactive and non-earthen in character,

namely iron chloride gas. This reaction

is the beginning of a significant change

to the physical and chemical structure

of the ore. This change is similar to the

reaction of chlorine gas with solid

titanium to form titanium tetrachloride

gas. The Agency finds that the net result

of the reaction of chlorine gas with both

iron and titanium, which occur in the

same vessel, destroys the physical and

chemical nature of the ore.

DuPont contends that the formation of

iron chloride gas is simply a process to

remove an impurity from the ore.

DuPont noted in its comments that

activities which remove impurities from

ores and minerals are classified as

beneficiation and all wastes from

beneficiation are exempt from

regulation under RCRA Subtitle C (see

40 CFR 261.4). DuPont therefore

contends that their processes are in fact

beneficiation and should not be

classified as mineral processing.

As noted earlier, the Agency clarified

the definition of beneficiation and

mineral processing in its 1989

rulemaking. That rule clearly indicated

that beneficiation serves to remove

impurities as long as the resultant

materials remained earthen in nature

and had not undergone a physical/

chemical change. The Agency studied

the DuPont process numerous times and

met with the company several times to

assure that the Agency fully understood

DuPont process. The Agency concludes

that chlorination of the ore causes a

significant physical/chemical change to

the ore, and therefore the process is

more indicative of mineral processing

than beneficiation. Further, in the

DuPont case, the removal of impurities

is taking place simultaneously with
28602 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations

other reactions generating titanium

gases. This reaction alone would

classify the process as mineral

processing since the ore and titanium

gas are clearly physically and

chemically dissimilar from that point on

in the process. The Agency stated in

1989 that once mineral processing

began, all wastes generated after that

point would be classified as mineral

processing wastes, even those wastes

which are similar to those generated in

beneficiation.

Thus, all wastes associated with the

chloride-ilmenite production of

titanium tetrachloride are mineral

processing wastes. They are neither high

volume nor low toxicity and therefore

are not eligible for the Bevill exemption.

VII. LDR Treatment Standards for Soil

This section discusses final

regulations establishing land disposal

treatment standards specific to

contaminated soil. Contaminated soil is

subject to the land disposal restrictions,

generally, when it contains a listed

hazardous waste or when it exhibits a

characteristic of hazardous waste.

(Throughout this discussion, the

specific term ‘‘hazardous contaminated

soil’’ refers to soil which contains a

listed hazardous waste or exhibits a

characteristic of hazardous waste; the

more general term ‘‘contaminated soil’’

refers to both hazardous contaminated

soil and other soils—such as

decharacterized soil—which may be

subject to the land disposal restrictions.)

Prior to today’s rule, contaminated soil

subject to LDRs was subject to the same

land disposal restriction treatment

standards that apply to industrial

hazardous waste: soil contaminated by

listed hazardous waste was subject to

the standards that apply to those listed

wastes and soil that exhibited a

characteristic of hazardous waste was

subject to the same standards that apply

to the characteristic waste. Today’s final

rule establishes a new treatability

group—contaminated soils—and

establishes land disposal restriction

treatment standards specifically tailored

to that treatability group. Although EPA

believes generators of contaminated soil

will typically choose to comply with the

new soil treatment standards

promulgated today, under today’s final

rule, they have the option of complying

either with the existing treatment

standards for industrial hazardous waste

(i.e., the universal treatment standards)

or the soil treatment standards. This is

consistent with the approach the

Agency took in promulgating LDR

treatment standards for hazardous

contaminated debris. 57 FR 37221,

August 18, 1992.

EPA first proposed tailored land

disposal restriction treatment standards

for contaminated soil in September

1993. 59 FR 48122—48131 (September

14, 1993). In the September 1993

proposal, EPA requested comment on

three soil treatment standard options.

These three options involved various

combinations of percent reduction

requirements for hazardous constituents

(typically ninety percent—90%) and

multipliers of the universal treatment

standards (typically ten times the UTS—

10 x UTS). In response to comment on

the September 1993 proposal, EPA

deferred a final decision on soil

treatment standards to the Agency’s

broader evaluation of application of

RCRA requirements to remediation

wastes, the Hazardous Waste

Identification Rule for Contaminated

Media, or HWIR-Media.

On April 29, 1996, as part of the

HWIR-Media proposal, EPA again

proposed tailored land disposal

restriction treatment standards for

contaminated soils. 61 FR at 11804

(April 29, 1996). In the April 29, 1996

proposal, soil-specific treatment

standards would have required

reduction in concentrations of

hazardous constituents by 90% with

treatment for any given constituent

capped at ten times the universal

treatment standard. Id. This is

commonly referred to as ‘‘90% capped

at 10 times UTS.’’

In 1995, 1996 and 1997, EPA

proposed new land disposal restriction

treatment standards for waste identified

as hazardous because of metal content

and for mineral processing wastes. 60

FR 43654 (August 22, 1995) for metal

wastes; 61 FR 2338 (January 25, 1996)

for mineral processing wastes; and, 62

FR 26041 (May 12, 1997) supplemental

proposal for both types of waste. In

these proposals, soil contaminated with

metal or mineral processing waste

would have been subject to the new

treatment standards for those wastes.

This was consistent with the way EPA

had historically addressed contaminated

soil and, at the time, considered proper

given that the proposals to establish

soil-specific treatment standards were

not yet resolved.

EPA did not reopen the issue of

whether LDRs apply to contaminated

soil or whether it is appropriate to

require that contaminated soil achieve

the same LDR treatment standards as the

contaminating waste (soil contaminated

by listed waste) or the characteristic

property (soil that exhibits a

characteristic of hazardous waste) in the

August 22, 1995, January 25, 1996, or

May 12, 1997 proposals. Commenters,

nonetheless, strongly opposed

application of the new LDR treatment

standards for metal and mineral

processing wastes to soil contaminated

with those materials. At about the same

time, EPA decided to go forward with

the soil-specific LDR treatment

standards proposed in April 1996.

Therefore, the Agency is promulgating

the land disposal restriction treatment

standards tailored to contaminated soils

proposed on April 29, 1996 (i.e., 90%

capped at 10xUTS) today, with the new

LDR treatment standards for metal and

mineral processing wastes. The soilspecific treatment standards

promulgated today may be applied to

any contaminated soil that is restricted

from land disposal, including but not

limited to soil contaminated by metal

and mineral processing wastes.

The land disposal restriction

treatment standards for contaminated

soil promulgated today differ from the

standards proposed on April 29, 1996 in

three major ways. First, the Agency

proposed that the soil treatment

standards would be available only for

contaminated soil that was managed

under an approved cleanup plan

(termed a remediation waste

management plan, or RMP). In today’s

final rule, the Agency is making the soil

treatment standards available for all

contaminated soil that is restricted from

land disposal. Second, the Agency

proposed that, for soil contaminated by

listed hazardous waste, treatment would

be required only for the hazardous

constituents that originated from the

contaminating listed hazardous waste.

When the soil treatment standards are

used, today’s final rule requires all

hazardous contaminated soil, including

soil contaminated by listed hazardous

waste, to be treated for each underlying

hazardous constituent reasonably

expected to be present when such

constituents are initially found at

concentrations greater than ten times

the universal treatment standard. Third,

in response to comments asserting that

the proposed regulations governing the

applicability of LDRs to contaminated

soils were difficult to understand, the

Agency has reformatted these

regulations into an easier-to-read table.

These changes, as well as other

significant issues associated with the

soil treatment standards and responses

to comments, are discussed below.

Today’s promulgation of land

disposal restriction treatment standards

specific to contaminated soil is largely

based on the April 29, 1996 proposal (62

FR at 18804–18818). It also relies on the

Agency’s first effort to establish soilspecific treatment standards, the LDR

Phase II proposal (58 FR 48092,

September 14, 1993). Today’s action
Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations 28603

14The exception is when waste contaminating

soil is subject to a specified treatment method; in

that case, the contaminated soil would also be

subject to the specified treatment method.

15These soil treatment data have been claimed as

confidential business information.

16As discussed in the April 29, 1996 proposal,

EPA has, in the past, justified the existing treatment

standards, in part, because they create an incentive

to generate less of the affected waste in the first

instance. See, Steel Manufactures Association v.

EPA, 27 F.3d 642, 649 (D.C. Cir. 1994). In the

remedial context, the waste is already in existence;

therefore waste minimization is not an issue. Thus,

application of the current LDR treatment standards

to remediation waste can have the perverse effect

of creating an incentive to avoid ‘‘generating’’ waste

by leaving it in the ground. The Agency believes

that the goals of remediation are better served by

more aggresive remedial approaches, such as

excavation and management (including some

degree of treatment) of remediation wastes, that

generally result in more permanent remedies. Such

approaches should, therefore, be encouraged.

resolves the portions of the April 29,

1996 and September 14, 1993 proposals

that address land disposal restriction

treatment standards for contaminated

soil. However, other elements of the

April 29, 1996 proposal remain open

and will be acted on in a future

rulemaking. Responses to comments

submitted on the soil treatment

standards proposals are included in the

Soil Treatment Standards Response to

Comments Background Document,

available in the docket for today’s

action.

A. Application of Land Disposal

Restriction Treatment Standards to

Contaminated Soil and Justification for

Soil Specific LDRs

Prior to today’s rule, soil that

contained listed hazardous waste or

exhibited a characteristic of hazardous

waste were prohibited from land

disposal unless they had been treated to

meet the treatment standards

promulgated for pure industrial

hazardous waste. This means the same

treatment standards which apply to a

pure, industrial hazardous waste were

also applied to contaminated soil. 61 FR

at 18804 (April 29, 1996) and other

sources cited therein. In most cases

then, contaminated soils were subject to

the treatment standards listed in 40 CFR

268.40, and the associated treatment

standards in 40 CFR 268.48(a) table

Universal Treatment Standards (UTS).14

As EPA has discussed many times,

the treatment standards developed for

pure, industrial hazardous waste may be

unachievable in contaminated soil or

may be inappropriate for contaminated

soil due to particularities associated

with the soil matrix and the remediation

context under which most contaminated

soil is managed, as discussed below. For

that reason, EPA is promulgating today’s

LDR treatment standards specifically

tailored to contaminated soil and to the

remedial context.

With respect to the soil matrix, the

treatment standards developed for pure

hazardous waste (i.e., the universal

treatment standards) are generally either

technically unachievable or technically

or environmentally inappropriate. For

metal constituents, the UTS may not be

achievable in contaminated soil even

using model technologies such as

stabilization or high temperature metal

recovery. Stabilization technologies are

sensitive to soil characteristics such as

the presence of oxidizing agents and

hydrated salts, the distribution of soil

particle size and the concentrations of

sulfate and chloride compounds.

Various combinations of soil

characteristics can impair the

effectiveness or rate of reaction in

stabilization technologies. For example,

insoluble materials, such as materials

that will pass through a number 200

mesh sieve, can delay setting and curing

during stabilization, or small soil

particles can coat larger soil particles

weakening bonds between particles and

cement or other reagents. High

temperature metal recovery technologies

may not be appropriate for some

contaminated soil given the low

concentrations of metals that might be

present in the soil. In addition, clay and

silt content in some soil matrices may

add undesired impurities to the metal

concentrates or alloys that are formed

during high temperature metal recovery.

Although EPA has data showing that

some soils can be treated to the existing

universal treatment standards for metals

using stabilization 15 and high

temperature metals recovery, the

Agency continues to believe that

tailored soil treatment standards are

appropriate for metal contaminated soil

to ensure that the wide variety of soils

can be effectively treated to meet the

treatment standards. In addition, the

soil treatment standards will have the

added environmental benefit of

encouraging greater use of innovative

soil treatment technologies such as soil

or enhanced soil (acid) washing. See,

Proposed BDAT Background Document

for Hazardous Soils, August 1993;

Technical Resource Document:

Solidification/Stabilization and its

Application to Waste Materials, EPA/

530/R–93/012, June 1993; and,

Technology Screening Guide for

Treatment of CERCLA Soils and

Sludges, EPA 540/2–88/004, September

1988.

For soil contaminated with organic

constituents, EPA has noted many times

that, notwithstanding the fact that such

soils can be treated by combustion to

meet the universal treatment standards,

it is generally unsuitable or impractical

from a technical standpoint to combust

large volumes of mildly contaminated

soil. See, for example, 55 FR at 8760 and

8761 (March 8, 1990) and 61 FR 18806–

18808 (April 29, 1996). In addition, the

Agency has documented potential

difficulties that may arise from the

combustion of soil due to soil/

contaminant characteristics that affect

incineration performance such as the

concentrations of volatile metals, the

presence of alkali salts, fine particles of

soils such as clays and silts, and the ash

fusion point of the contaminating waste.

For example, operation of an incinerator

at or near the waste ash fusion

temperature can cause melting and

agglomeration of inorganic salts; the

loading of clays and silts in some soils

may also result in high loadings of

particulate matter in flue gases.

Proposed BDAT Background Document

for Hazardous Soils, August 1993 and

Technology Screening Guide for

Treatment of CERCLA Soils and

Sludges, EPA 540/2–88/004, September

1988.

With respect to the remedial context,

EPA, the states, and the regulated and

environmental communities have long

recognized that application of the LDR

treatment standards developed for pure,

industrial hazardous waste to

contaminated soil can be

counterproductive. See, for example,

‘‘Hazardous Waste: Remediation Waste

Requirements Can Increase the Time

and Cost of Cleanups’ U.S. General

Accounting Office, GAO/RCED–98–4,

October 1997. Application of LDRs

developed for pure, industrial

hazardous waste to contaminated soil

often presents remediation project

managers with only two choices: pursue

a legal option of capping or treating

hazardous contaminated soil in place

thereby avoiding a duty to comply with

LDRs, or excavate the soil and treat it to

the full extent of best demonstrated

available technology, usually, for

organic constituents, incineration. EPA

has found that this situation often

creates an incentive to select remedies

that minimize application of LDRs (e.g.,

remedies that involve capping or

leaving untreated soil in place) a result

obviously not contemplated by Congress

in enacting the LDR program.16 62 FR at

pages 64505–64506 (Dec. 5, 1997) and

61 FR at 18808 (April 29, 1996) and

other sources cited therein.

Because of the differences between

the remedial context (responding to

wastes which have already been

released to the environment) and
28604 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations

17A complete discussion of the Agency’s method

for screening the Soil Treatment Database can be

found in the LDR Phase II proposal (58 FR 48129—

48131, September 14, 1993) and the Best

Demonstrated Available Technology Background

Document for Hazardous Soil (August 1993).

regulation of wastes generated by ongoing industrial process (preventing

wastes from being released into the

environment in the first instance), EPA

has rejected the conclusion that

treatment standards for soil must be

based upon the performance of the

‘‘best’’ demonstrated available treatment

technology in the way the Agency has

historically interpreted these terms.

Instead, the Agency has chosen to

develop soil treatment standards that

can be achieved using a variety of

treatment technologies which achieve

substantial reductions in concentration

or mobility of hazardous constituents

and, because they are generally used to

treat contaminated soils in remedial

settings, do not present site managers

with the type of dilemma described

above. As EPA has long maintained, the

strong policy considerations that argue

for using the traditional BDAT analysis

as the basis for LDR treatment standards

for hazardous wastes generated by ongoing industrial operations do not apply

when evaluating BDAT in the remedial

context. In the remedial context, for

example, waste minimization is not an

issue and the additional increment of

treatment necessary to achieve

traditional BDAT may yield little if any

environmental benefit over other

treatment options that adequately

protect human health and the

environment. 54 FR 41568 (October 19,

1989). Indeed there is a legitimate

question as to whether a technology

whose use results in foregoing other

substantial environmental benefits (such

as more aggressive, permanent

remedies) can be considered a ‘‘best’’

technology. Portland Cement

Association v. Ruckelshaus, 486 F. 2d

375, 385–86 at n. 42 (D.C. Cir. 1973);

Essex Chemical Corp. v. Ruckelshaus,

486 F. 2d 427, 439 (D.C. Cir. 1973). This

issue was discussed fully in the April

29, 1996 proposal and in a number of

other EPA documents, see, for example,

54 FR 41568 (October 19, 1989) and 61

FR at 18808 (April 29, 1996) and other

sources cited therein.

The soil treatment standards

promulgated today will significantly

improve management of contaminated

soil and remediations that involve

contaminated soil. However, the Agency

emphasizes that today’s rule does not

resolve the larger, more fundamental

issues associated with application of

RCRA Subtitle C to remediation

generally. The Agency maintains that

additional reform is needed to address,

more fundamentally, the application of

certain RCRA subtitle C requirements to

all remediation wastes, including

contaminated soil. The Agency will

continue to participate in discussions of

potential legislation to promote this

additional needed reform. If legislation

is not forthcoming, the Agency may

reexamine its approach to remediation

waste management, including the soil

treatment standards.

B. Detailed Analysis of Soil Treatment

Standards

All land disposal restriction treatment

standards must satisfy the requirements

of RCRA section 3004(m) by specifying

levels or methods of treatment that

‘‘substantially diminish the toxicity of

the waste or substantially reduce the

likelihood of migration of hazardous

constituents from that waste so that

short-term and long-term threats to

human health and the environment are

minimized.’’ As EPA has discussed

many times, the RCRA Section 3004(m)

requirements may be satisfied by

technology-based standards or riskbased standards. This conclusion was

upheld in Hazardous Waste Treatment

Council v. EPA, 886 F.2d 355, 362–64

(D.C. Cir. 1989), where technologybased LDR treatment standards were

upheld as a permissible means of

implementing RCRA Section 3004(m)

provided they did not require treatment

beyond the point at which threats to

human health and the environment are

minimized. Today’s treatment standards

for contaminated soils are primarily

technology-based; however, a variance

from the technology-based standards is

allowed when EPA or an authorized

state makes a site-specific determination

that threats posed by land disposal of

any given volume of contaminated soil

are minimized at higher concentrations.

1. Technology Basis for Soil Treatment

Standards

The land disposal restriction

treatment standards for soil require that

concentrations of hazardous

constituents subject to treatment be

reduced by ninety percent (90%) with

treatment for any given constituent

capped at ten times the universal

treatment standard (10 X UTS). In other

words, if treatment of a given

constituent to meet the 90% reduction

standard would reduce constituent

concentrations to less than 10 X UTS,

treatment to concentrations less than 10

X UTS is not required. This is

commonly referred to as ‘‘90% capped

by 10xUTS.’’

As first discussed in the September

14, 1993 proposal, the Agency has not

used the statistical methods historically

used in the land disposal restriction

program to establish the soil treatment

standards. In the past, the Agency has

typically evaluated treatability data to

identify the ‘‘most difficult to treat’’

waste and established treatment

standards based on a statistical analysis

of data from the best demonstrated

available treatment technology for that

waste. See, for example, 55 FR 26594

and 26605, June 23, 1989. While the

existing regulations allow treatment

using any technology that will satisfy

the treatment standards, the practical

impact of that approach is that

treatment using the most aggressive

treatment technology available (i.e., for

organic constituents, destruction of

organic constituents based upon the

performance of incineration) is often

necessary to achieve the treatment

standards.

For contaminated soil, the Agency has

chosen to establish technology-based

soil treatment standards at levels that

are achievable using a variety of

common remedial technologies which

destroy, remove or immobilize

substantial amounts of hazardous

constituents. 58 FR 48129 (September

14, 1993). The levels chosen—90%

reduction capped at 10 X UTS—are

within the zone of reasonable levels the

Agency could have selected as treatment

standards for contaminated soil.

Soil treatability data from EPA’s Soil

Treatment Database indicate that the

soil treatment standards are achievable

and that the Agency has selected a

reasonable level of performance for the

standard. After screening the Database

to eliminate data from tests reflecting

poorly designed or operated treatment,

tests where EPA believes inappropriate

technologies were applied (for example,

data from ‘‘immobilization’’ of organic

constituents), and other inappropriate

data, the Agency was left with 2,541

data pairs representing treatment of

eighty hazardous constituents including

nine BDAT list metals.17 EPA then

analyzed these data to determine if the

soil treatment standards could be

reliably achieved using demonstrated

soil treatment technologies. Based on

this analysis, the Agency concluded that

the soil treatment standards can be

reliably achieved using a variety of

available soil treatment technologies.

The Agency concluded that the soil

treatment standards can be reliably

achieved using: biological treatment,

chemical extraction, dechlorination, soil

washing, stabilization and thermal

desorption. Of course, since soil

treatment is generally matrix dependent,

the exact treatment technology which
Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations 28605

might be applied to any given

contaminated soil will depend on the

specific properties of the soil and the

hazardous constituents of concern.

Choices about which soil treatment

technology to apply should be informed

by appropriate use of bench and pilot

scale studies and good engineering

judgement. EPA acknowledges that the

treatment efficiency necessary to

achieve the soil treatment standards will

depend on, among other things, the

initial concentrations of hazardous

constituents in any given volume of

contaminated soil. Thus, not all soil

treatment technologies will be capable

of treating every contaminated soil to

meet the standards adopted in this rule.

However, the Agency finds that the soil

treatment standards typically can be

achieved by at least one of the

demonstrated technologies, even in the

case of hard-to-treat hazardous

constituents such as dioxins and furans,

polychlorinated biphenyls, and

polynuclear aromatics.

Furthermore, the Agency has

concluded that it is appropriate to

express the soil treatment standards as

a treatment performance goal capped by

specific treatment levels. More specific

standards, for example, a single

numerical standard for all soil, could be

counterproductive—less often

achievable—given the varying

combinations of hazardous constituents

and soil properties that might be

encountered in the field. 58 FR 48130

(September 14, 1993). An express

objective of this rule is to increase the

range of appropriate treatment

alternatives available to achieve the LDR

treatment standards in soil to increase

the likelihood that more remediations

will include treatment as a component

of the remedy. This objective could be

impeded by adopting single numeric

values as treatment standards, since that

approach would reduce needed

flexibility. The resulting soil treatment

standards, while still technology-based,

thus depart from EPA’s past

methodology developed for process

wastes in that they are not based

exclusively on the application of the

most aggressive technology to the most

difficult to treat waste and are not

expressed as a single numeric value.

Like any land disposal restriction

treatment standard, the soil treatment

standards may be achieved using any

treatment method except treatment

methods which involve impermissible

dilution (e.g., addition of volume

without destroying, removing or

immobilizing hazardous constituents or

transfer of hazardous constituents from

soil to another medium such as air). For

organic constituents, the soil treatment

standards for volatile organic

constituents are based on the

performance of biotreatment, chemical

extraction, dechlorination, thermal

desorption or soil vapor extraction. The

standards for semivolatile organic

constituents are based on the

performance of biotreatment, chemical

extraction, dechlorination, soil washing,

thermal desorption, or soil vapor

extraction. The standards for

organochlorine pesticides are based on

the performance of biotreatment,

dechlorination, hydrolysis, or thermal

desorption. The standards for

phenoxyacetic acid pesticides are based

on the performance of dechlorination.

The standards for polychlorinated

biphenyls are based on the performance

of chemical extraction, dechlorination,

or thermal desorption. The standards for

dioxins and furans are based on the

performance of dechlorination or

thermal desorption. EPA does not have

specific data in the record on treatment

of organophosphorous insecticides.

Because they are based on a similar

chemical structure, these contaminants,

however, are likely as difficult to treat

as other polar nonhalogenated organic

compounds and are expected to respond

to treatment in a manner similar to other

polar nonhalogenated phenols, phenyl

ethers, and cresols. Therefore, EPA

believes that organophosphorous

insecticides can be treated using the

same technologies as would otherwise

be used to treat polar nonhalogenated

organics, i.e., biotreatment, chemical

extraction, or thermal desorption. For

all organic constituents the soil

treatment standards are also achievable

using combustion. EPA notes also that

a number of judicial opinions have

upheld EPA’s extrapolation of

achievability results for technologybased treatment standards based on

chemical structure and activity

similarity, as has been used here. See,

e.g., Chemical Manufacturers Ass’n v.

EPA, 870 F. 2d 177, 248 (5th Cir. 1989)

and National Ass’n of Metal Finishers v.

EPA, 719 F. 2d 624, 659 (3d Cir. 1983).

For metals, the soil treatment standards

are based on the performance of

stabilization, and for mercury, chemical

extraction. Achievability of the soil

treatment standards is discussed, in

detail, in section VII.B.8 of today’s

preamble.

a. Measuring Compliance With the

Soil Treatment Standards For hazardous

constituents which have a treatment

standard measured by total waste

analysis (i.e. standards for organic

constituents and for cyanide),

compliance with the 90% reduction

standard should generally be measured

using total constituent concentrations.

For hazardous constituents which have

a treatment standard measured based on

concentrations in a TCLP extract (i.e.,

standards for metals and for carbon

disulfide, cyclohexanone and

methanol), compliance with the 90%

reduction standard should generally be

measured in leachate using the toxicity

characteristic leaching procedure. The

exceptions to these rules would be, for

example, if soils contaminated with

metal constituents were treated using a

technology which removed or

destroyed, rather than stabilized, metals.

In an example like this, compliance

with the 90% reduction standards

should generally be measured using

total constituent concentrations.

EPA takes this opportunity to clarify

that when establishing the

concentrations of hazardous

constituents in any given volume of

contaminated soil from which the 90%

reduction will be measured, normal soil

characterization techniques and

procedures for representative sampling

should be used. For example, it is not

necessary to measure the 90% reduction

from the soil sample with the lowest

concentrations of hazardous

constituents. EPA will publish

additional guidance on establishing and

validating 90% reduction levels for

contaminated soil in the near future.

Today’s rule does not change existing

policies or guidance on soil sampling or

site characterization. Although soil is

often characterized using composite

sampling, EPA notes that, consistent

with the way the Agency measures

compliance with other LDR treatment

standards, compliance with the soil

treatment standards will be measured

and enforced using grab samples. This

is appropriate because well-designed

and well-operated treatment systems

should ensure that soil is uniformly

treated.

b. Major Comments A number of

commenters expressed concern about

the achievability of the soil treatment

standards and/or the methodology EPA

used to develop the soil treatment

standards. These concerns are discussed

in Section VII.B.8 of today’s preamble

and in the response to comments

document, available in the docket for

today’s rulemaking.

2. The Soil Treatment Standards Satisfy

RCRA Section 3004(m) Requirements

The technology-based ‘‘90% capped

by 10 X UTS’’ treatment standard for

contaminated soil is sufficiently

stringent to satisfy the core requirement

of RCRA Section 3004(m) that shortterm and long-term threats to human

health and the environment posed by
28606 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations

land disposal are minimized.

Technology-based standards provide an

objective measure of assurance that

hazardous wastes are substantially

treated before they are land disposed,

thus eliminating the ‘‘long-term

uncertainties associated with land

disposal.’’ Eliminating these

uncertainties was a chief Congressional

objective in prohibiting land disposal of

untreated hazardous wastes. Hazardous

Waste Treatment Council v. EPA, 886

F.2d at 361–64. In addition, the extent

of treatment required, 90 % reduction

capped at treatment to concentrations

within an order of magnitude of the

UTS, ‘‘substantially’’ reduces mobility

or total concentrations of hazardous

constituents within the meaning of

RCRA Section 3004(m)(1).

EPA has made two changes from

proposal which strengthen the soil

treatment standards to assure that they

minimize threats to human health and

the environment. First, the Agency has

modified its approach to which

hazardous constituents will be subject

to treatment. In today’s rule, when the

soil treatment standards are used, EPA

requires treatment for all hazardous

constituents reasonably expected to be

present in contaminated soil when such

constituents are initially found at

concentrations greater than ten times

the universal treatment standard. This

treatment is required both for soil

contaminated by listed hazardous waste

and soil that exhibits (or exhibited) a

characteristic of hazardous waste.

Constituents subject to treatment are

discussed further in Section VII.B.4 of

today’s preamble.

To further ensure that contaminated

soil treated to comply with the soil

treatment standards is safely managed,

EPA has included additional restrictions

on the use of treated contaminated soil

in hazardous waste-derived products

that are used in a manner constituting

disposal (i.e., when such products will

be placed on the land). The restrictions

on use of treated contaminated soil in

hazardous waste-derived products that

are used in a manner constituting

disposal are discussed in Section VII.B.5

of today’s preamble.

Finally, the Agency reiterates that, in

the remediation context, in assessing

whether threats posed by land disposal

have been minimized, one should

appropriately consider the risks posed

by leaving previously land disposed

waste in place as well as the risks posed

by land disposal of waste after it is

removed and treated. 62 FR at 64506

(December 5, 1997). For example, if a

treatment standard for organic

constituents based on performance of

incineration typically results in already

land disposed materials such as

contaminated soils being capped in

place rather than more aggressively

remediated, threats posed by land

disposal of the waste ordinarily would

not be minimized. Conversely, a

treatment standard that results in

substantial treatment followed by secure

land disposal can be said to minimize

threats, taking into account the totality

of threats posed (i.e. including those

posed if the soil were left in place

untreated). Id. The soil treatment

standards will ordinarily ensure that

contaminated soil is appropriately

treated within the meaning of RCRA

Section 3004(m), considering both the

threats posed by new land disposal of

treated soil and the threats posed by ongoing land disposal of existing

contaminated soil (e.g., if the soil were

left in place untreated).

EPA recognizes that some people may

be concerned that a situation may arise

where the soil treatment standards are at

levels that are higher than those that

EPA or an authorized state believes

should be required for soil cleanup

under a cleanup program. The Agency

acknowledges that this may occur. The

soil treatment standards, like other land

disposal restriction treatment standards,

are based on the performance of specific

treatment technologies. As discussed

earlier in today’s preamble, technologybased standards have been upheld as a

permissible means of implementing

RCRA Section 3004(m). Most soil

cleanup levels are based not on the

performance of specific treatment

technologies but on an analysis of risk.

For this reason, technology-based

treatment standards will sometimes

over-and sometimes under-estimate the

amount of treatment necessary to

achieve site-specific, risk-based goals.

The purpose of the land disposal

restriction treatment standards is to

ensure that prohibited hazardous wastes

are properly pre-treated before disposal

(i.e., treated so that short- and long-term

threats to human health and the

environment posed by land disposal are

minimized). As discussed above, the

Agency believes the soil treatment

standards promulgated today fulfill that

mandate for soil that contains

prohibited listed hazardous waste or

exhibits a characteristic of prohibited

hazardous waste. However, technologybased treatment standards are not

necessarily appropriate surrogates for

site-specific risk-based cleanup levels.

In a circumstance where the soil

treatment standards result in constituent

concentrations that are higher than

those determined, on a site-specific

basis, to be required for soil cleanup,

existing remedial programs such as

RCRA Corrective Action, CERCLA and

state cleanup programs could be applied

to ensure that remedies are adequately

protective. These programs already

ensure protection of human health and

the environment when managing most

contaminated soils—i.e., soils that are

not subject to the LDRs—and other

remediation wastes. Furthermore, as

discussed later in today’s rule, treated

contaminated soil would remain subject

to regulation under RCRA Subtitle C

unless and until EPA or an authorized

state made an affirmative decision that

the soil did not contain hazardous waste

or, in the case of characteristic soil, no

longer exhibited a hazardous

characteristic.

3. Variance From the Soil Treatment

Standards at Risk-Based Levels

EPA has long indicated that its

preference would be to establish a

complete set of risk-based land disposal

treatment standards at levels that

minimize short- and long-term threats to

human health and the environment.

See, for example, 55 FR at 6641 (Feb. 26,

1990). However, the difficulties

involved in establishing risk-based

standards on a nationwide basis are

formidable due in large part to the wide

variety of site-specific physical and

chemical compositions encountered in

the field and the uncertainties involved

in evaluating long-term threats posed by

land disposal. Id.; 60 FR 66380—66081

(Dec. 21, 1995). For these reasons the

Agency has chosen to establish land

disposal restriction treatment standards

based on the performance of specific

treatment technologies. Although

technology-based treatment standards

are permissible, they may not be

established at levels more stringent than

those necessary to minimize short and

long-term threats to human health and

the environment. Hazardous Waste

Treatment Council, 886 F. 2d at 362

(land disposal restriction treatment

standards may not be established,

‘‘beyond the point at which there is not

a ‘‘threat’’ to human health or the

environment’’).

