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

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: May 26, 1998 (Volume 63, Number 100)]
[Rules and Regulations]
[Page 28555-28604]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26my98-9]

[[Page 28555]]

_______________________________________________________________________

Part II

Environmental Protection Agency

_______________________________________________________________________

40 CFR Parts 148, 261, 266, 268, and 271

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; Final Rule

[[Page 28556]]

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

[[Page 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 Sec. 261.1(c)(10)
B. Typographical Error in Sec. 268.4(a)(2)(ii) and (a)(2)(iii)
C. Clarifying Language Added to Sec. 268.7
D. Correction to Section 268.40--Treatment Standards for
Hazardous Waste
E. Removal of California List Requirements and de minimis
Provision from Sec. 268.42
F. Typographical Errors and Outdated Cross-references in
Sec. 268.45
G. Correction to Sec. 268.48 to Explain That Sulfides are not
Regulated as Underlying Hazardous Constituents in Characteristic
Wastes
H. Cross References in Sec. 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

[[Page 28558]]

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
Sec. 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 June 1, 1990........................... 55 FR 22520.
Scheduled Wastes; Rule.
Phase II LDR Proposal.............. Land Disposal Restrictions for Newly September 14, 1993..................... 58 FR 48092.
Identified and Listed hazardous Waste and
hazardous soil; Proposed Rule.
Phase III LDR Proposal............. Land Disposal Restrictions Phase III: March 2, 1995.......................... 60 FR 11702.
Decharacterized Wastewaters, Carbamate and
Organobromine Wastes, and Spent Potliners;
Proposed Rule.
Phase IV Original Proposal......... Land Disposal Restrictions--Phase IV: Issues August 22, 1995........................ 60 FR 43654.
Associated With Clean Water Act Treatment
Equivalency, and Treatment Standards for Wood
Preserving Wastes and Toxicity Characteristic
Metal Wastes; Proposed Rule.
Phase IV First Supplemental Land Disposal Restrictions--Clarification of January 25, 1996....................... 61 FR 2338.
Proposal. 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.
HWIR Media Proposal................ Requirements for Management of Hazardous April 29, 1996......................... 61 FR 11804.
Contaminated Media.
Phase IV NODA #1................... Land Disposal Restrictions Phase IV Proposed May 10, 1996........................... 61 FR 21417.
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.
Phase IV NODA #2................... Land Disposal Restrictions--Phase IV: March 5, 1997.......................... FR 62 10004.
Treatment Standards for Characteristic Metal
Wastes; Notice of Data Availability.
Phase IV LDR Wood Preserving Final Land Disposal Restrictions Phase IV: Treatment May 12, 1997........................... 62 FR 25998.
Rule. Standards for Wood Preserving Waste,
Paperwork Reduction and Streamlining,
Exemptions from RCRA for Certain Processed
Materials; and Miscellaneous Hazardous Waste
Provisions; Final Rule.
Phase IV Second Supplemental Land Disposal Restrictions Phase IV: Second May 12, 1997........................... 62 FR 26041.
Proposal. 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.

[[Page 28559]]

Phase IV NODA #3................... Land Disposal Restrictions Phase IV: Second November 10, 1997...................... 62 FR 60465.
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.
Treatability Variance Final Rule... Clarification of Standards for Hazardous Waste December 5, 1997....................... 62 FR 64504.
Land Disposal Restriction Treatment Variances.
--------------------------------------------------------------------------------------------------------------------------------------------------------

II. Potentially Regulated Entities

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

Table of Entities Potentially Affected by the Phase IV Final Rule
----------------------------------------------------------------------------------------------------------------
Examples of entities
Section of the rule Category potentially affected
----------------------------------------------------------------------------------------------------------------
LDR treatment standards for TC metal Generators of Toxicity Characteristic Facilities in the following
hazardous wastes, characteristic (TC) metal hazardous wastes (D004-- industries: primary mineral
mineral processing wastes, and other D011), characteristic mineral processing, chemical
metal-bearing wastes. processing waste, or any hazardous manufacturers, pharmaceutical
waste required to meet the LDR producers, paint producers,
treatment standard for antimony, manufacturers of motor
barium, beryllium, cadmium, chromium, vehicle parts, blast furnaces
lead, nickel, selenium, silver, and steel mills, metal
thallium, vanadium, or zinc. plating and polishing, and
aircraft parts and equipment.
Facilities that treat and/or dispose of Hazardous waste treatment and
TC metal hazardous wastes, disposal facilities.
characteristic mineral processing
wastes, and other metal-bearing
hazardous wastes.
LDR treatment standards for hazardous Entities managing hazardous soil........ Private or public parties
soil. remediating sites containing
hazardous soil
Mineral Processing Secondary Materials Facilities that generate, store, and/or Copper smelters, gold
recycle secondary materials from refiners, and other primary
primary mineral processing. metals producers that return
wastestreams to units for
additional recovery
Exclusion for Recycled Wood Preserving Wood Preserving Facilities.............. Facilities that generate and
Process Wastewaters. 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
metal-containing 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

[[Page 28560]]

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 no-migration 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 technology-based 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

[[Page 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 well-performing, 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 Z-score
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 re-calculating 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

[[Page 28562]]

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

[[Page 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 high-concentration 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.

