Requirements for Zinc Fertilizers Made From Recycled Hazardous
Secondary Materials
[Federal Register: November 28, 2000 (Volume 65, Number 229)]
[Proposed Rules]
[Page 70953-70982]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28no00-36]
[[Page 70953]]
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Part II
Environmental Protection Agency
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40 CFR Parts 261, 266, and 268
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Requirements for Zinc Fertilizers Made From Recycled Hazardous
Secondary Materials; Proposed Rule
[[Page 70954]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 261, 266, and 268
[FRL-6905-3]
RIN 2050-AE69
Requirements for Zinc Fertilizers Made From Recycled Hazardous
Secondary Materials
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is today proposing
to revise the existing regulations that apply to recycling of hazardous
wastes to make zinc fertilizer products. This proposal would establish
a more consistent regulatory framework for this practice, and establish
conditions for excluding hazardous secondary materials that are used to
make zinc fertilizers from the definition of solid waste under the
Resource Conservation and Recovery Act (RCRA). Today's proposal also
solicits comments on regulating mining wastes that are used to make
fertilizers.
DATES: EPA will accept public comment on this proposed rule until
February 26, 2001.
ADDRESSES: Commenters must send an original and two copies of their
comments referencing docket number F-2000-RZFP-FFFFF to: RCRA Docket
Information Center, Office of Solid Waste (5305W), Environmental
Protection Agency Headquarters (EPA, HQ), 401 M Street, SW.,
Washington, DC 20460. Hand deliveries of comments should be made to the
Arlington, VA, address below. EPA may conduct a public hearing on this
proposed rule during the comment period, if there is sufficient
interest on the part of commenters.
Comments may also be submitted electronically through the Internet
to: rcra-docket@epamail.epa.gov. Comments in electronic format should
also be identified by the docket number F-2000-RZFP-FFFFF. All
electronic comments must be submitted as an ASCII file avoiding the use
of special characters and any form of encryption.
Commenters should not submit electronically any confidential
business information (CBI). An original and two copies of CBI must be
submitted under separate cover to: RCRA CBI Document Control Officer,
Office of Solid Waste (5305W), U.S. EPA, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460.
Public comments and supporting materials are available for viewing
in the RCRA Docket Information Center (RIC), located at Crystal Gateway
I, First Floor, 1235 Jefferson Davis Highway, Arlington, VA. The RIC is
open from 9 a.m. to 4 p.m., Monday through Friday, excluding Federal
holidays. To review docket materials, it is recommended that the public
make an appointment by calling (703) 603-9230. The public may copy a
maximum of 100 pages from any regulatory docket at no charge.
Additional copies cost $0.15/page. The index and some supporting
materials are available electronically. See the Supplementary
Information section for information on accessing them.
FOR FURTHER INFORMATION CONTACT: For general information, contact the
RCRA Hotline at (800) 424-9346 or TDD (800) 553-7672 (hearing
impaired). In the Washington, DC metropolitan area, call (703) 412-9810
or TDD (703) 412-3323. For more detailed information on specific
aspects of this proposed rulemaking, contact Dave Fagan, U.S. EPA
(5301W), 1200 Pennsylvania Ave. NW., Washington, DC 20460; (703) 308-
0603, or e-mail: fagan.david@epamail.epa.gov.
SUPPLEMENTARY INFORMATION: The index and the following supporting
materials are available from the RCRA Information Center:
The official record for this action will be kept in paper form.
Accordingly, EPA will transfer all comments received electronically
into paper form and place them in the official record, which will also
include all comments submitted directly in writing. The official record
is the paper record maintained at the address in ADDRESSES at the
beginning of this document.
EPA responses to comments, whether the comments are written or
electronic, will be published in a notice in the Federal Register or in
a response to comments document placed in the official record for this
proposed rulemaking. EPA will not immediately reply to commenters
electronically other than to seek clarification of electronic comments
that may be garbled in transmission or during conversion to paper form,
as discussed above.
The contents of today's action are listed in the following outline:
I. Statutory Authority
II. Background
A. What Is the Intent of Today's Regulatory Proposal?
B. What Is the Scope of This Proposed Rule?
C. How Is Recycling of Hazardous Wastes To Make Fertilizer
Currently Regulated?
D. What Are EPA's Goals for This Rulemaking?
E. How Would Today's Proposal Affect Producers and Consumers of
Zinc Fertilizer?
III. Settlement Agreement for the Phase IV Administrative Stay
IV. Detailed Description of Today's Proposal
A. Removal of Exemption for K061-Derived Fertilizers
1. Background
2. Today's Proposed Action
B. Conditional Exclusion for Recycled Zinc-Bearing Hazardous
Secondary Materials
1. Background
2. Proposed Conditional Exclusion
a. Applicability of Conditional Exclusion
b. Reporting and Recordkeeping
c. Conditions to the Exclusion
i. Speculative Accumulation
ii. Conditions Applicable to Generators of Excluded Hazardous
Secondary Materials
iii. Conditions Applicable to Manufacturers of Zinc Fertilizers
or Zinc Fertilizer Ingredients Made From Excluded Secondary
Materials
d. Alternatives Considered
e. Implementation and Enforcement Hazardous
C. Conditional Exclusion for Zinc Fertilizers Made From Excluded
Hazardous Secondary Materials
1. Contaminant Limits
a. Product Specifications for Non-Nutritive Metals in
Conditionally Excluded Zinc Fertilizers
b. Product Specifications for Dioxins in Conditionally Excluded
Zinc Fertilizers
2. Testing and Recordkeeping
V. Mining Wastes Used To Make Fertilizer: Request for Comments
VI. Relationship With Other Regulatory Programs
VII. State Authority
A. Statutory Authority
B. Effect of Today's Proposed Rule
VIII. Administrative Assessments
A. Executive Order 12866
B. Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5
U.S.C. 601 et. seq.
C. Paperwork Reduction Act
D. Unfunded Mandates Reform Act
E. Federalism--Applicability of Executive Order 13132
F. Executive Order 13084: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Risks and Safety Risks
H. National Technology Transfer and Advancement Act of 1995
I. Executive Order 12898
[[Page 70955]]
I. Statutory Authority
These regulations are proposed under the authority of sections
3001, 3002, 3003, and 3004 of the Solid Waste Disposal Act of 1970, as
amended by the Resource Conservation and Recovery Act of 1976 (RCRA),
as amended by the Hazardous and Solid Waste Amendments of 1984 (HSWA),
42 U.S.C. 6921, 6922, 6923 and 6924.
II. Background
A. What Is the Intent of Today's Regulatory Proposal?
Today's proposed rule is one component of the Environmental
Protection Agency's ongoing assessment of contaminants in fertilizers.
Prior to this proposed rulemaking the Agency studied available
information on contaminants in a wide range of fertilizer products
(including waste derived fertilizers), application rates for
fertilizers, and how fertilizers are regulated in the United States and
in foreign countries. See ``Background Document on Fertilizer Use,
Contaminants and Regulation'' (EPA 747-R-98-003, January 1999). In
addition, EPA developed a risk assessment of contaminants in
fertilizers, which was released in August 1999. These documents are
both available on EPA's website; their respective website addresses are
http://www.epa.gov/opptintr/fertilizer.pdf, and http://www.epa.gov/
epaoswer/hazwaste/recycle/fertiliz/risk/report.pdf.
Based on these and similar studies, such as those recently issued
by the State of Washington (``Screening Survey for Metals and Dioxins
in Fertilizer Products and Soils in Washington State,'' April 1999) and
the State of California (``Development of Risk Based Concentrations for
Arsenic, Cadmium and Lead in Inorganic Commercial Fertilizers,''
California Department of Food and Agriculture, March 1998), EPA has
tentatively decided that the relatively small risks associated with
contaminants in fertilizers do not warrant a broad new federal
regulatory effort in this area (such as under the authority of the
Toxic Substances Control Act). However, as part of EPA's overall
assessment of the fertilizer contaminant issue, the Agency reexamined
the current RCRA regulatory requirements that apply specifically to
recycling of hazardous wastes to make fertilizer products. This
reexamination was based on the Agency's own experience with
implementing the current RCRA regulations, as well as views expressed
by regulated industry, public interest groups, state regulatory
officials and others (see ``EPA Stakeholder Meetings on Hazardous Waste
Derived Fertilizers, November 12-13, 1998, Meeting Summaries''). From
this review EPA has decided to propose certain revisions to the current
regulations for hazardous waste derived fertilizers, for the following
reasons:
The RCRA standards that now apply to most hazardous waste
derived fertilizers, known as the ``land disposal restrictions'' (LDR)
standards, were developed based on ``best demonstrated available
technology'' for treating hazardous wastes prior to disposal in
hazardous waste landfills. The LDR standards were thus not developed
specifically for fertilizers.\1\ A number of stakeholders have argued
persuasively for contaminant standards that are more appropriate and
specific to fertilizers. In today's action, EPA is proposing to set new
standards for fertilizer contaminants based on the levels that can be
readily achieved using demonstrated manufacturing practices.
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\1\ The purpose of the RCRA LDR standards is to assure that
threats posed by disposal of hazardous wastes are minimized before
disposal. RCRA section 3004(m). However, EPA has long acknowledged
that these standards are not ideal for hazardous waste derived
products used in a manner constituting disposal, but rather are the
minimum needed to satisfy section 3004(m). 53 FR 17578, 17605 (May
17, 1988): see also Association of Battery Recyclers v. EPA, 208 F.
3d 1047 (D.C. Cir. 2000) (acknowledging special risks posed by uses
constituting disposal justifying stricter LDR Standards).
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The current regulations are inconsistent. As discussed
above, hazardous waste derived fertilizers must meet the applicable
RCRA LDR treatment standards before they may be used as fertilizer
products. There is one exception to this requirement, however:
Fertilizers made from electric arc furnace dust (also known by its RCRA
waste code as K061) are specifically exempted from having to meet the
LDR standards. EPA believes that the original basis for exempting K061-
derived fertilizers from these standards is no longer valid (for
reasons explained further in section IV.A of this preamble), and that
fertilizers made from K061 should be subject to the same standards that
apply to other hazardous waste derived fertilizers.
Regulating fertilizer feedstocks as hazardous wastes
creates unnecessary disincentives to legitimate and beneficial
recycling practices. Currently, hazardous waste feedstocks that are
used in fertilizer manufacture are subject to full hazardous waste
management requirements, which include generator requirements,
manifests (when such wastes are transported), and permits for
manufacturers who store such materials prior to incorporation into
fertilizer. However, fertilizer manufacturers and their suppliers often
have strong incentives to avoid being subject to such RCRA
requirements, for reasons explained later in this preamble. The net
effect is that many such companies simply avoid the use of zinc-rich
secondary materials to make fertilizer if they carry the label of RCRA
``hazardous waste.'' EPA believes that the regulations that govern this
recycling practice should be revised so that appropriate environmental
safeguards are maintained, while removing unnecessary regulatory
constraints on legitimate and beneficial recycling practices.