While using risk-based approaches to

determine when threats are minimized

on a national basis has proven

extremely difficult, these difficulties

will diminish when evaluating risks

posed by a specific contaminated soil in

a particular remediation setting since,

during remediation, one typically has

detailed site-specific information on

constituents of concern, potential

human and environmental receptors,

and potential routes of exposure. For

this reason, EPA is establishing a sitespecific variance from the technologybased soil treatment standards, which
Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations 28607

18 In the April 29, 1996 proposal, the Agency

proposed to limit variances based on a site-specific

minimize threat determination to contaminated

soils where all concentrations of hazardous

constituents were below a ‘‘bright line,’’ that is,

below a certain risk level. The Agency also

requested comment on extending site-specific

minimize threat variances to other contaminated

soils. Based on further consideration and

consideration of comments, the Agency is

persuaded that a site-specific minimize threat

variance should be available to all contaminated

soils. The Agency believes this is proper because

the outcome of a site-specific, risk-based minimize

threat variance—alternative, site-specific LDR

treatment standards based on risk—will be the same

regardless of the initial concentrations of hazardous

constituents. In any case, the Agency is not, at this

time, taking action on the portion of the April 29,

1996 proposal that would have established a ‘‘bright

line’’ to distinguish between higher- and lower-risk

media. If, in the future, the Agency takes action to

establish a bright line, it will address the

relationship of a bright line to site-specific

minimize threat variances.

19While not forbidden, the Agency believes that

site-specific, risk-based minimize threat

determinations will rarely be made in the context

of an independent or voluntary cleanup action,

since, in these types of actions, an overseeing

Agency will not, typically, have been involved in

the identification exposure pathways and receptors

of concern or the calculation of site-specific, riskbased cleanup levels. Of course, generators could

apply for a site-specific, risk-based minimize threat

variance during an independent or voluntary

cleanup and, provided EPA or an authorized state

agreed that the proposed alternative treatment

standards minimized threats considering

appropriate exposure pathways and receptors, a

variance could be approved.

can be used when treatment to

concentrations of hazardous

constituents greater (i.e., higher) than

those specified in the soil treatment

standards minimizes short- and longterm threats to human health and the

environment. In this way, on a case-bycase basis, risk-based LDR treatment

standards approved through a variance

process could supersede the technologybased soil treatment standards. This

approach was first discussed in the

September 14, 1993 proposal, where

EPA proposed that determinations that

contaminated soil did not or no longer

contained hazardous waste could

supersede LDR treatment standards, if

the ‘‘contained-in’’ level also

constituted a ‘‘minimized threat’’ level.

It was repeated in the April 29, 1996

proposal where the Agency proposed

that, in certain circumstances, variances

from land disposal restriction treatment

standards could be approved in

situations where concentrations higher

than the treatment standards minimized

threats.18 58 FR at 48128 (September 14,

1993) and 61 FR at 18811 and 18812

(April 29, 1996).

At this time, EPA is allowing the riskbased variances only for contaminated

soils. The Agency believes this

limitation is appropriate for a number of

reasons. First, contaminated soils are

most often generated during agency

overseen cleanups, such as CERCLA

cleanups, RCRA corrective actions or

state overseen cleanups. This type of

involvement in cleanups positions EPA

and authorized states to appropriately

consider site-specific, risk-based issues.

Second, during remediation, experts

and field personnel typically gather

detailed site-specific information on

risks posed by specific hazardous

constituents or combinations of

hazardous constituents, potential direct

and indirect exposure routes, risk

pathways and human and

environmental receptors. Through

application of this information,

overseeing agencies can eliminate many

of the long-term uncertainties associated

with land disposal and, therefore, make

appropriate risk-based decisions

regarding the extent of treatment needed

to minimize short- and long-term threats

to human health and the environment

from any given hazardous constituent or

combination of hazardous constituents.

EPA and state officials already routinely

make these types of decisions when

developing site-specific, risk-based

cleanup levels and when making

decisions about whether any given

contaminated medium contains

hazardous waste.19 After experience

implementing the site-specific minimize

threat variance for contaminated soil,

the Agency may consider extending it to

other environmental media and

remediation wastes.

Some commenters expressed concern

that allowing site-specific, risk-based

minimize threat determinations would

abrogate the Agency’s responsibilities

under RCRA Section 3004(m). The

Agency strongly disagrees. RCRA

Section 3004(m) requires EPA to

establish ‘‘levels or methods of

treatment, if any. * * *.’’ In the case of

contaminated soil, EPA is establishing

those levels today based on the

performance of available, appropriate

soil treatment technologies. Providing a

variance process to modify a level or

method of treatment on a case-by-case

basis reduces the likelihood that in any

particular situation technology-based

treatment standards will result in

treatment beyond the point at which

threats are minimized. The Agency is

requiring that minimize threat variance

determinations for contaminated soils

be evaluated using the existing sitespecific variance process set out in 40

CFR 268.44(h). EPA recently added

language to this provision to clarify that

variances cannot be approved without

opportunity for public participation,

including notice by appropriate means,

opportunity for public comment and

adequate explanation of an ultimate

determination. 62 FR at 64507 (Dec. 5,

1997).

While not required, EPA anticipates

that decisions about site-specific

minimize threat decisions variances will

often be combined with decisions that

soil no longer contains hazardous waste.

As discussed later in today’s preamble,

Agency guidance on ‘‘contained-in’’

determinations is essentially the same

as the requirements for site-specific,

risk-based minimize threat

determinations promulgated today. For

that reason, EPA believes it will always

be appropriate to combine a containedin determination with a site-specific,

risk-based minimize threat variance. In

these cases, EPA encourages program

implementors and facility owners/

operators to include information about

the ‘‘contained-in’’ decision in the

public notice of the site-specific

minimize threat variance. In cases

where a site-specific minimize threat

variance is combined with a decision

that a soil no longer contains hazardous

waste, once treated to comply with the

treatment standard imposed by the

variance, the soil would no longer have

any obligations under RCRA Subtitle C

and could be managed—including land

disposed—without further control

under RCRA Subtitle C. The containedin policy is discussed in more detail in

Section VII.B.8 and Section VII.E of

today’s preamble.

EPA reminds program implementors

that, consistent with the rest of the land

disposal restriction program, sitespecific determinations that threats are

minimized cannot be based on the

potential safety of land disposal units,

or engineered structures such as liners,

caps, slurry walls or any other practice

occurring after land disposal. American

Petroleum Inst. v. EPA, 906 F.2d 729,

735–36 (D.C. Cir. 1990) (land treatment

cannot be considered in determining

whether threats posed by land disposal

have been minimized because land

treatment is a type of land disposal and

section 3004(m) requires that threats be

minimized before land disposal occurs);

see also S. Rep. No. 284, 98th Cong. 1st

sess. at 15, stating that engineered

barriers cannot be considered in

assessing no-migration variances

because ‘‘[a]rtificial barriers do not

provide the assurances necessary to

meet the standard.’’ This means that

site-specific minimize threat

determinations must be based on the

inherent threats any given contaminated

soil would pose. The Agency recognizes

that this will have the effect of

precluding site-specific minimize threat

variances for remedies that rely, even in

part, on capping, containment or other

physical or institutional controls. In
28608 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations

20Unacceptable cross-media transfer would

include, for example, transfer of contaminants from

soil to air in excess of applicable air emission

standards.

addition to being compelled by the

statute, the Agency believes this

approach is proper, in that it may

encourage remedy choices that rely

more predominantly on treatment to

permanently and significantly reduce

the concentrations (or mobility) of

hazardous constituents in contaminated

soil. The Agency has a strong and

longstanding preference for these types

of more permanent remedial

approaches.

In addition, at a minimum, alternative

land disposal restriction treatment

standards established through site

specific, risk-based minimize threat

variances should be within the range of

values the Agency generally finds

acceptable for risk-based cleanup levels.

That is, for carcinogens, alternative

treatment standards should ensure

constituent concentrations that result in

the total excess risk from any medium

to an individual exposed over a lifetime

generally falling within a range from

10¥4 to 10¥6, using 10¥6 as a point of

departure and with a preference, all

things being equal, for achieving the

more protective end of the risk range.

For non-carcinogenic effects, alternative

treatment standards should ensure

constituent concentrations that an

individual could be exposed to on a

daily basis without appreciable risk of

deleterious effect during a lifetime; in

general, the hazard index should not

exceed one (1). Constituent

concentrations that achieve these levels

should be calculated based on a

reasonable maximum exposure

scenario—that is, based on an analysis

of both the current and reasonably

expected future land uses, with

exposure parameters chosen based on a

reasonable assessment of the maximum

exposure that might occur. The Agency

believes these represent an appropriate

range of minimum values for sitespecific, risk-based minimize threat

determinations because sites cleaned up

to these levels are typically released

from regulatory control under the

Federal CERCLA program and the RCRA

corrective action program. See, for

example, the National Contingency Plan

(55 FR 8666, March 8, 1990) the 1990

RCRA Corrective Action Subpart S

Proposal (55 FR 30798, July 27, 1990),

and the 1996 RCRA Corrective Action

Subpart S ANPR (61 FR 19432, May 1,

1996). In addition to achieving

protection of human health, alternative

treatment standards must ensure that

environmental receptors are protected

and must also ensure that no

unacceptable transfer of contamination

from one medium to another, for

example, from soil to ground water, will

occur.20 Protection of environmental

receptors and against cross-media

contamination may, in some cases,

require more stringent (i.e., lower)

alternative treatment standards than

would be necessary to protect human

health alone. The Agency recognizes

that this approach is different from the

approach used in developing national

risk-based minimize threat levels

proposed in the Hazardous Waste

Identification Rule (HWIR-Waste). 60 FR

66344 (December 21, 1995). This

difference is proper, in that the HWIRWaste proposal contemplated

nationally-applicable risk-based LDR

treatment standards and, therefore, had

to consider the myriad of potential

exposure pathways and receptors which

might occur at any given site, nation

wide. A site-specific minimize threat

determination is informed by actual and

reasonable potential exposure pathways

and receptors at a specific land disposal

location.

Although not expressly limited to

land disposal of contaminated soil onsite, EPA anticipates that site-specific

minimize threat variances will, most

often, be applied to these activities. The

basis for developing an alternative land

disposal restriction treatment standard

during the site-specific minimize threat

variance is application of risk

information about specific exposure

pathways and receptors of concern. To

apply such a variance to off-site land

disposal, the treatment standard would

have to be informed by the exposure

pathways and receptors present at the

off-site land disposal areas (assuming no

physical or engineered structures or

other post-land-disposal controls).

While such an analysis is allowed, this

information is not, to the Agency’s

knowledge, routinely gathered during

site remediation.

Most commenters supported the

concept of using a treatment variance to

reduce the likelihood that, in any

particular case, technology-based soil

treatment standards might prompt

treatment beyond the point at which

threats to human health and the

environment are minimized.

One commenter was concerned that

establishing a risk-based minimize

threat variance without adequate

minimum standards would be contrary

to law and impossible to oversee. EPA

was, in part, persuaded by these

comments and has added a requirement

that, at a minimum, alternative LDR

treatment standards approved through a

site-specific minimize threat variance be

within the range of acceptable values

the Agency typically uses for cleanup

decisions, as discussed above. In

addition, as discussed above, the

Agency has clarified that, unlike some

CERCLA or RCRA corrective action

remedies, site-specific minimize threat

variances may not rely on post-land

disposal controls.

4. Constituents Subject to Treatment

For soil contaminated by listed

hazardous waste, EPA proposed that

treatment would be required for each

hazardous constituent originating from

the contaminating waste. For soil which

exhibits (or exhibited) a characteristic of

hazardous waste, EPA proposed that

treatment would be required: (1) in the

case of TC soil, for the characteristic

contaminant; (2) in the case of ignitable,

reactive or corrosive soil, for the

characteristic property; and, (3) in both

cases, for all underlying hazardous

constituents. 61 FR at 18809 (April 29,

1996). Under the 1996 proposal,

treatment would have been required

only when those constituents were

initially present at concentrations

greater than ten times the universal

treatment standard. EPA also requested

comment on, among other things,

whether, for soil contaminated by listed

hazardous waste, treatment should be

required for all underlying hazardous

constituents present at concentrations

above ten times the UTS. Underlying

hazardous constituent is defined in 40

CFR 268.2(i) as, ‘‘any constituent listed

in 40 CFR 268.48 table UTS, except

fluoride, sulfides, vanadium, selenium,

and zinc, which can reasonably be

expected to be present at the point of

generation of the hazardous waste, at a

concentration above the constituentspecific UTS treatment standards.’’

Many commenters supported the

proposed approach. Some commenters,

however, expressed concern that,

because contaminated soil often

contains numerous hazardous

constituents from a variety of sources,

limiting treatment of soil contaminated

by listed hazardous waste to

constituents originating from the

contaminating waste might result in soil

contaminated with listed waste

undergoing less treatment than soil

which exhibits (or exhibited) a

characteristic of hazardous waste. One

commenter also asserted that the

proposed approach to constituents

subject to treatment was, in the case of

soil contaminated by listed hazardous

waste, inconsistent with the Chemical

Waste opinion. On further

consideration, EPA was persuaded that

it is prudent to apply the logic of the
Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations 28609

Chemical Waste opinion both to soil

contaminated by listed hazardous waste

and to soils which exhibit a

characteristic of hazardous waste.

As the Agency explained in the 1996

proposal, contaminated soils are

potentially contaminated with a wider

range of hazardous constituents than

most pure hazardous wastes generated

by on-going industrial processes—in no

small part because contaminated soils

generally reflect uncontrolled disposal

settings. 58 FR at 48124 (September 14,

1993). Since the Chemical Waste

opinion addressed a similar situation

(certain characteristic hazardous wastes

that might contain a variety of

hazardous constituents), the Agency is

persuaded that it is prudent to apply the

logic of the Chemical Waste opinion to

contaminated soil and require treatment

of all underlying hazardous

constituents. See Chemical Waste

Management v. US EPA, 976 F.2d at 16–

18 (D.C. Cir 1992). Therefore, when the

soil treatment standards are used,

today’s final rule requires that all

contaminated soil subject to the LDRs be

treated to achieve the soil treatment

standards for each underlying

hazardous constituent reasonably

expected to be present in the soil when

such constituents are initially found at

concentrations greater than ten times

the universal treatment standard. In

addition to treatment of all underlying

hazardous constituents as discussed

above, as proposed, characteristic soil

must also be treated, in the case of TC

soil, for the TC constituent and, in the

case of ignitable, corrosive, or reactive

soil, for the characteristic property.

Although, when the soil treatment

standards are used, treatment is now

required for each underlying hazardous

constituent when such constituents are

initially found at concentrations greater

than ten times the universal treatment

standard, it will not be necessary to

monitor soil for the entire list of

underlying hazardous constituents.

Generators of contaminated soil can

reasonably apply knowledge of the

likely contaminants present and use that

knowledge to select appropriate

underlying hazardous constituents, or

classes of constituents, for monitoring.

This is consistent with the approaches

EPA typically takes in remedial

programs, where it emphasizes that

remediation managers should focus

investigations on constituents of

concern and with regulations that allow

generators to rely on knowledge to

determine whether any given solid

waste is hazardous. Cf. 61 FR at 19444

where EPA encouraged remediation

managers to ‘‘tailor [facility

investigations] to the specific conditions

and circumstances at the facility and

focus on the units, releases, and

exposure pathways of concern.’’

For nonanalyzable constituents, EPA

is promulgating the approach discussed

in both the September 14, 1993 and the

April 29, 1996 proposals. In situations

where contaminated soil contains both

analyzable and nonanalyzable organic

constituents, treating the analyzable

constituents to meet the soil treatment

standards is also reasonably expected to

provide adequate treatment of the

nonanalyzable constituents. In

situations where contaminated soil

contains only nonanalyzable

constituents (i.e., soil contaminated

only by nonanalyzable U or P listed

wastes), treatment using the specified

method for the appropriate U or P listed

waste is required. 61 FR at 18810, April

29, 1996. Most commenters supported

this approach.

5. Relationship of Soil Treatment

Standards to Naturally Occurring

Constituents

In the April 29, 1996 proposal EPA

requested comment on whether

concentrations of naturally occurring

constituents should be evaluated when

identifying constituents subject to

treatment. Commenters who addressed

this issue overwhelmingly

recommended that, for naturally

occurring constituents, EPA cap LDR

treatment requirements for soil at

natural background concentrations.

After considering these comments, EPA

was persuaded that treatment to comply

with LDRs should not be required if

constituent concentrations fall below

naturally occurring background

concentrations, provided the soil will

continue to be managed on site or in an

area with similar natural background

concentrations. If soil will be sent for

land disposal off-site, compliance with

LDRs is required, since the Agency

believes that natural background

concentrations on-site will not

automatically correspond to natural

background concentrations at a remote

land disposal facility.

The Agency notes that, for purposes

of this discussion, natural background

concentrations are constituent

concentrations that are present in soil

which has not been influenced by

human activities or releases. Since these

constituent concentrations are present

absent human influence and EPA has

determined that soil (like other

environmental media) is not, of itself, a

waste but may be regulated as

hazardous waste under RCRA only

when it contains (or contained) waste,

EPA is not convinced the Agency would

have the authority to require

compliance with LDRs when

constituent concentrations fall below

background concentrations even if it felt

compelled to do so. (Of course, such

constituents could be regulated as

hazardous constituents under state and

Federal cleanup authorities, including

RCRA corrective action and other

authorities.)

Since natural background

concentrations may vary across

geographic areas, and to ensure that

LDRs will only be capped at background

where appropriate, EPA will require

that individuals who wish to cap LDR

treatment at natural background

concentrations apply for and receive a

treatment variance. EPA will presume

that when LDRs would require

treatment to concentrations that are less

than natural background, such a

variance will be appropriate, based on

the finding that it is inappropriate, for

contaminated soil, to require treatment

to concentrations less than natural

background concentrations. This issue

has been clarified in today’s final

regulations, see 40 CFR 268.44(h)(4).

6. Restrictions on Use of Treated

Hazardous Contaminated Soil in

Products Used in a Manner Constituting

Disposal

Although, as discussed earlier in

today’s preamble, EPA believes the soil

treatment standards satisfy the

requirements of RCRA Section 3004(m),

EPA has determined that additional

restrictions are necessary for hazardous

contaminated soils that are used to

produce products which are,

subsequently, used in a manner

constituting disposal (i.e., used to

produce products which are placed in

or on the land). Under current

regulations, hazardous waste-derived

products that are used in a manner

constituting disposal must, among other

things, comply with the applicable land

disposal restriction treatment standards

in 40 CFR part 268.40, that is, the

Universal Treatment Standards. See 40

CFR 266.23(a). EPA has concluded that

hazardous contaminated soil used to

produce products which are,

subsequently, used in a manner

constituting disposal must continue to

meet the universal treatment standards.

Such products, then, are not eligible for

the soil treatment standards

promulgated today. EPA has made this

decision for several reasons. First, EPA

has chosen technology-based treatment

standards (such as today’s soil treatment

standards) as a means of implementing

the LDR statutory requirements in order

to eliminate as many of the

uncertainties associated with land

disposal of hazardous waste as possible.
28610 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations

21The exception would be soil residuals from

treatment of soils which were determined no longer

to contain a listed hazardous waste or were

decharacterized and yet remained subject to LDRs.

In this case, since the treatment would be

performed on non-hazardous soil, the soil residuals

would also be considered non-hazardous.

55 FR at 6642 (Feb. 26, 1990). These

uncertainties increase sharply when one

considers possible dispositions of

hazardous waste-derived products used

in a manner constituting disposal. These

products can be placed virtually

anywhere, compounding potential

release mechanisms, exposure

pathways, and human and

environmental receptors. 62 FR at 64506

(Dec. 5, 1997) and 53 FR at 31197–98

(August 17, 1988). For these reasons, the

Agency in 1988 determined that these

wastes should be treated to reflect the

best treatment available, 53 FR at

31197–98, and the Agency believes this

reasoning continues to hold with

respect to contaminated soils. Second,

EPA has determined that the soil

treatment standards adopted in today’s

rule are justified, in many instances, in

order to encourage remediation

involving treatment over remedies that

involve leaving un-treated contaminated

soils in place. The Agency is less sure

that this is a desirable incentive if the

contaminated soils are to be used in a

manner constituting disposal, again

because of the uncertainties posed by

this method of land disposal.

Note that EPA has explained,

however, that remediation activities

involving replacement of treated soils

onto the land is not a type of use

constituting disposal, in part, because it

is a supervised remediation instead of

an unsupervised recycling activity. 62

FR 26063 (May 12, 1997). This

interpretation is not affected by today’s

rulemaking.

7. Availability of Soil Treatment

Standards

EPA proposed that soil-specific land

disposal restriction treatment standards

would be available only for

contaminated soils managed under an

agency approved, site-specific cleanup

plan termed a Remediation Management

Plan or ‘‘RMP.’’ The Agency also

specifically requested comment on

whether soil-specific treatment

standards should be made available to

all contaminated soil. 61 FR at 18813

(April 29, 1996). The majority of

commenters who addressed this issue

strongly supported extending the soil

treatment standards to all contaminated

soil. These commenters argued that

extending soil-specific LDRs to all

contaminated soil would encourage

voluntary and independent cleanups,

especially at low and medium priority

sites where a regulatory agency might

not have the resources to provide realtime oversight through a ‘‘RMP.’’ After

considering these comments, EPA is

persuaded that the soil treatment

standards should be available for all

contaminated soil and has revised the

regulations accordingly.

EPA’s thinking in proposing to

require a site-specific remediation

management plan to take advantage of

the soil treatment standards was that

site-specific oversight, and potentially

modification of the treatment standards,

would be necessary to ensure that all

contaminated soils were appropriately

treated. 61 FR at 18807 (April 29, 1996).

However, EPA now concludes that the

soil treatment standards will ensure

adequate treatment of all contaminated

soils for two reasons.

First and primarily, the residuals from

treatment of hazardous contaminated

soil will typically continue to be

regulated as hazardous waste and will

remain subject to applicable RCRA

Subtitle C requirements. 61 FR at 18810

(April 29, 1996). Non-soil residuals,

such as wastes generated during

application of separation technologies,

will be regulated as hazardous wastes if

they exhibit a characteristic of

hazardous waste or if they derive from

treating a soil which contains listed

hazardous waste. Therefore, these types

of non-soil residuals will typically be

subject to the universal treatment

standards in 40 CFR 268.40. See 57 FR

at 37240 (Aug. 18, 1992) where EPA

took the same approach for residues

from treating contaminated debris. Soil

residuals will also be regulated as

hazardous waste unless it is determined

that the soil does not contain hazardous

waste.21 For example, application of a

thermal desorption technology would

likely generate two types of residuals:

treated soil (soil residual) and

concentrated contaminants removed

from the soil and captured in an air

pollution control device (non-soil

residual). If the contaminated soil

contained a listed hazardous waste or

exhibited a characteristic of hazardous

waste at the time of treatment, both

residuals would continue to be subject

to RCRA Subtitle C regulations. The

non-soil residual would be required to

comply with applicable universal

treatment standards prior to land

disposal; the soil residual would

generally require land disposal in a

Subtitle C unit unless a ‘‘contained-in’’

determination was made. Therefore,

although a remediation management

plan is no longer required to take

advantage of the soil treatment

standards, a site-specific decision is still

required before treated contaminated

soil can exit the system of RCRA

regulations.

Second, as noted earlier, EPA has

extended the treatment requirement to

all underlying hazardous constituents

reasonably expected to be present in

contaminated soils when such

constituents are found at initial

concentrations greater than ten times

the universal treatment standard and

retained current treatment requirements

for hazardous contaminated soils used

to produce products that are

subsequently used in a manner

constituting disposal.

8. Achievability of Contaminated Soil

Treatment Standards

The soil treatment standards

promulgated today are based primarily

on the data for soil treatability found in

EPA’s Soil Treatment Database (SDB).

See, Best Demonstrated Available

Treatment Background Document for

Hazardous Soils, August 1993 and LDR

Phase 2 proposal at 58 FR 48122, Sept.

14, 1993. Data from the soil treatment

database are corroborated by more

recent performance data for noncombustion treatment of remediation

wastes. See Soil Treatability Analysis:

Analysis of Treatability Data for

Contaminated Soil Treatment

Technologies (April 1998, USEPA) and

references cited in note 5 below.

The soil treatment data base contains

6,394 pairs of data points (for the same

sample, one datum for untreated soil

and one datum for treated soil)

describing the treatment of hazardous

constituents in contaminated soils

managed under the RCRA and the

Superfund programs. After screening

the database to eliminate data from tests

reflecting poorly designed or operated

treatment, tests where EPA believes

inappropriate technologies were applied

(for example, data from immobilization

of organic constituents) and other

inappropriate data, the Agency was left

with 2,541 pairs of data points. These

data pairs depict treatment of ninetyfour hazardous constituents, including

eighty-five organic constituents and

nine BDAT list metals. The retained

2,541 pairs of data points from the soil

treatment database represent the

treatment of organic and metal

constituents by various technologies

including: combustion, biological

treatment, chemical/solvent extraction,

dechlorination, thermal desorption, air/

steam extraction, photolysis, soil

washing, stabilization, and vitrification.

The soil treatment database includes

performance data from bench, pilot, and

full scale technologies. A complete

discussion of the Agency’s method for
Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations 28611

22One single datum from the vitrification of

p,p’DDT was not included since it appears to have

resulted from treatment that was not optimally

designed or conducted.

23Out of 85 organic constituents, only 13 were

treated exclusively by combustion. See, however,

the discussion later in this preamble with regard to

presence of data from incineration and

extrapolation of data among organic constituents.

screening the Soil Treatment Database

can be found in the LDR Phase II

proposal (58 FR 48129–31, September

14, 1993) and the Best Demonstrated

Available Technology Background

Document for Hazardous Soil (August

1993).

A number of commenters were

concerned that aggregated data, i.e., the

2,541 pairs of data points representing

the combined performance of

combustion and non-combustion

technologies, may mask the

performance of non-combustion

technologies alone. Commenters urged

EPA to disaggregate these performance

data to allow for more accurate analysis

of non-combustion technology

performance. As a result, EPA has

disaggregated the combustion and noncombustion treatment data for purposes

of analyzing the achievability of today’s

soil treatment standards. See generally,

Soil Data Analysis: Soil Treatability

Analysis of Treatability Data for

Contaminated Soil Treatment

Technologies (April 1998, USEPA) and

Additional Information on Treatability

of Contaminated Soils as Discussed in

Section VII.B.8. of Phase IV Final Rule

Preamble (April 1998, USEPA).

After separating out combustion data,

the remaining non-combustion soil

treatment data base is reduced from

2,541 to 2,143 paired data points. These

2,143 22 data pairs depict the treatment

of 72 organics 23 and nine metals in

contaminated by biological treatment,

chemical and solvent extraction,

dechlorination, thermal desorption, air

and steam stripping, hydrolysis,

photolysis, soil washing, and

stabilization.

As discussed earlier in today’s

preamble, EPA did not use the

traditional BDAT approach to develop

the soil treatment standards. Instead, the

Agency evaluated data from the 2,143

non-combustion data pairs in the soil

treatment database to identify,

generally, the level of performance noncombustion soil treatment technologies

achieve. In light of our multi-faceted

objectives regarding remediation of

contaminated soils (discussed earlier in

this preamble), this approach and

methodology are appropriate. As noted

earlier in today’s preamble, the

numerical values chosen for soil

treatment standards—90% reduction

capped at ten times the UTS—are

within the zone of reasonable values

from which the Agency can properly

select.

For soil contaminated with organic

constituents, the retained 2,143 data

pairs from the soil treatment database

show generally that soils with moderate

levels of contamination are more

amenable to treatment by noncombustion technologies than soils with

high levels of contamination. However,

the data also show that the soil

treatment standards promulgated today

can be achieved by non-combustion

technologies even in cases when soils

contain elevated levels of harder-to-treat

organic hazardous constituents, such as

dioxins and furans, polychlorinated

biphenyls (PCBs), and polynuclear

aromatics (PNAs). The available data on

the performance of non-combustion

technologies suggest that some

technologies are more effective with

certain organics within specific families

or chemical functional groups. For

example, while many organic treatment

technologies were effective in removing

volatile organics from the soils,

dechlorination is more effective than

other non-combustion treatment

technologies for treating chlorinated

organics. For soil contaminated by

metals, the retained 2,143 data points

from the soil treatment database show

that metals can typically be treated via

stabilization to meet the soil treatment

standards.

Although, for the reasons discussed

earlier in today’s preamble, EPA has

elected to base the soil treatment

standards on the performance of noncombustion technologies, combustion of

soil is not prohibited. This is consistent

with all other numerical treatment

standards, which can likewise be

achieved through use of any technology

(other than impermissible dilution). It

may be that combustion is, in fact,

chosen as the remedial treatment

technology at certain sites, most likely

because of economic considerations

(such as in the case of low soil volumes

where on-site treatment units are not

economically viable). Selection of the

best treatment technology for the

specific soil type and range of

contaminants present at any given

remediation site is a site-specific

decision assuming, for soils subject to

the LDRs, that the selected technology

does not involve impermissible dilution

and that today’s soil treatment standards

are met. Further details about the results

of EPA’s examination of treatment

technologies for different groups of

contaminants are discussed in the

succeeding sections.

a. Comments. Many commenters

expressed concern that the retained

2,541 data points from the soil treatment

database might not adequately address

the many types of soils and

contaminated site scenarios that may

arise in the field. Among other things,

these commenters asserted that: (1) the

list of chemical organic constituents for

which EPA has data may be too small

to extrapolate to other organics in the

list of underlying hazardous

constituents that must meet treatment

standards; (2) for organic constituents,

many of the treatment test results

examined by EPA involved mostly

combustion rather than non-combustion

technologies; (3) for soils with multiple

hazardous constituents and other

complex soil matrices, the soil treatment

standards could only be met via

incineration; and, (4) EPA should not

pool data from bench, pilot, and full

scale treatment applications. For the

most part, these commenters suggested

that EPA either exempt hazardous

contaminated soil entirely from a duty

to comply with land disposal restriction

treatment standards or, if hazardous

contaminated soil were to remain

subject to LDRs, allow risk-based

treatment standards to be developed

entirely on a site-by-site basis pursuant

to state oversight.

EPA closely considered these

comments and carefully re-evaluated

the data from the soil treatment database

as well as other data from more recent

sources. These evaluations are

summarized in the background

documents for today’s final rule. EPA is

not, at this time, taking action to

categorically exempt large volumes of

hazardous remediation waste (including

contaminated soil) from RCRA

hazardous waste management

requirements and, therefore, the issue of

achievability of today’s soil treatment

standards is germane.

Notwithstanding the treatment results

described in this section below, which

support the achievability of today’s soil

treatment standards, EPA realizes that

national, technology-based treatment

standards are sometimes not achievable

because of site- and waste-specific

characteristics. Thus, EPA has long

provided for treatment variances under

these circumstances (see 40 CFR

268.44). In addition, because EPA and

authorized states are in a position

during remediation to make site-specific

risk-based minimize threat

determinations, the Agency is also

adopting in today’s rule a new type of

variance for contaminated soils. This

variance can be granted if, on a case-bycase basis, it is determined that the

technology-based treatment standard
28612 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations

24For discussion of these treatment data, see Soil

Treatability Analysis Report, and Extrapolation of

Treatment Performance Data in the Soil Data Base

Among Hazardous Constituents in Contaminated

Soils (April 1998, USEPA).