[[Page 28564]]

(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 re-evaluation 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 re-evaluation 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

[[Page 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-by-case 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

[[Page 28566]]

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

[[Page 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

[[Page 28568]]

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 lead-bearing wastes,
not just foundry sands).
The Agency concludes that addition of iron metal, in the form of
fines, filings, or dust, fails to provide long-term 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,
silica-containing 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 lead-bearing
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

[[Page 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 high-level 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

[[Page 28570]]

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 nationally-applicable 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

[[Page 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]
----------------------------------------------------------------------------------------------------------------
2nd
Existing UTS supplemental Final UTS
Waste code Constituent TC level (mg/ level (mg/L proposed UTS level (mg/L
L) TCLP) level (mg/L TCLP)
TCLP)
----------------------------------------------------------------------------------------------------------------
D005............................. Barium............... 100 7.6 21.0 21.0
D006............................. Cadmium.............. 1.0 0.19 0.20 0.11
D007............................. Chromium............. 5.0 0.86 0.85 0.60
D008............................. Lead................. 5.0 0.37 0.75 0.75
D009- all others................. Mercury.............. 0.2 0.025 0.025 0.025
D010............................. Selenium............. 1.0 0.16 5.7 5.7
D011............................. Silver............... 5.0 0.30 0.11 0.14
Antimony............. 2.1 * 0.07 1.15
Beryllium............ 0.014 * 0.02 1.22
Nickel............... 5.0 13.6 11.0
Thallium............. 0.078 0.20 0.20
Vanadium **.......... 0.23 1.6 1.6
Zinc **.............. 5.3 4.3 4.3
----------------------------------------------------------------------------------------------------------------
* The proposed UTS levels for antimony and beryllium were rounded up to the nearest 0.01 mg/L TCLP.
** Vanadium and zinc are not underlying hazardous constituents.
Note: Treatment standards for TC metal wastewaters have also been revised in today's rule, but are not reflected
in this table.

D. Use of TCLP to Evaluate Performance 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

[[Page 28572]]

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
---------------------------------------------------------------------------

\1\Nor 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.
---------------------------------------------------------------------------

EPA also emphasizes that the LDR treatment standards are
technology-based, 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

[[Page 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 well-performing 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
well-suited 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 metal-containing wastes, EPA
does not view Columbia Falls as requiring a change in

[[Page 28574]]

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 metal-containing
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.

[[Page 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 co-burning 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
high-level 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

[[Page 28576]]

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 re-treat 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 re-treating 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 site-specific 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 re-treatment (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

[[Page 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 non-exempt, 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 high-
volume/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''

[[Page 28578]]

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-by-case 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 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 to remove
impurities,

[[Page 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 non-excluded 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 co-disposal 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 well-documented, 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

[[Page 28580]]

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).
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\2\The 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).
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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 non-continuous 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

[[Page 28581]]

absolutely outside Subtitle C jurisdiction.³
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\3\ The 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.
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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). Land-based 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 within-industry 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 by-product 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 land-based 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
land-based 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

[[Page 28582]]

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
land-based units that are actual production units, i.e. that actually
recover product. The Agency is aware of only two land-based 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.
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\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.
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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
---------------------------------------------------------------------------

\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).
---------------------------------------------------------------------------

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

[[Page 28583]]

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, By-products, 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.
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\6\ Put 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.
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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
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\7\ EPA does note the potential anomaly that non-mineral
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.
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(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)).
---------------------------------------------------------------------------

\8\ This example assumes that legitimate recycling is occurring.
---------------------------------------------------------------------------

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

[[Page 28584]]

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).
---------------------------------------------------------------------------

\9\ The 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.
---------------------------------------------------------------------------

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). Non-exempt
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

[[Page 28585]]

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\
---------------------------------------------------------------------------

\10\ Waters 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.
---------------------------------------------------------------------------

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 metal-bearing 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 Sec. 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 Sec. 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

[[Page 28586]]

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, in-process
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
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\11\ Of 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.
---------------------------------------------------------------------------

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

[[Page 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,

[[Page 28588]]

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 site-specific 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-land-based 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,
Non-RCRA 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

[[Page 28589]]

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 site-specific 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
---------------------------------------------------------------------------

\12\ EPA has not provided for this type of site-specific
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.
---------------------------------------------------------------------------

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

\13\ As 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.
---------------------------------------------------------------------------

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 site-specific 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

[[Page 28590]]

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

[[Page 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 non-uniquely 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

[[Page 28592]]

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 non-uniquely 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

[[Page 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 non-uniquely 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 co-
processing 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 non-
Bevill 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

[[Page 28594]]

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 co-processing was occurring. Industry
also noted that the Agency had not presented any data to confirm that
the co-processing 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 co-processing 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 co-processed. 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

[[Page 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 Bevill-exempt 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 non-Bevill 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 co-managed with them.
Congress simply provided that ``solid waste from extraction,
beneficiation and processing of ores and minerals'' are not subject to
Subtitle C. RCRA Sec. 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

[[Page 28596]]

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 non-excluded 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 non-Bevill 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.

[[Page 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 non-exempt 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 Bevill-exempt
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

[[Page 28598]]

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, co-disposed 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. Industry-supplied 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

[[Page 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

[[Page 28600]]

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
re-listed 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

[[Page 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 chloride-
ilmenite 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

[[Page 28602]]

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 soil-specific
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 soil-specific treatment standards,
the LDR Phase II proposal (58 FR 48092, September 14, 1993). Today's
action

[[Page 28603]]

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
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\14\ The 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.
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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.
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\15\ These soil treatment data have been claimed as confidential
business information.
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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.
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\16\ As 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.
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Because of the differences between the remedial context (responding
to wastes which have already been released to the environment) and

[[Page 28604]]

regulation of wastes generated by on-going 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 on-going 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 risk-based standards. This
conclusion was upheld in Hazardous Waste Treatment Council v. EPA, 886
F.2d 355, 362-64 (D.C. Cir. 1989), where technology-based 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

[[Continued on page 28605]]

Notices For
2009
2008
2007
2006
2005
2004
2003
2002
2001
2000
1999
1998
1997
1996
1995
1994

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

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