B. What Is the Scope of This Proposed Rule?
Today's proposed regulatory amendments address only one type of
fertilizer that is made from recycled hazardous wastes; specifically,
zinc micronutrient fertilizer. According to the information that EPA
has reviewed, zinc fertilizers account for the great majority of
fertilizers that are made from recycled hazardous wastes. Another
reason for limiting the scope of this proposal to zinc fertilizers is
the Agency's judgment that developing recycling standards for this one
type of fertilizer product should be relatively straightforward from a
technical standpoint, and it may thus be possible to promulgate final
rules for such products in a relatively short time frame. The Agency is
aware, however, that some manufacturing of other types of fertilizers
from hazardous industrial wastes may be taking place, and that
regulatory revisions to address these other recycling practices may
also be in order. However, developing appropriate regulations that
could apply to virtually any fertilizer made from recycled hazardous
wastes would be a more complex, longer-term effort. The Agency has
chosen to avoid regulatory delays for zinc fertilizers by proceeding
with today's limited-scope rulemaking proposal. Comment is invited on
this aspect of today's proposal. EPA may address other types of
hazardous waste derived fertilizers in a follow-up rulemaking. Until
then, the current RCRA regulatory framework will continue to apply to
recycling of hazardous wastes to make fertilizers other than zinc
micronutrient fertilizers. These regulations are described in detail in
following sections of this preamble.
[[Page 70956]]
The Agency is also aware that at least one iron fertilizer product
is currently being produced from a mining waste that is exempted from
hazardous waste regulation, despite evidence that the product exhibits
a hazardous waste characteristic when tested according to the Toxicity
Characteristic Leaching Procedure (TCLP) (Oregon Department of
Environmental Quality Laboratory, Case Number 980474, July 31, 1998).
Today's proposal invites comment on whether this type of waste
recycling practice should be regulated under RCRA.
C. How Is Recycling of Hazardous Wastes To Make Fertilizers Currently
Regulated?
EPA's longstanding policy is to encourage legitimate recycling of
hazardous wastes, as a means of recovering valuable resources (for
example, zinc), and lessening the need for extraction of virgin
materials to make products. The Agency continues to believe that
recycling of hazardous wastes in fertilizer manufacture can be (and is)
a safe and beneficial practice, when proper environmental safeguards
are observed.
With regard to recycling hazardous wastes to make fertilizer,
current RCRA regulations place controls on the management of the
hazardous wastes prior to incorporation of the waste into a fertilizer,
and define when fertilizers made from recycled hazardous wastes are
legitimate products. These regulatory requirements are specified in 40
CFR Part 266, Subpart C.
Under RCRA, placement of hazardous wastes on the land is generally
regulated as a disposal practice, and thus the regulations that apply
to this type of recycling practice are generally referred to as the
``use constituting disposal'' (UCD) regulations. Fertilizers produced
from hazardous waste (i.e., incorporating hazardous wastes as one of
their ingredients) are one example of a use constituting disposal.
Hazardous waste derived asphalt is another example of such a product.
See 63 FR at 28609-610 (May 26, 1998); Association of Battery
Recyclers, 208 F.3d 1047 (DC Cir. 2000), upholding LDR rules applied to
hazardous waste derived asphalt.
Products made from recycled hazardous wastes whose intended use
involves placement on the land may create risks that are potentially
higher than for other types of recycled products (actual risk potential
depends, of course, on concentrations of toxic constituents in the
products and a number of other factors). Regulating these products as
hazardous wastes, however, would have the effect of prohibiting their
use altogether. See 50 FR at 628 (January 4, 1985). Rather than
prohibiting their use, current regulations require that these products
meet the same treatment standards they would have to meet if they were
disposed in a landfill.
In the final rule on the definition of solid waste (50 FR 614, Jan.
4, 1985), EPA asserted jurisdiction over all hazardous secondary
materials, and over products that contain these wastes, when they are
applied to the land. However, in the preamble to that rule, the Agency
noted that we hoped eventually to develop standards or specification
levels for toxic constituents in waste-derived products whose use on
the land may cause substantial harm (50 FR 628). Based on the
information described elsewhere in this preamble, we have decided to
propose specific levels (discussed elsewhere in this preamble) at which
waste-derived zinc fertilizers should be considered products, rather
than wastes.
Under the current UCD regulations, hazardous wastes that are going
to be recycled to make fertilizers must be managed in accordance with
all applicable hazardous waste management requirements, until they are
incorporated into a fertilizer. Generators of the hazardous wastes must
comply with the RCRA generator requirements (see 40 CFR Part 262), off-
site shipments of the wastes must be manifested (Subpart B of Part
262), and storage of these materials by fertilizer manufacturers
generally requires a RCRA permit. In addition, the fertilizers produced
from hazardous wastes must meet the LDR treatment standards prior to
being land disposed.
The requirements for hazardous waste derived fertilizers to meet
LDR treatment standards were first promulgated in the ``First Third''
LDR rule (August 17, 1988, 53 FR 31138). The standards were revised in
the ``Third Third'' LDR rule, which established treatment standards for
metals in characteristic hazardous wastes (June 1, 1990, 55 FR 22520).
In the Third Third rule the treatment standards for hazardous waste
derived fertilizers were specified as the toxicity characteristic
levels (i.e., the levels that identified when wastes are considered
``hazardous'' according to the TCLP). The Agency changed those
standards in the ``Phase IV'' LDR rule (May 26, 1998, 63 FR 28556),
which set new (and for most constituents, more stringent) treatment
standards for metals in toxicity characteristic wastes.
In response to the Phase IV LDR rule, affected fertilizer
manufacturers submitted information to the Agency arguing that the
Phase IV standards could actually have negative environmental
consequences by eliminating relatively ``clean'' zinc fertilizers from
the market, and encouraging the use of fertilizers with higher levels
of contaminants (e.g., K061 derived fertilizers) that were not subject
to the LDR standards. In response, the Agency administratively stayed
the effectiveness of the Phase IV rule as it applied to zinc
micronutrient fertilizers (63 FR 46332, August 31, 1998).
In that notice EPA announced its intent to address more broadly the
requirements for recycling of hazardous wastes into fertilizer through
a rulemaking process, as manifested by today's proposal. The effect of
the Phase IV administrative stay was that the Third Third treatment
standards (i.e., the characteristic levels) continue to apply to zinc
fertilizers made from recycled hazardous wastes. A petition for review
of this part of the final Phase IV rule, which challenged the stay, was
subsequently filed in the D.C. Circuit Court of Appeals by several
petitioners. Further discussion of this petition and its resolution is
presented in section III of this preamble.
As mentioned previously, fertilizer products made from one
particular type of hazardous waste (K061, or electric arc furnace dust)
are exempt from having to meet the LDR treatment standards. However,
management of the K061 feedstocks prior to recycling is subject to the
same hazardous waste management standards described above for other
hazardous wastes used as components of fertilizers. Further discussion
of the regulatory exemption for K061 derived fertilizers is contained
in section IV.A. of this preamble.
D. What Are EPA's Goals for This Rulemaking?
EPA hopes to achieve the following through this rulemaking effort:
More regulatory consistency. Today's proposal is intended
to create a ``level playing field'' with regard to how the recycling of
hazardous waste into zinc fertilizers is regulated. Removing the
current exemption for K061 derived fertilizers is one aspect of today's
proposal that should result in a more comprehensive and more consistent
regulatory framework for hazardous waste derived zinc fertilizers. In
this same vein, today's proposal requests comments on eliminating the
current exemption from the definition of solid waste for mining wastes
that exhibit a hazardous characteristic and that are used to make
fertilizer products.
Limits on contaminants in recycled zinc fertilizers that
are based on
[[Page 70957]]
demonstrated manufacturing practices. Today's proposed limits on metals
in recycled zinc fertilizers are based on levels that have been
demonstrated to be technically and economically achievable by the
industry, are protective of human health and the environment, and will
result in overall reductions in the volumes of heavy metals that are
applied to the nation's farmlands from hazardous waste derived zinc
fertilizers.
More appropriate controls on management of hazardous
secondary materials used in legitimate zinc fertilizer recycling
practices. Today's proposal should serve to better define ``legitimate
recycling'' for zinc fertilizers, and streamline current regulatory
restrictions on management of hazardous secondary materials used as
feedstocks in zinc fertilizer manufacturing.
E. How Would Today's Proposal Affect Producers and Consumers of Zinc
Fertilizer?
We believe that today's regulatory proposal should have very few
negative impacts on fertilizer manufacturers, the waste generators who
supply them, or on farmers who use zinc fertilizers. In fact, many
elements of today's proposal are expected to have a positive effect on
the zinc fertilizer market. However, the Agency is interested in any
further information that commenters may be able to provide on such
impacts, either positive or negative. A more detailed discussion of the
economic impact analysis prepared in support of this rulemaking is
presented in section VIII.A. of this preamble.
RCRA regulations affect only a portion of the overall zinc
fertilizer industry. It is estimated that roughly one half of the total
zinc fertilizer produced in the United States is made from hazardous
secondary materials, such as K061, brass fume dust and other zinc oxide
materials. (Land Application of Hazardous Waste Derived Micronutruent
Fertilizers, Bay Zinc Company and Tetra Technologies, Inc.; November
19, 1999) The balance of zinc fertilizer production is made from
secondary materials (or in some cases, ``virgin'' mineral concentrates)
that are not hazardous wastes, and thus are not subject to RCRA
controls. An example of a non-hazardous waste that is commonly used to
make zinc fertilizer is zinc oxide ``skimmings,'' a by-product from
galvanizing of various steel products. Manufacturers of high-purity
zinc fertilizers (such as zinc sulfate monohydrate, or ZSM) typically
can use either hazardous or non-hazardous secondary materials; the
resultant fertilizer products are essentially identical (Ibid.).
EPA recognizes that regulating one half of the industry while the
other half is essentially unregulated has the potential for creating
distortions in the zinc fertilizer market. One of the Agency's concerns
in this regard is that imposing stringent regulations on recycling of
hazardous material feedstocks can create a strong economic incentive
for manufacturers to use feedstock materials that carry no RCRA
regulatory ``baggage.'' This can be detrimental environmentally, if
unregulated fertilizers with higher concentrations of toxic
constituents have a market advantage. This partial regulation could
also lead to greater reliance on non-RCRA regulated feedstock materials
from foreign sources. Ultimately, such distortions in the market would
likely result in lower volumes of zinc-bearing wastes being
beneficially recycled.
EPA believes that the regulatory amendments proposed today could
greatly reduce these deleterious effects on the industry and its
customers, and may encourage beneficial recycling by zinc fertilizer
producers and their suppliers, while ensuring appropriate environmental
protections.
III. Settlement Agreement for the Phase IV Administrative Stay
On December 18, 1998, a petition for review of the Phase IV
administrative stay (described in Section II.C above) was filed by the
Washington Toxics Coalition, the Sierra Club and the Environmental
Technology Council. Since the objectives of the petitioners to ensure
protection of human health and the environment are generally consistent
with EPA's, and in order to avoid protracted litigation on this matter,
a settlement agreement was reached on June 20, 2000, in which the
Agency committed to address several issues relating to hazardous waste
derived fertilizers in this rulemaking effort. In summary, in the
settlement agreement the Agency agreed to:
Sign a notice of proposed rulemaking (NPRM) by November 15,
2000;
Propose in the NPRM:
--Technology-based standards for certain metal contaminants in
hazardous waste derived zinc fertilizers;
--Elimination of the current exemption from LDR treatment standards
for K061 derived zinc fertilizers;
--Standards for dioxins in hazardous waste derived zinc
fertilizers; and
--Record keeping and reporting requirements.