25As noted earlier, EPA examined in detail up to

2,541 pairs of data points in total, and the number

of non-combustion data pairs examined is 2,143.

would prompt treatment beyond the

point at which threats are minimized.

Fundamentally, EPA agrees with

many commenters that today’s land

disposal treatment standards for

contaminated soil may not remove all of

the barriers RCRA can impose on

efficient and aggressive site

remediation. As discussed earlier in

today’s preamble, the Agency hopes the

application of RCRA Subtitle C

requirements to remediation of

contaminated soils and other wastes

will be addressed through legislation. If

there is no legislative action, EPA may

choose to take additional regulatory

action, which may include either a reexamination of the application of LDRs

to contaminated soil or other

remediation wastes or a re-evaluation of

today’s soil treatment standards, or

both. In the meantime, today’s rule

represents a significant improvement

over the current practice of applying the

treatment standards developed for pure

industrial hazardous waste to

contaminated soil.

b. Analysis of Data from the Soil

Treatment Database. The soil treatment

standards promulgated today are based

EPA’s Soil Treatment Database (SDB).

See, Best Demonstrated Available

Treatment Background Document for

Hazardous Soils (August 1993); LDR

Phase 2 proposal (58 FR 48122, Sept. 14,

1993); and Soil Treatability Analysis:

Analysis of Treatability Data for

Contaminated Soil Treatment

Technologies (April 1998, USEPA)

(hereinafter, this document is referred to

as the ‘‘Soil Treatability Analysis

Report’’). General concerns about the

soil treatment database (and in

particular, concerns about achieving the

10 times UTS or 90% reduction

standard) are addressed here. Results of

our analysis of the soil treatment

database data on treatment performance

for various technologies are shown in

Table 1 below. Results of additional

analysis for various organic and metal

contaminant groups are shown in Tables

2–5 below. Further details of the

analysis and additional findings are

contained in the technical background

documents in this docket.

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

Treatment technology

Total paired data

points in the soil

data base

Untreated Treated

Data points

meeting 10 times

UTS standard

Data points

meeting 10 times

UTS but not 90%

reduction standard

Data points

meeting 90% reduction but not

10 times UTS

standard

Data points

meeting both 10

times UTS and

90% reduction

standards

Data Points failing both 10 times

UTS and 90%

reduction standards

Biological Treatment ......... 250 86 176 168 109 15

Chemical Treatment .......... 242 58 226 206 200 10

Dechlorination ................... 154 53 134 100 84 4

Stabilization ....................... 269 140 250 239 232 12

Stripping ............................ 236 88 206 103 103 30

Washing ............................ 35 10 21 14 11 11

Thermal Desorption .......... 957 338 833 759 692 57

Total ........................... 2143 25 773 1846 1589 1431 139

In aggregate, the results on Table 1

indicate that the Agency’s selection of

standards are within the range of

reasonable values for non-combustion

technologies to achieve. These data

show that 139 (or 6%) paired data

points out of 2143 would fail to meet

the 10 times UTS or 90% reduction

standard. Among possible reasons for

these treatment performance deviations

are that some soil samples represent

cases in which the selected technology

was not appropriate for the range of

hazardous constituents in an organic

chemical admixture. A better selection

of treatment technology may include

either a more aggressive noncombustion technology or may involve

use of two or more technology trains in

order to meet the soil treatment

standards. It is common practice to

employ multiple treatment trains at

facilities that have complex chemical

mixtures or soil textures at a site. As

further explained in succeeding sections

of this preamble and in various

background documents, EPA believes

that the hazardous soil treatment

standards promulgated today are within

a regime of reasonable treatment levels

normally achieved by non-combustion

technologies. See, e.g., Soil Treatability

Analysis Report and Extrapolation of

Treatment Performance Data in the Soil

Data Base Among Hazardous

Constituents in Contaminated Soils

(April 1998, USEPA).

(1) Concerns About Presence of Data

from Incineration and Extrapolation of

Data to Other Constituents. As

mentioned earlier, EPA has segregated

the available treatment data (2,541

paired data points) so that we can better

examine the 2,143 paired data points

describing the treatment of hazardous

soils by non-combustion technologies.

Although 50 organic constituents in the

original 2,541 paired data points were

treated by combustion (i.e.,

incineration), only 13 of these 50

organics were treated exclusively by

combustion. These 13 hazardous

constituents are: 1,2,4-trichlorobenzene; p,p′-DDD; p,p′DDE; 2,4-

dichlorophenol; methoxychlor; 2,4,6-

trichlorophenol; 2,4,5-trichlorophenol;

carbon tetrachloride; chloroform;

hexachloroethane; 1,2-dibromo-3-

chloro-propane; isodrin; and gammaBHC. None of the data describing

combustion of these 13 constituents or

the other 37 organics (for which there

are some combustion results) were

relied upon in assessing achievability of

today’s hazardous soil treatment limits.

With respect to commenters’ concerns

about extrapolating the SDB data to

organic and inorganic constituents that

will need to be treated, EPA analyzed

the various non-combustion

technologies and their average treatment

efficiencies against various chemical

clusters and chemical functional groups

of hazardous constituents. See: (1)

Extrapolation of Treatment Performance

Data in the Soil Data Base Among

Hazardous Constituents in

Contaminated Soils (April 1998,

USEPA); (2) Derivation of Treatment

Achievability Results of Organic

Functional Groups and Types of

Compounds (April 1998, USEPA); (3)

Soil Treatability Analysis Report

(USEPA, 1998); and (4) Additional
Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations 28613

26The following constituents were present at

levels below the soil treatment standards; fluorene,

fluoranthene, pyrene, acenaphthalene,

benzo(a)anthracene, chrysene, di-n-butyl phthalate,

and diphenylnitrosamine.

27Hydrolysis can be of normal occurrence or

intentionally induced at hazardous waste sites. EPA

does not have full-scale ex-situ demonstration

studies on this technology but considers the data in

the SDB to be indicative of what levels can be

achieved.

Information on Treatability of

Contaminated Soils as Discussed in

Section VII.B.8. of the Final Rule

Preamble (April 1998, USEPA).

The results are summarized in Tables

2–5 below. These results show that noncombustion technologies can achieve

today’s soil treatment standards. 93.5%

(2,004 of the 2,143 data pairs ) of the

treatment test results meet the 10 times

UTS or 90% reduction standard.

Furthermore, non-combustion

technologies can meet the soil treatment

standards even in cases when soils

contain elevated levels of harder-to-treat

organic hazardous constituents, such as

dioxins and furans, polychlorinated

biphenyls (PCBs), and polynuclear

aromatics (PNAs). See Appendix D in

Soil Treatability Analysis Report.

As noted earlier, available data on the

performance of non-combustion

technologies treating organics also show

that some technologies are more

effective with certain organics within

specific families or chemical functional

groups, e.g., organic treatment

technologies removing volatile organics

from the soils and dechlorination

removing halogenated organics.

Treatability tests at certain complex

sites corroborate these findings of

achievability from the SDB.

Regarding organics, at the Ninth

Avenue Dump Site in Indiana,

hazardous soils were contaminated with

low to moderate concentrations of

PNAs, aromatics, chlorinated aliphatics,

and phthalates. Untreated constituents

showed concentrations that were about

the same or up to two orders of

magnitude higher than today’s soil

treatment standards.26 Among the

volatiles were toluene (1,100 ppm), total

xylene (2,100 ppm), ethylbenzene ( 420

ppm), 1,1,1-trichloroethane (120 ppm),

trichloroethene (93 ppm),

tetrachloroethene (380 ppm), 1,1-

dichloroethane (81 ppm), and

methylene chloride (800 ppm). The

following semivolatile organics-PNAs

(and their highest concentration) were

phenanthrene (92 ppm) and

naphthalene (84 ppm). Bis(2-ethylhexyl)

phthalate, a semivolatile phthalate, was

reported at 110 ppm. The soil particle

distribution of the contaminated soil

was not quantified, but the soil was

reported as comprised primarily of sand

and silt. Biotreatment achieved the

following average treatment reduction

efficiencies:

• Volatile chlorinated aliphatics—

99.9%;

• Ethylbenzene—100%;

• Volatile aromatics—99.9%;

• Semivolatile PNAs—97.4%;

• Bis(2-ethylhexyl)phthalate—93.2%.

Regarding complex metal

remediations, the full-scale stabilization

study conducted at the Portable

Equipment Salvage Company, a

transformer and metal salvage operation

in Oregon, involved untreated levels of

lead up to 880 mg/l (TCLP) and zinc up

to 71 mg/l (TCLP). Organics were also

present—the highest sample showing

610 mg/l lead (TCLP), 14,000 ppm oil

and grease, 41,000 ppm total organic

carbon, and 7.1 pH. The facility

conducted treatability studies on three

soil textures found at the site: (1) sandy

loam, (2) loamy sand, and (3) loam. The

stabilized sandy loam sample showed a

concentration of 0.5 ppm lead, a 99.72%

reduction efficiency. The facility also

treated two samples of loamy sand, one

to 47 mg/l lead (TCLP) (a 93.65%

reduction efficiency ) and the other to

2.5 mg/l lead (TCLP) (a 99.72%

reduction efficiency ). The treated loam

sample showed 0.10 mg/l lead, a

99.97% reduction.

More information underlying EPA’s

rationale for extrapolating the available

treatment performance data to other

organic and inorganic hazardous

constituents regulated under the land

disposal restrictions can be found in the

RCRA Docket for this rule (see

Appendix D in Soil Treatability

Analysis Report) and memorandum to

docket on extrapolation of treatment

performance data among different

hazardous constituents.

Finally, we note that even though

there were treatment data on soils

containing cyanide in the larger data

base (6,394 paired data points), none of

the retained 2,541 or 2,143 paired data

points included treatment data on

cyanide. However, the current UTS for

cyanide is based on the performance of

alkaline dechlorination, a noncombustion technology. Cyanides can

form complexes with metals and

organics and, therefore, technologies

capable of removing both organic and

metals are also able to remove cyanide

from contaminated soils. As a result, it

is reasonable to expect that the average

treatment performance attained by

treating organics in soils will also be

achieved for cyanide-bearing

contaminated soils. We note that, for

example, 90% reduction can be

achieved based on the performance

efficiency that thermal desorption

attained in removing PNA’s (with more

than five rings) and chlorinated organics

from contaminated soil. These

constituents are among the hardest

chemical species to remove via thermal

desorption. For these reasons, the

Agency has concluded that today’s soil

treatment standard for cyanide can be

achieved by a non-combustion

technology as well.

(2) Technology Scale and Soil

Variability Issues. As noted earlier,

several commenters objected to EPA’s

pooling of treatment data from pilot,

bench, and full scale processes, and

urged EPA to consider only performance

data from full-scale field studies

characterizing the treatment of soil

volumes. EPA prefers, generally, to rely

on full scale studies for the purpose of

developing and promulgating treatment

standards, and this is true with respect

to the soil treatment standards as well.

However, in this case as well as in many

prior LDR treatment standard efforts,

EPA’s data base includes more than just

full scale data upon which EPA can

properly rely. Bench and pilot scale

technologies can be appropriately

considered by EPA (and EPA has

historically done so) in setting treatment

limits as long as full scale operations of

the treatment system under

consideration exist or have been

demonstrated on wastes/soils. Except

for hydrolysis,27 the technologies in the

SDB are demonstrated full scale, and the

administrative docket contains bench,

pilot, and full scale studies that reflect

the Agency’s field experiences at

contaminated sites.

Furthermore, in this rulemaking,

given the variability of hazardous soils

(in terms of types, concentrations and

numbers of hazardous constituents and

soil matrices), plus the special policy

considerations associated with

remediations, the Agency is adopting

treatment standards from the zone of

reasonable values that could be

permissibly selected based upon the

treatment performance data. Thus, the

data are not being used so much to

establish a precise performance level as

to confirm the typical achievability of

the promulgated standards, i.e., ten

times UTS or 90% reduction.

With respect to the SDB and

commenters’ concerns about the impact

of soil variability on achievability of the

soil treatment standards by noncombustion technologies, EPA collected

6,394 pairs of data point describing the

treatment of various hazardous soils.
28614 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations

28See (1) Remediation Case Studies:

Bioremediation and Vitrification, July 1997, EPA

542–R–97–008 or PB97–177554; (2) Remediation

Case Studies: Soil Vapor Extraction and Other In

Situ Technologies, July 1997, EPA 542–R–97–009 or

NTIS PB97–177562; (3) Analysis of Selected

Enhancements for Soil Vapor Extraction, September

1997, EPA–542–R–97–007; (4) Remedial Case

Studies: Thermal Desorption, Soil Washing, and In

Situ Vitrification, March 1995, EPA 542–R–95–005

or NITS PB95–182945; (5) Remediation Case

Studies: Soil Vapor Extraction, March 1995, EPA

542–4–95–004 or NTIS PB95–182937; and (6)

Remediation case Studies: Bioremediation, March

1995, EPA 542–R–95–002 or NTIS PB95–182911.

The retained 2,143 non-combustion

paired data points are reasonably

sufficient to adequately describe the

treatment of metal, organics, and

multiple metal and organic

contaminants that are frequently found

at different type of sites, including both

Superfund and RCRA sites. For

instance, the SDB has treatment data on

soils with varying textures including top

soils, silty/loam soils, and clay soils. For

the 14 different soil type groupings

analyzed, only 139 out of 2,143 data

pairs (about 6.5%) would not meet

today’s soil treatment standards (see

Appendices C and D in Soil Treatability

Analysis Report).

With respect to these 6.5% data pairs,

several potential reasons exist to explain

why 90 % reduction or 10 times UTS

level might not have been achieved.

First, the treatment study objectives may

not primarily have been to test whether

these standards could be met. For

example, the treatment study may have

been designed either to assess the

feasibility of using a particular (but not

necessarily optimum) technology on a

particular contaminated soil, or to meet

a prescribed risk-based level under a

RCRA or CERCLA site remediation plan.

Second, a treatment technology may

have been applied to soils contaminated

with multiple hazardous constituents

where the technology may have been

inappropriate for a subset of those

contaminants (and for which data were

reported anyway). For example, air

stripping is a technology that operates

best on volatile organics within a given

range of Henry constant values. In

contrast, air stripping of semivolatile

organics and metals is expected to be

much poorer. (In this type of situation,

a technology amendment or treatment

train may be appropriate, i.e., air

stripping may be improved if steam

stripping is applied first to enhance the

pool of semivolatiles that can respond to

the physical separation treatment

process.)

Third, these treatment data likely

include instances when a treatment

technology encountered soil

heterogeneities that resulted in

undertreatment of portions of the soil.

For instance, during the clean up of

contaminated debris and soils, detailed

sampling protocols are typically

developed to ensure that desired

treatment constituent concentrations are

met because of the deleterious impact of

heterogeneous soil strata and the

presence of debris on treatment

technology performance. Re-processing

can often be required to comply with

the applicable treatment standards.

Another alternative is to optimize

specific technology operating

parameters that can enhance the ability

of the technology to meet the prescribed

treatment limits. Optimization can

involve: (1) feeding the correct soil/

debris particle size fractions to the

treatment system, (2) creating more

turbulence between soil and gaseous/

liquid treatment fluids, (3) using a

greater-than-normal amount of chemical

agents, (4) operating at the higher end of

an operating temperature range, (5)

adjusting the pH of the soil, (6) adding

adequate pre-/post-treatment steps that

address specific contaminants that may

be expected to receive sub-optimal

treatment, or (7) allowing longer

residence time in the treatment unit.

It is not possible to determine

precisely how many of these techniques

were used in the 139 instances that

failed the 90% reduction or 10 times

UTS levels. However, EPA expects that

not all optimization measures were used

since the operators of the treatment

technologies did not have as their

primary objective the attainment of

these particular levels, which are being

adopted today as the soil treatment

standard. On balance, the weight of

evidence and analysis from the SDB are

believed to reasonably indicate that

today’s standards are achievable for

soils that may exhibit variability,

particularly if optimization techniques

or treatment technology trains are fully

considered. Of course, should an

unusual situation present itself in which

these measures are not successful, a

treatment variance can be sought under

40 CFR 268.44(h) or under the riskbased variance provisions being adopted

in today’s rule.

Furthermore, EPA has a number of

bench and pilot studies on the treatment

of contaminated soils from wood

preserving, petroleum refining, and

electroplating sites, which contain a

wide range of constituents such as

polynuclear aromatic, phenolic,

chlorinated organics, spent solvents,

creosote, and metals. It is reasonable to

expect that these treatment results,

showing achievability, also lend support

to the conclusion that treatment at other

RCRA and Superfund sites, containing

these types of complex contaminant and

soil variability scenarios, can be

expected to achieve today’s soil

treatment standards.28 See also Chapter

4 in Soil Treatability Analysis Report.

Pooled bench, pilot, and full scale

data in the SDB are expected to depict

what the various treatment technologies

can achieve for other hazardous soils

managed under CERCLA and RCRA. As

noted earlier, non-combustion

technologies will behave better on a

given range or class of organic and metal

constituents. A given range of soil

characteristics that may inhibit

treatment performance can be amended

to facilitate the treatment of hazardous

soils. Available information on other

full scale operations of the tested

technologies demonstrate that

optimization techniques can be used to

overcome potential soil interferences

and thus attain, generally, treatment

design objectives. Hence, it is important

to carefully evaluate the characteristics

of each site against the expected

capabilities of various non-combustion

technologies, which are summarized

below.

(3) Performance Data for Organic

Constituents. EPA’s conclusions with

respect to achievability of soil treatment

standards for organics in hazardous

soils are based on the performance of

biological treatment, chemical

extraction, dechlorination, soil washing,

thermal desorption, and soil vapor

extraction. Other treatment technologies

capable of achieving the treatment

limits (such as combustion) are not

prohibited except for those that may

constitute impermissible dilution.

Tables 2 and 3 below provide an

overview of the number of data points

and the average treatment efficiency

ranges that each of the technology

categories achieved. Also, each Table

below reports the range of test scales as

well as the available treatment

performance data per major chemical

family category/cluster assigned to

chemical constituents in the BDAT List.

(For the whole list of BDAT constituents

and their classification, see Appendix B

in the BDAT Background Document for

Hazardous Soils, August 1993.) Further

details and discussion on the results for

major chemical family categories/

clusters is contained in the docket.
Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations 28615

29For a discussion of these treatment data, see the

Soil Treatment Achievability Report; Extrapolation

of Treatment Performance Data in the Soil Data

Base Among Hazardous Constituents in

Contaminated Soils (April 1998, USEPA); and the

Additional Information on Treatability of

Contaminated Soils as Discussed in Section VII.B.8.

of Phase IV Final Rule Preamble, (April 1998,

USEPA). These documents indicate the numbers

and types of data pairs that meet the 10 times UTS

level, both prior to treatment and after the treatment

described in the table.

30Cyclical hydrocarbons with more than five

rings undergo lower reduction efficiencies.

31EPA is transferring the available performance

data from the chemical extraction and the biological

treatment of (semivolatile) polar nonhalogenated

organics in the hazardous solid treatment data base.

Thus, the columns are intentionally left blank.

32Only one test was performed.

33For a discussion of these treatment data, see the

Soil Treatment Achievability Report; Extrapolation

of Treatment Performance Data in the Soil Data

Base Among Hazardous Constituents in

Contaminated Soils (April 1998, USEPA) and the

Additional Information on Treatability of

Contaminated Soils as Discussed in Section VII.B.8.

of Phase IV Final Rule Preamble, (April 1998,

USEPA). These documents indicate the numbers

and types of data pairs that meet the 10 times UTS

level, both prior to treatment and after the treatment

described in the table.

34The term thermal desorption, as used in this

table, is a general description of various thermal

techniques. No conclusion may be drawn about the

regulatory status or classification of a particular

thermal desorber from the inclusion of treatment

data from that device in this column.

35The performance of combustion and soil vapor

extraction is less effective in treating semivolatile

organics that contain aromatic and heterocyclical

structures. The same is true for and nonvolatile

chlorinated organics.

36EPA is transferring the available performance

data from the chemical extraction and the biological

treatment of (semivolatile) polar nonhalogenated

organics in the hazardous soil treatment data base.

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

BDAT organic cluster

Biotreatment scale:

0.01 kg to 1,250,000 kg

Chemical extraction scale:

0.0075 kg to 37,000 kg Dechlorination scale:0.1 kg to 127,913 kg

Soil washing scale:

0.08–204 kg

Hydrolysis scale:

0.1 kg to 2.75 kg

Data

points

Average removal

efficiency Datapoints

Average removal

efficiency Datapoints

Average removal

efficiency Datapoints

Average removal

efficiency Datapoints

Average removal

efficiency

Volatiles ........................................................... 48 >99% ................... 9 >99% ................... 13 96.3 to 99.3% ...... None None .................... None None

Semivolatiles .................................................... 185 55–98.2% 30 ........ 163 62–98.8% ............ 2 99.8% .................. 13 81.8–97.2% ......... None None

Organochlorine ................................................ 12 16.7—70.2% ........ None None .................... 13 >95.2% ................ None None .................... 2 67.9–91.7%

Phenoxyacetic Acid Pesticides ........................ None None .................... None None .................... 9 98.6–99.0% ......... None None .................... None None

Organo Phosphorous insecticides 31 ............... None None .................... None None .................... None None .................... None None .................... None None

Polychlorinated Biphenyls ............................... None None .................... 52 71.5%–99.9% ...... 69 68.8–97.1% ......... 1 88.5% 32 .............. None None

Dioxins and Furans ......................................... None None .................... 12 40–>97% ............. 48 73.7–>99.8% ....... 7 84.8% .................. None None

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

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

BDAT organic cluster

Thermal desorption 34 scale: 21.6 kg to

3,823,000 kg

Soil vapor extraction scale:

4.5 kg to >1,000 kg

Data points Average removal efficiency Data points

Average

removal

efficiency

Volatiles ............................................................................................. 293 79.2–99.9% ........................ 189 44–99.2%

Semivolatiles 35 .................................................................................. 614 50–99.4% ........................... 47 0–57.2%

Organochlorines ................................................................................ 12 88.5–98.8% ........................ None None

Phenoxyacetic Acid Pesticides .......................................................... None None ................................... None None

Organo Phosphorous insecticides 36 ................................................. None None ................................... None None

Polychlorinated Biphenyls ................................................................. 1 87.5% ................................. None None

Dioxins and Furans ........................................................................... 37 85.6–97.6% ........................ None None

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

As shown on Tables 2 and 3, EPA

lacks performance data for the thermal

or non-thermal treatment of four organic

constituents classified in the BDAT list

as organophosphorous insecticides.

These four constituents are disulfoton,

famphur, methyl parathion, and

phorate. However, we can determine

achievability for these four organic

constituents based upon the transfer of

treatment data for other, similarly

difficult to treat organics. Because of

structural and chemical similarities,

these four organophosphorous

compounds are expected to behave

similarly during treatment to other polar

nonhalogenated phenols, phenyl ethers,

and cresols. Thus, EPA believes that

these four organophosphorus

compounds can be treated by the same

technologies as other polar

nonhalogenated organic compounds, for

which EPA has data. Therefore, based

on the available data for polar

nonhalogenated compounds, EPA

concludes that the treatment standards

for soils contaminated with these four

organophosphorous compounds can be

achieved by biodegradation, chemical

extraction, and thermal desorption

(semivolatiles).

(4) Other Indicia of Achievability for

Organic Constituents

EPA also re-analyzed certain portions

of the SDB with regard to ability of

various technologies to meet today’s soil

treatment standards by looking more

closely at organic treatability groups

based on the structural features of the

hazardous constituents of concern. The

results of this analysis, presented in

Table 4 below, corroborate those in

Tables 1–3 and EPA’s conclusion that

the soil treatment standards—ten times

UTS or 90% reduction—are within the

zone of reasonable values that could

have been selected. For further

information on the derivation of Table

4, see the background document entitled

‘‘Derivation of Treatment Achievability

Results for Organic Functional Groups

and Types of Compounds.’’
28616 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations

37Table based on data from ‘‘Delivery of Graphs

and Data Tables Showing Corrected Treated

Concentrations vs. Data Point Number Index for

Selected Constituents,’’ February 19, 1992

(Administrative Record of the proposed LDR Phase

2 rules as F–93–CS2P–S0597). See also (1)

Derivation of Treatment Achievability Results for

Organic Functional Groups and Types of

Compounds, April 1998 (USEPA); (2) Additional

Information on Treatability of Contaminated Soils

as Discussed in Section VII.B.8. of Phase IV Final

Rule Preamble, (April 1998, USEPA); (3)

Extrapolation of Treatment Performance Data in the

Soil Data Base Among Hazardous Constituents in

Contaminated Soils (April 1998, USEPA); and (3)

Soil Treatability Analysis Report (April 1998,

USEPA). These documents indicate the numbers

and types of data pairs that meet the 10 times UTS

level, both prior to treatment and after the treatment

described in the table.

38The term thermal desorption, as used in this

table, is a general description of various thermal

techniques. No conclusion may be drawn about the

regulatory status or classification of a particular

thermal desorber from the inclusion of treatment

data from that device in this column.

39These include air stripping, photolysis, and

treatment trains.

40For a discussion of these treatment data, see the

Soil Treatment Achievability Report; Extrapolation

of Treatment Performance Data in the Soil Data

Base Among Hazardous Constituents in

Contaminated Soils (April 1998, USEPA); and the

Additional Information on Treatability of

Contaminated Soils as Discussed in Section VII.B.8

of Phase IV Final Rule Preamble, (April 1998,

USEPA). These documents indicate the numbers

and types of data pairs that meet the 10 times UTS

level, both prior to treatment and after the treatment

described in the table.

41Available data are exclusively for the treatment

of mercury on soils.

TABLE 4.—TREATMENT EFFICIENCY—PERCENT REDUCTION RANGES BY TECHNOLOGY FOR VARIOUS FUNCTIONAL

GROUPINGS

[Average percent reduction in brackets; number of data points analyzed in parentheses] 37

Treatability group Biological

treatment

Chemical

extraction Dechlorination Thermaldesorption 38 Soil washing Othertechnologies 39

Halogenated Nonpolar Aromatics ............. 52.05–99.97

[76.01]

(2)

80.42

[80.42]

(1)

99.05–100

[99.53]

(2)

29.19–100

[95.31]

(29)

66.21–95.6

[85.41]

(4)

30.13—49.68

[42.41]

(3)

Dioxins, Furans, PCBs, and Precursors ... none 14.88–99.97

[90.13]

(40)

91.66–99.88

[97.94]

(20)

98.9–100

[99.57]

(17)

none none

Halogenated Phenols, Cresols, and Other

Polar Aromatics ..................................... 45.1–95.14

[81.05]

(5)

63.83–93.18

[79.46]

(3)

none 2.71–99.93

[56.21]

(15)

6.25–99.06

[73.71]

(6)

96.21

[96.21]

(1)

Halogenated Aliphatics ............................. 99.87–99.99

[99.91]

(3)

86.62–94.81

[91.09]

(3)

89.06–100

[97.54]

(7)

36.88–100

[96.49]

(80)

58.68–99.4

[90.58]

(9)

72–99.68

[95.66]

(6)

Halogenated Cyclic Aliphatics, Ethers,

Esters, and Ketones .............................. 9.76–99.77

[60.99]

(8)

none none none none none

Nitrated Aromatics and Aliphatics ............. none none none none none none

Simple Nonpolar Aromatics and

Heterocyclics ......................................... 99.97–100

[100]

(10)

77.41–99.92

[90.77]

(6)

96.39–100

[98.61]

(10)

22.68–100

[94.3]

(158)

47.74–99.91

[82.39]

(14)

97.7

[97.7]

(1)

Polynuclear Aromatic Hydrocarbons ........ 5.13–99.85

[67.15]

(75)

51.55–99.98

[95.72]

(125)

10.92–97.42

[67.47]

(3)

10.14–100

[94.19]

(301)

81.83–92.19

[85.74]

(3)

95.9–99.55

[97.73]

(2)

Other Nonhalogenated Polar Organics .... none 75.96–99.82

[98.35]

(28)

90.81–99.89

[95.13]

(10)

2.6–99.98

[82.04]

(36)

51.07–99.97

[88.67]

(10)

94.59–99.89

[97.24]

(2)

(5) Performance Data for Metal

Contaminants

Performance data for metals

contaminants are based on the

performance of stabilization and

chemical extraction (mercury) of soils

contaminated with metals. Other metal

treatment technologies are not

prohibited (except if impermissible

dilution were to occur). The results of

EPA’s analysis of the data on treatment

of metals in soils are summarized in

Table 5 below.

TABLE 5.—SUMMARY OF PERFORMANCE DATA FOR HAZARDOUS METALS CONSTITUENTS 40

BDAT metals cluster

Stabilization scale: bench, pilot, and full

scale

Chemical extraction

scale: pilot

Soil washing

scale: bench & pilot

Data

Points

Average removal efficiencyData

points

Average removal efficiencyData

points

Average removal efficiency

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

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

The results in Table 5 corroborate

EPA’s conclusion that the soil treatment

standards—ten times UTS or 90%

reduction—are within the zone of

reasonable values that could have been

selected. For further information on the

derivation of Table 5, see Soil

Treatability Analysis Report.

With respect to multiple metal

constituents or organometallic

constituents in a contaminated soil, we
Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations 28617

42As discussed earlier in today’s final rule, all

hazardous wastes that were listed or identified at

the time of the 1984 Hazardous and Solid Waste

Amendments to RCRA have been prohibited from

land disposal. EPA is required to prohibit

hazardous wastes listed or identified after 1984

within six months of the wastes’ listing or

identification. RCRA Section 3004(g)(4). A table in

40 CFR Part 268 Appendix VII. outlines the dates

of LDR applicablity for hazardous wastes.

43Note that, as discussed later in today’s

preamble, nothing in today’s final rule affects

implementation of the existing ‘‘area of

contamination’’ policy. Therefore, soil managed

within areas of contamination, even if it is

‘‘removed from the land’’ within such an area,

would not be considered to be ‘‘generated.’’ See the

discussion of the area of contamination policy later

in today’s preamble.

recognize that a situation may call for

two or more treatment technology trains

to achieve the treatment standards

promulgated today (e.g., one treatment

for organics and another for metals).

This must include proper consideration

of the order in which various treatment

processes should be applied to the

contaminated soil so that treatment

effectiveness is optimized. However, if

these considerations have been properly

made and the required treatment

standards are not being met because, for

example, of unique soil matrices or

difficult to treat sites, then we expect

that entities may elect to seek a

treatment variance pursuant to 40 CFR

268.44(h) or a risk-based soil treatment

variance, which is being adopted in

today’s rule.

c. Data Submitted by Commenters

At least four commenters submitted

treatment data from studies describing

the performance of innovative and

conventional treatment technologies on

hazardous soils. DuPont submitted

bench, pilot, and full scale treatment

data from various vendors describing

the operation of soil washing. DuPont

asserts these data supports the viability

of soil washing as an innovative

technology for hazardous soils.

The Environmental Technology

Council (formerly the Hazardous Waste

Treatment Council) submitted full,

pilot, and bench scale treatment data

from various vendors of innovative

treatment technologies and provided an

extensive review of EPA’s soil treatment

data base. See document entitled,

Evaluation of Proposed BDAT Soil and

Process Treatment Technologies—

Report to the Hazardous Waste

Treatment Council, November 1993

(filed as document number

CS2P00060.E in Docket No. F–92–

CS2P–FFFFF). Based on the ETC’s

technical report and the subsequent

comments of the ETC to the HWIRMedia rule (see comments from the

Environmental Technology Council,

filed as comment number MHWP 00088

in Docket No. F–92–CS2P–FFFFF), the

ETC believes that today’s treatment

standards for hazardous soils are

achievable using thermal treatment.

Although the ETC report stated that EPA

may lack full-scale treatment data for

several innovative or alternative

technologies, the ETC data support

EPA’s view that the many full scale

operations of non-combustion

technologies demonstrated in the field

were sufficient to support a view that

the soil treatment standards were

achievable. Further, the ETC pointed to

various examples of how various noncombustion treatment technologies can

be better optimized. EPA concurs with

many of those observations on how noncombustion technologies can be

optimized.

Two other commenters submitted

data in the Phase 2 rule regarding the

performance of non-combustion

technologies—USPCI and Sierra

Environmental Services. USPCI’s

performance data describe the treatment

of polynuclear organics in soils via

chemical oxidation followed by

stabilization. These data were

determined to be insufficient to support

a broad national determination that

stabilization of organics can be

considered BDAT for organics.

However, use of organic stabilization

may, in some situations, be a

permissible treatment option since the

LDRs do not specifically prohibit the

use of stabilization or solidification to

treat nonwastewaters containing

hazardous organic constituents. See

Response to Comment Document,

Comment from Chemical Waste

Management, Inc. (No. PH4P–00048).

There are, however, specific

circumstances in which stabilization or

solidification would be considered

impermissible dilution. We expect that,

for these types of situations to be

properly evaluated, it will be necessary

to petition for a treatment variance

under 40 CFR 268.44(h) or under the

provisions for a risk-based soil

treatment variance being adopted in

today’s rule. The Agency also is

currently considering whether, in the

near future, to issue guidance on when

stabilization or solidification of organicbearing waste is appropriate and when

it may constitute impermissible

dilution.

Sierra Environmental Services

submitted performance data regarding

the treatment of carcinogenic

polyaromatic hydrocarbons (cPAH) via

bioremediation. These data are based on

in-situ treatment of a 7.5 acre lagoon

which was divided into two cells.

Although the facility remediated 35

volatile, 65 semivolatile organics, PCBs,

and pesticides, the facility only

submitted data describing the treatment

of major PAHs. Based on the

performance of the biotreatment process

applied to this site, the commenter

argued the proposed treatment

standards, if promulgated as proposed,

would eliminate biotreatment as an

alternative at this facility. EPA

disagrees. Remediation processes that

are applied in-situ do not trigger land

disposal restrictions. If the facility were

biotreating the lagoon sludges ex-situ,

EPA concurs that the facility may be

unable to land dispose the treated

lagoon sludges. We also note that, under

the existing regulations and regulations

being adopted today, the commenter

may be able to avail itself of a treatment

variance, depending on the site-specific

circumstances involved.

9. Applicability of Soil Treatment

Standards and Readability of Final

Regulations

Many commenters asserted that the

proposed regulations governing

applicability of LDRs to contaminated

soil were difficult to understand and

apply. EPA was persuaded by these

comments and has reformatted the

applicability regulations into an easierto-read table. The Agency recognizes

that determining whether or not LDRs

apply to any given volume of

contaminated soil can be complicated.

To further assist program implementors

and facility owners/operators, we will

review and discuss the principles that

govern LDR applicability for

contaminated soil in this section of

today’s preamble.

The following principles informed

EPA’s decisions concerning application

of LDRs to contaminated soils.

First principle: land disposal

restrictions only attach to prohibited

hazardous waste (or hazardous

contaminated soil) when it is (1)

generated and (2) placed in a land

disposal unit.42 Therefore, if

contaminated soil is not removed from

the land (i.e., generated), LDRs cannot

apply. Similarly, if contaminated soil is

removed from the land (i.e., generated)

yet never placed in a land disposal unit,

LDRs cannot apply.43 In other words,

LDRs do not apply to contaminated soil

in situ or force excavation of

contaminated soil. If soils are excavated,

however, LDRs may apply, as discussed

below.

Second principle: once a decision has

been made to generate and re-landdispose contaminated soils, LDRs

generally only apply to contaminated

soils that contain hazardous waste. The

Agency considers soil to contain

hazardous waste: (1) when it exhibits a
28618 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations

44EPA is assuming that the waste did not meet

a treatment standard when it was placed on the soil.

Wastes which meet a treatment standard are no

longer prohibited from land disposal and, unless it

is determined to ‘‘contain’’ hazardous waste at its

point of generation and are subsequently land

disposed, soils contaminated by these wastes are,

likewise, not prohibited from land disposal. See,

RCA section 3004(m)(2) (hazardous wastes meeting

treatment standards are no longer prohibited from

land disposal).

characteristic of hazardous waste; and,

(2) when it is contaminated by certain

concentrations of constituents from

listed hazardous waste. The containedin policy is discussed in Section VII.E

of today’s preamble.

Third principle: once LDRs attach

(generally, at the point of generation, see

principle (1)) to any given hazardous

waste or volume of hazardous

contaminated soil, the LDR treatment

standards continue to apply until they

are met. This principle comes from

application of the logic of the Chemical

Waste opinion. In that opinion, the D.C.

Circuit held that land disposal

prohibitions attach at the point that a

hazardous waste is generated and

continue to apply until threats posed by

land disposal of the waste are

minimized. Chemical Waste

Management v. EPA, 976 F.2d at 13, 14

and 24. In illustration of this principle,

the court held that (in the case of

characteristic hazardous waste)

elimination of the property that caused

EPA to identify a waste as hazardous in

the first instance does not automatically

eliminate the duty to achieve

compliance with LDRs. As discussed

later in this section of today’s preamble,

EPA has determined that, although the

Chemical Waste opinion did not address

contaminated soils per se, it is prudent

to apply the logic of the Chemical Waste

opinion to contaminated soils.

Using these principles, EPA created

the regulations and table that govern

application of LDRs to contaminated

soils, as discussed below.

The regulations that address

application of LDRs to soil that exhibits

a characteristic of hazardous waste are

relatively straightforward. Soil that

exhibits a characteristic of hazardous

waste when it is generated is subject to

LDRs and must be treated to meet LDR

treatment standards prior to land

disposal. EPA’s conclusion that soil that

exhibits a characteristic of hazardous

waste must be treated to meet LDRs

prior to land disposal derives from a

simple application of the principles

above. First, LDRs have the opportunity

to attach to contaminated soil at the

point of generation (principle (1)) and,

second, under the contained-in policy,

soil that exhibits a characteristic of

hazardous waste must be managed as

hazardous waste (principle (2)) and,

therefore, must comply with LDRs. Note

that, once LDRs have attached to soil

that exhibits a characteristic of

hazardous waste, LDR treatment

standards must be met prior to land

disposal of the soil, even if the

characteristic is subsequently

eliminated (principle (3)).

The remainder of today’s regulations

on application of LDRs to contaminated

soil, which are in table form, apply to

soil contaminated with listed hazardous

wastes. The table lists four scenarios.

In the first scenario, soil is

contaminated with untreated listed

hazardous waste that was prohibited

from land disposal when first land

disposed (e.g., prohibited hazardous

waste that was illegally placed or

prohibited hazardous waste that was

spilled). In this case, LDRs have already

attached to the hazardous waste.

Therefore, since LDRs have attached to

the waste and threats have not yet been

minimized (i.e., treatment standards

have not been met), under principle (3)

LDRs continue to apply to the waste

and, automatically, to any contaminated

soil.44 The Agency has concluded that

LDRs apply to soils contaminated in this

way regardless of whether the soil is

determined not to (or no longer to)

‘‘contain’’ hazardous waste either when

first generated or at any time in the

future. This conclusion comes from

application of principle (3): once

something is prohibited from land

disposal, LDRs continue to apply until

threats to human health and the

environment posed by land disposal are

minimized regardless of whether the

material is at some point determined no

longer to be ‘‘hazardous.’’ In the next two scenarios, soil is

contaminated with hazardous wastes

that were not prohibited from land

disposal when first land disposed, but,

sometime after land disposal, LDRs have

gone into effect. In these cases, whether

or not LDRs apply to contaminated soil

is governed by a determination of

whether or not any given volume of

contaminated soil ‘‘contains’’ hazardous

waste at its point of generation. If any

given volume of soil is determined to

contain hazardous waste at its point of

generation, LDRs attach (principles (1)

and (2)) and, therefore, the LDR

treatment standards must be met prior

to placement of such soil in a land

disposal unit (principle (3)). If any given

volume of soil is determined not to

contain hazardous waste at its point of

generation, there is no hazardous waste

to which a land disposal prohibition

could attach and the soil, thus, would

not be prohibited from land disposal

(principles (1) and (2)). (It would be the

same if a hazardous waste land disposed

before the effective date of an applicable

land disposal prohibition were delisted

when first re-generated. In that case too,

there would be no hazardous waste to

which a land disposal prohibition could

attach and the delisted waste, thus,

would not be prohibited from land

disposal.) Note that, under principle (3),

once LDRs attach to contaminated soil,

the treatment standards must be met

prior to land disposal even if the soil is,

subsequently, determined no longer to

contain hazardous waste.

The final scenario requires no

elaboration; it simply makes clear that if

soil is contaminated by hazardous waste

that was never prohibited from land

disposal, LDRs do not apply. This is

through application, primarily, of

principle (2)—LDRs attach only to

hazardous wastes or soil that contains

hazardous waste.

Note that, because LDRs apply to the

waste ‘‘contained-in’’ soil, and not the

soil itself (see principle (2)), LDRs do

not apply to soil that is at any time

completely separated from its

contaminating waste ( i.e., the soil

contains no solid or hazardous waste,

it’s ‘‘just soil’’). One might determine

that soil contained no solid or

hazardous waste, for example, if

concentrations of hazardous

constituents fall below natural

background levels or are at nondetectable levels. Such a determination

would terminate all RCRA Subtitle C

requirements, including LDRs, since

waste would not longer be ‘‘containedin’’ the soil. See September 15, 1996

letter from Michael Shapiro (EPA) to

Peter Wright (Monsanto Company),

making this finding; see also, 61 FR

18806 (April 29, 1996) and other

sources cited therein.

The following examples illustrate

application of LDRs to contaminated

soil:

1. Generator A is excavating soil

mildly contaminated with wastewater

treatment sludge (listed waste F006).

The sludge was land disposed before

1980. The soil does not exhibit a

characteristic of hazardous waste and

has been determined by an authorized

state not to contain listed hazardous

waste. The soil is not prohibited from

land disposal. This is because, for LDR

purposes, the point of generation is

when the soil is first excavated from the

land (principle (1)). Since no prohibited

hazardous waste existed before that time

(i.e., the contaminating waste was not

prohibited) and the soil does not

contain listed hazardous waste or

exhibit a characteristic of hazardous

waste at its point of generation, there is
Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations 28619

45Although, if such a spill were not cleaned up

in a timely way, EPA or an authorized state could

determine that the contaminated area should be

considered a land disposal unit for purposes of

requiring cleanup under RCRA Subtitle C. 55 FR at

20809 (July 27, 1990).

no hazardous waste to which a land

disposal prohibition could attach

(principle (2)).

2. Generator B is excavating soil

contaminated by leaks from a closing

hazardous waste surface impoundment.

The surface impoundment received

listed hazardous wastes K062 (spent

pickle liquor) and characteristic

hazardous waste D018 (wastes that fail

the TCLP test for benzene). The surface

impoundment stopped receiving K062

waste in 1987 and D018 waste in 1993.

The soil does not exhibit a characteristic

of hazardous waste and has been

determined by an authorized state not to

contain listed hazardous waste. The soil

is not prohibited from land disposal.

This is because, for LDR purposes, the

point of generation is when the soil is

first excavated from the land (principle

(1)). Since no prohibited hazardous

waste existed before that time (i.e., the

contaminating wastes were not

prohibited) and the soil does not

contain listed hazardous waste or

exhibit a characteristic of hazardous

waste at its point of generation, there is

no hazardous waste to which a land

disposal prohibition could attach

(principle (2)).

3. Generator C is excavating soil

contaminated with listed hazardous

waste F024. The F024 waste was land

disposed after 1991, after it was

prohibited from land disposal, and was

not first treated to meet applicable land

disposal treatment standards (i.e., it was

illegally land disposed or accidentally

spilled). Since the contaminating waste

was prohibited from land disposal and

treatment standards were not achieved

prior to land disposal, the LDR

prohibition continues to apply to any

soil contaminated by the waste

(principle (3)) regardless of whether the

soil ‘‘contains’’ hazardous waste when

generated. The soil is prohibited from

land disposal and, before land disposal,

must be treated to meet applicable

technology-based treatment standards or

until a site-specific, risk-based minimize

threat determination is made through

the variance process.

4. Generator D is excavating soil

contaminated by an accidental spill of

benzyl chloride, which, when

discarded, is listed hazardous waste

P028 and is prohibited from land

disposal. The accidental spill occurred

yesterday. The contaminating waste was

prohibited from land disposal and, since

the treatment standards were not

achieved prior to the accidental spill,

the prohibition continues to apply to

any soil contaminated by the waste

(principle (3)). Thus, the soil is

prohibited from land disposal and,

before land disposal, must be treated to

meet applicable technology-based

treatment standards or until a sitespecific, risk-based minimize threat

determination is made through the

variance process.

5. Generator E is excavating soil

contaminated by listed hazardous waste

F004 (generally, spent non-halogenated

solvents). The F004 waste was land

disposed in 1984, prior to the effective

date of an applicable land disposal

prohibition; however, on generation the

soil contains high concentrations of

cresols constituents, so that an

authorized state determines it

‘‘contains’’ hazardous waste. The soil is

prohibited from land disposal. Although

the contaminating waste was not

prohibited from land disposal, since the

soil contained hazardous waste at the

point of generation (and the waste had

since become prohibited from land

disposal), the land disposal prohibition

attaches to the contaminated soil and,

before land disposal, the soil must be

treated to meet applicable technologybased treatment standards or until a

site-specific, risk-based minimize threat

determination is made through the

variance process (principles (1), (2), and

(3)).

EPA acknowledges that the reading of

LDR applicability to contaminated soil

discussed above creates potential

administrative difficulties, since, in

many cases, a factual determination will

be required as to when hazardous

wastes were land disposed in order to

determine whether they were prohibited

at that time and whether, therefore, the

prohibition continues to apply to

contaminated soil. The Agency expects

that these difficulties will be minimal

because, in most cases, contamination

will be caused by hazardous wastes

placed before the effective date of

applicable land disposal prohibitions

since land disposal after prohibition

would be illegal. The exception is

accidental spills of hazardous waste,

which the Agency believes are (1) rare,

and (2) known, so determining dates of

land disposal should not be

problematic. This issue was discussed

in detail in the HWIR-Media proposal.

61 FR 18805 (April 26, 1996).

As discussed in the April 29, 1996

proposal, the Agency continues to

believe that, if information is not

available or inconclusive, it is generally

reasonable to assume that contaminated

soils do not contain untreated

hazardous wastes placed after the

effective dates of applicable land

disposal prohibitions. This is because

placement of untreated hazardous waste

after applicable LDR effective dates

would be a violation of RCRA, subject

to significant fines and penalties

including criminal sanctions. 61 FR at

18805 (April 29, 1996). Of course,

program implementors and facility

owners/operators cannot make the

determination that information on the

types of waste contamination or dates of

waste placement is unavailable or

inconclusive without first making a

good faith effort to uncover such

information. By using available site- and

waste-specific information such as

manifests, LDR records required under

40 CFR 268.7, vouchers, bills of lading,

sales and inventory records, storage

records, sampling and analysis reports,

accident reports, site investigation

reports, spill reports, inspection reports

and logs, EPA believes that program

implementors and facility owners/

operators will typically be able to make

informed decisions about the types of

waste contamination and dates of waste

placement. Most commenters supported

this approach.

EPA notes that it is not critical for a

decision about whether contaminated

soil contains listed hazardous waste or

exhibits a characteristic of hazardous

waste to be made without removing any

of the soil (other than the sample

volume) from the land. In an area of

generally dispersed soil contamination,

soil may be consolidated or managed

within the area of contamination to

facilitate sampling, for example, to

ensure that soil samples are

representative or to separate soil from

non-soil materials. However, care

should be taken not to remove

hazardous contaminated soils from

separate areas of contamination at a

facility and place such hazardous

contaminated soil into a land disposal

unit unless, of course, the soil meets

applicable LDR treatment standards.

The area of contamination policy is

discussed later in this section of today’s

preamble.

A few commenters expressed concern

or confusion over the application of

LDRs to soil contaminated by accidental

spills of hazardous wastes. The Agency

clarifies that accidental spills of

hazardous wastes (or products or raw

materials) are not considered placement

of hazardous waste into a land disposal

unit since, in the case of a spill,

prohibited waste is not being placed in

one of the identified units named in

RCRA Section 3004(m).45 See, 45 FR

76626 (Nov. 19, 1980), issuing clarifying

regulations at 40 CFR 264.10(g) to

provide that hazardous waste treatment
28620 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations

and storage activities undertaken in

immediate response to an accidental

spill are exempt from the 40 CFR Part

264 and 265 regulations governing

treatment and storage and do not require

permits and Sept. 29, 1986 memo from

J. Winston Porter (EPA Assistant

Administrator) to Fred Hansen

interpreting the 40 CFR 264.10(g)

regulations; also see, 55 FR at 30808–

30809 (July 27, 1990) (‘‘a one-time spill

of hazardous waste would not be

considered a solid waste management

unit.’’) However, contaminated soils

generated through remediation of spills

of untreated listed prohibited hazardous

wastes are, as discussed above, subject

to land disposal prohibitions since the

LDR prohibition that had attached to the

contaminating hazardous waste

continues to apply until threats are

minimized, and, therefore, any

contaminated soil remains subject to

LDRs (see principle (3)).

A number of commenters expressed

concern that EPA’s interpretation of

LDR applicability to contaminated soil

might preclude application of the

existing area of contamination policy. In

the area of contamination policy, EPA

interprets RCRA to allow certain

discrete areas of generally dispersed

contamination to be considered a RCRA

unit (usually a landfill). 55 FR 8758–

8760 (March 8, 1999). This

interpretation allows hazardous wastes

(and hazardous contaminated soils) to

be consolidated, treated in situ or left in

place within an area of contamination

without triggering the RCRA land

disposal restrictions or minimum

technology requirements—since such

activities would not involve ‘‘placement

into a land disposal unit,’’ which is the

statutory trigger for LDR. EPA clarifies

that its interpretation of LDR

applicability for contaminated soil does

not, in any way, affect implementation

of the area of contamination policy.

Finally, many commenters expressed

concern over EPA’s application of the

LDR treatment standards to soil that is

determined no longer to contain

hazardous waste or exhibit a

characteristic of hazardous waste. As

discussed in detail in the 1996 proposal,

at this time EPA has concluded that

although the Chemical Waste opinion

did not speak to contaminated soil

specifically, it is prudent to apply the

Chemical Waste logic—that a duty to

comply with LDRs attaches to

hazardous waste when it is first

generated and elimination of the indicia

of ‘‘hazardousness’’ does not,

necessarily, fulfil the statutory land

disposal restriction treatment

standard—to contaminated soil. See

Chemical Waste Management v. EPA,

976 F.2d at 13–16. Although, as

discussed later in today’s preamble,

EPA believes that contained-in

determinations will rarely, if ever, be

made at constituent concentrations

which do not minimize threats, without

codifying the contained-in policy, the

Agency cannot make the generic finding

that this will be the case at every site.

For this reason, EPA is requiring that

the standards and procedures

promulgated today for site-specific, riskbased minimize threat variances alone

be used to make minimize threat

determinations. This issue is discussed

in section VII.E of today’s preamble.

C. Conforming and Supporting Changes

To support the land disposal

restriction treatment standards for

contaminated soil, the Agency is today

promulgating a number of conforming

and supporting regulations, as follows.

1. Recordkeeping Requirements

A number of commenters expressed

confusion over the recordkeeping and

reporting requirements that would

apply to contaminated soil. The Agency

is today clarifying that contaminated

soil subject to the land disposal

restrictions must comply with the same

recordkeeping and reporting

requirements as other wastes subject to

the land disposal restrictions. That is,

the recordkeeping and reporting

requirements of 40 CFR 268.7 will

apply.

EPA has clarified this in the final

regulations by adding appropriate

recordkeeping requirements for

contaminated soils to the tables in 40

CFR 268.7(a) and 40 CFR 268.7(b).

These rules specify that, for

contaminated soil, generators and/or

treaters must include the following

information with their land disposal

restriction paperwork: the constituents

subject to treatment as described in 40

CFR 268.49(d) and this statement, ‘‘this

contaminated soil [does/does not]

contain listed hazardous waste and

[does/does not] exhibit a characteristic

of hazardous waste and [is subject to/

complies with] the soil treatment

standards as provided by 268.49(c) or

the universal treatment standards.’’ Note

that because in some cases

contaminated soil will continue to be

subject to LDRs even after it has been

determined not to or no longer to

contain listed hazardous waste (or decharacterized), the statement includes a

notification of whether the soil is still

considered hazardous. This is consistent

with the approach the Agency used

when establishing land disposal

restriction treatment standards for

hazardous contaminated debris.

2. Definition of Soil

The Agency is promulgating the

definition of soil from the April 29,

1996 proposal with one change made in

response to comments. Soil is defined

as, ‘‘unconsolidated earth material

composing the superficial geologic

strata (material overlying bedrock),

consisting of clay, silt, sand, or gravel

size particles as classified by the U.S.

Soil Conservation Service, or a mixture

of such materials with liquids, sludges

or solids which is inseparable by simple

mechanical removal processes and is

made up primarily of soil by volume,

based on visual inspection.’’ The

Agency has added the phrase ‘‘by

volume, based on visual inspection’’ in

response to comments recommending

that EPA explicitly conform the

definition of soil with the definition of

debris. See 57 FR 37222 (August 18,

1992). This clarification is consistent

with the Agency’s intent, as discussed

in the 1996 proposal, that

determinations of whether any material

was ‘‘soil,’’ ‘‘debris,’’ or ‘‘waste’’ to be

made in the field. 61 FR 18794 (April

26, 1996).

The definition of soil includes the

concept that mixtures of soil and other

materials are to be considered soil

provided the mixture is made up

predominantly of soil and that the other

materials are inseparable using simple

physical or mechanical means. This

approach allows program implementors

and facility owners/operators to

determine whether any given material is

soil, waste, or debris based on the

results of simple mechanical removal

processes commonly used to separate

materials, such as pumping, dredging,

or excavation by backhoe, forklift or

other device. It avoids requiring

chemical analysis for soil properties in

order to differentiate precisely between

wastes, soil and debris. As discussed in

the April 29, 1996 and September 14,

1993 proposals, the Agency believes

that attempting to distinguish more

precisely between waste, soil or debris

using chemical analysis or other tests

would be prohibitively difficult to

develop and support and cumbersome

to administer. Cf. 57 FR at 37224,

August 18, 1992, where the Agency

adopted a similar classification system

for hazardous debris. Most commenters

supported this approach. Note that any

non-soil that is separated from

contaminated soil that contains listed

hazardous waste or is found to exhibit

a characteristic of hazardous waste

should be considered hazardous waste

and is subject to the applicable

universal treatment standard.
Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations 28621

46Of course, as noted earlier, EPA or an

authorized state could determine, at any time, that

any given volume of environmental media did not

contain (or no longer contained) any solid or

hazardous waste (i.e., it’s just media). These types

of determinations might be made, for example, if

concentrations of hazardous constituents fall below

background levels, or are at non-detectable levels.

Such a determination would terminate all RCRA

Subtitle C requirements, including LDRs. See,

September 15, 1995 letter from Michael Shapiro

(EPA) to Peter Wright (Monsanto Company), making

this finding, and 61 FR 18806 (April 29, 1996).

EPA also emphasizes that any

dilution of a prohibited contaminated

soil (or of a prohibited hazardous waste

with soil) as a substitute for adequate

treatment to achieve compliance with

LDR treatment standards or to

circumvent the effective date of an LDR

prohibition is considered a type of

impermissible dilution and is illegal.

Therefore, any deliberate mixing of

prohibited hazardous waste with soil in

order to change its treatment

classification (i.e., from waste to

contaminated soil) is illegal. Existing

regulations concerning impermissible

dilution already make this point. See 40

CFR 268.3(a) and (b); see also 57 FR at

37243 (Aug. 18, 1992) (adopting the

same principle for contaminated debris).

The Agency expects that deliberate

mixing of hazardous waste with soil

(and vice versa) will be rare because

such actions are clearly illegal and

would subject generators to substantial

fines and penalties, including criminal

sanctions. In addition, the resulting

mixture (hazardous waste impermissible

diluted by soil) would continue to be

subject to the LDRs for the original

hazardous waste (i.e., generally, the

universal treatment standards), so no

benefit in terms of reduced treatment

requirements would occur. The Agency

took a similar approach when

promulgating treatment standards

specific to hazardous debris. See 57 FR

at 37224 (August 18, 1992).

The Agency notes that the normal

mixing of contaminated soil from

various portions of a site that typically

occurs during the course of remedial

activities or in the course of normal

earthmoving and grading activities is

not considered intentional mixing of

soil with non-media or prohibited soil

with non-prohibited soil and, therefore,

is not a type of impermissible dilution.

D. Seeking Treatment Variances

Because the National Treatment

Standard is Unachievable or

Inappropriate

Under existing regulations at 40 CFR

268.44, people may obtain a variance

from a land disposal restriction

treatment standard when a waste cannot

be treated to the specified level or when

a treatment standard may be

inappropriate for the waste. With

respect to contaminated soils, EPA has

to this point presumed that a treatment

variance would generally be needed

because the LDR treatment standards

developed for process wastes were

either unachievable (generally applied

to soil contaminated by metals) or

inappropriate (generally applied to soil

contaminated by organic constituents).

See, for example, 55 FR 8760 (March 8,

1990); 58 FR 48092, 48125 (September

14, 1993); 61 FR 18805–18808, 18810–

18812 (April 29, 1996); and, 61 FR

55717 (October 28, 1996). This

presumption will no longer apply once

today’s soil treatment standards take

effect. This is because today’s standards

were developed specifically for

contaminated soils and are intended to

specifically address the past difficulties

associated with applying the treatment

standards developed for process waste

to contaminated soil.

This is not to say that treatment

variances based on the ‘‘unachievable’’

or ‘‘inappropriate’’ prongs of the test are

now unavailable for contaminated soils.

For example, in some cases it may prove

that even though an appropriate

technology, suited to the soil matrix and

constituents of concern was used, a

particular soil cannot be treated to meet

the soil treatment standards using a

well-designed well-operated application

of one of the technologies EPA

considered in establishing the soil

standards. In these types of cases, under

existing regulations, the soil treatment

standard would be considered

‘‘unachievable’’ and a treatment

variance could be approved. In other

cases, under existing regulations,

application of the soil treatment

standards might be ‘‘inappropriate’’ in

that, for example, it would present

unacceptable risks to on-site workers.

As noted earlier in today’s preamble,

alternative LDR treatment standards

established through treatment variances

must, according to 40 CFR 268.44(m),

‘‘minimize threats to human health and

the environment posed by land disposal

of the waste.’’ In cases where an

alternative treatment standard does not

meet this requirement, a treatment

variance will not be approved even

though application of a technology more

aggressive than the technologies on

which the soil treatment standards are

based might then be necessary. For

example, in cases where the soil

treatment standards cannot be achieved

through application of a well-designed,

well-operated application of one of the

model soil treatment technologies and

application of the model technology or

other non-combustion technologies will

not result in constituent concentrations

that minimize threats, a variance would

not be approved and combustion would

be necessary. This is proper given that

the soil treatment standards were not

developed using the methodology

typically used in the land disposal

restriction program (i.e., application of

the most aggressive treatment

technology to the most difficult to treat

waste), but, instead are designed to

accommodate a variety of soil treatment

technologies that are typically used

during remediation. Variances for

treatment of contaminated soil will be

applied during the remedial context,

where, as discussed in Section VII.B.3 of

today’s preamble, EPA and authorized

states will typically have detailed

information about the risks posed by

specific hazardous constituents, direct

and indirect exposure routes, risk

pathways and human and

environmental receptors. This

information can be used to inform

decisions about whether threats are

minimized.

E. The Contained-In Policy

The contained-in principle is the

basis for EPA’s longstanding

interpretation regarding application of

RCRA Subtitle C requirements to

mixtures of contaminated media and

hazardous wastes. Under the

‘‘contained-in’’ policy, EPA requires

that soil (and other environmental

media), although not wastes themselves,

be managed as if they were hazardous

waste if they contain hazardous waste or

exhibit a characteristic of hazardous

waste. See, for example, 53 FR 31138,

31148 (August 17, 1988) and 57 FR

21450, 21453 (May 20, 1992)

(inadvertently citing 40 CFR 261(c)(2)

instead of 40 CFR 261.3(d)(2)); see also

Chemical Waste Management v. EPA,

869 F.2d 1526, 1539–40 (D.C. Cir. 1989)

(upholding the contained-in principle as

a reasonable interpretation of EPA

regulations). In practice, EPA has

applied the contained-in principle to

refer to a process where a site-specific

determination is made that

concentrations of hazardous

constituents in any given volume of

environmental media are low enough to

determine that the media does not

‘‘contain’’ hazardous waste. Typically,

these so called ‘‘contained-in’’

determinations do not mean that no

hazardous constituents are present in

environmental media but simply that

the concentrations of hazardous

constituents present do not warrant

management of the media as hazardous

waste.46 For contaminated soil, the

result of ‘‘contained-in determinations’’

is that soil no longer ‘‘contains’’ a
28622 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations

hazardous waste; however, as discussed

above, the result is not automatically

that soil no longer must comply with

LDRs.

In order to preserve flexibility and

because EPA believes legislative action

is needed, the Agency has chosen, at

this time, not to go forward with the

portions of the September 14, 1993 or

April 29, 1996 proposals that would

have codified the contained-in policy

for contaminated soils. The Agency

continues to believe that legislation is

needed to address application of certain

RCRA subtitle C requirements to

hazardous remediation waste, including

contaminated soil. If legislation is not

forthcoming, the Agency may, in the

future, re-examine its position on the

relationship of the contained-in policy

to site-specific minimize threat

determinations based on

implementation experience and/or may

choose to codify the contained-in policy

for contaminated soil in a manner

similar to that used to codify the

contained-in policy for contaminated

debris.

1. Current Guidance on Implementation

of the Contained-in Policy

EPA has not, to date, issued definitive

guidance to establish the concentrations

at which contained-in determinations

may be made. As noted above, decisions

that media do not or no longer contain

hazardous waste are typically made on

a case-by-case basis considering the

risks posed by the contaminated media.

The Agency has advised that containedin determinations be made using

conservative, health-based levels

derived assuming direct exposure

pathways. 61 FR at 18795 (April 29,

1996) and other sources cited therein. A

compilation of many of the Agency’s

statements on the contained-in policy

has been placed in the docket for

today’s rulemaking.

The land disposal restriction

treatment standards for contaminated

soil promulgated today do not affect

implementation of the contained-in

policy. They are not considered, and

should not be used, as de facto

‘‘contained-out’’ concentrations

although, in some cases, it may be

appropriate to determine that soil

treated to the soil treatment standards

no longer contains hazardous waste.

Remediation project managers should

continue to make contained-in decisions

based on site-specific conditions and by

considering the risks posed by any given

contaminated media.