In the NPRM, solicit comments on a regulatory option that
would establish a comprehensive reporting and record keeping system for
generators, transporters and manufacturers involved with production of
any fertilizer made from hazardous waste, based on the RCRA Biennial
Reporting system.
In the NPRM, solicit comment on eliminating the current
exemption from Subtitle C regulation for fertilizers made from mining
wastes;
In the NPRM, discuss the option of retaining the current
generator, transportation and storage requirements, if the Agency
proposes to modify those requirements;
Sign a Notice of Final Rulemaking that addresses the above
provisions no later than May 15, 2002.
Today's proposed rule is consistent with the terms of this
agreement. Pursuant to Administrative Procedures Act regulations, the
Agency has not committed to promulgating any specific regulatory action
in the final fertilizer rulemaking. The final rulemaking will reflect
the comments and data submitted during the public comment period on
this proposal, as well as any new analyses conducted by the Agency. A
copy of the settlement agreement is included in the docket for today's
proposed rule.
IV. Detailed Description of Today's Proposal
A. Removal of Exemption for K061-Derived Fertilizers
1. Background
Electric arc furnace dust, known by its RCRA waste code as K061, is
a zinc-rich waste collected in air emission control baghouses and
scrubbers at electric arc steel making plants. K061 was listed by EPA
as a hazardous waste in 1980, due to relatively high concentrations of
heavy metals such as lead, cadmium and chromium. More recent data
indicate that the levels of heavy metal contaminants in K061 have
generally declined, as generators have made advances in removing such
contaminants from the scrap metal feedstocks used in this type of
steelmaking process. However, concentrations of lead in excess of one
percent (by weight) are still reported to be relatively common in K061
used by the fertilizer industry (``Land Application of Hazardous Waste
Derived Micronutrient Fertilizers, Bay Zinc Company and Tetra
Technologies Inc., November 19, 1999, Appendix A).
[[Page 70958]]
Measurable levels of dioxin contaminants have also been reported in
a limited number of K061 samples: Data from the State of Washington's
recent study of fertilizer contaminants (``Screening Survey for Metals
and Dioxins in Fertilizer Products and Soils in Washington State,''
April 1999) indicated dioxin levels in one sample of raw K061 at over
800 ppt, and a sample of K061-derived fertilizers at approximately 340
ppt. Other types of zinc fertilizers that were tested showed far lower
(in many cases, non-detect) levels of dioxins.
Manufacturing zinc fertilizer from K061 typically involves treating
the material with sulfuric acid to form a granular zinc ``oxy-sulfate''
fertilizer product. Thus, the manufacturing process does not involve
any processing to remove heavy metal contaminants. K061 fertilizers are
only partially soluble in water, since much of the zinc remains in an
oxide or ferrite (a zinc-iron compound) form, which is less water
soluble than zinc sulfate. Recent trends in the zinc fertilizer
industry indicate a shift away from K061 oxy-sulfate products, and
increased production of zinc sulfate monohydrate (ZSM) products, which
typically have much lower levels of heavy metal contaminants (Ibid).
Further discussion of zinc fertilizer manufacturing processes, and ZSM
fertilizer products in particular, is presented in section IV.B. of
today's preamble.
It should be noted that K061 can be processed thermally (e.g., in
multiple hearth furnaces) to reclaim iron and produce a zinc oxide
material that is amenable to further processing to manufacture high-
purity zinc fertilizer such as ZSM. Although this is not yet a
widespread practice, it further illustrates that the purity of zinc
fertilizer is largely a function of how feedstock materials are
processed, rather than the type of feedstock itself.
In 1988, as part of the ``First Third'' land disposal restrictions
final rule, EPA exempted fertilizers made from K061 from having to meet
the LDR treatment standards applicable to other types of hazardous
waste derived fertilizers. EPA's decision to promulgate this exemption
was based on an analysis of then-available data that indicated heavy
metal contaminant levels in K061-derived fertilizer were comparable to
(and in some cases were lower than) contaminant levels in zinc
fertilizers made from non-hazardous waste feedstocks. Thus, it was
concluded that eliminating K061 fertilizers from the market (as would
have been likely absent the regulatory exemption) would not have had
any net environmental benefit. EPA also concluded at that time that,
based on available information, agricultural application of K061
fertilizers did not appear to pose significant risks for either ground
water or food chain contamination pathways (see 53 FR 31164, August 17,
1988).
2. Today's Proposed Action
Today's proposed rule would amend the current regulations at
Sec. 266.20, by removing the provision that exempts fertilizers made
from K061 from having to meet applicable land disposal restrictions
standards. In effect, this proposal would require all zinc fertilizers
made from recycled hazardous secondary materials to meet the same set
of contaminant standards. This aspect of today's proposal is in accord
with the Agency's objective of creating a more consistent regulatory
framework for this particular recycling practice.
EPA's rationale for eliminating the current regulatory exemption
for K061 derived fertilizers also rests on the fact that the
composition of zinc fertilizers on the market has changed significantly
since the exemption was granted in 1988. Current data on zinc
fertilizer composition clearly indicate that levels of certain heavy
metal contaminants in K061 fertilizers are considerably higher than
those in other types of zinc fertilizers that are now widely marketed.
For example, total concentrations of lead in K061 fertilizers commonly
exceed one percent (10,000 mg/kg) by weight, while available data
suggest that lead levels in zinc sulfate monohydrate fertilizers (which
are also widely marketed) rarely exceed 100 mg/kg in dry product (see,
for example, ``Land Application of Hazardous Waste Derived
Micronutrient Fertilizers,'' Bay Zinc Company and Tetra Technologies,
Inc., November 19, 1999).
Such higher purity zinc fertilizers were not widely available as
substitutes for K061-derived fertilizers in 1988. Today's proposal to
eliminate the exemption for K061 derived fertilizers has also been made
in consideration of the levels of dioxins in K061 fertilizers that were
identified in the State of Washington's report ``Screening Survey of
Metals and Dioxins in Fertilizer Products and Soils in Washington
State,'' (April 1999).
As discussed further in Section VII.A. of this preamble and in the
Regulatory Impact Analysis (RIA) prepared in support of today's
proposal, EPA believes that subjecting K061 zinc fertilizers to the
same regulatory controls as other types of hazardous waste derived
fertilizers will have the benefit of creating a more consistent
regulatory framework for this type of zinc fertilizer manufacturing,
and will not create undue hardships for the zinc fertilizer industry.
At the present time EPA is aware of only one manufacturer (Frit
Industries of Ozark, AL) currently using K061 to produce zinc oxy-
sulfate fertilizer. Although this company would need to modify its
manufacturing practices to comply with this regulatory change, EPA
believes that this should not cause undue economic hardship for either
the company or for zinc fertilizer consumers. In any case, we do not
believe that it is sensible to exempt this type of fertilizer from
having to meet contaminant limits, while other zinc fertilizers of
greater purity would be required to meet them. In addition, the
provisions in today's proposal that would streamline regulatory
controls on management of hazardous feedstocks in zinc fertilizer
manufacture should benefit the industry by increasing the availability
of alternative hazardous feedstock materials (e.g., brass foundry
dusts).
Some stakeholders have advocated a total ban on the use of K061 to
make zinc fertilizer, largely because of concerns about measured
concentrations of dioxin contaminants in two samples of these
fertilizers, which were analyzed as part of the State of Washington's
previously cited screening study. The Agency considered this option,
but is not proposing it. EPA believes that K061 can be a suitable
feedstock for manufacturing zinc fertilizer, provided that it is
processed sufficiently to address metal and dioxin contaminants. In
fact, at least one steel manufacturer in the United States is currently
thermally processing K061 to recover its iron content and to produce a
zinc oxide material that can be further refined to make high-quality
zinc fertilizer (Illinois Pollution Control Board, AS99-3, May 5,
1999). The Agency does not believe that there is any environmental
reason to discourage recycling of K061 to make fertilizer; in fact, we
hope that this rulemaking may serve to encourage beneficial metals
recovery from K061 that might otherwise be landfilled.
In summary, given the relatively high contaminant levels in K061
fertilizers, and the availability to the industry of alternative
hazardous waste (and other) feedstock materials, EPA sees no compelling
reason to continue subjecting K061 fertilizers to less stringent
regulatory controls than other types of hazardous waste derived zinc
fertilizers. The Agency requests comment on this provision of today's
proposal.
[[Page 70959]]
B. Conditional Exclusion for Recycled Zinc-Bearing Hazardous Secondary
Materials
1. Background
a. General. As discussed in Section II.C. of this preamble, the
``use constituting disposal'' (UCD) requirements of Sec. 266.20
currently apply to management of any RCRA hazardous waste that is
recycled to make fertilizer. This in effect requires the wastes to be
managed according to all applicable hazardous waste regulations,
including requirements for generation, transportation and storage of
the wastes prior to recycling. The recycling processes themselves are
generally not subject to RCRA regulation.
EPA's rationale for regulating these materials as hazardous wastes
is that the end disposition of the waste closely resembles uncontrolled
land disposal, which is the classic type of discard under RCRA.
(January 4, 1985, 50 FR at 627-28; August 17, 1988, 53 FR at 31198). At
the time these regulations were promulgated, however, EPA was unsure as
to how to regulate the end disposition of the waste-derived products,
since full Subtitle C regulation would essentially prohibit their use
as products (January 4, 1985; 50 FR at 646). The original regulatory
scheme consequently applied RCRA Subtitle C regulation only to persons
generating, transporting and storing hazardous wastes before they were
incorporated into the waste-derived products. Id. At 646-47. As
explained earlier, because the use of waste-derived products on the
land is a type of land disposal, EPA in 1988 amended these regulations
to require all such waste-derived products (with the exception of K061
derived fertilizers) to meet LDR treatment standards \2\.
---------------------------------------------------------------------------
\2\ EPA is reciting this history as an aid to readers; EPA is
not accepting comment on these past determinations; or otherwise
reopening these issues.
---------------------------------------------------------------------------
As mentioned previously, zinc fertilizers can be manufactured from
a variety of different feedstock materials--some are ``virgin''
materials such as refined ores, while others are secondary materials
generated from emission control devices or other industrial processes.
While their origins may differ, the physical and chemical
characteristics of these materials are generally quite similar--for the
most part they are dry, powdery solid materials containing a high
percentage of zinc in oxide or chloride form, along with lower levels
of non-nutritive contaminants such as lead, cadmium and other heavy
metals. The zinc content of these materials typically ranges from 50%
to 80% by weight.
Levels of metal contaminants in these feedstocks vary considerably,
even from batch to batch; on average, contaminant levels in non-
hazardous feedstocks are slightly lower than those in hazardous
feedstocks. Levels of lead (for example) in non-hazardous galvanizer
ash typically range between one and two percent, while levels in
hazardous brass foundry dust can be as high as six percent (letter from
George M. Obeldobel, March 6, 2000). As a general matter, however, we
believe that any potential risks posed by hazardous and non-hazardous
zinc feedstock materials would be substantially similar, which argues
for more consistent regulation of these materials under RCRA.