2. Relationship of the Contained-In

Policy to Site-Specific, Risk-Based

Minimize Threat Determinations

As discussed above, the D.C. Circuit

held in the Chemical Waste opinion that

the RCRA Section 3004(m) obligation to

minimize threats can continue even

after a waste would no longer be

identified as ‘‘hazardous.’’ Chemical

Waste Management v. EPA, 976 F.2d at

13–16. The Agency believes that it is

prudent to apply the logic of the

Chemical Waste opinion to

contaminated soil. Therefore, when the

contained-in policy is applied to soil

that is already subject to a land disposal

prohibition, the Agency is compelled to

decide if a determination that soil does

not or no longer ‘‘contains’’ hazardous

waste is sufficient to determine that

threats posed by subsequent land

disposal of those soils have been

minimized. As discussed earlier in

today’s preamble, EPA is not, at this

time, able to make a generic finding that

all contained-in determinations will

automatically satisfy this standard. This

is largely because, for reasons of needed

administrative flexibility and because

we believe legislation is needed, EPA

has not codified standards for approving

contained-in determinations and has not

codified procedures for making such

determinations. Absent such standards

and procedures, the Agency cannot, at

this time, make a generic finding that all

contained-in determinations will result

in constituent concentrations that also

minimize threats within the meaning of

RCRA Section 3004(m). These

decisions, of course, could be made on

a site-specific basis, by applying the

standards and procedures for sitespecific, risk-based minimize threat

variances, promulgated today.

The regulations governing sitespecific, risk-based minimize threat

determinations promulgated today are,

essentially, the same as the Agency’s

guidance for making contained-in

determinations. See, for example, 61 FR

18795 (April 29, 1996) and other

sources cited therein. That is, decisions

should be made by considering the

inherent risks posed by any given soil,

assuming direct exposure (i.e., no postland disposal controls) and applying

conservative information to calculate

risk. Therefore, the Agency expects that,

in most cases, a determination that soils

do not (or no longer) contain hazardous

waste will equate with minimize threat

levels and, therefore, encourages

program implementors to combine

contained-in determinations, as

appropriate, with site-specific, riskbased minimize threat variances.

F. Relationship of Soil Treatment

Standards to the Final HWIR-Media

Rule

In the April 29, 1996 HWIR-Media

proposal, EPA proposed to establish a

comprehensive alternative management

regime for hazardous contaminated

media, of which the treatment standards

for contaminated soil would have been

a small part. The HWIR-Media proposal

discussed a number of options for

comprehensive management standards

for hazardous contaminated media.

Today’s action resolves and finalizes

the portion of the HWIR-Media proposal

that addressed land disposal restriction

treatment standards for contaminated

soil. See 61 FR 18805–18814, April 29,

1996. Other portions of the proposal are

not resolved by this action and will be

addressed by EPA in future actions. EPA

continues to emphasize that, while the

soil-specific LDR treatment standards

will improve contaminated soil

management and expedite cleanups, the

Agency also recognizes that additional

reform is needed, especially for

management of non-media remediation

wastes like remedial sludges. The

Agency will continue to participate in

discussions on potential legislation to

promote this additional needed reform.

VIII. Improvements and Corrections to

LDR Regulations

Summary: The regulated community

has pointed out several examples of the

LDR regulations that were unclear or

had typographical errors. These sections

are clarified and corrected below.

A. Typographical Error in Section

261.1(c)(10)

A typographical error was found in

the cross reference in the note in

§ 261.1(c)(10). The first Phase IV final

rule (‘‘Minirule,’’ 62 FR 25998) said

‘‘They are covered under the exclusion

from the definition of solid waste for

shredded circuit boards being recycled

(261.4(a)(13)).’’ The correct cross

reference is to ‘‘(261.4(a)(14).’’ This

typographical error is corrected in this

final rule.

B. Typographical Error in Section

268.4(a)(2)(ii) and (a)(2)(iii)

These paragraphs have referred to

§ 268.8 for some time. Section 268.8 was

where the so called ‘‘soft hammer’’

provisions were once found in the

regulations. These provisions expired in

1990, and the provisions have been

removed from the regulations; thus

there is no need to continue to include

references to § 268.8.
Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations 28623

C. Clarifying Language Added to Section

268.7

The first item in the paperwork tables

requires that the EPA Hazardous Waste

and Manifest numbers be placed on the

notification forms. Today’s changes

clarify that the manifest number

required to be placed on the notification

form is that of the first shipment of

waste to the treatment or disposal

facility.

The tables of paperwork requirements

found at § 268.7(a)(4) and (b)(3) have

entries that describe what waste

constituents have to be identified on the

one-time LDR notification (see item 3 in

the generator table at § 268.7(a)(4), and

item 2 in the treatment and storage

facility table at § 268.7(b)(3)). The

language of these items has been

changed to avoid confusion about

whether wastes managed at facilities

subject to the Clean Water Act (CWA),

CWA-equivalent facilities, or wastes

injected into deepwells subject to the

Safe Drinking Water Act (SDWA) are

subject to a paperwork requirement (and

if so, what requirements). Wastes

managed in these facilities are subject to

a one-time notification requirement.

This notification must be placed in the

facility’s on site files and must contain

the information described in the

paperwork tables. Therefore, the

parenthetical language that appeared to

exclude such facilities from the

paperwork requirements has been

removed from item 2 in the ‘‘Generator’’

table, and item 3 in the ‘‘Treatment

Facility’’ table.

In addition, these items have been

further clarified by adding the language

‘‘in characteristic wastes’’ after the

clause ‘‘and underlying hazardous

constituents,’’ to indicate exactly what

type of wastes must be considered when

determining whether underlying

hazardous constituents are present. The

title of the paperwork table at

§ 268.7(b)(3) has been changed to clarify

that the requirements apply to storage

facilities as well as treatment facilities.

A number of certifications were

inadvertantly removed from § 268.7(b)

through Office of Federal Register

drafting errors. Those certifications are

reinstated because it was never the

intention of the Agency that they were

removed.

D. Correction to Section 268.40—

Treatment Standards for Hazardous

Waste

In the Phase III Final Rule (61 FR

15566), the Agency promulgated a UTS

of 12.0 mg/L for 1,4-dioxane

wastewaters based on the performance

of distillation. At that time, 1,4-dioxane

was the only UTS constituent for which

EPA had promulgated a nonwastewater

standard but not a wastewater standard.

However, as part of that rule, the

Agency failed to extend the treatment

standard to wastewater forms of U108

wastes. Today, the Agency is correcting

this oversight in Section 268.40—

Treatment Standards for Hazardous

Wastes, by replacing the ‘‘NA’’

designation under AU108 -1,4-Dioxane

wastewaters@ with ‘‘12.0 mg/L.’’ As

such the 1,4-Dioxane alternate treatment

standard now applies to both

wastewater and nonwastewaters forms

of U108 waste.

E. Removal of California List

Requirements and de minimis Provision

From Section 268.42

In the Phase IV rule promulgated on

May 12, 1997, EPA removed the

California List requirements because

they have all been superseded by more

specific treatment standards. The

California List included liquid wastes

containing certain metals, cyanide,

polychlorinated biphenyls (PCBs) above

specified levels, and liquid and

nonliquid halogenated organic

compounds (HOCs) above specified

levels. These wastes were removed from

the Table of Treatment Standards in

§ 268.40; however, the requirements in

§ 268.42(a)(1) and (a)(2) were

overlooked. These paragraphs are

removed by today’s rule. And because

these paragraphs are being removed, it

is necessary to revise the language of

§ 268.42(a) to remove references to these

paragraphs.

The de minimis provision of

paragraph § 268.42(a)(3) is also being

removed by today’s rule. The de

minimis provision applied to

wastewaters regulated under the Clean

Water Act (CWA) mixed with high total

organic carbon (TOC) ignitable wastes.

In the Phase III final rule, however,

wastes discharged under the CWA, or in

a facility that is CWA-equivalent, are

not subject to the LDRs (61 FR 15660,

April 8, 1996). Therefore the de minimis

provision was redundant and has been

removed by today’s rule.

F. Typographical Errors and Outdated

Cross-References in Section 268.45

There is a typographical error in

§ 268.45(a). The language has referred to

§ 261.3(c)(2), a section removed from the

regulations on September 30, 1992 (57

FR 49278). It should refer to

§ 261.3(f)(2). The correction is being

made in this final rule.

In paragraphs (3) and (4) in

§ 268.45(d) there are outdated cross

references to treatment standards that

were once found at § 268.42 and

§ 268.43 (the treatment standards once

found in these sections have been

consolidated into the ‘‘Table of

Treatment Standards’’ at § 268.40).

These cross references have been

removed from § 268.45(d)(3) and (d)(4).

G. Correction to § 268.48 to Explain

That Sulfides are not Regulated as

Underlying Hazardous Constituents in

Characteristic Wastes

In response to a comment received on

the original Phase IV proposal, EPA

reviewed the basis for the universal

treatment standard for sulfides in the

Universal Treatment Standard Table at

40 CFR 268.48. EPA is correcting the

table in this rule. Sulfides are regulated

only in Waste Code F039 (multi-source

leachate), and not as underlying

hazardous constituents in characteristic

wastes.

H. Cross References in Section 268.50(e)

Erroneous references appeared in this

section to §§ 268.41, 268.42, 268.43, and

268.32. They are eliminated in this final

rule.

I. Mistakes in Appendices VII and VIII

Table 1 includes entries for F033.

There is no hazardous waste with the

EPA waste code F033. Therefore, these

entries are being removed. The second

entry for waste codes F032, the second

entry for F034, and the first entry for

K088 contained typographical errors

that are being revised in today’s final

rule. In addition, two entries for waste

code F035 are being added to the table.

Table 2 is amended by revising entry

number 9 to change the prohibition date

for soil and debris contaminated with

K088 wastes.

The title of appendix VIII is revised to

clarify that it provides the effective

dates for wastes injected into deep

wells.

J. Clarification Regarding Point of

Generation of Boiler Cleanout Rinses

In the May 12, 1997 final Phase IV

rule, EPA included in the preamble an

interpretive discussion regarding at

what point the Agency considers a

waste to be generated when power plant

boilers are cleaned out using multiple

rinses. 62 FR at 26006. The question is

relevant to the issue of whether subtitle

C rules apply to such waste, and also,

if the waste is to be land disposed,

whether LDR prohibitions apply. In

essence, the interpretation is that the

cleanout of the boiler is to be viewed as

a single process, so that if the boiler

cleanout liquids are commingled in a

single tank system, the hazardousness of

the resulting cleanout liquids is to be

determined at the end of the cleaning

process. Id.
28624 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations

Some confusion has arisen regarding

whether this interpretation applies to

permanent storage tanks, or only to

temporary tanks brought on-site to

manage the boiler cleanout rinses. The

Agency’s view is that the interpretation

applies to temporary tanks, and also to

permanent tanks when such units are

used exclusively for the management of

boiler cleanout during the boiler

cleanout process. (Such tanks could, of

course, be engaged in other activities

when they are not dedicated to

management of boiler cleanout waste

during the cleanout process.)

EPA did state in the May 12 notice

that ‘‘[t]he interpretation * * * does not

apply where there are permanent

storage units involved.’’ 62 FR at 26007.

What the Agency had in mind was a

tank already engaged in the permanent

storage of hazardous waste. However, so

long as a tank is dedicated solely to

storage of boiler cleanout rinses during

the boiler cleanout process, there is no

environmental distinction between

whether or not a temporary or

permanent tank is used for the purpose.

Consequently, the point of generation

interpretive principle announced in the

May 12 notice applies to both

permanent and temporary tanks

systems.

IX. Capacity Determination for Phase

IV Land Disposal Restrictions

A. Introduction

This section summarizes the results of

the capacity analysis for the wastes

covered by today’s rule. For a detailed

discussion of capacity analysis-related

data sources, methodology, and

response to comments for each group of

wastes covered in this rule, see the

background document for the capacity

analysis and the background document

for the comment summary and response

for capacity-related issues (i.e.,

collectively referred to as the Capacity

Background Documents).

In general, EPA’s capacity analysis

focuses on the amount of waste to be

restricted from land disposal that is

currently managed in land-based units

and that will require alternative

treatment as a result of the LDRs. The

quantity of wastes that are not managed

in land-based units (e.g., wastewater

managed only in RCRA exempt tanks,

with direct discharge to a Publicly

Owned Treatment Works (POTW)) is

not included in the quantities requiring

alternative treatment as a result of the

LDRs. Also, wastes that do not require

alternative treatment (e.g., those that are

currently treated using an appropriate

treatment technology) are not included

in these quantity estimates.

EPA’s decisions on when to establish

the effective date of the treatment

standards (e.g., by granting a national

capacity variance) are based on the

availability of alternative treatment or

recovery technologies. Consequently,

the methodology focuses on deriving

estimates of the quantities of waste that

will require either commercial treatment

or the construction of new on-site

treatment as a result of the LDRs. EPA

also estimates the quantities of waste

that will be treated adequately either on

site in existing systems or off site by

facilities owned by the same company

as the generator (i.e., captive facilities),

and attempts to subtract that amount

from the overall amount of required

capacity.

B. Available Capacity for Surface

Disposed Wastes

Available capacity was estimated for

four treatment technology categories

that are expected to be used for the

majority of wastes in today’s rule:

stabilization (including chemical

fixation), vitrification, metal recovery,

and thermal treatment. (Numerous other

types of treatment also can meet the

treatment standards for much of these

wastes, although the Agency did not

find it necessary to present the estimates

of available capacity of these treatments.

See the Capacity Background

Documents for further information.)

1. Stabilization

EPA estimates that there are at least

several million mt/yr of available

stabilization capacity, with most of it

able to meet the treatment requirements

for the TC metal wastes and newly

identified mineral processing wastes.

Furthermore, the Agency found that

currently utilized stabilization capacity

can be quickly modified (i.e., in less

than 90 days) to meet the new treatment

standards by implementing relatively

simple changes to formulations. For

additional details, see the Capacity

Background Documents.

2. Vitrification

EPA has determined that vitrification

technology is commercially available for

treating limited quantities of Phase IV

wastes, such as some arsenic wastes,

that are difficult to treat using

stabilization and other techniques. EPA

estimates that there are approximately

15,000 mt/yr of available vitrification

capacity.

3. Metal Recovery

High temperature and other types of

metal recovery appears to be the most

applicable treatment for certain wastes

containing high concentrations of metal

constituents. EPA identified and

reviewed several metal recovery

technologies that are commercially

available, and has determined that at

least 800,000 mt/yr of metal recovery

capacity exists.

EPA recognizes, however, that not all

of this capacity will be available for

Phase IV wastes. For example, there are

technical constraints on the metal

recovery systems stemming from metal

content limitations of the waste.

Nevertheless, the Agency believes that a

significant portion of this capacity is

amenable to Phase IV wastes. For

additional details, see the Capacity

Background Documents.

4. Thermal Treatment

EPA estimates that there are

approximately 231,000 mt/yr of

commercial sludge/solid/soil

combustion capacity and 651,000 mt/yr

of commercial liquid combustion

capacity available for wastes covered by

today’s rule. Other types of thermal

treatment, such as thermal desorption,

also are available. For additional details,

see the Capacity Background

Documents.

C. Required Capacity and Variance

Determination for Surface Disposed TC

Metal Wastes

EPA estimates that at most, 1.2

million mt/yr of TC metal wastes could

require alternative treatment as a result

of promulgation of today’s rule. This

estimate includes both wastes that are

newly-identified TC wastes (i.e., wastes

that do not fail the EP test, and,

consequently, were not part of the Third

Third LDR rule) and wastes that fail the

EP test (i.e., those wastes that were

regulated in the Third Third LDR rule).

Although only the newly identified TC

wastes are eligible for a national

capacity variance, the capacity analysis

includes all wastes affected by the rule

because estimates for each category are

not available, and, furthermore, because

all of these wastes need to be assessed

to determine the full impact of this rule

on the need for a capacity variance.

Additionally, the 1.2 million estimated

quantity is likely to be an overestimate

because most of these wastes are already

meeting the new treatment standards.

Also, most of these wastes are likely to

fail the EP test and, therefore, are no

longer eligible for a capacity variance.

The wastes that will require

alternative treatment are expected to

primarily only require optimization of

existing stabilization formulations and

systems. Also, sufficient vitrification

capacity exists to treat the otherwise

difficult-to-treat TC metal wastes, high

temperature metal recovery capacity
Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations 28625

exists for some of the TC metal wastes,

and sufficient and other combustion

capacity exists to pre-treat TC metal

wastes that contain organic underlying

hazardous constituents (UHCs). The

Agency has determined that these

conclusions also apply to TC metal

contaminated debris. In addition, the

other debris treatment technologies set

out in 268.45 are widely available.

For TC metal contaminated soils, the

Agency believes that the treatment

standards, ten times UTS or 90%

reduction, will not result in any

capacity problems for treating metals

since most soils are already meeting

these standards and, furthermore, there

is an excess of stabilization treatment

capacity. Additionally, for treating

organics to the alternative treatment

standards, sufficient treatment capacity

exists from use of other technologies

(e.g., thermal desorption, soil washing,

biotreatment).

To allow facilities time to determine

whether their wastes are affected by this

rule and identify and locate alternative

treatment capacity if necessary, EPA is

providing 90 days between the

publication of today’s rule and the

effective date of the treatment standards

for the TC metal wastes, including soil

and debris, covered by today’s rule. For

a detailed discussion on data sources,

methodology, and comments and

responses for these wastes, see the

Capacity Background Documents.

D. Required Capacity and Variance

Determination for Surface Disposed

Mineral Processing Wastes

EPA estimates that the maximum

quantity of newly identified mineral

processing wastes potentially requiring

alternative treatment is approximately

1.9 million mt/yr. Most of these wastes

(approximately 1.8 million mt/yr) are

already being treated to nonhazardous

levels and, therefore, are not expected to

require much, if any, additional

treatment. The remaining wastes,

approximately 71,000 mt/yr, will

require treatment to meet the treatment

standards. However, adequate on-site

and off-site treatment capacity is

available for these wastes. The Agency

has determined that these conclusions

also apply to debris contaminated with

mineral processing wastes. In addition,

the other debris treatment technologies

set out in 268.45 are widely available.

For soils contaminated with mineral

processing wastes, the Agency believes

that the treatment standards, ten times

UTS or 90 percent reduction, will not

result in any capacity problems.

Nevertheless, to allow time for activities

such as treatment system modifications

or to identify and locate alternative

treatment capacity for process wastes,

soil, and debris, EPA is providing 90

days between the publication of today’s

rule and the effective date of the

treatment standards for the mineral

processing wastes, contaminated soil

(including MGP soil; see discussion

below), and debris covered by today’s

rule (one exception is the elemental

phosphorus wastes; see discussion

below). For a detailed discussion on

data sources, methodology, and

comments and responses for these

wastes, see the Capacity Background

Documents.

EPA estimates that up to 1.2 million

mt/yr of soil contaminated with ‘‘deBevilled’’ wastes may be remediated

from historic manufactured gas plant

(MGP) sites. In response to the first

supplemental proposal, several

commenters stated that more than 50

percent of the MGP remediation sites

are currently co-burning the wastes in

on-site coal-fired utility boilers and

requested the Agency to allow coburning of MGP soils in coal-fired

utility boilers and exclude them from

RCRA requirements. In today’s

rulemaking, the Agency is confirming

its existing (and not reopened)

interpretation that residues from coburning hazardous MGP soils along

with coal are covered by the Bevill

amendment (assuming the residues are

not significantly affected by such

burning, as provided in section

266.112). In addition, as discussed

elsewhere in this notice, the Agency is

promulgating treatment standards (ten

times UTS or 90 percent reduction) for

contaminated soils. On-site treatment

and existing commercially available

treatment technologies can readily

achieve—and to a large extent are

already achieving—the treatment

standards for contaminated MGP soil.

Therefore, the Agency does not

anticipate any capacity problems. To

allow facilities time to determine

whether their wastes are affected by this

rule, to identify alternative treatment

capacity if necessary, and to make

contractual arrangements for

transportation and other logistics, EPA

is providing 90 days between the

publication of today’s rule and the

effective date of the treatment standards

for MGP soils.

In the first supplemental proposed

rule, the Agency identified the

following three waste streams generated

from elemental phosphorus production

as lacking sufficient commercial

treatment capacity: Medusa scrubber

blowdown, Anderson filter media

rinsate, and furnace building

washdown. A major generator of these

waste streams, the FMC Corporation’s

Pocatello, Idaho facility, provided a

substantial amount of data to show that

these waste streams pose unique

treatability problems (e.g., due the

presence of naturally occurring

radioactive materials (NORM)) and that

a two-year national capacity variance is

needed to develop and construct

treatment capacity. After careful review

of the data, EPA discussed in the May

10, 1996 Notice of Data Availability, the

possibility of a two-year national

capacity variance for these three large

volume wastewater streams. In May

1997, EPA proposed the second

supplemental Phase IV rule (62 FR

26041) and, in response to this proposal,

FMC submitted a comment to EPA with

new information identifying three other

waste streams (NOSAP slurry,

precipitator slurry, and phossy water) at

its Pocatello, Idaho facility that FMC

believes would be subject to Phase IV

LDR requirements. FMC requested that

a two-year national capacity variance

also be granted for these three new

waste streams. Like the original waste

streams, the three newly identified

streams are generated in the elemental

phosphorous production process and

contain varying amounts of both NORM

and elemental phosphorous. FMC also

noted that the AFM Rinsate waste

stream, for which FMC originally

requested a national capacity variance,

has been completely eliminated, and

that therefore a national capacity

variance would no longer be needed for

this waste stream. The Agency made

these additional data available for

public comment in a November 10, 1997

NODA (62 FR 60465). No adverse

comments were received. The Agency

has decided to grant a two-year capacity

variance for all five FMC wastestreams.

Details of the methodology and

estimates of affected facilities and waste

quantities for the newly identified

mineral processing wastes are provided

in the Capacity Background Documents.

E. Phase IV Mineral Processing and TC

Metal Wastes Injected Into Underground

Injection Control (UIC) Class I Wells

Summary: EPA is granting a two-year

capacity variance for UIC wells that

inject newly identified mineral

processing wastes from titanium dioxide

production.

There are approximately 272 Class I

injection well facilities nationwide. The

Agency identified approximately 46 of

those facilities as potentially injecting

Phase IV wastes. These injected Phase

IV wastes account for less than 15

percent of the total injectate being

managed by Class I wells annually. Most

of these facilities potentially identified

already have approved no-migration
28626 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations

petitions. In assessing the impact of the

Phase IV rule to operators of UIC

facilities, the Agency found that the

only potentially affected wells are those

injecting newly identified characteristic

mineral processing wastes, since other

characteristic wastewaters were already

prohibited in 1990 and the period for

possible capacity extensions for these

wastes has run out. (See UIC

background document explaining in

detail why the other wastes are

unaffected.)

For a facility with an existing

approved no-migration determination,

the facility operator may have already

incorporated the subject waste in the

original petitions. Any facility with an

approved no-migration determination

without the waste already incorporated

may submit a modified petition (40 CFR

Part 148.20 (f)). However, if an injection

well has received a no-migration

determination, it can inject a newly

prohibited waste only if the waste is

similar to wastes included in the initial

no-migration petition. The new wastes

must behave hydraulically and

chemically in a similar manner to those

already included in the initial petition

demonstration such that they will not

interfere with the containment

capability of the injection zone and the

location of the waste plume will not

significantly differ from the initial

demonstration (See 40 CFR 148.20 (f) &

UIC Program Guidance # 74)). Based on

this information, promulgation of the

Phase IV LDRs should have little impact

on any facilities with approved

petitions.

EPA estimates that approximately five

million tons of mineral processing

wastes are being disposed annually in

UIC wells. Of these, approximately three

million tons are attributable to titanium

dioxide production from two DuPont

facilities. This volume is a conservative

estimate based on highly complex, nonsegregable waste stream mixtures. This

total volume would be subject to the

LDR treatment standards. Titanium

dioxide (TiO2) production wastes are

either generated onsite at facilities with

injection wells, or at facilities without

injection. For these DuPont facilities,

this waste is generated and disposed

onsite by injection wells. In order for

these facilities to continue injection of

this restricted waste, a no-migration

petition must be approved to meet the

conditions of 40 CFR Part 148.20 of the

UIC regulations.

For those facilities disposing

restricted Phase IV TiO2 mineral

processing waste, their options may be

limited to meeting treatment standards

(onsite or offsite), submitting a nomigration petition, transporting their

waste to a commercial Class I hazardous

disposal well facility, or deactivating

(diluting) the waste to make it

nonhazardous before injection (see

RCRA section 3004 (g) (9), a recent

amendment which allows such

dilution). All of these options are

resource intensive and owners/operators

of these facilities will be faced with

critical economic and business

decisions. These TiO2 facilities do not

have immediate capability to treat their

waste onsite. If they were to opt for

treatment onsite, it would require

substantial time and resources to build

a treatment facility or to substantially

modify their existing facility. It would

take at least two years (and possibly

longer) to construct such a treatment

system. In evaluating various disposal

alternatives, one DuPont facility is

currently constructing a treatment

works that will integrate a

neutralization project based on current

production. As an alternative to deep

well injection disposal, the long term

construction at this facility has been

costly and operational start-up will

require additional time to work out

issues. See DuPont letter of Feb. 5, 1998.

With respect to the options of

managing the waste water offsite, severe

practical constraints limit the

availability of capacity to these DuPont

Ti02 facilities. A typical volume of Ti02

wastewater is 900,000 Gallons (3,750

tons) per day; and peak production

volumes are 1 million Gallons (4,167

tons) per day. DuPont letters of Feb. 5

& 20, 1998. At peak production, this

would take 200 tanker trucks per day for

each affected facility to ship the volume

of waste that is currently injected.

Additionally, these trucks must be

constructed with fiberglass or titanium

tanks to be compatible to the low pHhighly corrosive acid waste (Note from

ICF to R. E. Smith to RCRA Docket (Feb.

17, 1998)). Indeed, it is not even certain

that existing 10, 000 gallon tanker trucks

are compatible with this wastestream,

due to its weight (the TDS content is so

high that a 10, 000 gallon tanker could

only be half full) and corrosivity.

Dupont letter of Feb. 20, 1998.

Commercial waste management

facilities normally cannot feasibly

accommodate this daily volume. There

are at least ten operating commercial

Class I hazardous waste injection

facilities nationwide, it is uncertain

whether they have the capacity to

accept 3 million tons of TiO2 mineral

processing waste annually for disposal

because of permitting limitations. These

commercial wells also have finite

capacity limitations. The Agency

studied the operational permit

parameters of these commercial

facilities and found that individual

injection and flow capacity rates

(UICWELLS Database) may restrict

injection of additional high volumes of

waste. Rates are scientifically and

mathematically determined to avoid

damage to the well and the injection

zone. Further study of compatibility

requirements for these wells suggest that

they have acceptable construction for

most wastes disposed but not

necessarily for the TiO2 production

waste in its present concentration.

Without pretreatment, these waste

characteristics would require a more

exotic well construction that is

composed of fiberglass injection tubing,

titanium casing and packer, epoxy and

acid resistance compatible cement.

EPA has also looked at commercial

wastewater treatment capacity in the

vicinity of the two DuPont facilities. For

one facility, there are no available

commercial waste water treatment

plants within 200 miles. For the other

facility, there are two treatment plants

within 75 miles but neither has the

capacity to accept the high volumes of

waste generated by either DuPont

facility (based on BSR data).

Commercial waste water treatment

facilities generally handle corrosive

toxic metal waste waters by stabilization

and neutralization techniques.

Treatment plants managing the Ti02

production waste waters would have to

be specially constructed and equipped

not only to be amenable to a high

volume of acidic waste but also have the

capacity to manage the huge amount of

solids that will yield from treatment.

Thus, wastewater treatment requires

having pre-storage and processing units,

adequate chemicals to neutralize the

corrosive characteristic of the waste and

stabilization technology to immobilize

the metals before they are either stored

onsite, marketed, or landfilled. While

the Agency is satisfied that this

treatment technology is applicable to

Ti02 waste water, there is much

reservation whether DuPont’s facilities

could realistically mobilize 200 tanker

trucks per day per facility to safely ship

this waste to these treatment facilities

even if treatment capacity were readily

available at them.

The statute also allows injection of

waste waters which no longer exhibit a

characteristic into Class I wells without

meeting any other LDR treatment

standard, and dilution may be used as

a means of decharacterizing the waste.

RCRA section 3004 (g) (9). However,

deactivation of certain characteristic

wastes through dilution is not always

practical or even feasible. The whole

waste stream process may not be

amenable to dilution prior to injection
Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations 28627

at the wellhead, and the geologic

reservoirs into which the wells inject

have a finite capacity. Sometimes filling

up reservoirs with huge volumes of

additional water shortens the life of the

well operation because reservoir

pressures build up much more quickly

and the injection zone becomes

‘‘overpressurized.’’ EPA finds that this

is the case for the TiO2 wastewater at

issue here. Thus, the dilution option

cannot be utilized here to find that there

is adequate available treatment capacity

for these TiO2 wastes.

Capacity analyses usually focus on

the demand for alternative capacity

once existing on-site capacity and

captive off-site capacity have been

accounted for. However, capacity also

may be unavailable if there is no

practical means of utilizing it due to

logistical problems. For example, in the

Third Third rule, EPA relied on such

logistical factors to determine when

capacity was realistically available (see

55 FR 22645–22646, June 1, 1990). The

Agency noted that injection wells at onsite facilities are directly connected to

the plant operations and that in order to

realistically arrange for off-site

disposition of the waste, the plant

managers will need time to make

considerable logistical adjustments such

as, repiping, retooling, and development

of transportation networks at the plant

operations. Similarly, for TiO2 waste

facilities, the Agency doesn’t believe

that treatment capacity is available since

there is no feasible way for generators to

transport their wastes to the treatment

facilities at this time, plus all of the

other repiping that would be entailed.

The Agency believes that it would take

at least two years for the TiO2 facilities

to alter their operations to ship

wastewater to offsite facilities and for

off-site facilities to make corresponding

changes to their operations to

accommodate the large influx of highly

corrosive, high volume, dense

wastewater (even if off-site facilities

were to be willing to accept the waste,

which is quite unclear).

Under these circumstances, the

Agency finds that there is inadequate

treatment, recovery, or disposal capacity

presently available for TiO2 injected

waste waters currently being injected

into Class I hazardous wells, and

therefore is granting a two-year national

capacity variance for these wastes. The

Agency expects that affected generators

will utilize this period for applying for

no-migration petitions for their existing

wells, or to construct on-site wastewater

treatment systems.

EPA estimates that there is

approximately 2 million tons of other

injected Phase IV mineral processing

wastes (i.e. from processes other than

TiO2 production). One facility with the

largest volume of that injected waste has

applied for and received an approved

no-migration petition thus meeting the

conditions of 40 CFR Part 148.20. The

rest of these facilities are either applying

dilution as a means of decharacterizing

their waste (as allowed under Section

3004(g)(9)), or are treating their waste

before disposal. Their waste volumes

are much less than the TiO2 production

waste being injected. Since the volume

of wastes is so much less than TiO2, and

the wastes are more amenable to

conventional management, EPA does

not see the same types of difficulties

arising, and is therefore not delaying the

effective date of the prohibition for

these facilities. (See UIC background

document).

F. Mixed Radioactive Wastes

Significant uncertainty exists about

quantities of mixed radioactive wastes

containing wastes that will require

treatment as a result of today’s rule.

Despite this uncertainty, any new

commercial capacity that becomes

available will be needed for mixed

radioactive wastes that were regulated

in previous LDR rulemakings and whose

variances have already expired. Thus,

EPA has determined that sufficient

alternative treatment capacity is not

available, and therefore is granting a

two-year national capacity variance for

mixed RCRA/radioactive TC metal

wastes that are newly identified (i.e.,

wastes, soil, or debris identified as

hazardous by the TCLP but not the EP),

and newly identified characteristic

mineral processing wastes including

soil and debris.

G. Summary

Table 1 summarizes the capacity

variance determination for each

category of Phase IV RCRA wastes for

which EPA is promulgating LDR

treatment standards.

TABLE OF CAPACITY VARIANCES FOR PHASE IV WASTES

[Note: Capacity variances begin from the publication date]

Waste description Surface-disposed

wastes

Deep well-injected

wastes

Newly identified wastes from elemental phosphorus processing .................................................... Two years .................. Not applicable.

Newly identified mineral processing wastes from titanium dioxide production ............................... 90 days ...................... Two years.

Newly identified TC metal wastes (i.e., wastes identified as hazardous by the TCLP but not the

EP), and newly identified characterisitc mineral processing wastes including soil and debris.

90 days ...................... 90 days.

Radioactive wastes mixed with newly identified TC metal wastes (i.e., wastes identified as hazardous by the TCLP but not the EP), and mixed with newly identified characteristic mineral

processing wastes, including soil and debris.

Two years .................. Two years.

X. Change to Definition of Solid Waste

To Exclude Wood Preserving

Wastewaters and Spent Wood

Preserving Solutions From RCRA

Jurisdiction

Summary: As proposed on May 12,

1997 (FR 62 26055), EPA is today

amending the definition of solid waste

to exclude wood preserving wastewaters

and spent wood preserving solutions

from RCRA jurisdiction provided that

certain conditions are met, as specified

below.

A. Summary of the Proposal

On May 12, 1997 in the Phase IV LDR

second supplemental rulemaking, EPA

proposed to amend the RCRA

regulations to provide an exclusion from

the definition of solid waste for certain

materials generated and recycled by the

wood preserving industry. Specifically,

the proposal would exclude certain

wood preserving wastewaters and spent

wood preserving solutions from

classification as solid waste under

RCRA. Any wood preserving plant

claiming the exclusion for these wastes

would need to manage them according

to the following criteria: (1) the

materials must be recycled and reused

on-site in the production process for

their original intended purpose; (2) the

materials must be managed to prevent

release; (3) the plant must assure that

the units managing these materials can

be visually or otherwise determined to
28628 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations

prevent releases; and (4) drip pads

managing these materials must comply

with Subpart W drip pad standards

regardless of whether the plant has been

classified as a conditionally exempt

small quantity generator (CESQG) (see

40 CFR 261.5). For a more detailed

discussion of these conditions, please

consult the relevant sections in the May

12, 1997 proposed rule.

As noted above, the exclusion was to

be limited to wood preserving

wastewaters and spent wood preserving

solutions that are recycled and reused

on-site at wood preserving plants in the

production process for their original

intended purpose. As EPA explained in

the proposal, any listed wastewater or

spent solution that is not recycled onsite according to the conditions of the

exclusion is not excluded from the

definition of solid waste. Moreover, the

F032, F034 and F035 listings cover

wastestreams other than wastewaters

and spent solutions. These other listed

wastestreams would not be eligible for

exclusion even if recycled. This could

include materials associated with

wastewaters and spent solutions, such

as residues that accumulate in a drip

pad sump. EPA affirms this scope of the

exclusion for the final rule.

It was neither the Agency’s intent nor

belief that the proposed exclusion

would in any way reduce the

obligations that wood preserving plants

have under 40 CFR Part 264, Subpart W

and Part 265, Subpart W, including the

requirements for drip pads and the

§ 264.570(c) and § 265.440(c)

requirements under for response to

infrequent and incidental drippage in

storage yards. The Agency specifically

requested comment on whether the

proposed exclusion would reduce these

requirements. The Agency also sought

comment on whether a plant claiming

the proposed exclusion should be

required to place a notification form to

that effect in its files on-site and/or to

submit it to either the EPA Regional

Administrator or State Director to allow

review. Finally, EPA asked for comment

concerning the conditions under which

the proposed exclusion, once claimed,

would no longer apply.

Of course, this exclusion from the

definition of solid waste under the

federal RCRA statute does not modify

any regulatory requirements that are

independently imposed under other

environmental statutes.

B. Modifications to the Proposal

The Agency received four sets of

comments on the proposed exclusion

for wood preserving wastewaters and

spent wood preserving solutions. While

some comments were supportive of the

proposal, others were critical of the

Agency for, among other things,

relinquishing some regulatory oversight

of the wood preserving industry. The

comments EPA received on the scope of

the proposed exclusion and the

Agency’s response can be found in the

docket for this rulemaking. All

comments were carefully considered.

This section addresses those changes

that EPA made to the proposed rule

based on comments the Agency

received. The next section (‘‘Other

Comments’’) addresses those aspects of

the proposal that, though they remain

unchanged by today’s rule, require

further clarification based on the

comments received.

1. Notification

EPA received two responses to its

request for comment on whether it was

necessary for a plant claiming the

proposed exclusion to provide notice to

the appropriate regulatory agency and, if

so, what type of notice that should be.

One commenter suggested that the

publication of the exclusion and its

effective date by EPA in this final rule

would serve as sufficient notice, and

that notification on a plant specific basis

is unnecessary. EPA does not consider

publication of the final rule to provide

adequate notice on the names and

locations of wood preserving plants

planning to operate under the

conditional exclusion. Moreover, EPA is

concerned that this commenter may

have assumed that the exclusion would

take effect nationwide upon publication.

As explained below in the section titled

‘‘state authorization,’’ this is not correct.

The exclusion will not take effect in any

authorized state unless and until the

state adopts it.

The other commenter suggested that it

is appropriate for wood preserving

plants claiming an exclusion for their

recycled wastewaters and spent

solutions to notify the appropriate state

agency. EPA considers notification to

the appropriate regulatory agency to be

essential to the proper implementation

of this provision. To allow EPA and

authorized states to verify that the

conditions placed upon today’s

exclusion are properly met, it is

important that wood preserving plants

inform the appropriate Regional

Administrator or State Director that they

are claiming the exclusion and will

therefore be reporting significantly

lower waste generation totals. EPA is

therefore revising the proposed

exclusion to require a plant owner or

operator (prior to operating pursuant to

this exclusion) to submit to the

appropriate Regional Administrator or

State Director a one-time notification

stating that the plant intends to claim

the exclusion, giving the date on which

the plant intends to begin operating

under the exclusion, and containing the

following language: ‘‘I have read the

applicable regulation establishing an

exclusion for wood preserving

wastewaters and spent wood preserving

solutions and understand it requires me

to comply at all times with the

conditions set out in the regulation.’’

The plant must maintain a copy of that

document in its on-site records for a

period of no less than 3 years from the

date specified in the notice.

2. Conditions Under Which the

Exclusion Would No Longer Apply

EPA requested comment on

conditions that void the exclusion.

Specifically, EPA asked whether a spill

should result in the loss of the exclusion

just for the spilled material, or also for

the wastewaters and spent solutions

generated after the spill occurred. EPA

received two comments on conditions

under which the exclusion, once

claimed, would no longer apply. One

commenter stated that RCRA regulation

should be required for all materials that

are spilled or otherwise exit the

recycling loop. The other commenter

suggested that ‘‘a simple spill . . . is

obviously not related to the normal

operation of the drip pad . . .’’ and

should therefore not void the exclusion

for wastewaters and spent solutions that

are collected and not spilled or released.

EPA agrees with the commenter who

took the position that the spilled

material itself should be ineligible for

the exclusion. The spilled material

inherently fails to meet the condition

requiring plant operators to manage

wastewaters and solutions so as to

prevent releases. Although there could

potentially be conditions under which a

spilled material could still be eligible

for the existing exclusions under

§ 261.4(a)(9)(i) and (ii) following

reclamation, such materials are in all

cases ineligible for today’s new

exclusion under § 261.4(a)(9)(iii).

To respond to the second comment,

EPA has decided to clarify the effect of

a violation of any condition, including

the condition prohibiting spills, on

wastewaters and spent solutions

generated after a violation occurs. EPA

has decided that the exclusion should

not be available until the plant owner or

operator notifies the appropriate

regulatory agency, and the agency

determines that the problem has been

adequately addressed. It is appropriate

to impose this requirement even for

spills, because the significance of a spill

may vary greatly from plant to plant and

from incident to incident. EPA hopes
Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations 28629

that a reviewing agency would quickly

reinstate the exemption after a one-time

spill, particularly if small, and would

not require specific actions to correct

the problem. In contrast, EPA would

expect the reviewing agency to require

specific actions (such as creation and

implementation of a spill prevention

plan) for a plant that experienced

repeated spills. EPA believes the

severity of any violation and the precise

actions needed to return the plant to

compliance can best be assessed on a

case-by-case basis. EPA has added

language to the regulation to clarify this

issue. It applies to all of the conditions

of the exclusion.

C. Other Comments

A number of comments indicated a

need for EPA to clarify other aspects of

the proposal that the Agency is

finalizing today.

1. Oil Borne Facilities

One commenter suggested that the

exclusion that EPA is finalizing today

applies not only to water borne wood

treating plants but also to oil borne

wood treating plants. At the time of

proposal, EPA intended to create an

exclusion only for plants using water

borne preservatives. See, for example,

the discussion at 63 FR 26057, col. 1.

EPA did not evaluate oil borne plants at

the time. It is EPA’s general

understanding that plants which use oil

borne preservatives do not recycle

wastewaters and spent solutions by

using them in the work tank to treat

wood. Rather, they reuse these

wastewaters in cooling systems, vacuum

seals, and other devices. EPA wants to

limit today’s exclusion to materials that

are reused for their original intended

purpose—the treatment of wood. EPA

has not had time to investigate the

jurisdictional and factual issues posed

by the use of wastewaters for other,

more ancillary purposes. Consequently,

EPA is not expanding the exclusion

beyond the proposal. It applies only to

water borne processes.

2. Application of the Conditions to

Units Other Than the Drip Pad

One commenter expressed opposition

to ‘‘any language that would extend the

EPA’s RCRA authority to devices that

have previously not been regulated

under RCRA.’’ In view of this comment,

the Agency is prompted to clarify that

the conditions for claiming the

exclusion must be met with regard to

any unit that comes into contact with

the recycled wastewaters and spent

wood preserving solutions excluded in

today’s rule.

Thus, sumps or other units that are

arguably part of an exempt wastewater

treatment unit and that manage

wastewaters and spent solutions are

subject to these conditions. EPA has

already stated that ‘‘management to

prevent releases would include, but not

necessarily be limited to, compliance

with [Subpart W] and maintenance of

the sumps receiving the wastewaters

and spent solutions from the drip pad

and retort to prevent leaching into land

and groundwater.’’ (62 FR 26057). The

Agency must be able to verify that the

excluded materials are being managed

to prevent release at every step of the

recycling process through reclamation

to ensure that the basic technical and

policy conditions underlying the

exclusion are properly met.

3. Relationship of Today’s Exclusion to

Previous Industry Exclusions

One commenter wanted to assure that

today’s exclusion would not now

regulate units that transmit or store

materials that have been excluded

according to other, currently existing

regulations. EPA does not intend to use

today’s exclusion to rescind either of the

exclusions that the Agency has

previously granted the wood preserving

industry under §§ 261.4(a)(9)(i) and (ii).

4. Units That May Be Visually or

Otherwise Determined to Prevent

Release

One commenter expressed concern

that the term ‘‘units’’ is an overly broad

way to refer to those portions of the

system subject to RCRA inspection. EPA

will now clarify which ‘‘units’’ are

subject to inspection under the

conditions of this exclusion. As

mentioned above, all units that come

into contact with the excluded materials

prior to reclamation must necessarily be

subject to verification that they are able

to contain these materials in a manner

that prevents their release to the

environment. This includes, but is not

necessarily limited to, any drip pad,

sump, retort or conduit that comes into

contact with the wastewaters and spent

solutions prior to reclamation. This also

includes any unit that is arguably part

of a plant’s wastewater treatment system

but that comes into contact with the

wastewaters or spent solutions prior to

reclamation. An inspector must be able

to determine (by visual or other means)

whether these units are managing the

wastewaters and spent solutions in a

manner that prevents release. When

relying on a visual inspection (as

opposed to a leak detection system or

other means), it may be necessary for an

inspector to require these units be

drained or cleaned for the inspector to

make an informed determination as to

whether the unit is cracked or leaking.

5. CESQG Status

One commenter also requested EPA to

prevent wood preserving plants from

becoming conditionally exempt small

quantity generators (CESQGs) after

claiming the exemption. The commenter

was concerned that other, non-excluded

wastestreams generated at these plants

that are covered by the listings would

no longer be subject to any hazardous

waste regulation. As explained in more

detail in the response to comment

document, EPA lacks sufficient

information about the volumes of these

other wastes and the risks they pose to

promulgate a rule creating an exception

to the long-established CESQG

exemption for them.

D. State Authorization

Upon promulgation, this exclusion

will immediately go into effect only for

plants in those states and territories that

are not currently authorized to

implement the RCRA program (i.e.,

Alaska, Iowa, Hawaii, American Samoa,

Northern Mariana Islands, Puerto Rico

and Virgin Islands). Plants in these

states are subject to the provisions of the

federal program. Conversely, any plant

located in a RCRA authorized state will

be unable to claim the exclusion we are

finalizing today unless and until that

state amends its regulations to include

the exclusion. Because EPA allows state

programs to be more stringent than the

federal program, it is not necessarily

guaranteed that all authorized states

will elect to adopt this exclusion.

XI. Clarification of the RCRA Exclusion

of Shredded Circuit Boards

In the May 12, 1997 final rule on Land

Disposal Restrictions, the

Environmental Protection Agency (EPA)

excluded shredded circuit boards from

the definition of solid waste

conditioned on containerized storage

prior to recovery. To be covered by this

exclusion shredded circuit boards must

be free of mercury switches, mercury

relays, nickel-cadmium batteries or

lithium batteries. On a related issue,

current Agency policy states that whole

circuit boards may meet the definition

of scrap metal and therefore be exempt

from hazardous waste regulation. In a

parenthetical statement in the May 12,

1997 rule, the Agency asserted that

whole used circuit boards which

contain mercury switches, mercury

relays, nickel-cadmium batteries, or

lithium batteries also do not meet the

definition of scrap metal because

mercury (being a liquid metal) and

batteries are not within the scope of the
28630 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations

47One possible exception to this are producers of

hazardous waste-derived fertilizers. This is

definition of scrap metal. The preamble

cited 50 FR 614, 624 (1985).

Members of the electronics industry

expressed concern to the Agency about

the preamble statement regarding the

regulatory status of whole used circuit

boards which contain mercury switches,

mercury relays, nickel-cadmium

batteries, or lithium batteries. The

electronics industry indicated that its

member have developed a sophisticated

asset/materials recovery system to

collect and transport whole used circuit

boards to processing facilities. The

industry explained that the boards are

sent to processing facilities for

evaluation (continued use, reuse or

reclamation) where the switches and the

types of batteries are generally removed

by persons with the appropriate

knowledge and tools for removing these

materials. Once these materials are

removed from the boards, they become

a newly generated waste subject to a

hazardous waste determination. If they

fail a hazardous waste characteristic,

they are handled as hazardous waste,

otherwise they are managed as a solid

waste. Information was also provided

regarding the quantity of mercury on

these switches and on the physical state

in which they are found on the boards.

The information indicates that the

mercury switches and relays on circuit

boards from some typical applications

contain between 0.02–0.08 grams of

mercury and are encased in metal which

is then coated in epoxy prior to

attachment to the boards.

In today’s final rule, the Agency

recognizes that the preamble statement

in the May 12, 1997 final rule is overly

broad in that it suggested that the scrap

metal exemption would not apply to

whole used circuit boards containing

the kind of minor battery or mercury

switch components and that are being

sent for continued use, reuse, or

recovery. It is not the Agency’s current

intent to regulate under RCRA circuit

boards containing minimal quantities of

mercury and batteries that are

protectively packaged to minimize

dispersion of metal constituents. Once

these materials are removed from the

boards, they become a newly generated

waste subject to a hazardous waste

determination. If they meet the criteria

to be classified as a hazardous waste,

they must be handled as hazardous

waste, otherwise they must be managed

as a solid waste.

XII. Regulatory Requirements

A. Regulatory Impact Analysis Pursuant

to Executive Order 12866

Executive Order No. 12866 requires

agencies to determine whether a

regulatory action is ‘‘significant.’’ The

Order defines a ‘‘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 Agency estimated the costs of

today’s final rule to determine if it is a

significant regulation as defined by the

Executive Order. The analysis

considered compliance costs and

economic impacts for newly identified

wastes affected by this rule, as well as

media contaminated with these wastes.

In addition, the analysis addresses the

cost savings associated with the new

soil treatment standards being

promulgated in today’s rule. Newly

identified mineral processing wastes

covered under this rule include 118

mineral processing wastes identified as

potentially characteristically hazardous.

Also covered under this rule are TC

metal wastes. Today’s final rule also

covers treatment standards for

contaminated media (i.e., soil and

sediment). EPA estimates the total cost

of the rule to be a savings of $6 million

annually, and concludes that this rule is

not economically significant according

to the definition in E.O. 12866.

However, the Agency does consider this

rule to be significant for novel policy

reasons. The Office of Management and

Budget has reviewed this rule.

Detailed discussions of the

methodology used for estimating the

costs, economic impacts and the

benefits attributable to today’s proposed

rule for newly identified mineral

processing wastes, followed by a

presentation of the cost, economic

impact and benefit results, may be

found in the background documents: (1)

‘‘Regulatory Impact Analysis of the

Phase IV Land Disposal Restrictions

Final Rule for Newly Identified Mineral

Processing Wastes,’’ (2)’’Regulatory

Impact Analysis of the Phase IV Land

Disposal Restrictions Final Rule for TC

Metal Wastes,’’ and (3) ‘‘Regulatory

Impact Analysis of the Phase IV Land

Disposal Restrictions Final Rule for

Contaminated Media,’’ which were

placed in the docket for today’s final

rule.

1. Methodology Section

The Agency estimated the volumes of

waste and contaminated media affected

by today’s rule to determine the national

level incremental costs (for both the

baseline and post-regulatory scenarios),

economic impacts (including first-order

measures such as the estimated

percentage of compliance cost to

industry or firm revenues), and benefits

or risk-screens used to document the

inherent hazard of materials being

evaluated.

2. Results

a. Volume Results. EPA estimates that

there are 29 mineral commodity sectors

potentially affected by today’s rule,

including an estimated 136 facilities

that generate 118 streams of newly

identified mineral processing secondary

materials. The estimated volume for

these potentially affected newly

identified mineral processing secondary

materials is 22 million tons. Also,

approximately 1.3 million tons of

contaminated soil containing coal tar

and other wastes from manufactured gas

plants are potentially affected by this

rule. As discussed below, EPA does not

believe that any TC metal process

wastes are potentially affected by

today’s final rule. EPA estimates that

approximately 165,000 tons per year of

soil and sediment contaminated with

TC metals and approximately 90,000

tons per year of previously regulated

contaminated soils is impacted by

today’s rule.

b. Cost Results For the part of today’s

final rule that prohibits land storage of

mineral processing residues (below the

high volume threshold) prior to being

recycled, EPA estimates these expected

case annualized compliance costs to be

$10 million. The cost results for this

part of today’s final rule are a function

of two factors: (1) the expense

associated with purchasing new storage

units or upgrading existing storage

units, and (2) the transfer of some

mineral processing residues either from

recycling to disposal resulting in

increased costs or from disposal to

recycling resulting in a cost savings.

For TC metal wastes the Agency

believes that there will be no

incremental costs associated with

stabilization of these wastes from the

promulgation of these treatment

standards.47 In addition, EPA believes
Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations 28631

discussed below under the Regulatory Flexibility

section.

48 December 19, 1996 letter to Anita Cummings,

USEPA Office of Solid Waste from Michael G.

Fusco, Director of Regulatory Analysis, Rollins

Environmental Inc., p.4 of edited draft EPA trip

report letter to Rollins Highway 36 facility in

Colorado.

that there will be no incremental

treatment costs for the treatment of TC

metal wastes that contain organic

underlying hazardous constituents.

Based on public comment and data

collected from commercial hazardous

waste treaters and generators, EPA

believes that TC metal wastes are often

already treated to these universal

treatment standard levels when waste

handlers treat to the current treatment

standards using bona fide treatment

reagents (e.g., portland cement).48

Therefore, no additional treatment

reagent or capital equipment associated

with stabilization is required with these

wastes.

Previously, EPA had estimated costs

to the nonferrous foundry industry

associated with complying with today’s

treatment standards. This estimate was

modeled on trisodium phosphate with a

ph buffer. When this type of treatment

reagent is used, incremental quantities

are required to achieve the universal

treatment standards for cadmium

promulgated in today’s rule. However,

based on contacts with trade

associations and vendors of stabilization

equipment, EPA believes that portland

cement is equal to or less than the cost

of trisodium phosphate and is therefore

a more appropriate choice for modeling

a compliance baseline from which to

estimate the costs of the rule. Unlike

trisodium phosphate, portland cement

currently being used to meet existing

treatment standards has been shown to

meet the universal treatment standards

without additional reagent.

Accordingly, EPA believes that no

incremental costs (or benefits) for

stabilization are attributable to the

promulgation of the universal treatment

standards for TC metal wastes.

Although according to the American

Foundrymen’s Society iron filings are

used by many nonferrous foundries as a

treatment reagent, for the reasons

discussed above under Section III (f),

EPA does not believe that iron filings

are a legitimate and effective form of

treatment. Therefore, the costs of

switching from iron filings to another

form of treatment reagent such as

portland cement is more appropriately

characterized as a cost of coming into

compliance with already existing

treatment standards rather than an

incremental cost attributable to today’s

rule. Although EPA does not believe the

cost of switching from iron filings to

another treatment reagent is attributable

to today’s final rule, the Agency has

estimated these compliance costs and

included this information in the

background document ‘‘Regulatory

Impact Analysis of the Phase IV Land

Disposal Restrictions Final Rule for TC

Metal Wastes,’’ which was placed in the

docket for today’s final rule. EPA

estimates that the annual cost to

nonferrous foundries to switch from

iron to portland cement to stabilize

hazardous foundry sands is $11.7

million. Results from the risk screen for

nonferrous foundry sands are discussed

below.

For TC metal hazardous wastes that

contain organic underlying hazardous

constituents, one commenter has

suggested that the Phase IV final rule

would result in costs resulting from

changing from stabilization of these

wastes to incineration. EPA has

evaluated data from the National

Hazardous Waste Constituent Survey to

assess both the prevalence and level of

organic underlying hazardous

constituents in TC metal wastes (solid

and sludges). The results indicate that

organic underlying hazardous

constituents are rarely present in these

wastes. Only seven of 181 TC metal

hazardous wastes examined contained

organic underlying hazardous

constituents. Of these seven, only three

contained organics above the Univeral

Treatment Standard. None of the three

waste steams that contained organics

above the Univeral Treatment Standard

was present in concentrations high

enough to warrant incineration. In short,

it is unlikely that organic underlying

hazardous constituents will be present

in TC metal wastes. And if present,

incineration is unlikely to be used to

treat these wastes. For reasons, EPA

believes that the Phase IV final rule will

not result in incremental costs for TC

metal wastes containing organic

underlying hazardous constituents.

The Agency is also promulgating new

soil treatment standards in today’s final

rule. As these standards are less

stringent than those currently required

for previously regulated soils, an

estimate of the cost savings associated

with these standards has been prepared.

The total incremental savings estimated

for the new soil treatment standards is

$25 million per year.

For contaminated soils which exhibit

a characteristic for TC metals (including

soils containing newly identified

mineral processing wastes) but do not

contain organic underlying hazardous

constituents, there is no incremental

cost expected from today’s rule. These

soils are subject to the new treatment

standards which are less stringent than

current LDR treatment standards for

contaminated soils. The one category of

TC hazardous metal contaminated soil

that is potentially impacted by today’s

rule is TC hazardous metal

contaminated soil which contains

organic underlying hazardous

constituents. These soils require

additional treatment over that received

in the baseline to effectively treat the

organic constituents of concern. The

Agency estimates that this additional

requirement will result in a $3 million

per year cost for these wastes, occurring

mainly at voluntary cleanups and

Superfund sites.

Manufactured gas plant contaminated

soils (MGP) are a class of contaminated

media that has heretofore not been

subject to LDR treatment standards. EPA

believes that some incremental costs

may result from today’s final rule to

MGP clean ups involving the use of

MGP soils in land applied recycling

such as hot or cold mix asphalt, brick

and concrete. It is possible that some of

these soils will not meet the conditional

exemption for waste-derived products

that are used in a manner constituting

disposal. 40 CFR § 266.20(b). For this

reason, it is also possible that owner/

operators of these sites may select an

alternative remedy such as in-situ

treatment or co-burning which are not

affected by today’s rule. On balance,

EPA still believes that the promulgation

of new treatment standards will

encourage remediation of hazardous

soils. The estimated annual costs to

owner/operators of MGP sites for

selecting remedies that are alternatives

to asphalt, brick or concrete recycling

are $6.2 million.

c. Economic Impact Results. To

estimate potential economic impacts

resulting from today’s final rule, EPA

has used first order economic impacts

measures such as the estimated

compliance cost of the rule as a

percentage of sales/revenues, value

added (sales less and material cost) and

profit or return on capital. EPA has

applied these measures to newly

identified mineral processing hazardous

wastes.

For recycled mineral processing

secondary materials, EPA has evaluated

the estimated compliance costs as a

percentage of value (i.e. sales), value

added and profits of the mineral

commodities produced in each sector.

In addition EPA has compared

estimated compliance costs as a

percentage of revenues to specific

mineral processing firms to provide

additional information on potential

impacts.
28632 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations

49See Human Health and Environmental

Damages from Mining and Mineral Processing

Wastes, Technical Background Document

Supporting the Supplemental Proposed Rule

Applying Phase IV Land disposal Restrictions to

Newly Identified Mineral Processing Wastes, U.S.

Office of Solid Waste, U.S. Environmental

Protection Agency, December 1995; Ecological Risk

Assessment Southshore Wetlands for the Kennecott

Utah Copper Salt Lake City, Utah. Working Draft

March 4, 1996; May 7, 1996 letter from Max H.

Dodson, Assistant Regional Administrator for

Ecosytem Protection and Remediation, U.S.E.P.A,

Region VIII to Michael Sahpiro, Director, Office of

Solid Waste, U.S.E.P.A.

Economic impacts from today’s rule

for mineral processing facilities may or

may not be substantial for selected

mineral processing sectors depending

on the actual storage and management

of mineral processing residues prior to

being recycled. In the expected case

scenario up to 5 of the 29 commodity

sectors are expected to incur

compliance costs equal to or greater

than 1 percent of the economic value of

the mineral commodities produced

under the Agency’s proposed option in

today’s rule. These sectors include:

cadmium, fluorspar and hydrofluoric

acid, mercury, selenium and tungsten.

The range of percentages in these

sectors is between 2 percent (cadmium)

and 36 percent (mercury). Because

many of these sectors are actually coprocessed with other mineral

commodity sectors, these impacts may

be distributed over the economic value

of the other minerals, rather than

concentrated solely on the mineral

commodity associated with generating

the secondary materials. For example,

EPA has estimated that today’s final rule

may affect the cadmium and selenium

sectors by imposing incremental costs

equal to 18 percent of the value added

of those minerals. The value added is

equal to the market value of the

minerals less the cost of the raw

materials (i.e., ore concentrate).

Cadmium is a co-product of zinc

production and selenium is co-product

of copper production; hence, these

economic impacts are expected

primarily to affect the production of

these co-products and the reclamation

of their residuals rather than the mineral

processing operation as a whole.

Because recovery for these co-product

residuals is generally less expensive

than treatment and disposal, EPA

believes that the costs for these

residuals will not significantly decrease

their recovery although the storage costs

could add to the expense.

As stated above, the Agency believes

that there are no incremental costs

associated with today’s final rule for

stabilization for handlers of TC metal

hazardous wastes. Moreover, the

Agency believes that there are no

incremental costs associated with TC

metal wastes containing organic

underlying hazardous constituents may

incur costs as described above and

corresponding impacts. Accordingly,

there is no economic impact for waste

handlers managing TC metal wastes.

For TC hazardous foundry sands, EPA

also believes that there is no economic

impact attributable to today’s final rule.

As stated above, EPA views the cost

associated from switching from iron

filings to cement or other treatment

reagent are not properly considered

attributable to this rulemaking but

rather a cost of coming into compliance

with existing regulations. Moreover,

even if these costs were attributable to

this rulemaking, EPA estimates that

incremental costs attributable to this

switching from iron filings to portland

cement are less than one percent of

industry revenues and six percent of

industry profits and therefore would not

create a significant impact to these

facilities. More detailed information on

this estimate can be found in the

regulatory impact analysis placed into

today’s docket.

As previously stated, EPA does not

believe there are incremental costs

associated with today’s rule for TC

hazardous metal contaminated soils

except for TC hazardous metal

contaminated soils that contain organic

underlying hazardous constituents. EPA

has evaluated the industries generating

these TC metal organometallic soils and

has determined that incremental costs

from today’s final rule do not impose a

significant impact.

Similarly, EPA has determined for

MGP site clean ups that the economic

impact of today’s rule is not a

significant impact. The estimated

percentage of compliance costs to firm

sales is less than 1 percent.

d. Individual Risk Estimate Results.

The Agency has performed an

individual risk analysis to estimate the

quantifiable central tendency and highend hypothetical individual risk for

mineral processing secondary materials

associated with today’s final rule to be

above levels of concern for cancer and

noncancer risks for specific mineral

processing streams in both groundwater

and nongroundwater pathways. Results

suggest that central tendency and highend hypothetical individual cancer and

non-cancer risks may be decreased

below 1×10¥5 and below a reference

dose ratio of 1 in a number of mineral

processing facilities. These results are

linked primarily with mineral

processing liquid secondary materials

stored in surface impoundments prior to

reuse. The data used to calculate these

results are based on the groundwater

pathway as well as other potential

routes of exposure such as air or surface

water. The risk results indicate that the

highest individual risks are associated

with exposure through groundwater and

surface water pathways. These results

are also limited to a subset of the

mineral processing universe being

regulated today where the Agency has

collected data from individual mineral

processing facilities. EPA also notes that

in completing these individual risk

results that the entire mass of hazardous

constituents available for release in the

waste management unit was available

for release through each pathway. This

could result in overestimation in risks

due to double counting of constituent

mass. To address this factor, EPA

conducted mass balance calculations for

all non-groundwater release pathways.

These calculations indicate that this

potential overestimate would result in

negligible bias because only a very small

percentage of hazardous constituents in

the waste mass is available for release.

In addition, EPA did not conduct these

mass balance calculations for the

groundwater pathway because of

limitations in the methodology for

which individual groundwater risks

were calculated. The Agency believes

that the potential bias in risk results for

both surface impoundments and waste

piles is low.

As stated above the Agency’s efforts to

evaluate benefits for mineral processing

secondary materials were limited to

calculations for central tendency and

high-end individual risk. However, due

to data limitations, the Agency has been

unable to evaluate additional more

explicit risk-reduction benefits,

including populations benefits. In

general, the Agency’s experience has

been that it is unusual to predict high

population risks, unless there is an

unusually large water well supply

impacted by the facility, because ground

water contamination generally moves

slowly and locally.

Although the regulatory impact

analysis completed for today’s rule does

not address benefits associated with

ecological risk reduction and a decrease

in natural resource damages, based on a

review of available information on

damage incidents associated with

mining and mineral processing

operations 49, the Agency’s experience is

that, while these types of benefits are

extremely difficult to quantify, this rule

may produce benefits in the area of

ecological risk reduction and reduced

natural resource damage.

For TC metals, because the analysis

shows that many handlers of TC metal

wastes are already meeting the universal

treatment standards being promulgated
Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations 28633

in today’s rule, EPA does not believe

that there are either incremental costs or

benefits associated with stabilization of

these wastes. However, for TC

hazardous nonferrous foundry sands,

the Agency has completed a risk

screening for groundwater releases of

lead and cadmium resulting from the

disposal of untreated or poorly treated

sands in municipal solid waste landfills.