In EPA's view, more consistent regulation of zinc fertilizer
feedstocks is also appropriate since the current regulatory structure
tends to discourage legitimate and beneficial recycling of those
materials that are now classified as hazardous wastes. As mentioned
previously, the current UCD regulations that apply to this recycling
practice were originally promulgated in 1985. A thorough, prospective
examination of the potential impacts of the UCD regulations
specifically on the zinc fertilizer industry was beyond the scope of
that original rulemaking.
Since 1985 the Agency has gained considerable insight as to how the
UCD regulations have affected manufacturers of zinc fertilizers and
their suppliers. Based on this experience with implementing the UCD
requirements, EPA has concluded that the existing UCD regulatory
structure unnecessarily constrains legitimate recycling in the zinc
fertilizer industry, as discussed in more detail below.
Under the current regulations, companies that use hazardous wastes
to make fertilizers typically will need a RCRA permit for storage of
the material prior to recycling. This can have important implications
for zinc fertilizer manufacturers. Obtaining a RCRA permit can be
costly and time consuming. In addition, a RCRA permit carries with it
other obligations, such as the requirement for facility-wide corrective
action, which can incur further substantial costs. Most companies (and
fertilizer manufacturers are no exception) thus have a strong incentive
to avoid the RCRA permit requirement for their facilities whenever
possible.
One way for a zinc fertilizer manufacturer to avoid the RCRA permit
requirement is to simply use non-hazardous feedstock materials. These
materials are generally more expensive than hazardous waste feedstocks,
which increases the price of zinc fertilizer products. For
manufacturers who do accept hazardous feedstock materials, the RCRA
permit requirement can also be avoided by selling the end product for
purposes other than fertilizer. ZSM, for example, can also be used as
an animal feed supplement, which does not trigger the UCD regulatory
requirements. This creates the anomalous situation in which a
manufacturer of ZSM would be subject to full regulation under RCRA if
the product is sold as fertilizer, but is not regulated at all if the
identical product is sold as animal feed. EPA does not believe that
there is a convincing environmental rationale for perpetuating this
somewhat artificial regulatory distinction between zinc products that
trigger the UCD requirements and those that do not, particularly when
the composition of the products may be identical.
The current UCD regulations create similar disincentives for
generators of hazardous zinc secondary materials. Such generators
typically prefer not to have such materials classified as hazardous
waste, since they are then less valuable as a commodity, are subject to
stringent hazardous waste management requirements, and in many states
are assessed hazardous waste generation fees. These generators
therefore tend to avoid selling their material to companies that make
fertilizer products. However, fertilizer is by far the largest market
for ZSM. Since this market is effectively closed for many generators,
and alternative recycling options are limited, generators of zinc-
bearing secondary materials can often be forced to dispose of the
material as hazardous waste, rather than sell it to fertilizer
manufacturers. In EPA's view, such distortions in the market for
recyclable hazardous secondary materials are both environmentally and
economically non-productive.
b. Reporting and Recordkeeping. As discussed above, under current
regulations hazardous wastes that are used to make fertilizers are
subject to the RCRA ``cradle to grave'' requirements for tracking and
recordkeeping prior to being recycled. The following is a summary of
these requirements:
Generators of such hazardous wastes must:
--Manifest off-site shipments of hazardous waste (Sec. 262.20-23);
--Submit exception reports for any unconfirmed deliveries of waste
shipments (Sec. 262.42);
[[Page 70960]]
--Maintain copies of manifests, exception reports, biennial reports
and any data used to make hazardous waste determinations, for at least
three years (Sec. 262.40); and
--Submit a biennial report describing all hazardous wastes
generated and the facilities they were shipped to every other year
(Sec. 262.41).
Manufacturers of hazardous waste derived fertilizers must:
--Maintain copies of manifests for at least three years
[Sec. 264.71(b)(5)];
--Submit a report for each shipment of hazardous waste received
without a manifest (Sec. 264.76) and each shipment with significant
manifest discrepancies (Sec. 264.72); and
--Submit a biennial report for each odd-numbered year describing
all hazardous wastes received from any off-site generators, and who the
generators were.
These RCRA requirements were designed to be a ``cradle to grave''
tracking system, to document and ensure that hazardous wastes shipped
from a generator's facility actually arrive at their intended
destination (e.g., a hazardous waste disposal facility), and do not
become ``lost'' or dumped indiscriminately. The biennial reporting
requirement is intended to provide information to the public on
hazardous waste generation and movement, and to enable EPA to report to
Congress with national profiles of these activities. While these
requirements apply when the recycled end product is subject to the UCD
regulations, such cradle-to-grave requirements generally do not apply
if such wastes are used to make other types of products. Thus, the RCRA
tracking system does not apply to many hazardous waste streams that are
recycled but are exempt or excluded from regulation because the end
products are not used on the land.
With regard to monitoring and tracking hazardous wastes that are
used to make fertilizers (and other recycled products), the current
RCRA regulations have certain limitations. For example, hazardous waste
generators who supply fertilizer manufacturers are not required to
notify regulatory agencies of the practice, so identifying the sources
of hazardous waste feedstock materials involves reviewing individual
manifests, which are typically maintained at the fertilizer
manufacturer's facility. Tracking such waste movements may be
especially difficult in cases where there is a middleman (e.g., a waste
broker or processor) involved, who may aggregate or blend wastes from
various sources before shipping them to a fertilizer manufacturer.
In addition, generators are required to identify only the facility
to which their wastes are shipped, but do not need to identify what
their wastes may be used for. Many facilities that receive such wastes
make a variety of products in addition to fertilizers, which makes it
difficult for regulators (and others) to determine whether or not a
particular waste shipment was used specifically for fertilizer
manufacture. The biennial reporting system has similar limitations for
much the same reasons, and in addition only applies to hazardous waste
management activities that occur every other year.
In summary, the existing regulatory framework provides regulators
and others with only limited means of identifying and monitoring
generators who supply manufacturers of hazardous waste derived
fertilizers, or what they are supplying. Furthermore, the current
biennial reporting system is admittedly only marginally useful for
identifying at an aggregate national level who is engaged in these
practices, what wastes are being used, or what products are being
produced. EPA believes that the current recordkeeping, reporting and
tracking system (as it applies to recycling of hazardous wastes in zinc
fertilizers) can be streamlined and greatly improved with relatively
minor modifications.
To this end, EPA is today proposing (as discussed below) a new set
of reporting and recordkeeping requirements specifically for this
industry that should enhance oversight capabilities of regulatory
agencies, and provide more complete, more accurate and more accessible
information to regulators and others on this particular type of
hazardous waste recycling. In addition, as discussed in section VIII.C.
of this preamble, we believe that the proposed new requirements would
actually result in less overall paperwork burden on industry than the
current system. EPA requests comments on whether the new set of
reporting and recordkeeping requirements in today's proposal is
necessary, and on the potential impacts of such requirements.
2. Proposed Conditional Exclusion
EPA is today proposing in Sec. 261.4(a)(20) a conditional exclusion
from the definition of solid waste for hazardous secondary materials--
that is, spent materials, sludges and byproducts--that are recycled to
make zinc fertilizers or zinc fertilizer ingredients. We believe
excluding these materials from being classified as wastes is
appropriate, for the reasons outlined above. However, we do not believe
that a total exclusion (which would allow unrestricted management of
these materials) is appropriate, given the Agency's recent experience
with at least three cases of environmental damage caused by improper
management of such materials by zinc product manufacturers (these cases
are discussed further in the economic impact analysis prepared for this
proposed rule).
As mentioned previously, these materials are typically dry zinc
oxide dusts that contain significant levels of non-nutritive metals
such as lead, cadmium and arsenic, often in soluble form. They are thus
susceptible to wind and water dispersion if not managed properly. The
damage cases that the Agency has dealt with have primarily involved
situations where the secondary material feedstocks and/or wastes
generated from fertilizer manufacturing processes have been stored
outdoors, usually in uncovered, unlined piles. These cases have
resulted in contamination of soils, sediments and ground water via
uncontrolled dispersal, a form of ``throwing away'' inconsistent with
the notion that these zinc-containing materials were valuable
feedstocks (``Report of RCRA Compliance Inspection at American
Microtrace Corporation,'' US EPA Region VII, December 4, 1996). In
summary, today's proposal would replace the current Subtitle C
regulatory controls on these materials with conditions designed to
ensure that the unprocessed materials do not become discarded.
EPA is not aware of any damage cases that may have occurred from
mismanagement of hazardous waste derived zinc fertilizers themselves.
EPA requests information on any other proven damage cases due to
mismanagement of secondary material feedstocks and/or wastes generated
from fertilizer manufacturing processes, or proven damage cases
involving mismanagement of hazardous waste derived zinc fertilizers.
a. Applicability of Conditional Exclusion. The conditional
exclusion proposed today would be an exclusion only from the RCRA
Subtitle C regulations, and not from the emergency, remediation and
information-gathering sections of the RCRA statute (sections 3004(u),
3007, 3013, and 7003). This restates the principle already codified for
other excluded secondary materials--that the exclusion is only from
RCRA regulatory provisions, and not from these statutory authorities.
See section 261.1(b).
[[Page 70961]]
EPA is repeating that principle here in the interests of clarity,
not to reopen the issue. The legal basis for the distinction of the
Agency's authority under these provisions is that they use the broader
statutory definition of solid waste (and hazardous waste as well) and
so need not (and should not) be read as being limited by the regulatory
definition. See, for example, 50 FR 627; January 4, 1985.
b. Reporting and Recordkeeping. Today's proposed rule includes
conditions for reporting and recordkeeping by generators and
manufacturers that are designed to ensure that government oversight
over the handlers of excluded materials (e.g., generators and
manufacturers) is not compromised. These conditions would replace the
current hazardous waste regulatory requirements for reporting and
recordkeeping. As discussed below, the proposed conditions are in fact
designed to improve the accountability system, and government oversight
capabilities, over the handling of secondary materials used to make
zinc fertilizers.
Today's proposal would replace the existing tracking system with a
set of reporting and recordkeeping requirements (i.e., conditions to
the exclusion) to specifically identify zinc fertilizer manufacturers
who receive excluded hazardous secondary materials and the generators
who supply them, to track shipments of these materials, and to provide
a much more detailed accounting of the types and volumes of hazardous
secondary materials that are actually used to make zinc fertilizer
products. The proposal also specifies recordkeeping requirements for
finished zinc fertilizer products that are made from excluded
materials, as discussed below in section IV.C.2.
The proposed conditions on reporting and recordkeeping are not
expected to impose substantial new paperwork burdens on affected
companies, since we believe they rely primarily on standard business
record keeping practices. At the same time, however, it should be
understood that the proposed requirements would be unique, in that no
other RCRA-regulated recycling practice is subject to such an expanded,
industry-specific accountability system. EPA solicits comments on
whether such an accountability system is warranted, whether it would
necessitate substantial changes to current business practices, and on
any other potential impacts of such a system.
c. Conditions of the Exclusion.
i. Speculative Accumulation. Today's proposal would prohibit
speculative accumulation (as defined in existing Sec. 261.1(c)(8)),
which generally requires an annual recycling rate of 75% of all
hazardous secondary materials accumulated as of the first day of each
calendar year. This proposed provision is mainly for emphasis and
clarity; a general provision classifying secondary materials
accumulated speculatively as solid wastes already appears at
Sec. 261.2(c)(4). See generally 50 FR at 634-37; January 4, 1985.
ii. Conditions Applicable to Generators of Excluded Hazardous
Secondary Materials.