The results of the screen indicate that

the probability the lead and cadmium

would exceed the action level for lead

of 0.015 mg/l or the drinking water

standard for cadmium of 0.005 mg/l for

untreated foundry sands was

approximately 9 percent for lead and 14

percent for cadmium. The risk results

also showed that the probability for

hazardous foundry sands treated to the

universal treatment standard to exceed

these standards were approximately 2

percent for lead and 7 percent for

cadmium. Because of data limitations,

EPA is not able to demonstrate

population benefits associated with

effective treatment of foundry sands.

These risk results do, however,

document the intrinsic hazard of the

sands and the need for effective

treatment of these sands. However, as

indicated above, EPA would attribute

any public health benefits associated

with decreasing lead and cadmium

concentrations from foundry sands

leachate to coming into compliance

with existing regulations rather than

promulgation of today’s universal

treatment standards.

B. Regulatory Flexibility

The Regulatory Flexibility Act (RFA)

generally requires an agency to conduct

a regulatory flexibility analysis of any

rule subject to notice and comment

rulemaking requirements 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 not-for-profit enterprises, and

small governmental jurisdictions. Based

on the following discussion, this final

rule will not have a significant impact

on a substantial number of small

entities.

With respect to mineral processing

facilities that are small entities, EPA

believes that today’s final rule will not

pose a significant impact to a substantial

number of these facilities. EPA

identified 22 firms owning 24 mineral

processing facilities that are small

businesses based on the number of

employees in each firm. Under the

Agency’s proposed option, zero firms

out of the 24 identified incurred

estimated compliance costs that exceed

1 percent of reported firm revenues.

As discussed above in the cost and

economic impact section on TC metal

wastes, EPA has determined that

treating TC metal wastes will not result

in incremental costs to the regulated

community. As stated above, data from

commercial treaters and generators of

TC metal wastes indicate that the wastes

are already treated to below UTS levels.

Moreover, today’s rule will not result in

increased costs from incinerating TC

metal wastes with organic underlying

hazardous constituents. EPA’s review of

data from commercial hazardous wastes

treatment facilities indicates that TC

metal wastes with organic underlying

hazardous constituents are not prevalent

and when present would rarely require

incineration.

Finally, after the close of the public

comment period, representatives of

small business hazardous waste-derived

fertilizer producers met with the Agency

claiming economic hardship resulting

from the Agency’s proposed UTS for

metal wastes. Under existing 40 CFR

§ 266.20(b) commercial fertilizers sold

for public use must meet treatment

standards in order to be placed on the

land. Currently all such hazardous

waste fertilizers (except for K061–

derived fertilizers) are subject to

treatment standards for metals at the

characteristic level. Based on available

information, the Agency has found that

out of 10 secondary small business zinc

fertilizer producers only two firms in

the United States produce a hazardous

waste-derived fertilizer, meet the

definition of a small business and are

subject to this today’s rule. Considering

a limited range of regulatory responses

(such as switching from a hazardous to

a non-hazardous source of zinc waste),

EPA believes that only one of the two

firms could potentially incur a

significant economic impact. Because

only one firm in this industry is

potentially affected by today’s rule, EPA

does not consider this to be a substantial

number of small entitities.

Additionally, there are incremental

costs estimated to result from today’s

rule to facilities undergoing remediation

of TC metal contaminated soils and

sediments with organic underlying

hazardous constituents. EPA estimates

that between 34 and 93 small entities

would be impacted by these costs. Two

firms out of the 93 identified as an

upper bound estimate incurred

estimated compliance costs that exceed

1 percent of reported firm revenues.

Therefore, I certify that this action will

not have a significant economic impact

on a substantial number of small

entities.

C. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), P.L. 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 generally must prepare a written

statement, 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 generally requires EPA to

identify and consider a reasonable

number of regulatory alternatives and

adopt the least costly, most costeffective, 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.

Moreover, section 205 allows EPA to

adopt an alternative other than the least

costly, most cost-effective, or least

burdensome alternative if the

Administrator publishes with the final

rule an explanation why that alternative

was not adopted. 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 of affected small governments

to have meaningful and timely input in

the development of EPA regulatory

proposals with significant Federal

intergovernmental mandates, and

informing, educating, and advising

small governments on compliance with

the regulatory requirements.

EPA has determined that this rule

does not include a Federal mandate that

may result in estimated costs of $100

million or more to either State, local, or

tribal governments in the aggregate. The

rule would not impose any federal

intergovernmental mandate because it

imposes no enforceable duty upon State,

tribal or local governments. States,

tribes and local governments would

have no compliance costs under this

rule. It is expected that states will adopt

similar rules, and submit those rules for

inclusion in their authorized RCRA

programs, but they have no legally

enforceable duty to do so. For the same

reasons, EPA also has determined that

this rule contains no regulatory
28634 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations

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. EPA has

fulfilled the requirement for analysis

under the Unfunded Mandates Reform

Act.

D. Paperwork Reduction Act

The information collection

requirements in this 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. EPA has prepared an

Information Collection Request (ICR)

document: OSWER ICR No. 1442.15

would amend the existing ICR approved

under OMB Control No. 2050–0085.

This ICR has not been approved by

OMB and the information collection

requirements, although they are less

stringent than those previously required

by the EPA, are not enforceable until

OMB approves the ICR. EPA will

publish a document in the Federal

Register when OMB approves the

information collection requirements

showing the valid OMB control number.

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.

Copies of this ICR may be obtained

from Sandy Farmer, OPPE Regulatory

Information Division; U.S.

Environmental Protection Agency

(2136); 401 M St., S.W.; Washington,

D.C. 20460 or by calling (202) 260–2740.

Include the ICR number in any request.

The Agency has estimated the average

information collection burden of this

final Phase IV rule to the private sector

and the government. The burden of this

final rule to the private sector is

approximately 4,880 hours over three

years, at a cost of $943,942. The burden

to EPA is approximately 787 hours over

three years, at a cost of $29,841. The

term ‘‘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; process and maintain

information and 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.

Send comments on the Agency’s

burden reduction, the accuracy of the

provided burden estimates, and any

suggested methods for minimizing

respondent burden, including through

the use of automated collection of

techniques to the Director, OPPE

Regulatory Information Division; U.S.

Environmental Protection Agency

(2136); 401 M St., S.W.; Washington, DC

20460; and to the Office of Information

and Regulatory Affairs, Office of

Management and Budget, 725 17th St.,

N.W., Washington, D.C. 20503, marked

‘‘Attention: Desk Officer for EPA.’’

Include the ICR number in any

correspondence.

XIII. Environmental Justice

A. Applicability of Executive Order

12898

EPA is committed to address

environmental justice concerns and is

assuming a leadership role in

environmental justice initiatives to

enhance environmental quality for all

residents of the United States. The

Agencies 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 and

environmental effects as a result of

EPA’s policies, programs, and activities,

and all people live in clean and

sustainable communities.

B. Potential Effects

Today’s rule covers high-metal wastes

(‘‘TC metal wastes,’’ hazardous mineral

processing wastes, and mineral

processing materials). The rule will

possibly affect many facilities

nationwide, with the potential for

impacts to minority or low-income

communities. Today’s rule is intended

to reduce risks to human health and the

environment, and to benefit all

populations. It is not expected to cause

any disproportionate impacts to

minority or low income communities

versus affluent or non-minority

communities.

XIV. State Authority

A. Statutory Authority

Under section 3006 of RCRA, EPA

may authorize qualified States to

administer and enforce the RCRA

hazardous waste program within the

State. Following authorization, EPA

retains enforcement authority under

sections 3008 (a)(2), 3013, and 7003 of

RCRA, although authorized States have

primary enforcement responsibility. The

standards and requirements for

authorization are found in 40 CFR Part

271.

Prior to the Hazardous and Solid

Waste Amendments of 1984 (HSWA), a

State with final authorization

administered its hazardous waste

program in lieu of EPA administering

the Federal program in that State. The

Federal requirements no longer applied

in the authorized State, and EPA could

not issue permits for any facilities that

the State was authorized to permit.

When new, more stringent Federal

requirements were promulgated or

enacted, the State was obliged to enact

equivalent authority within specified

time frames. New Federal requirements

did not take effect in an authorized State

until the State adopted the requirements

as State law.

In contrast, under RCRA section

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

requirements and prohibitions imposed

by HSWA take effect in authorized

States at the same time that they take

effect in unauthorized States. Although

States are still required to update their

hazardous waste programs, EPA is

directed to carry out the HSWA

requirements and prohibitions in

authorized States, including the

issuance of permits, until the State is

granted authorization.

Authorized States are required to

modify their programs only when EPA

promulgates Federal requirements that

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 can, but do not have to, adopt

Federal regulations, both HSWA and

non-HSWA, that are considered less

stringent. Less stringent regulations,

promulgated under both HSWA and

non-HSWA authority, do not go into

effect in authorized States until those

States adopt them and are authorized to

implement them.

B. Effect on State Authorization

Today’s rule is promulgated in part

pursuant to non-HSWA authority, and

in part pursuant to HSWA. The more

stringent HSWA portions of this rule

will become effective at the same time

in all states. The new LDR treatment

standards for metal-bearing and mineral

processing wastes are being

promulgated pursuant to section 3004

(g)(4) and (m), provisions added by

HSWA. (Note, however, that the

treatment standards, even though they

are promulgated pursuant to HSWA,

will not apply to mineral processing

wastes unless the wastes are currently

included in the authorized State’s
Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations 28635

definition of solid waste.) The

application of the TCLP to mineral

processing wastes likewise implements

a HSWA provision, section 3001(g).

These requirements are being added to

Table 1 in 40 CFR 271.1(j), which

identifies the Federal program

requirements that are promulgated

pursuant to HSWA, and would take

effect in all States, regardless of

authorization status. States may apply

for final or interim authorization for the

HSWA provisions in Table 1, as

discussed in the following section of

this preamble. Table 2 in 40 CFR

271.1(j) is also modified to indicate

those provisions of this rule that are

self-implementing provisions of HSWA.

Note that there are other HSWA

provisions that are not more stringent

than the current program, such as the

revisions to certain of the existing LDR

treatment standards. These would not

be implemented by EPA in those states

authorized for the existing provisions

prior to a State being authorized for

them. These provisions are further

discussed below.

Today’s rule contains provisions, both

under HSWA and non-HSWA authority,

that are less stringent than the current

Federal program. First is the non-HSWA

provision which would allow mineral

processing spent materials being

reclaimed within the mineral processing

industry sector, or in beneficiation

processes, to be excluded from the

definition of solid waste. This provision

can be adopted at the States’ option,

although EPA strongly encourages

States to adopt this provision. As stated

earlier in the preamble, part of the

purpose of this rule is to eliminate

distinctions among reclaimed spent

materials, by-products, and sludges

within this industry. This change, in

combination with the conditioned

exclusion for the reclaimed byproducts

and sludges, will result in more control

over land-based mineral processing

units than exists presently, encourage

additional material recovery within the

industry, properly control land-based

storage of mineral processing industry

secondary materials awaiting intraindustry recovery, and also simplify the

solid waste regulatory classification

scheme. In addition, State adoption of

these provisions will provide national

consistency.

Similarly, another less stringent nonHSWA provision in this rule excludes

from RCRA regulation certain recycled

wood preserving wastewaters and spent

wood preserving solutions. The

exclusion will not be effective in

authorized States until they amend their

regulations and received authorization.

Although the States do not have to

adopt these provisions, EPA strongly

encourage them to do so, because the

exclusion encourages properly

conducted material recovery in the

wood preserving industry.

Last, the treatment standards for soil

contaminated with hazardous waste

(and the associated site-specific risk

based variance provision for

contaminated soils), promulgated under

HSWA, are less stringent than the

existing treatment standards. Although

the authority for these standards is

under HSWA, EPA will not implement

them in those States that are authorized

for the existing standards because they

are less stringent. EPA will implement

them in those States that are

unauthorized for the applicable existing

treatment standards. However, EPA

strongly encourages States to seek

authorization for these standards in

order to encourage and speed up

cleanups of contaminated sites based on

remedies involving treatment of

contaminated soils, thus providing more

permanent remedial solutions.

Some of today’s regulatory

amendments are neither more or less

stringent than the existing Federal

requirements. These are the revisions to

the existing UTS numbers. EPA clarified

in a December 19, 1994, memorandum

(which is in the docket for today’s rule)

that EPA would not implement the

Universal Treatment Standards

(promulgated under HSWA authority in

the Phase II LDR rule) separately for

those States for which the State has

received LDR authorization. EPA views

changes from the existing limits to be

neither more or less stringent since the

technology basis of the standards has

not changed. Accordingly, EPA will not

implement today’s amendments to the

UTS in those States with authorization

for the treatment standards.

Today’s rule also clarifies the scrap

metal exemption from solid waste as it

applies to whole circuit boards. This

part of the preamble simply clarifies the

Agency’s interpretation of the existing

rules. If authorized for the scrap metal

exemption, States do not need further

authorization to interpret their rules in

conformity with this interpretation.

C. Authorization Procedures

Because portions of today’s rule are

promulgated pursuant to HSWA, a State

submitting a program modification for

those portions may apply to receive

interim authorization under RCRA

section 3006(g)(2) or final authorization

under RCRA section 3006(b), on the

basis of requirements that are,

respectively, substantially equivalent or

equivalent to EPA’s. For program

modifications for the non-HSWA

portions of this rule, States can received

final authorization only. The procedures

and schedule for final authorization of

State program modifications are

described in 40 CFR 271.21. It should be

noted that all HSWA interim

authorizations will expire January 1,

2003. (See 40 CFR 271.24(c) and 57 FR

60132, December 18, 1992.)

Section 271.21(e)(2) requires that

States with final authorization modify

their programs to reflect Federal

program changes and subsequently

submit the modification to EPA for

approval. The deadline by which the

State would have to modify its program

to adopt these regulations is specified in

section 271.21(e). This deadline can be

extended in certain cases (see section

271.21(e)(3)). Once EPA approves the

modification, the State requirements

become Subtitle C RCRA requirements.

States with authorized RCRA

programs may already have

requirements similar to those in today’s

rule. These State regulations have not

been assessed against the Federal

regulations being promulgated today to

determine whether they meet the tests

for authorization. Thus, a State is not

authorized to implement these

requirements in lieu of EPA until the

State program modifications are

approved. Of course, States with

existing standards could continue to

administer and enforce their standards

as a matter of State law. In

implementing the Federal program, EPA

will work with States under agreements

to minimize duplication of efforts.

D. Streamlined Authorization

Procedures

It is EPA’s policy to provide as much

flexibility as possible to encourage

States to become authorized for rules

under the hazardous waste program.

EPA discussed an expedited

authorization approach in the proposed

Phase IV LDR rule (60 FR 43688, August

22, 1995), and the supplemental

proposal (61 FR 2338, January 25, 1996).

EPA also discussed streamlined

authorization procedures in a more

comprehensive fashion in the proposed

HWIR-media rule (61 FR 18780, April

29, 1996). This expedited approach

would apply to those minor or routine

changes to the existing program that do

not expand the scope of the program in

significant ways, and was called

Category 1. EPA has decided to address

this proposed authorization procedure

in the upcoming HWIR-Media rule

rather than here, so that the expedited

authorization approaches can be dealt

with in a comprehensive manner.
28636 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations

XV. Submission to Congress and

General Accounting Office

The Congressional Review Act, 5

U.S.C. § 801 et seq., as added by the

Small Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. EPA will submit a

report containing this rule and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of the rule in

the Federal Register. This rule is not a

‘‘major rule’’ as defined by 5 U.S.C.

§ 804(2).

XVI. Executive Order 13045: Protection

of Children From Environmental Health

Risks and Safety Risks

Executive Order 13045: The Executive

Order 13045 applies to any rule that

EPA determines (1) ‘‘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 by the Agency.

This final rule is not subject to E.O.

13045, entitled ‘‘Protection of Children

from Environmental Health Risks and

Safety Risks (62FR19885, April 23,

1997), because this is not an

economically significant regulatory

action as defined by E.O. 12866.

XVII. National Technology Transfer

and Advancement Act

Under § 12(d) of the National

Technology Transfer and Advancement

Act, the Agency is directed 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,

business practices, etc.) that are

developed or adopted by voluntary

consensus standard bodies. Where

available and potentially applicable

voluntary consensus standards are not

used by EPA, the Act requires the

Agency to provide Congress, through

the Office of Management and Budget,

an explanation of the reasons for not

using such standards.

EPA is not proposing any new test

methods or other technical standards as

part of today’s final rule. Thus, the

Agency has no need to consider the use

of voluntary consensus standards in

developing this proposed rule.

List of Subjects

40 CFR Part 148

Administrative practice and

procedure, Hazardous waste, Reporting

and recordkeeping requirements, Water

supply.

40 CFR Part 261

Environmental protection, Hazardous

waste, Recycling, Reporting and

recordkeeping requirements.

40 CFR Part 266

Energy, Hazardous waste, Recycling,

Reporting and recordkeeping

requirements.

40 CFR Part 268

Hazardous waste, Reporting and

recordkeeping requirements.

40 CFR Part 271

Administrative practice and

procedure, Hazardous materials

transportation, Hazardous waste,

Penalties, Reporting and recordkeeping

requirements.

Dated: April 30, 1998.

Carol M. Browner,

Administrator.

For the reasons set out in the

preamble, Title 40, chapter I of the Code

of Federal Regulations is amended as

follows:

PART 148—HAZARDOUS WASTE

INJECTION RESTRICTIONS

1. The authority citation for Part 148

continues to read as follows:

Authority: Secs. 3004, Resource

Conservation and Recovery Act, 42 U.S.C.

6901, et seq.

2. Section 148.18 is amended by

redesignating paragraphs (a) through (f)

as (c) through (h) respectively, and by

adding paragraphs (a) and (b) to read as

follows:

§ 148.18 Waste specific prohibitions—

newly listed and identified wastes.

(a) Effective August 24, 1998, all

newly identified D004–D011 wastes and

characteristic mineral processing

wastes, except those identified in

paragraph (b) of this section, are

prohibited from underground injection.

(b) Effective May 26, 2000,

characteristic hazardous wastes from

titanium dioxide mineral processing,

and radioactive wastes mixed with

newly identified D004–D011 or mixed

with newly identified characteristic

mineral processing wastes, are

prohibited from underground injection.

* * * * *

PART 261—IDENTIFICATION AND

LISTING OF HAZARDOUS WASTE

Subpart A—General

3. The authority citation for Part 261

continues to read as follows:

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

6922, 6924(y), and 6938.

4. Section 261.2 is amended by

revising Table 1 in paragraph (c)(4),

paragraph (c)(3) and (e)(1)(iii) to read as

follows:

§ 261.2 Definition of solid waste.

* * * * *

(c) * * *

(3) Reclaimed. Materials noted with a

‘‘*’’ in column 3 of Table 1 are solid

wastes when reclaimed (except as

provided under 40 CFR 261.4(a)(15)).

Materials noted with a ‘‘—’’ in column

3 of Table 1 are not solid wastes when

reclaimed (except as provided under 40

CFR 261.4(a)(15)).

* * * * *

(4) * * *
Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations 28637

TABLE 1

Use constituting disposal

(§ 261.2(c)(1))

Energy

recovery/ fuel

(§ 261.2(c)(2))

Reclamation

(§ 261.2(c)(3))

(except as

provided in

261.4(a)(15)

for mineral

processing

secondary

materials)

Speculative

accumulation

(§ 261.2(c)(4))

1 2 3 4

Spent Materials ................................................................................................. (*) (*) (*) (*)

Sludges (listed in 40 CFR Part 261.31 or 261.32 ............................................ (*) (*) (*) (*)

Sludges exhibiting a characteristic of hazardous waste ................................... (*) (*) — (*)

By-products (listed in 40 CFR 261.31 or 261.32) ............................................. (*) (*) (*) (*)

By-products exhibiting a characteristic of hazardous waste ............................. (*) (*) — (*)

Commercial chemical products listed in 40 CFR 261.33 ................................. (*) (*) — —

Scrap metal other than excluded scrap metal (see 261.1(c)(9)) ...................... (*) (*) (*) (*)

Note: The terms ‘‘spent materials,’’ ‘‘sludges,’’ ‘‘by-products,’’ and ‘‘scrap metal’’ and ‘‘processed scrap metal’’ are defined in § 261.1.

* * * * *

(e) * * *

(1) * * *

(iii) In cases where the materials are

generated and reclaimed within the

primary mineral processing industry,

the conditions of the exclusion found at

§ 261.4(a)(15) apply rather than this

provision.

* * * * *

5. Section 261.3 is amended by

revising paragraphs (a)(2)(i) and

(a)(2)(iii) to read as follows:

§ 261.3 Definition of hazardous waste.

(a) * * *

(2) * * *

(i) It exhibits any of the characteristics

of hazardous waste identified in subpart

C of this part. However, any mixture of

a waste from the extraction,

beneficiation, and processing of ores

and minerals excluded under

§ 261.4(b)(7) and any other solid waste

exhibiting a characteristic of hazardous

waste under subpart C is a hazardous

waste only if it exhibits a characteristic

that would not have been exhibited by

the excluded waste alone if such

mixture had not occurred, or if it

continues to exhibit any of the

characteristics exhibited by the nonexcluded wastes prior to mixture.

Further, for the purposes of applying the

Toxicity Characteristic to such mixtures,

the mixture is also a hazardous waste if

it exceeds the maximum concentration

for any contaminant listed in table I to

§ 261.24 that would not have been

exceeded by the excluded waste alone if

the mixture had not occurred or if it

continues to exceed the maximum

concentration for any contaminant

exceeded by the nonexempt waste prior

to mixture.

* * * * *

(iii) It is a mixture of a solid waste and

a hazardous waste that is listed in

subpart D of this part solely because it

exhibits one or more of the

characteristics of hazardous waste

identified in subpart C of this part,

unless the resultant mixture no longer

exhibits any characteristic of hazardous

waste identified in subpart C of this

part, or unless the solid waste is

excluded from regulation under

§ 261.4(b)(7) and the resultant mixture

no longer exhibits any characteristic of

hazardous waste identified in subpart C

of this part for which the hazardous

waste listed in subpart D of this part

was listed. (However, nonwastewater

mixtures are still subject to the

requirements of part 268 of this chapter,

even if they no longer exhibit a

characteristic at the point of land

disposal).

* * * * *

6. Section 261.4 is amended by

adding paragraphs (a)(9)(iii) and (a)(16)

and by revising paragraph (b)(7) to read

as follows:

§ 261.4 Exclusions.

(a) * * *

(9) * * *

(iii) Prior to reuse, the wood

preserving wastewaters and spent wood

preserving solutions described in

paragraphs (a)(9)(i) and (a)(9)(ii) of this

section, so long as they meet all of the

following conditions:

(A) The wood preserving wastewaters

and spent wood preserving solutions are

reused on-site at water borne plants in

the production process for their original

intended purpose;

(B) Prior to reuse, the wastewaters and

spent wood preserving solutions are

managed to prevent release to either

land or groundwater or both;

(C) Any unit used to manage

wastewaters and/or spent wood

preserving solutions prior to reuse can

be visually or otherwise determined to

prevent such releases;

(D) Any drip pad used to manage the

wastewaters and/or spent wood

preserving solutions prior to reuse

complies with the standards in part 265,

subpart W of this chapter, regardless of

whether the plant generates a total of

less than 100 kg/month of hazardous

waste; and

(E) Prior to operating pursuant to this

exclusion, the plant owner or operator

submits to the appropriate Regional

Administrator or State Director a onetime notification stating that the plant

intends to claim the exclusion, giving

the date on which the plant intends to

begin operating under the exclusion,

and containing the following language:

‘‘I have read the applicable regulation

establishing an exclusion for wood

preserving wastewaters and spent wood

preserving solutions and understand it

requires me to comply at all times with

the conditions set out in the regulation.’’

The plant must maintain a copy of that

document in its on-site records for a

period of no less than 3 years from the

date specified in the notice. The

exclusion applies only so long as the

plant meets all of the conditions. If the

plant goes out of compliance with any

condition, it may apply to the

appropriate Regional Administrator or

State Director for reinstatement. The

Regional Administrator or State Director

may reinstate the exclusion upon

finding that the plant has returned to

compliance with all conditions and that

violations are not likely to recur.

* * * * *

(16) Secondary materials (i.e., sludges,

by-products, and spent materials as

defined in § 261.1) (other than
28638 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations

hazardous wastes listed in subpart D of

this part) generated within the primary

mineral processing industry from which

minerals, acids, cyanide, water or other

values are recovered by mineral

processing, provided that:

(i) The secondary material is

legitimately recycled to recover

minerals, acids, cyanide, water or other

values;

(ii) The secondary material is not

accumulated speculatively;

(iii) Except as provided in paragraph

(a)(15)(iv) of this section, the secondary

material is stored in tanks, containers,

or buildings meeting the following

minimum integrity standards: a building

must be an engineered structure with a

floor, walls, and a roof all of which are

made of non-earthen materials

providing structural support (except

smelter buildings may have partially

earthen floors provided the secondary

material is stored on the non-earthen

portion), and have a roof suitable for

diverting rainwater away from the

foundation; a tank must be free

standing, not be a surface impoundment

(as defined in 40 CFR 260.10), and be

manufactured of a material suitable for

containment of its contents; a container

must be free standing and be

manufactured of a material suitable for

containment of its contents. If tanks or

containers contain any particulate

which may be subject to wind dispersal,

the owner/operator must operate these

units in a manner which controls

fugitive dust. Tanks, containers, and

buildings must be designed, constructed

and operated to prevent significant

releases to the environment of these

materials.

(iv) The Regional Administrator or the

State Director may make a site-specific

determination, after public review and

comment, that only solid mineral

processing secondary materials may be

placed on pads, rather than in tanks,

containers, or buildings. Solid mineral

processing secondary materials do not

contain any free liquid. The decisionmaker must affirm that pads are

designed, constructed and operated to

prevent significant releases of the

secondary material into the

environment. Pads must provide the

same degree of containment afforded by

the non-RCRA tanks, containers and

buildings eligible for exclusion.

(A) The decision-maker must also

consider if storage on pads poses the

potential for significant releases via

groundwater, surface water, and air

exposure pathways. Factors to be

considered for assessing the

groundwater, surface water, air

exposure pathways are: the volume and

physical and chemical properties of the

secondary material, including its

potential for migration off the pad; the

potential for human or environmental

exposure to hazardous constituents

migrating from the pad via each

exposure pathway, and the possibility

and extent of harm to human and

environmental receptors via each

exposure pathway.

(B) Pads must meet the following

minimum standards: be designed of

non-earthen material that is compatible

with the chemical nature of the mineral

processing secondary material, capable

of withstanding physical stresses

associated with placement and removal,

have run on/runoff controls, be operated

in a manner which controls fugitive

dust, and have integrity assurance

through inspections and maintenance

programs.

(C) Before making a determination

under this paragraph, the Regional

Administrator or State Director must

provide notice and the opportunity for

comment to all persons potentially

interested in the determination. This

can be accomplished by placing notice

of this action in major local newspapers,

or broadcasting notice over local radio

stations.

(v) The owner or operator provides a

notice to the Regional Administrator or

State Director, identifying the following

information: the types of materials to be

recycled; the type and location of the

storage units and recycling processes;

and the annual quantities expected to be

placed in land-based units. This

notification must be updated when

there is a change in the type of materials

recycled or the location of the recycling

process.

(vi) For purposes of § 261.4(b)(7),

mineral processing secondary materials

must be the result of mineral processing

and may not include any listed

hazardous wastes. Listed hazardous

wastes and characteristic hazardous

wastes generated by non-mineral

processing industries are not eligible for

the conditional exclusion from the

definition of solid waste.

(b) * * *

(7) Solid waste from the extraction,

beneficiation, and processing of ores

and minerals (including coal, phosphate

rock, and overburden from the mining

of uranium ore), except as provided by

§ 266.112 of this chapter for facilities

that burn or process hazardous waste.

(i) For purposes of § 261.4(b)(7)

beneficiation of ores and minerals is

restricted to the following activities;

crushing; grinding; washing;

dissolution; crystallization; filtration;

sorting; sizing; drying; sintering;

pelletizing; briquetting; calcining to

remove water and/or carbon dioxide;

roasting, autoclaving, and/or

chlorination in preparation for leaching

(except where the roasting (and/or

autoclaving and/or chlorination)/

leaching sequence produces a final or

intermediate product that does not

undergo further beneficiation or

processing); gravity concentration;

magnetic separation; electrostatic

separation; flotation; ion exchange;

solvent extraction; electrowinning;

precipitation; amalgamation; and heap,

dump, vat, tank, and in situ leaching.

(ii) For the purposes of § 261.4(b)(7),

solid waste from the processing of ores

and minerals includes only the

following wastes as generated:

(A) Slag from primary copper

processing;

(B) Slag from primary lead processing;

(C) Red and brown muds from bauxite

refining;

(D) Phosphogypsum from phosphoric

acid production;

(E) Slag from elemental phosphorus

production;

(F) Gasifier ash from coal gasification;

(G) Process wastewater from coal

gasification;

(H) Calcium sulfate wastewater

treatment plant sludge from primary

copper processing;

(I) Slag tailings from primary copper

processing;

(J) Fluorogypsum from hydrofluoric

acid production;

(K) Process wastewater from

hydrofluoric acid production;

(L) Air pollution control dust/sludge

from iron blast furnaces;

(M) Iron blast furnace slag;

(N) Treated residue from roasting/

leaching of chrome ore;

(O) Process wastewater from primary

magnesium processing by the

anhydrous process;

(P) Process wastewater from

phosphoric acid production;

(Q) Basic oxygen furnace and open

hearth furnace air pollution control

dust/sludge from carbon steel

production;

(R) Basic oxygen furnace and open

hearth furnace slag from carbon steel

production;

(S ) Chloride process waste solids

from titanium tetrachloride production;

(T) Slag from primary zinc processing.

(iii) A residue derived from coprocessing mineral processing

secondary materials with normal

beneficiation raw materials remains

excluded under paragraph (b) of this

section if the owner or operator:

(A) Processes at least 50 percent by

weight normal beneficiation raw

materials; and,

(B) Legitimately reclaims the

secondary mineral processing materials.

* * * * *
Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations 28639

PART 268—LAND DISPOSAL

RESTRICTIONS

7. The authority citation for Part 268

continues to read as follows:

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

and 6924.

8. Section 268.2 is amended by

revising paragraph (i) and adding

paragraph (k) to read as follows:

§ 268.2 Definitions applicable in this part.

* * * * *

(i) Underlying hazardous constituent

means any constituent listed in

§ 268.48, Table UTS—Universal

Treatment Standards, except fluoride,

selenium, sulfides, vanadium, and zinc,

which can reasonably be expected to be

present at the point of generation of the

hazardous waste at a concentration

above the constituent-specific UTS

treatment standards.

* * * * *

(k) Soil means unconsolidated earth

material composing the superficial

geologic strata (material overlying

bedrock), consisting of clay, silt, sand,

or gravel size particles as classified by

the U.S. Soil Conservation Service, or a

mixture of such materials with liquids,

sludges or solids which is inseparable

by simple mechanical removal

processes and is made up primarily of

soil by volume based on visual

inspection.

9. Section 268.3 is amended by

adding paragraph (d) to read as follows:

§ 268.3 Dilution prohibited as a substitute

for treatment.

* * * * *

(d) It is a form of impermissible

dilution, and therefore prohibited, to

add iron filings or other metallic forms

of iron to lead-containing hazardous

wastes in order to achieve any land

disposal restriction treatment standard

for lead. Lead-containing wastes include

D008 wastes (wastes exhibiting a

characteristic due to the presence of

lead), all characteristic wastes

containing lead as an underlying

hazardous constituent, listed wastes

containing lead as a regulated

constitutent, and hazardous media

containing any of the aforementioned

lead-containing wastes.

10. Section 268.4 is amended by

revising paragraphs (a)(2)(ii) and

(a)(2)(iii) to read as follows:

§ 268.4 Treatment surface impoundment

exemption.

(a) * * *

(2) * * *

(ii) Removal. The following treatment

residues (including any liquid waste)

must be removed at least annually;

residues which do not meet the

treatment standards promulgated under

subpart D of this part; residues which

do not meet the prohibition levels

established under subpart C of this part

or imposed by statute (where no

treatment standards have been

established); residues which are from

the treatment of wastes prohibited from

land disposal under subpart C of this

part (where no treatment standards have

been established and no prohibition

levels apply); or residues from managing

listed wastes which are not delisted

under § 260.22 of this chapter. If the

volume of liquid flowing through the

impoundment or series of

impoundments annually is greater than

the volume of the impoundment or

impoundments, this flow-through

constitutes removal of the supernatant

for the purpose of this requirement.

(iii) Subsequent management.

Treatment residues may not be placed

in any other surface impoundment for

subsequent management.

* * * * *

11. Section 268.7 is amended by

revising paragraphs (a)(1), (a)(3)(ii),

(a)(7), (b)(1), (b)(2), (b)(5) and (b)(6); by

revising the first sentence of the

paragraphs (a)(2), (a)(3) introductory

text, (a)(4), (a)(5) introductory text,

(a)(6), and (b)(3) introductory text; by

adding paragraph (a)(2)(i) and three

sentences to the end of paragraph (b)(4)

introductory text and adding paragraphs

(b)(4)(iv), (b)(4)(v), and (e) and adding

and reserving paragraph (a)(2)(ii); and

by revising entries 1 and 3, designating

entry 8 as 9, and adding entry 8 in the

table entitled ‘‘Generator Paperwork

Requirements Table’’ in paragraph

(a)(4), and by revising entries 1 and 2

designating entry 5 as 6, and adding

entry 5 in the table entitled ‘‘Treatment

Facility Paperwork Requirements

Table’’ in paragraph (b)(3)(ii) to read as

follows:

§ 268.7 Testing, tracking, and

recordkeeping requirements for generators,

treaters, and disposal facilities.

(a) * * *

(1) A generator of hazardous waste

must determine if the waste has to be

treated before it can be land disposed.

This is done by determining if the

hazardous waste meets the treatment

standards in § 268.40, § 268.45, or

§ 268.49. This determination can be

made in either of two ways: testing the

waste or using knowledge of the waste.

If the generator tests the waste, testing

would normally determine the total

concentration of hazardous constituents,

or the concentration of hazardous

constituents in an extract of the waste

obtained using test method 1311 in

‘‘Test Methods of Evaluating Solid

Waste, Physical/Chemical Methods,’’

EPA Publication SW–846, as referenced

in § 260.11 of this chapter, depending

on whether the treatment standard for

the waste is expressed as a total

concentration or concentration of

hazardous constituent in the waste’s

extract. In addition, some hazardous

wastes must be treated by particular

treatment methods before they can be

land disposed and some soils are

contaminated by such hazardous

wastes. These treatment standards are

also found in § 268.40, and are

described in detail in § 268.42, Table 1.

These wastes, and soils contaminated

with such wastes, do not need to be

tested (however, if they are in a waste

mixture, other wastes with

concentration level treatment standards

would have to be tested). If a generator

determines they are managing a waste or

soil contaminated with a waste, that

displays a hazardous characteristic of

ignitability, corrosivity, reactivity, or

toxicity, they must comply with the

special requirements of § 268.9 of this

part in addition to any applicable

requirements in this section.

(2) If the waste or contaminated soil

does not meet the treatment standard:

With the initial shipment of waste to

each treatment or storage facility, the

generator must send a one-time written

notice to each treatment or storage

facility receiving the waste, and place a

copy in the file. * * *

(i) For contaminated soil, the

following certification statement should

be included, signed by an authorized

representative:

I certify under penalty of law that I

personally have examined this

contaminated soil and it [does/does not]

contain listed hazardous waste and

[does/does not] exhibit a characteristic

of hazardous waste and requires

treatment to meet the soil treatment

standards as provided by 268.49(c).

(ii) [Reserved]

(3) If the waste or contaminated soil

meets the treatment standard at the

original point of generation:

* * * * *

(ii) For contaminated soil, with the

initial shipment of wastes to each

treatment, storage, or disposal facility,

the generator must send a one-time

written notice to each facility receiving

the waste and place a copy in the file.

The notice must include the information

in ‘‘268.7(a)(3) of the Generator

Paperwork Requirements Table in

§ 268.7(a)(4).

(4) For reporting, tracking, and

recordkeeping when exceptions allow

certain wastes or contaminated soil that
28640 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations

do not meet the treatment standards to

be land disposed: There are certain

exemptions from the requirement that

hazardous wastes or contaminated soil meet treatment standards before they

can be land disposed. * * *

* * * * *

GENERATOR PAPERWORK REQUIREMENTS TABLE

Required information § 268.7

(a)(2)

§ 268.7

(a)(3)

§ 268.7

(a)(4)

§ 268.7

(a)(9)

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

* * * * * * *

3. The waste is subject to the LDRs. The constituents of concern for F001–F005, and

F039, and underlying hazardous constituents in characteristic wastes, unless the

waste will be treated and monitored for all constituents. If all constituents will be

treated and monitored, there is no need to put them all on the LDR notice ................ ✔ ................... ................... ...................

* * * * * * *

8. For contaminated soil subject to LDRs as provided in 268.49(a), the constituents

subject to treatment as described in 268.49(d), and the following statement: This

contaminated soil [does/does not] contain listed hazardous waste and [does/does

not] exhibit a characteristic of hazardous waste and [is subject to/complies with’ the

soil treatment standards as provided by 268.49(c) or the universal treatment standards. ............................................................................................................................... ✔ ................... ................... ...................

* * * * * * *

(5) If a generator is managing and

treating prohibited waste or

contaminated soil in tanks, containers,

or containment buildings regulated

under 40 CFR 262.34 to meet applicable

LDR treatment standards found at

§ 268.40, the generator must develop

and follow a written waste analysis plan

which describes the procedures they

will carry out to comply with the

treatment standards. * * *

* * * * *

(6) If a generator determines that the

waste or contaminated soil is restricted

based solely on his knowledge of the

waste, all supporting data used to make

this determination must be retained onsite in the generator’s files. * * *

(7) If a generator determines that he is

managing a prohibited waste that is

excluded from the definition of

hazardous or solid waste or is exempted

from Subtitle C regulation under 40 CFR

261.2 through 261.6 subsequent to the

point of generation (including

deactivated characteristic hazardous

wastes managed in wastewater

treatment systems subject to the Clean

Water Act (CWA) as specified at 40 CFR

261.4(a)(2) or that are CWA-equivalent,

or are managed in an underground

injection well regulated by the SDWA),

he must place a one-time notice

describing such generation, subsequent

exclusion from the definition of

hazardous or solid waste or exemption

from RCRA Subtitle C regulation, and

the disposition of the waste, in the

facility’s on-site files.

* * * * *

(b) * * *

(1) For wastes or contaminated soil

with treatment standards expressed in

the waste extract (TCLP), the owner or

operator of the treatment facility must

test an extract of the treatment residues,

using test method 1311 (the Toxicity

Characteristic Leaching Procedure,

described in ‘‘Test Methods for

Evaluating Solid Waste, Physical/

Chemical Methods,’’ EPA Publication

SW–846 as incorporated by reference in

§ 260.11 of this chapter) to assure that

the treatment residues extract meet the

applicable treatment standards.

(2) For wastes or contaminated soil

with treatment standards expressed as

concentrations in the waste, the owner

or operator of the treatment facility must

test the treatment residues (not an

extract of such residues) to assure that

they meet the applicable treatment

standards.

(3) A one-time notice must be sent

with the initial shipment of waste or

contaminated soil to the land disposal

facility. * * *

* * * * *

(ii) * * *

TREATMENT FACILITY PAPERWORK REQUIREMENTS TABLE

Required information § 268.7(b)

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

2. The waste is subject to the LDRs. The constituents of concern for F001–F005, and F039, and underlying hazardous constituents in characteristic wastes, unless the waste will be treated and monitored for all constituents. If all constituents will be treated

and monitored, there is no need to put them all on the LDR notice. .................................................................................................. ✔

* * * * * * *

5. For contaminated soil subject to LDRs as provided in 268.49(a), the constituents subject to treatment as described in 268.49(d)

and the following statement, ‘‘this contaminated soil [does/does not] contain listed hazardous waste and [does/does not] exhibit

acharacteristic of hazardous waste and [is subject to/complies with] the soil treatment standards as provided by 268.49(c). ......... ✔

* * * * * * *

(4) * * * A certification is also

necessary for contaminated soil and it

must state:

I certify under penalty of law that I have

personally examined and am familiar with

the treatment technology and operation of the

treatment process used to support this

certification and believe that it has been

maintained and operated properly so as to
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comply with treatment standards specified in

40 CFR 268.49 without impermissible

dilution of the prohibited wastes. I am aware

there are significant penalties for submitting

a false certification, including the possibility

of fine and imprisonment.

* * * * *

(iv) For characteristic wastes that are

subject to the treatment standards in

§ 268.40 (other than those expressed as

a required method of treatment) that are

reasonably expected to contain

underlying hazardous constituents as

defined in § 268.2(i); are treated on-site

to remove the hazardous characteristic;

and are then sent off-site for treatment

of underlying hazardous constituents,

the certification must state the

following:

I certify under penalty of law that the

waste has been treated in accordance with

the requirements of 40 CFR 268.40 to remove

the hazardous characteristic. This

decharacterized waste contains underlying

hazardous constituents that require further

treatment to meet universal treatment

standards. I am aware that there are

significant penalties for submitting a false

certification, including the possibility of fine

and imprisonment.

(v) For characteristic wastes that

contain underlying hazardous

constituents as defined § 268.2(i) that

are treated on-site to remove the

hazardous characteristic to treat

underlying hazardous constituents to

levels in § 268.48 Universal Treatment

Standards, the certification must state

the following:

I certify under penalty of law that the

waste has been treated in accordance with

the requirements of 40 CFR 268.40 to remove

the hazardous characteristic and that

underlying hazardous constituents, as

defined in § 268.2(i) have been treated on-site

to meet the § 268.48 Universal Treatment

Standards. I am aware that there are

significant penalties for submitting a false

certification, including the possibility of fine

and imprisonment.

(5) If the waste or treatment residue

will be further managed at a different

treatment, storage, or disposal facility,

the treatment, storage, or disposal

facility sending the waste or treatment

residue off-site must comply with the

notice and certification requirements

applicable to generators under this

section.

(6) Where the wastes are recyclable

materials used in a manner constituting

disposal subject to the provisions of

§ 268.20(b) regarding treatment

standards and prohibition levels, the

owner or operator of a treatment facility

(i.e., the recycler) is not required to

notify the receiving facility, pursuant to

paragraph (b)(3) of this section. With

each shipment of such wastes the owner

or operator of the recycling facility must

submit a certification described in

paragraph (b)(4) of this section, and a

notice which includes the information

listed in paragraph (b)(3) of this section

(except the manifest number) to the

Regional Administrator, or his delegated

representative. The recycling facility

also must keep records of the name and

location of each entity receiving the

hazardous waste-derived product.

* * * * *

(e) Generators and treaters who first

receive from EPA or an authorized state

a determination that a given

contaminated soil subject to LDRs as

provided in § 268.49(a) no longer

contains a listed hazardous waste and

generators and treaters who first

determine that a contaminated soil

subject to LDRs as provided in

§ 268.49(a) no longer exhibits a

characteristic of hazardous waste must:

(1) Prepare a one-time only

documentation of these determinations

including all supporting information;

and,

(2) Maintain that information in the

facility files and other records for a

minimum of three years.

Subpart C—Prohibitions on Land

Disposal

12. Section § 268.34 is revised to read

as follows:

§ 268.34 Waste specific prohibitions—

toxicity characteristic metal wastes.

(a) Effective August 24, 1998, the

following wastes are prohibited from

land disposal: the wastes specified in 40

CFR Part 261 as EPA Hazardous Waste

numbers D004—D011 that are newly

identified (i.e. wastes, soil, or debris

identified as hazardous by the Toxic

Characteristic Leaching Procedure but

not the Extraction Procedure), and

waste, soil, or debris from mineral

processing operations that is identified

as hazardous by the specifications at 40

CFR Part 261.

(b) Effective May 26, 2000, the

following wastes are prohibited from

land disposal: newly identified

characteristic wastes from elemental

phosphorus processing; radioactive

wastes mixed with EPA Hazardous

wastes D004—D011 that are newly

identified (i.e. wastes, soil, or debris

identified as hazardous by the Toxic

Characteristic Leaching Procedure but

not the Extraction Procedure); or mixed

with newly identified characteristic

mineral processing wastes, soil, or

debris.

(c) Between May 26, 1998 and May

26, 2000, newly identified characteristic

wastes from elemental phosphorus

processing, radioactive waste mixed

with D004—D011 wastes that are newly

identified (i.e. wastes, soil, or debris

identified as hazardous by the Toxic

Characteristic Leaching Procedure but

not the Extraction Procedure), or mixed

with newly identified characteristic

mineral processing wastes, soil, or

debris may be disposed in a landfill or

surface impoundment only if such unit

is in compliance with the requirements

specified in § 268.5(h)(2) of this part.

(d) The requirements of paragraphs (a)

and (b) of this section do not apply if:

(1) The wastes meet the applicable

treatment standards specified in subpart

D of this part;

(2) Persons have been granted an

exemption from a prohibition pursuant

to a petition under § 268.6, with respect

to those wastes and units covered by the

petition;

(3) The wastes meet the applicable

alternate treatment standards

established pursuant to a petition

granted under § 268.44; or

(4) Persons have been granted an

extension to the effective date of a

prohibition pursuant to § 268.5, with

respect to these wastes covered by the

extension.

(e) To determine whether a hazardous

waste identified in this section exceeds

the applicable treatment standards

specified in § 268.40, the initial

generator must test a sample of the

waste extract or the entire waste,

depending on whether the treatment

standards are expressed as

concentrations in the waste extract or

the waste, or the generator may use

knowledge of the waste. If the waste

contains constituents (including

underlying hazardous constituents in

characteristic wastes) in excess of the

applicable Universal Treatment

Standard levels of § 268.48 of this part,

the waste is prohibited from land

disposal, and all requirements of part

268 are applicable, except as otherwise

specified.

Subpart D—Treatment Standards

13. Section 268.40 is amended by

revising paragraph (e), adding paragraph

(h), and revising the Table of Treatment

Standards to read as follows:

§ 268.40 Applicability of treatment

standards.

* * * * *

(e) For characteristic wastes (D001—

D043) that are subject to treatment

standards in the following table

‘‘Treatment Standards for Hazardous

Wastes,’’ and are not managed in a

wastewater treatment system that is

regulated under the Clean Water Act

(CWA), that is CWA-equivalent, or that

is injected into a Class I nonhazardous
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deep injection well, all underlying

hazardous constituents (as defined in

§ 268.2(i)) must meet Universal

Treatment Standards, found in § 268.48,

Table Universal Treatment Standards,

prior to land disposal as defined in

§ 268.2(c) of this part.

* * * * *

(h) Prohibited D004–D011 mixed

radioactive wastes and mixed

radioactive listed wastes containing

metal constituents, that were previously

treated by stabilization to the treatment

standards in effect at that time and then

put into storage, do not have to be retreated to meet treatment standards in

this section prior to land disposal.

BILLING CODE 6560–50–P
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28644 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations
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28646 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations
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28648 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations
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28650 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations
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28652 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations
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28654 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations
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28656 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations
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28658 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations
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28660 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations
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28662 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations
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28672 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations
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28674 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations
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28676 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations
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28678 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations
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28686 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations
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28712 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations
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28714 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations
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Footnotes to Treatment Standard Table

268.40

1The waste descriptions provided in this

table do not replace waste descriptions in 40

CFR 261. Descriptions of Treatment/

Regulatory Subcategories are provided, as

needed, to distinguish between applicability

of different standards. 2CAS means Chemical Abstract Services.

When the waste code and/or regulated

constituents are described as a combination

of a chemical with its salts and/or esters, the

CAS number is given for the parent

compound only. 3Concentration standards for wastewaters

are expressed in mg/l and are based on

analysis of composite samples. 4All treatment standards expressed as a

Technology Code or combination of

Technology Codes are explained in detail in

40 CFR 268.42 Table 1—Technology Codes

and Descriptions of Technology-Based

Standards. 5Except for Metals (EP or TCLP) and

Cyanides (Total and Amenable) the

nonwastewater treatment standards

expressed as a concentration were

established, in part, based upon incineration

in units operated in accordance with the

technical requirements of 40 CFR Part 264

Subpart O or Part 265 Subpart O, or based

upon combustion in fuel substitution units

operating in accordance with applicable

technical requirements. A facility may

comply with these treatment standards

according to provisions in 40 CFR 268.40(d).

All concentration standards for

nonwastewaters are based on analysis of grab

samples. 6Where an alternate treatment standard or

set of alternate standards has been indicated,

a facility may comply with this alternate

standard, but only for the Treatment/

Regulatory Subcategory or physical form (i.e.,

wastewater and/or nonwastewater) specified

for that alternate standard. 7Both Cyanides (Total) and Cyanides

(Amenable) for nonwastewaters are to be

analyzed using Method 9010 or 9012, found

in ‘‘Test Methods for Evaluating Solid Waste,

Physical/Chemical Methods,’’ EPA

Publication SW–846, as incorporated by

reference in 40 CFR 260.11, with a sample

size of 10 grams and a distillation time of one

hour and 15 minutes. 8These wastes, when rendered

nonhazardous and then subsequently

managed in CWA, or CWA-equivalent

systems, are not subject to treatment

standards. (See § 268.1(c) (3) and (4)). 9These wastes, when rendered

nonhazardous and then subsequently

injected in a Class I SDWA well, are not

subject to treatment standards. (See

§ 148.1(d)). 10Between August 26, 1996, and August

26, 1997, the treatment standard for this

waste may be satisfied by either meeting the

constituent concentrations in this table or by

treating the waste by the specified

technologies: combustion, as defined by the

technology code CMBST at § 268.42 Table 1

of this Part, for nonwastewaters; and,

biodegradation as definded by the technology

code BIODG, carbon adsorption as defined by

the technology code CARBN, chemical

oxidation as defined by the technology code

CHOXD, or combustion as defined as

technology code CMBST at § 268.42 Table 1

of this Part, for wastewaters. 11For these wastes, the definition of

CMBST is limited to: (1) combustion units

operating under 40 CFR 266, (2) combustion

units permitted under 40 CFR Part 264,

Subpart O, or (3) combustion units operating

under 40 CFR 265, Subpart O, which have

obtained a determination of equivalent

treatment under 268.42 (b).

14. Section 268.42 is amended by

revising the introductory text of

paragraph (a) and removing paragraphs

(a)(1), (a)(2), and (a)(3) to read as

follows:

§ 268.42 Treatment standards expressed

as specified technologies.

(a) The following wastes in the table

in § 268.40 ‘‘Treatment Standards for

Hazardous Wastes,’’ for which standards

are expressed as a treatment method

rather than a concentration level, must

be treated using the technology or

technologies specified in the table

entitled ‘‘Technology Codes and

Description of Technology-Based

Standards’’ in this section.

* * * * *

15. Section 268.44 is amended by

redesignating paragraph (h)(3) as (h)(5),

and adding new paragraphs (h) (3) and

(4) to read as follows:

§ 268.44 Variance from a treatment

standard.

* * * * *

(h) * * *

(3) For contaminated soil only,

treatment to the level or by the method

specified in the soil treatment standards

would result in concentrations of

hazardous constituents that are below

(i.e., lower than) the concentrations

necessary to minimize short- and longterm threats to human health and the

environment. Treatment variances

approved under this paragraph must:

(i) At a minimum, impose alternative

land disposal restriction treatment

standards that, using a reasonable

maximum exposure scenario:

(A) For carcinogens, achieve

constituent concentrations that result in

the total excess risk to an individual

exposed over a lifetime generally falling

within a range from 10 ¥4 to 10 ¥6; and

(B) For constituents with noncarcinogenic effects, achieve constituent

concentrations that an individual could

be exposed to on a daily basis without

appreciable risk of deleterious effect

during a lifetime.

(ii) Not consider post-land-disposal

controls.

(4) For contaminated soil only,

treatment to the level or by the method

specified in the soil treatment standards

would result in concentrations of

hazardous constituents that are below

(i.e., lower than) natural background

concentrations at the site where the

contaminated soil will land disposed.

* * * * *

16. Section 268.45 is amended by

revising the introductory text of

paragraph (a), and paragraphs (d)(3) and

(d)(4) to read as follows:

§ 268.45 Treatment standards for

hazardous debris.

(a) Treatment standards. Hazardous

debris must be treated prior to land

disposal as follows unless EPA

determines under § 261.3(f)(2) of this

chapter that the debris is no longer

contaminated with hazardous waste or

the debris is treated to the wastespecific treatment standard provided in

this subpart for the waste contaminating

the debris:

* * * * *

(d) * * *

(3) Cyanide-reactive debris. Residue

from the treatment of debris that is

reactive because of cyanide must meet

the treatment standards for D003 in

‘‘Treatment Standards for Hazardous

Wastes’’ at § 268.40.

(4) Ignitable nonwastewater residue.

Ignitable nonwastewater residue

containing equal to or greater than 10%

total organic carbon is subject to the

technology specified in the treatment

standard for D001: Ignitable Liquids.

* * * * *

17. Section 268.48 is amended by

revising the table Universal Treatment

Standards to read as follows:

§ 268.48 Universal treatment standards.

(a) * * *
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28748 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations
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28750 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations

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

18. Subpart D is amended by adding

§ 268.49 to read as follows:

§ 268.49 Alternative LDR treatment

standards for contaminated soil.

(a) Applicability. You must comply

with LDRs prior to placing soil that

exhibits a characteristic of hazardous

waste, or exhibited a characteristic of

hazardous waste at the time it was

generated, into a land disposal unit. The

following chart describes whether you

must comply with LDRs prior to placing

soil contaminated by listed hazardous

waste into a land disposal unit:

If LDRs And if LDRs And if Then you

Applied to the listed waste when it

contaminated the soil*.

Apply to the listed waste now ......... ......................................................... Must comply with LDRs

Didn’t apply to the listed waste

when it contaminated the soil*.

Apply to the listed waste now ......... The soil is determined to contain

the listed waste when the soil is

first generated.

Must comply with LDRs.

Didn’t apply to the listed waste

when it contaminated the soil*.

Apply to the listed waste now ......... The soil is determined not to contain the listed waste when the

soil is first generated.

Needn’t comply with LDRs.

Didn’t apply to the listed waste

when it contaminated the soil*.

Don’t apply to the listed waste now ......................................................... Needn’t comply with LDRs.

* For dates of LDR applicability, see 40 CFR Part 268 Appendix VII. To determine the date any given listed hazardous waste contaminated any

given volume of soil, use the last date any given listed hazardous waste was placed into any given land disposal unit or, in the case of an accidental spill, the date of the spill.

(b) Prior to land disposal,

contaminated soil identified by

paragraph (a) of this section as needing

to comply with LDRs must be treated

according to the applicable treatment

standards specified in paragraph (c) of

this section or according to the

Universal Treatment Standards

specified in 40 CFR 268.48 applicable to

the contaminating listed hazardous

waste and/or the applicable

characteristic of hazardous waste if the

soil is characteristic. The treatment

standards specified in paragraph (c) of

this section and the Universal

Treatment Standards may be modified

through a treatment variance approved

in accordance with 40 CFR 268.44.

(c) Treatment standards for

contaminated soils. Prior to land

disposal, contaminated soil identified

by paragraph (a) of this section as

needing to comply with LDRs must be

treated according to all the standards

specified in this paragraph or according

to the Universal Treatment Standards

specified in 40 CFR 268.48.

(1) All soils. Prior to land disposal, all

constituents subject to treatment must

be treated as follows:

(A) For non-metals, treatment must

achieve 90 percent reduction in total

constituent concentrations, except as

provided by paragraph (c)(1)(C) of this

section.

(B) For metals, treatment must

achieve 90 percent reduction in

constituent concentrations as measured

in leachate from the treated media

(tested according to the TCLP) or 90

percent reduction in total constituent

concentrations (when a metal removal

treatment technology is used), except as

provided by paragraph (c)(1)(C) of this

section.

(C) When treatment of any constituent

subject to treatment to a 90 percent

reduction standard would result in a

concentration less than 10 times the

Universal Treatment Standard for that

constituent, treatment to achieve

constituent concentrations less than 10

times the universal treatment standard

is not required. Universal Treatment

Standards are identified in 40 CFR

268.48 Table UTS.

(2) Soils that exhibit the characteristic

of ignitability, corrosivity or reactivity.

In addition to the treatment required by

paragraph (c)(1) of this section, prior to

land disposal, soils that exhibit the

characteristic of ignitability, corrosivity,

or reactivity must be treated to eliminate

these characteristics.

(3) Soils that contain nonanalyzable

constituents. In addition to the

treatment requirements of paragraphs

(c)(1) and (2) of this section, prior to

land disposal, the following treatment is

required for soils that contain

nonanalyzable constituents:

(A) For soil that also contains

analyzable constituents, treatment of

those analyzable constituents to the

levels specified in paragraphs (c)(1) and

(2) of this section; or,

(B) For soil that contains only

nonanalyzable constituents, treatment

by the method specified in § 268.42 for

the waste contained in the soil.

(d) Constituents subject to treatment.

When applying the soil treatment

standards in paragraph (c) of this

section, constituents subject to

treatment are any constituents listed in

40 CFR 268.48, Table UTS—Universal

Treatment Standards that are reasonably

expected to be present in any given

volume of contaminated soil, except

fluoride, selenium, sulfides, vanadium

and zinc, and are present at

concentrations greater than ten times

the universal treatment standard.

(e) Management of treatment

residuals. Treatment residuals from

treating contaminated soil identified by

paragraph (a) of this section as needing

to comply with LDRs must be managed

as follows:

(1) Soil residuals are subject to the

treatment standards of this section;

(2) Non-soil residuals are subject to:

(A) For soils contaminated by listed

hazardous waste, the RCRA Subtitle C

standards applicable to the listed

hazardous waste; and

(B) For soils that exhibit a

characteristic of hazardous waste, if the

non-soil residual also exhibits a

characteristic of hazardous waste, the

treatment standards applicable to the

characteristic hazardous waste.

19. Table 1 in Appendix VII to Part

268 is amended by removing the entries

for waste code F033; revising the second

entry for waste code F032, the second

entry for F034, and the first entry for

K088; revising the entries for D003-D011

and two entries for waste code F035;

and, Table 2 is amended by revising

entry number 9 and adding entries 12

and 13 to read as follows:
28752 Federal Register / Vol. 63, No. 100 /Tuesday, May 26, 1998 /Rules and Regulations

TABLE 1.—EFFECTIVE DATES OF SURFACE DISPOSED WASTES

[(Non-soil and Debris) Regulated in the LDRSa—Comprehensive List]

Waste code Waste category Effective date

* * * * * * *

D003 .......................... Newly identified surface-disposed elemental phosphorus processing wastes ............................... May 26, 2000.

D004 .......................... Newly identified D004 and mineral processing wastes ................................................................... August 24, 1998.

D004 .......................... Mixed radioactive/newly identified D004 or mineral processing wastes ......................................... May 26, 2000.

D005 .......................... Newly identified D005 and mineral processing wastes ................................................................... August 24, 1998.

D005 .......................... Mixed radioactive/newly identified D005 or mineral processing wastes ......................................... May 26, 2000.

D006 .......................... Newly identified D006 and mineral processing wastes ................................................................... August 24, 1998.

D006 .......................... Mixed radioactive/newly identified D006 or mineral processing wastes ......................................... May 26, 2000.

D007 .......................... Newly identified D007 and mineral processing wastes ................................................................... August 24, 1998.

D007 .......................... Mixed radioactive/newly identified D007or mineral processing wastes .......................................... May 26, 2000.

D008 .......................... Newly identified D008 and mineral processing waste .................................................................... August 24, 1998.

D008 .......................... Mixed radioactive/newly identified D008 or mineral processing wastes ......................................... May 26, 2000.

D009 .......................... Newly identified D009 and mineral processing waste .................................................................... August 24, 1998.

D009 .......................... Mixed radioactive/newly identified D009or mineral processing wastes .......................................... May 26, 2000.

D010 .......................... Newly identified D010 and mineral processing wastes ................................................................... August 24, 1998.

D010 .......................... Mixed radioactive/newly identified D010 ormineral processing wastes .......................................... May 26, 2000.

D011 .......................... Newly identified D011 and mineral processing wastes ................................................................... August 24, 1998.

D011 .......................... Mixed radioactive/newly identified D011or mineral processing wastes .......................................... May 26, 2000.

* * * * * * *

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

* * * * * * *

F034 ........................... All others .......................................................................................................................................... August 12, 1997.

F035 ........................... Mixed with radioactive wastes ......................................................................................................... May 12, 1999.

F035 ........................... All others .......................................................................................................................................... August 12, 1997.

* * * * * * *

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

* * * * * * *

* * * * *

TABLE 2.—SUMMARY OF EFFECTIVE DATES OF LAND DISPOSAL RESTRICTIONS FOR CONTAMINATED SOIL AND DEBRIS

(CSD)

Restricted hazardous waste in CSD Effective date

* * * * * * *

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

* * * * * * *

12. Soil and debris contaminated with newly identified D004–D011 toxicity characteristic wastes and mineral processing

wastes.

August 24, 1998.

13. Soil and debris contaminated with mixed radioactive newly identified D004–D011 characteristic wastes and mineral

processing wastes.

May 26, 2000.

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

to read as follows:

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

NATIONAL CAPACITY LDR VARIANCES FOR UIC WASTES

Waste code Waste category Effective date

* * * * * * *

NA .............................. Newly identified mineral processing wastes from titanium dioxide production and mixed radioactive/

newly identified D004–D011 characteristic wastes and mineral processing wastes.

May 26, 2000.

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

PART 271—REQUIREMENTS FOR

AUTHORIZATION OF STATE

HAZARDOUS WASTE PROGRAMS

21. The authority citation for Part 271

continues to read as follows:

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

6926.

Subpart A—Requirements for Final

Authorization

22. Section 271.1(j) is amended by

adding the following entries to Table 1

in chronological order by date of

publication in the Federal Register, and

by adding the following entries to Table

2 in chronological order by effective

date in the Federal Register, to read as

follows:

§ 271.1 Purpose and scope.

* * * * *

(j) * * *

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

Promulgation date Title of regulation Federal Register reference Effective date

* * * * * * *

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

* * * * * * *

* * * * *

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

Effective date Self-implementing provision RCRA citation Federal Register reference

* * * * * * *

August 24, 1998 ................. Prohibition on land disposal of newly identified

wastes including TC metal wastes and characteristic mineral processing wastes; treatment standards for contaminated soil.

3004(m) ............ Date of publication and FR page cite.

May 26, 2000 ...................... Prohibition on land disposal of newly identified

wastes from elemental phosphorus processing

and mixed radioactive and newly identified TC

metal/mineral processing wastes (including

soil and debris).

3004(m) ............ Date of publication and FR page cite.

Prohibition on underground injection of newly

identified mineral processing wastes from titanium dioxide production

* * * * * * *

* * * * *

[FR Doc. 98–12575 Filed 5–22–98; 8:45 am]

BILLING CODE 6560–50–P