Overview. As discussed above, under today's proposal generators
would no longer be subject to current hazardous waste management
regulations, provided that the generator met the specified conditions
relating to accumulation, storage, transportation, reporting and
recordkeeping of excluded materials. The following is a general,
simplified reiteration of how requirements for generators would change
under these proposed rules, followed by a more detailed explanation of
each of the proposed conditions.
Accumulation/Generation. Currently, generators of hazardous wastes
used to make zinc fertilizers may accumulate the wastes on-site for no
more than 90 days without triggering the need for a RCRA permit. In
addition, a number of states levy fees on all such generated wastes,
which are typically based on the volumes generated in a given year.
Under today's proposal, these requirements would no longer apply to
generators (unless a state chose to adopt more stringent requirements).
Storage. On-site storage (e.g., in tanks or containers) of
hazardous waste accumulations is currently allowed if the generator
meets the management requirements for such units at interim status
facilities. Under today's proposal, these storage requirements would be
replaced by a set of more general, performance-based conditions
intended to ensure that excluded materials are stored safely at
generator facilities.
Transportation. Off-site shipments of hazardous wastes (e.g., from
a generator to a fertilizer manufacturer) currently must be manifested
according to the requirements of 40 CFR Part 262, Subparts B and C.
These requirements include provisions for packaging, labeling, marking,
and placarding of waste shipments, as well as procedural requirements
such as those for dealing with manifest discrepancies. Under today's
proposal hazardous waste manifests and the requirements associated with
their use would not apply. The generator would, however, need to
document shipments of excluded materials and maintain copies of
shipping papers, analogous to the current manifesting requirements.
Reporting and Recordkeeping. Under current regulations, generators
of hazardous wastes used to make zinc fertilizers must provide notice
to the authorized agency of their hazardous waste management activity
(Sec. 262.12), submit biennial report information every other year
(Sec. 262.41), and maintain manifest records for at least three years
(Sec. 262.40). These requirements would no longer apply under today's
proposal. Instead, generators would need to: (a) Submit a one-time
notice of their intent to manage (now excluded) materials according to
the proposed conditions; and (b) maintain shipping records (containing
information analogous to that in manifests) for at least three years.
The following is a more detailed explanation of today's proposed
conditions for generators.
Storage. Under today's proposal (Sec. 261.4(a)(20)(ii)(A)), storage
of excluded hazardous secondary materials at a generator's facility
would, as a condition of the exclusion, only be allowed in tanks,
containers or in buildings. These units would have to be constructed
and maintained in a way intended to prevent releases of the material
into the environment from occurring. This is in effect a general
performance standard for such units, coupled with a few broad design
conditions.
EPA expects that in most cases generators will choose to store
their feedstock materials inside buildings, either in bulk (i.e., in
piles) or in ``supersack'' containers. Supersacks are reusable woven
resin bags that can contain approximately one ton of dry material, and
are typically handled with forklifts, cranes or other heavy machinery.
As mentioned previously, the damage cases known to the Agency that
involved hazardous zinc feedstock materials have all resulted from
outside storage, typically in uncovered, unlined piles. Storage of
these materials inside well-designed and maintained buildings should
adequately prevent against releases of such materials into the
environment. Thus, the proposed storage condition is that any such
building be engineered to have a floor, walls and a roof made of non-
earthen materials, such that dispersal or contact by rainwater are
prevented. These buildings may, however, have doors or removable
sections to enable access by trucks or machinery.
Excluded secondary materials could also be stored in tanks that are
not located inside buildings. Such tanks are often used for receiving
shipments of
[[Page 70962]]
bulk material from trucks or rail cars. A tank (as defined in
Sec. 260.10) subject to this exclusion would have to be structurally
sound, and have a roof or cover that prevents wind or water dispersal.
Outside storage of secondary materials in containers at generating
facilities would also be allowed, with some restrictions. Such
containers would have to have lids or covers to prevent dispersal of
the contents, and be constructed of metal or other rigid materials.
This last requirement is intended to prevent the use of supersacks or
similar types of containers for outside storage. This is because
supersacks are to some extent porous, and do not have sealed openings.
They are not waterproof or airtight, and can rupture if mishandled. EPA
believes that this type of container does not offer secure enough
storage under outside conditions, and so is proposing not to allow
their use for outdoor storage of excluded materials.
EPA believes that the proposed conditions on storage of excluded
hazardous secondary materials at generator facilities would be
protective of human health and the environment. However, we recognize
that the proposed conditions do not address every possible circumstance
that could lead to releases of these materials at a generator's
facility. The same can be said, of course, for permitted hazardous
waste management facilities. An example might be an accident during
loading or unloading of material that causes spillage or wind
dispersal, and (at least potentially) contamination of soils. In all
cases, unless the owner/operator of the facility responds immediately
to clean up the released material, these situations would be considered
an act of discard under RCRA. Such materials would then be considered
waste (i.e., the conditional exclusion would not longer apply), and the
owner/operator would potentially be subject to enforcement action for
illegal disposal of hazardous waste. EPA invites comment on all aspects
of today's proposed storage requirements for generators.
One-time notification. The proposed rule would require generators
of excluded hazardous secondary materials to submit a one-time notice
(Sec. 261.(4)(a)(20)(ii)(B)) to the EPA Regional Administrator (or the
state Director in an authorized state) identifying the name, location
and EPA ID number of the generating facility, and the type (e.g., brass
foundry dust) and estimated annual volume of material that is expected
to be excluded under these fertilizer recycling regulations. This
condition is intended to enable regulatory agencies to readily identify
the generators who supply (or intend to supply) excluded secondary
materials to zinc fertilizer producers. If the generator anticipates
shipping excluded materials off-site, the generator would also have to
certify in the notice that he will only ship excluded materials to
states that are authorized to administer these regulations (i.e., if
that state were not authorized, the material would not be excluded in
that state and would have to be managed as hazardous waste in that
state).
With regard to off-site shipments, the DOT requirements for
transportation of hazardous materials (which generally involve proper
identification of such materials in case of emergency incidents) could
potentially apply. The shipments would not be subject to RCRA manifest
requirements (since the materials would not be hazardous wastes),
although similar shipping papers would be required for tracking
purposes, as discussed below.
This proposed reporting requirement is generally analogous to the
current requirement for generators of excluded secondary materials that
are placed on the land (see Sec. 268.7(a)(7)), which requires the
generator to place a similar one-time notice in the generator
facility's on-site files. However, the proposed requirement should have
the effect of enhancing regulatory agencies' tracking and oversight
capabilities, since the information would be submitted directly to the
overseeing agency, rather than being maintained in the facility's
files.
EPA considered alternatives to this one-time notice requirement,
such as requiring periodic (e.g., yearly, or once every five years)
notices, or a new notice whenever a significant change occurs, such as
process changes that could change the product's composition. The one-
time notice is consistent, however, with similar conditional exclusions
(e.g., for comparable fuels--see Sec. 261.38(c)(1)(i)(A)), and it is
not clear that additional notices from generators would be necessary
for regulatory oversight purposes. We solicit comment on the need for a
one-time notice to the regulating agency, as well as the content and
frequency of this reporting condition.
Recordkeeping. Today's proposal would require generators to
maintain records of all shipments of excluded hazardous secondary
materials for a minimum of three years. These proposed recordkeeping
conditions should enable regulatory agencies to more easily investigate
shipments of excluded materials for compliance and enforcement
purposes. We believe that these recordkeeping conditions should be
generally consistent with normal business recordkeeping practices, and
thus would not be expected to impose significant additional paperwork
burdens on generators. We invite comment on this issue.
As specified in Sec. 261.4(a)(20)(ii)(C), these records would have
to identify for each shipment the name of the transporter, date of the
shipment, the quantity shipped and a brief description of the excluded
material in the shipment, name and location of the fertilizer
manufacturer who received the shipment, a notice to the receiving
manufacturer that the shipped materials are subject to the conditions
specified in this rule, and documentation confirming receipt of the
shipment by the manufacturer. These conditions are analogous to the
current requirements for shipping hazardous wastes under manifests and
maintenance of manifest records. Copies of manifests are typically kept
at the generator's facility, though some states require copies of
manifests to be submitted to the state agency.
The proposed recordkeeping conditions would require generators of
excluded hazardous secondary materials to verify that each off-site
shipment of excluded material was received as intended at the
destination fertilizer manufacturing facility. This is intended to
ensure a clear, documented chain of custody between the generator and
the fertilizer manufacturer. In addition, under the proposed conditions
generators would need to provide for each shipment a notice to the
receiving manufacturer that the material is a hazardous secondary
material excluded from hazardous waste regulations only as long as
certain conditions are met. This is intended to ensure that
manufacturers are fully aware of the regulatory status of each shipment
of material, the obligations associated with receiving it, and the
consequences of failing to meet the exclusion conditions.
These conditions may have particular implications for generators
who ship their wastes to or through middlemen, such as waste brokers or
transfer facilities. The conditions are not intended to prevent this
practice--the use of a middleman to facilitate shipments from generator
to fertilizer manufacturer would be allowed, provided that the
manufacturer receives the same wastes that the generator shipped. If
excluded wastes were to be mixed with other materials, all of the mixed
materials would need to be managed in accordance with the exclusion
conditions (or in accordance
[[Page 70963]]
with Subtitle C requirements, if they were mixed with hazardous
wastes).
Other issues could arise with regard to shipments of material
through middlemen. For example, a generator of zinc fume dust might
send secondary material to a treatment facility that recovers lead,
with the treated material then sent to a manufacturer of zinc
micronutrient fertilizer. As explained below, under today's proposal
the intermediate processor in this scenario would be considered a
manufacturer of fertilizer ingredients, and would need to meet the
conditions applicable to manufacturers in order to maintain the
excluded status of the secondary material. If the processed secondary
material was still hazardous after the intermediate processing (i.e.,
if it exhibited a hazardous characteristic, or if it would be
considered a listed hazardous waste were it not excluded), the
processor would be considered both a manufacturer and a generator, and
would need to meet both sets of conditions in order to maintain the
material's excluded status. If the processor rendered the material non-
hazardous, however, the conditions for generators would not apply to
the processor, since there would be no need to further exclude the
material.
Although we believe that a clear chain of custody between generator
and fertilizer manufacturer is important to maintaining the integrity
and effectiveness of today's conditional exclusion, we recognize that
the conditions described above could have consequences for generators
and other entities that we have not yet fully evaluated. For example,
it is possible that some intermediate handlers could blend excluded
hazardous secondary materials with other bulk materials before they are
shipped to a fertilizer manufacturer. In such a case the blended
material would all be subject to the conditions in today's proposal in
order to maintain the excluded status of the material. This could
create problems for the intermediate handler (and perhaps the
manufacturer) in accurately tracking the shipments of excluded
materials and maintaining the excluded status of all such blended
materials. We therefore invite comment on this aspect of today's
proposal having to do with intermediate processors, as well as on the
other proposed conditions (described above) that generators would have
to comply with to maintain the excluded status of their secondary
materials.
iii. Conditions Applicable to Manufacturers of Zinc Fertilizers and
Zinc Fertilizer Ingredients Made From Excluded Hazardous Secondary
Materials. Today's proposal specifies certain conditions that
manufacturers of zinc fertilizers and zinc fertilizer ingredients would
need to meet in order for hazardous secondary materials that they
handle at their facilities to be excluded from regulation as hazardous
wastes. The following is a general, simplified discussion of how
requirements for fertilizer manufacturers would change under these
proposed rules, followed by a more detailed explanation of each
proposed condition.
Permits. Currently, zinc fertilizer manufacturers typically need
RCRA permits for storage of hazardous wastes prior to recycling. Under
today's proposal, a manufacturer would not be subject to RCRA
permitting requirements, provided that the manufacturer met the
proposed conditions.
Storage. Manufacturers who are subject to RCRA permit requirements
under the current regulations need to comply with specific requirements
for storage (e.g., in tanks or containers) at permitted facilities.
Under today's proposal, these storage requirements would not apply;
storage of excluded hazardous secondary materials prior to recycling
would instead need to be conducted according to the more general,
performance-based conditions proposed today.
Transportation. Manufacturers must now comply with manifest
requirements for shipments of hazardous wastes from off-site, including
procedural requirements and those pertaining to retention of manifest
records. Under today's proposal, these transportation requirements
would be replaced with less prescriptive conditions for documenting and
maintaining records of shipments of excluded materials.
Reporting and Recordkeeping. Under current regulations,
manufacturers of hazardous waste derived fertilizers must: (a) Submit a
notice of waste management activity and obtain an ID number
(Sec. 262.11); (b) submit a one-time notice and certification relating
to compliance with land disposal restrictions (LDRs) standards
(Sec. 268.7); (c) notify the authorized agency of each shipment of
product made from recycled hazardous waste (Sec. 268.7(b)(6)); and (d)
submit biennial report information (Sec. 264.75).
Under today's proposal the manufacturer would instead need to: (a)
submit a one-time notice to the authorized agency; (b) maintain
shipping records; and (c) Submit an annual report of recycling activity
to the authorized agency.
Applicability of conditional exclusion. The proposed conditions
would apply to both manufacturers of finished zinc fertilizer products,
as well as manufacturers of chemicals or materials that are in turn
used as ingredients in zinc fertilizers. The distinction between
fertilizer manufacturers and those who manufacture fertilizer
ingredients may in this context be important for some companies. In
some cases, zinc refiners or zinc metal producers that are not in the
business of making fertilizers may manufacture chemicals (e.g., ZSM)
that are then sold to fertilizer manufacturers as ingredients. Such
producers are currently subject to the UCD regulations in the same way
as zinc fertilizer manufacturers, since they make a product from
hazardous waste that ultimately is used on the land. Similarly, some
facilities may process or reclaim hazardous secondary materials (e.g.,
K061) to make them amenable for recycling into zinc fertilizers; these
would also be considered manufacturing facilities for the purpose of
this conditional exclusion. Note that if the same processed or
reclaimed materials are used for other purposes than to make zinc
fertilizer, the conditional exclusion would not apply (and would
probably not be needed unless the materials are used for some other
purpose subject to UCD regulatory requirements).
In the situations described above involving manufacturers of zinc
fertilizer ingredients, it is possible that in some cases the
manufacturer of the ingredient may sell the product to another company,
unaware that it will be used to make fertilizer. We believe that such
cases will be rare, given the relatively small size of the industry and
the limited number of uses for such zinc products. We invite comment,
however, as to how common this scenario might be and what impacts
today's proposed regulations might have on business transactions such
as these.
For the reasons outlined above, EPA believes today's proposal
should extend to manufacturers of zinc fertilizer ingredients, as well
as to manufacturers of finished fertilizer products. We invite comment
on this aspect of the proposed rule, including the need for such a
provision, as well as information on which companies or facilities
might be affected by such a provision, and any implementation issues
that might occur as a result.
Storage. Under today's proposal, manufacturers of zinc fertilizers
or ingredients would need to meet the same storage requirements for
excluded hazardous secondary materials that
[[Page 70964]]
would apply to the generators of such materials (described above), as a
condition of the exclusion. Again, the general intent of these storage
conditions is to ensure that the materials are managed securely at
fertilizer manufacturing facilities, and that releases of the materials
into the environment are avoided. EPA solicits comments on the need for
and approach to these proposed storage conditions, and specifically
whether additional conditions (e.g., controls on fugitive dust
emissions from production buildings) may be necessary to ensure
adequate protections.
One-time notification. As a condition of the exclusion,
manufacturers would also need to submit a one-time notice to the
authorized agency that identifies the name and location of the
manufacturing facility, and estimated annual quantities and types
(e.g., generating industrial processes) of excluded materials that are
expected to be used in zinc fertilizer production. The intent of this
one-time notice is to provide regulators with general knowledge of
which manufacturers intend to make use of the conditional exemption, as
well as background information on the nature and scale of their
intended recycling operations. This notice would in effect replace and
streamline the current notification requirements for hazardous waste
recyclers who make products used in a manner constituting disposal, as
specified in Sec. 268.7(b)(6).
Under those requirements manufacturers of hazardous waste derived
fertilizers must submit to the overseeing agency an LDR certification
statement (see Sec. 268.7(b)(4)), and certain other information
relating to compliance with LDR treatment standards, for each shipment
of fertilizer products. While we believe that it is reasonable and
desirable for regulatory agencies to be informed as to which companies
are making zinc fertilizer from excluded secondary materials and what
materials they intend to use, we do not believe that it is necessary to
require reporting on every shipment of fertilizer products, especially
in light of the proposed annual reporting requirement for manufacturers
(see following discussion).
EPA considered alternatives to this proposed one-time notice
requirement, similar to the alternatives described above for the
proposed one-time notice requirement for generators. We solicit comment
on the need for a one-time notice to the regulating agency, as well as
the content and frequency of this reporting requirement.
Recordkeeping. Under today's proposal manufacturers would need to
retain for a minimum of three years records of all shipments of
excluded hazardous secondary materials that were received by the zinc
fertilizer manufacturer during that period (Sec. 261.4(a)(20)(iii)(C)).
These records would need to include information identifying the names
and addresses of the generators and transporters of excluded wastes
received by the manufacturer, the date each shipment was received, and
information on the types and quantities of excluded materials in each
received shipment. This recordkeeping condition is also intended to
enhance the capability of regulatory agencies to (when necessary)
account for shipments of excluded secondary materials. We believe that
the condition is consistent with standard business practices, and thus
should not be burdensome to fertilizer manufacturers. We request
comment as to whether such a recordkeeping provision is needed, on the
impacts of such a requirement, and on the alternatives that might be
available.
Annual report. Under proposed Sec. 261.4(a)(20)(iii)(D), each zinc
fertilizer manufacturer who uses excluded hazardous secondary materials
would need to submit to the appropriate regulatory agency an annual
report that identifies the types, quantities and origins of all such
excluded materials that were received by the manufacturer in the
preceding year. This would also be a new type of report, intended to
ensure an adequate tracking and accountability system for these
excluded materials. EPA requests comment on this proposed condition,
particularly with regard to whether such a requirement is necessary,
and/or whether additional information (e.g., material composition data)
should be required.
d. Alternatives Considered. EPA considered several regulatory
approaches as alternatives to the conditional exclusion approach
outlined in today's proposed rule. For each of the alternatives, EPA is
interested in the views of potentially regulated entities and the
public regarding the costs, benefits and other impacts of such
alternatives. The following is a description of the alternatives
considered:
Maintain current regulatory structure. EPA considered
retaining the current UCD regulatory approach for zinc fertilizer
recycling, as an alternative to today's proposed conditional exclusion.
As explained previously, under the current regulations hazardous
secondary materials that are recycled to make zinc fertilizer are
considered hazardous wastes, and thus must be managed in accordance
with all applicable RCRA Subtitle C regulations. Note that under this
regulatory option the LDR standards for product contaminants could be
retained, or other product contaminant limits (such as those proposed
today) could be applied, in which case the limits would be regulatory
standards, rather than conditions for exclusion.
The main advantage of retaining Subtitle C controls over these
materials prior to recycling into zinc fertilizer is presumably the
greater certainty that they will be managed properly. The RCRA permit
requirement for off-site storage (i.e., at the manufacturing facility)
additionally imposes facility-wide corrective action obligations on the
owner/operators of such facilities.
EPA believes that the disadvantages of retaining the current UCD
regulatory structure for zinc fertilizer recycling outweigh the
potential advantages. The Agency is persuaded that the current UCD
regulations have created unnecessary impediments to safe and legitimate
recycling, as discussed previously in this preamble. We also believe
that the conditional exclusion proposed today would be protective and
would result in greater volumes of hazardous secondary materials
legitimately and beneficially recycled into valuable products. It must
be remembered that encouraging ``properly conducted recycling and
reuse'' is a statutory objective. RCRA section 1003(a)(5).\3\ Further,
today's proposal is expected to enhance government oversight
capabilities over these practices through more complete reporting and
recordkeeping by generators and fertilizer manufacturers.
---------------------------------------------------------------------------
\3\ This objective is tempered by the specific goals that such
properly conducted recycling is expected to achieve: increased waste
minimization and decreased land disposal. It could be argued that
because these fertilizers are placed on the land (land disposal
under section 3004(k)), the policy of encouraging this type of
recycling carries less weight. Nonetheless, EPA believes the
conditional exclusion approach available to both secondary material
generators and fertilizer manufacturers will encourage safe and
legitimate use of these zinc-containing secondary materials, and
that this result is therefore in keeping with RCRA's recycling
goals.
---------------------------------------------------------------------------
EPA requests comment on the alternative of retaining the current
UCD regulatory structure for hazardous wastes that are used to make
zinc fertilizers.
Maintain current UCD requirements, with additional
reporting, recordkeeping and testing requirements for all hazardous
waste derived fertilizers. Under this option the current UCD regulatory
framework would be retained (i.e., management of hazardous waste
fertilizer feedstocks prior to
[[Page 70965]]
recycling would be subject to RCRA regulation), the K061 exemption
would be removed, and today's proposed fertilizer contaminant limits
would apply. More importantly, under this regulatory alternative,
expanded biennial reporting requirements (see Sec. 262.41) would be
required for all manufacturers of hazardous waste derived fertilizers
(not just zinc fertilizer manufacturers), and the hazardous waste
generators that supply them. The main objective of such expanded
requirements would be to collect much more detailed information on zinc
fertilizer recycling practices, and provide greater public access (as
well as access by regulatory agencies) to that information. The
following is an outline of the expanded biennial reporting requirements
that would be required:
1. Applicability. Generators of hazardous wastes being sent to
fertilizer manufacturers, waste brokers and receivers [i.e., hazardous
waste treatment, storage or disposal (TSD) facility owner/operators]
who use hazardous wastes to make fertilizers would be subject to the
enhanced reporting, recordkeeping and testing requirements.
2. General reporting requirements. Generators and facility owner/
operators who are currently required to submit biennial reports (see
Sec. 262.41) would be required to submit additional information in
those reports, in electronic format (consistent with electronic
reporting procedures that are currently being developed by EPA). Such
information would include (asterisk indicates items already required):
--EPA ID Number *
--Company Name *
--Street Address *
--Mailing Address
--City, State, Zip *
--County
--Tax ID
--Contact Name and Title and Telephone #, ext.*
--Dunn and Bradstreet Number
--Industry SIC Codes * (one code for the overall production of the site
and one code for the specific industrial process that generated the
waste)
--Parent Company Name
--Parent Company Dunn and Bradstreet Number
--Latitude and Longitude
--Regulatory Status (under what laws reports are made)
3. Additional requirements for generators (only):
--Type of waste (waste code) and amount of total hazardous waste
generated and shipped for use in fertilizer manufacture. If the waste
is made into fertilizer on-site by the same company, this information
would be reported under the ``receiver'' section. If the facility does
not know how much might be used for fertilizer (e.g., if they send it
to a waste broker) they would have to report the total amount shipped
that could be made into fertilizer.
--EPA ID # of facility waste is shipped to --Chemical specific
information (CAS code):
--Chemical composition data for shipped wastes, including data on
concentrations as well as the total weight of each contaminant in each
shipment of waste (see testing requirements)
4. Additional requirements for receivers (only):
--Type (waste code) and amount of hazardous waste received from any
source (i.e., including waste brokers) for use as fertilizer, and
amount that was actually used to manufacture fertilizer.
--EPA ID # of waste generator facility
--Total amount of fertilizer produced from hazardous waste
--Chemical specific information (CAS code):
--Chemical composition data for hazardous waste received, and for
finished fertilizer products made from hazardous wastes (see testing
requirements)
--Fertilizer specific information: Brand name, guaranteed analysis,
type of fertilizer, batch number and date received.
5. Testing requirements. Chemical analyses would have to be
performed by the generator and the facility owner/operator on the types
and amounts of chemicals in hazardous wastes before they are made into
fertilizers, as well as the finished fertilizer products. Chemicals to
be tested for would include: arsenic, beryllium, cadmium, cobalt,
chromium-6, lead, manganese, molybdenum, zinc, boron, antimony, barium,
nickel, copper, aluminum, iron, selenium, sodium, silver, magnesium,
strontium, thallium, titanium, vanadium, cyanide, chloride, benzene,
toluene, xylene, styrene, ethylene glycol, phenol, aldehydes
(formaldehyde), vinyl chloride, chlorinated hydrocarbons (including
trichloroethylene, perchlorethylene, 1,1,1 trichloroethane, methylene
chloride, and chloroform), phthalates, dioxins and furans, PACs, PCBs,
hexachlorobenzene, radioactivity, fluoride, and ketones.
6. Data management. The data would be accessible to the public in
hard copy form and maintained in a searchable database accessible
through the EPA Web Site. This database would also need to be
accessible and available in electronic form (i.e., on diskette or CD).
7. Labeling. Labels (i.e., on consumer product packaging) or
product disclosure documents (i.e., for farmers) would identify that
the fertilizer is made from hazardous waste. The labels and documents
would also identify the chemical composition of the fertilizer,
including concentrations of plant nutrient chemicals and regulated
contaminants.
EPA requests comment on this regulatory alternative. Specifically,
EPA is interested in the views of affected entities and the public on
the need for, potential impacts of, and incremental benefits of each
requirement in this alternative compared with the other options
discussed in the preamble.
Exclusion without conditions. EPA also considered the
option of simply excluding from the definition of solid waste hazardous
secondary materials that are recycled to make zinc fertilizer.
Recycling such materials to make zinc fertilizer would then be
regulated the same as recycling them to make other types of zinc
products, such as animal feed or zinc metal for galvanizing. This
option would not include regulatory contaminant limits for fertilizers,
since other recycled zinc products do not have such limits.
One rationale for this regulatory option would be that hazardous
wastes used to make zinc fertilizers do not need to be regulated under
RCRA Subtitle C, since they have commodity value and are essentially
the same as alternative, non-hazardous feedstock materials. It could be
further argued that restrictions on managing hazardous feedstock
materials are unnecessary, since the original concern behind the UCD
regulations had more to do with uncontrolled use of contaminated
products on the land than management of feedstock materials prior to
recycling.
EPA does not prefer this regulatory option, for several reasons.
Damage cases involving mismanagement of hazardous zinc fertilizer
feedstocks are evidence of the need for some system of controls over
these materials. In addition, eliminating all reporting, recordkeeping
or storage requirements would compromise the ability of regulatory
agencies (and others) to monitor these recycling practices. EPA does
not believe that eliminating virtually all controls and accountability
over hazardous waste fertilizer feedstocks would serve the public's
(and regulators') interest in ensuring proper management of these
materials. These
[[Page 70966]]
factors argue convincingly, in our opinion, for maintaining enforceable
conditions over hazardous secondary materials prior to recycling into
fertilizers. Nevertheless, we request comments on this alternative,
including information on tradeoffs between the level of regulation and
the potential for risks.
e. Implementation and Enforcement.
Implementation. If finalized, today's proposed conditional
exclusion for hazardous secondary materials could have important
implications for facilities that are currently in this business and are
subject to the UCD hazardous waste regulatory requirements. As a
general matter, once the regulatory changes become effective and
facilities begin complying with the exclusion conditions, the affected
activities of those facilities (some facilities might be managing
hazardous wastes that are not affected by this rule) would no longer be
subject to hazardous waste management regulations.
Under this proposal, a RCRA-permitted facility that is now managing
hazardous waste, but which under the new rules would be managing only
excluded hazardous secondary materials, would not be required to
maintain the operating portion of its permit, since it would no longer
be engaged in hazardous waste management. In these cases the permit
should be modified to reflect the changes in the facility's hazardous
waste management operations. The type of modification necessary will
depend upon facility-specific circumstances, as described below.
For permitted facilities that manage excluded secondary materials
in addition to regulated hazardous wastes, changes to the facility's
permit would be relatively minor. These facilities would still need
operating permits--only those units used solely to manage excluded
materials would be relieved of permitting requirements. In this case,
the facility owner/operator might seek a permit modification to remove
the formerly subject unit(s) from the permit.
As mentioned above, a permitted facility that would no longer be
considered a hazardous waste management facility (e.g., a facility that
now managed only excluded hazardous secondary materials) would no
longer need a hazardous waste operating permit. However, where such a
facility has not yet completed facility-wide corrective action (see 40
CFR 264.101), the obligation to conduct such cleanup continues.
Therefore, one approach would be to modify the permit to remove the
requirements applicable to hazardous waste storage, but not to
eliminate the corrective action portion of the facility's permit. In
such a case, the facility would thereafter have a corrective action-
only-permit that would expire only when facility-wide corrective action
is determined to be complete.
A similar situation could occur in the case of permits that have
long-term ``post-closure'' requirements for monitoring or remediating
groundwater contamination from RCRA-regulated units such as landfills.
In cases like these the authorized agency would also have the option of
eliminating only the provisions of the permit relating to the affected
storage units holding excluded materials at the facility, while leaving
in effect the permit conditions for post-closure care.
EPA recognizes that there may be practical issues associated with
transitioning a RCRA-permitted facility to a facility that no longer
would be subject to hazardous waste regulations under the provisions of
today's conditional exclusion. One issue in particular could be that
the terms of the facility's permit (a legally enforceable document)
would technically remain in effect until the authorized agency took
action to modify or terminate the permit. Such permit conditions could
include unit-specific requirements (e.g., design, operating and closure
requirements for storage tanks), as well as general facility
requirements such as financial assurance, security and personnel
training. This could potentially put the owner/operator (and the
authorized agency) in the awkward situation of being subject to two
sets of overlapping and inconsistent regulatory requirements, that is,
the hazardous waste permit requirements and the conditions of today's
proposed rule.
Current RCRA regulations do not provide an explicit mechanism for
automatically eliminating permit conditions in these situations. We
expect that such situations would be temporary and relatively rare, and
an authorized agency should be able to deal with them in a common-sense
manner, without legal difficulties. It is possible, however, that some
problems could arise under some circumstances. EPA is therefore
considering (and solicits comment on) whether a more explicit
regulatory provision is necessary to address these potential transition
issues.
One approach to more explicitly deal with this issue might involve
amending the current permit requirements in 40 CFR Part 270 to specify
that permit conditions pertaining to any active hazardous waste
management activity at a facility in this type of situation would
automatically be eliminated, without the need for any action on the
part of the authorized agency. Such a regulatory amendment would not
relieve owner/operators of permit obligations that do not pertain to
active hazardous waste management in the unit in question, such as
corrective action requirements. Alternatively, permit termination could
be accomplished through the Class I permit modification process
(Sec. 270.42(a)).
A facility that is operating under RCRA interim status would be
affected by promulgation of today's proposed rule in much the same way
as permitted facilities, and the issue of corrective action would be
addressed in a similar manner. In this case, Part 265 interim status
standards that apply to the affected unit and the general facility
standards would be moot and no longer in effect. Under RCRA
regulations, however, cessation of hazardous waste operations alone
does not eliminate a facility's interim status. See 40 CFR 270.73. A
facility that wishes to no longer be in ``interim status'' could seek a
denial of its pending permit application. Since the Agency believes it
appropriate to ensure that corrective action is addressed prior to
denying a permit under these circumstances, we would expect to grant
the denial only when we concluded that corrective action obligations
have been satisfied \4\.
---------------------------------------------------------------------------
\4\ EPA notes that, in a recent Federal Register preamble, the
Agency may have implied that RCRA section 3008(h) authority ceases
whenever a facility's application for a permit has been denied. See,
63 FR 56712 & 56716 (October 22, 1998). The Agency, however, did not
intend by that notice to opine on the scope of the Agency's
authority under section 3008(h). The statements reflect the Agency's
general practice of ensuring that any necessary corrective action
has been completed prior to denying a permit application. Where
cleanup has been completed prior to permit denial, further action
under section 3008(h) is obviously unnecessary.
---------------------------------------------------------------------------
In addition to the above described issues relating to permits and
corrective action, today's proposed rule may also have implications
with regard to closure of hazardous waste storage units at affected
facilities. If today's rule were finalized, wastes currently managed as
hazardous wastes would no longer be so classified as long as the
facility complies with the proposed exclusion conditions. Such a
conditional exemption could be read as triggering the existing closure
requirements, since owners/operators of non-land based hazardous waste
units (e.g., tanks, containers, containment buildings) must begin
closure within 90 days of receiving the unit's final volume of
hazardous wastes. 40 CFR 264.113(a) and 265.113(a).
[[Page 70967]]
EPA is concerned that requiring closure of units in these
situations would serve little environmental purpose since, after
closure, the unit would be immediately reopened and be used to store
the same (now excluded) material. It should also be noted that, under
today's proposal, units storing excluded materials would be considered
essentially the same as similar units used to store products. Thus, we
do not believe that requiring these particular units to close through
RCRA Subtitle C procedures is necessary to protect human health and the
environment.
For these reasons, EPA is considering an explicit regulatory
exemption from RCRA closure requirements for units that store hazardous
wastes that subsequently become conditionally excluded under this rule.
EPA's closure regulations fit into the broader RCRA hazardous waste
``cradle-to-grave'' management system by minimizing or eliminating
potential threats to human health and the environment and the need for
future corrective action at the site after active hazardous waste
management activities cease. See 52 FR 8712, 8713. The Agency is today
proposing that hazardous secondary materials do not warrant
classification as hazardous waste when managed in compliance with the
specified conditions of today's rule, and that storage units containing
excluded materials do not warrant regulation under the closure
standards when they cease storing hazardous wastes. We therefore
request comment as to whether a more explicit regulatory exemption from
RCRA closure requirements may be appropriate for units that once stored
hazardous wastes but now store only conditionally excluded materials.
Another option would be to treat such units comparably to those at
generator facilities that cease managing hazardous wastes. When this
occurs such storage units are subject to unit-specific removal and
decontamination standards (40 CFR 262.34(a)). Under this option, a
hazardous waste storage unit that subsequently is used to store only
excluded material would have to meet the removal and decontamination
standards at the point when the unit no longer is used to manage
excluded materials. EPA does not favor this approach, however, since we
do not believe it necessary or appropriate for such RCRA regulatory
requirements to remain in effect (for what could be a long period of
time) after such a unit ceases managing hazardous wastes. In addition,
any concerns about hazardous waste spills and contamination from these
units would be dealt with through corrective action requirements.
Therefore, EPA is not proposing this approach.
Finally, EPA is also considering revising the ``delay of closure''
rules, set forth at 40 CFR 265.133(d) and (e), to allow units storing
only conditionally exempt wastes to postpone closure until the unit is
taken out of service. Such an approach would involve certain procedural
steps built into the delay-of-closure rule, but it would avoid
triggering closure for units that are managing now conditionally exempt
waste, while at the same time requiring that such units eventually
undergo formal RCRA closure under Subtitle C. EPA questions the need
for this approach, however, especially since the delay of closure
regulations are based on the assumption that hazardous waste remains in
the closing unit, which is not the case here.
EPA requests comment on all of the implementation issues described
above.
Enforcement. With regard to generators and fertilizer manufacturers
who would be interested in making use of the conditional exclusion
provisions of today's proposed rule, it should be understood that
failure to meet one or more of the conditions specified in the rule
could have serious consequences. Each condition must be met in order to
maintain the excluded status of the hazardous secondary materials used
to make zinc fertilizers. Thus, failure to meet any of the conditions
would have the effect of removing the exclusion, and the secondary
materials would be considered hazardous wastes subject to regulation
under RCRA Subtitle C. If, for example, a fertilizer manufacturer
failed to store hazardous secondary materials according to the
conditions in the rule, the manufacturer could be required to obtain a
RCRA permit, and begin managing the waste materials according to
applicable hazardous waste regulations. As a general matter, if a
facility's conditional exclusion were to be revoked under circumstances
like these such an action would typically not affect the excluded
status of the material before it was received at the manufacturer's
facility. In other words, in the above example the generator of the
material would typically be allowed to retain the excluded status of
the material at the generating facility, provided that the generator
continued to meet the applicable conditions.
An owner/operator of a generating or manufacturing facility who
chooses to use the exclusion would need to be able to demonstrate to
the appropriate regulatory agency that the conditions are being met.
Thus, for the purpose of clarity, proposed Sec. 261.4(a)(21)(iv)
specifies that in an enforcement action the facility owner/operators
claiming the exclusion would bear the burden of proof with regard to
demonstrating conformance with the conditions specified in the rule.
It should be noted that for fertilizer manufacturers the proposed
exclusions in today's rule would apply only to the secondary materials
being recycled and to the finished fertilizer products. Manufacturers
(or intermediate processors) would not be relieved of the existing
obligation to make a hazardous waste determination for all wastes
generated from the fertilizer manufacturing process. Under current
regulations, any such wastes that exhibit a hazardous waste
characteristic would have to be managed in accordance with all
applicable hazardous waste regulations.
EPA requests comment on these enforcement issues.
C. Conditional Exclusion for Zinc Fertilizers Made From Hazardous
Wastes or Excluded Hazardous Secondary Materials
As mentioned previously, under current regulations manufacturers of
zinc fertilizers made from recycled hazardous wastes must comply with
the following requirements for the manufactured fertilizer products:
(a) The fertilizer must meet the applicable LDR treatment standards
before they may be used (Sec. 268.40), and (b) notice of each shipment
of product must be submitted to the authorized agency
(Sec. 268.7(b)(6)). Under today's proposal manufacturers would need to:
(a) meet the proposed technology-based contaminant limits, and (b)
maintain analytical data and analyses demonstrating compliance with the
limits. The following is a more detailed discussion of today's proposed
conditions.
1. Contaminant Limits
As discussed previously in this preamble, the current regulations
require fertilizers made from recycled hazardous wastes to meet the LDR
treatment standards applicable to the hazardous wastes which they
contain. This applies to hazardous waste-derived products made from
characteristic hazardous waste, even if the product no longer exhibits
a hazardous waste characteristic. Chemical Waste Management v. EPA, 976
F.2d2, 12-14. The LDR standards also apply to fertilizers made from
listed hazardous wastes, with the exception of those made from K061, as
discussed elsewhere in this preamble. Under today's proposal, these LDR
treatment
[[Page 70968]]
standards would be replaced with a new set of product specification
contaminant limits for metals and dioxins. These contaminant limits
would apply to zinc fertilizer products in their ``pure'' or
manufactured form; in other words, before they are blended with other
types of fertilizers prior to application. Thus, compliance with the
standards could not be achieved simply by diluting a conditionally
excluded zinc fertilizer with other products, such as primary nutrient
(nitrogen, phosphorous or potassium) fertilizers.
It should also be noted that the proposed product specification
limits would apply to manufacturers of zinc fertilizer products, but
would not apply to manufacturers of fertilizer ingredients. The reason
for this is that ingredient manufacturers who use excluded hazardous
secondary materials would likely not be able to control the content of
the end product that is sold as fertilizer. We believe that meeting the
proposed product specifications should be the responsibility of the
product manufacturer; requiring manufacturers of fertilizer ingredients
to meet the specification limits would likely be duplicative and
unnecessary. We understand, however, that in some cases fertilizer
``manufacturers'' may buy ZSM (or other zinc compounds) in bulk from
zinc chemical suppliers, and simply package it and market it as
fertilizer. In these situations it might make sense to require the
company that actually manufactured the product to demonstrate
compliance with the proposed exclusion conditions. We invite comment on
this issue.
a. Product Specifications for Non-Nutritive Metals in Conditionally
Excluded Zinc Fertilizers. Today's proposal would establish product
specifications (i.e., contaminant concentration limits) for non-
nutritive metals as a condition for excluding from the RCRA definition
of solid waste zinc fertilizers that are made from excluded hazardous
secondary materials. The proposed specifications are based on
contaminant levels that have been demonstrated to be technically (and
economically) achievable, that will reduce the volumes of heavy metals
applied to agricultural lands from these products, and that are
protective of human health and the environment. The approach used to
develop these proposed contaminant limits is described in detail below.
The proposed standards for metal constituents in conditionally
excluded zinc fertilizers are:
------------------------------------------------------------------------
Maximum
allowable
total
concentration
Metal constituent in
fertilizer,
per unit (1%)
of zinc
(ppm)5
------------------------------------------------------------------------
Lead..................................................... 2.8
Cadmium.................................................. 1.4
Arsenic.................................................. 0.6
Mercury.................................................. 0.3
Nickel................................................... 1.4
Chromium................................................. 0.6
------------------------------------------------------------------------
\5\ A zinc unit in this context represents one percent (by weight) of
zinc in the fertilizer product that is applied to the land. Thus, for
example, an excluded fertilizer containing 10% zinc could contain no
more than 28 ppm of lead.
These contaminant limits are expressed as total concentrations of
the metal in the zinc fertilizer product. This is in contrast to the
current LDR standards, which are expressed as levels in a leachate
extract, using the ``toxicity characteristic leaching procedure
(TCLP).'' See 63 FR at 28609 (May 26, 1998) (noting that total
concentration limits are often the more appropriate measure for
minimizing threats posed by uses constituting disposal, in light of
exposure pathways other than leaching to groundwater); Association of
Battery Recyclers v. EPA, 208 F.3d, 1047, D.C. Circuit 2000 (noting
special risks posed by use constituting disposal situations). We
believe that establishing these limits as total concentrations, rather
than as concentrations in leachate, is more appropriate for the purpose
of today's rulemaking.
For wastes containing hazardous metal constituents, compliance with
LDR standards typically requires adding some type of stabilizing
material to the waste (such as concrete), thereby reducing the
leachability of the metal contaminants once the waste is disposed in a
landfill. Stabilization is obviously an impractical way to limit
contaminants in zinc fertilizers, since the zinc content of the
fertilizer would also be stabilized, and thus would be useless as
fertilizer. In addition, the TCLP was intended to simulate the fate and
transport of hazardous constituents in a municipal landfill, a scenario
quite unlike fertilizer application to agricultural land. For these
reasons, the Agency believes that standards for total concentrations of
contaminants in fertilizers are more appropriate for this rule than
standards based on a leachate test. Comments are solicited on this
aspect of today's proposal.
The product specifications in today's proposal specify maximum
allowable concentrations in conditionally excluded zinc fertilizer for
six metals: lead, cadmium, arsenic, mercury, nickel, and chromium.
Although the Agency considered setting standards for other metals
(e.g., selenium, beryllium and vanadium), we did not have sufficient
data on levels of such metals in ZSM fertilizers to establish numerical
standards for them, nor are we aware of evidence of such metals in any
appreciable amounts in zinc fertilizers. The Agency solicits additional
data on metals concentrations in ZSM fertilizers, including metals for
which we are not proposing standards, and on the associated risks that
such metals pose in fertilizers under typical application scenarios.
At this time, we believe that establishing standards for the six
metals listed above should be sufficient for the purpose of this
rulemaking. Several recent studies report that the primary metals of
concern for fertilizers are lead, cadmium and arsenic. In fact, a
recent screening study done by the State of California concluded that
only those three metals are found in fertilizer products at levels that
merit regulation under California law. (``Development of Risk Based
Concentrations for Arsenic, Cadmium and Lead in Inorganic Commercial
Fertilizers''; California Department of Food and Agriculture, March
1998). Today's proposal addresses the three additional metals generally
because they were specifically highlighted in the settlement agreement
discussed earlier in this preamble. In any case, because of the
chemical purification processes that are used to manufacture ZSM, it is
highly likely that fertilizers which meet the specifications for lead,
cadmium and arsenic would also meet the specifications for these
additional metals, without the need for additional processing.
Since the current RCRA standards for metal contaminants in
fertilizers are expressed as concentrations in leachate (measured
according to the TCLP), and today's proposed constituent limits are
expressed as total concentrations in the fertilizer product, comparing
the two sets of limits with regard to their ``stringency'' is not
entirely straightforward. The main reason for this is that, using the
TCLP, not all of the metals in a given test sample are actually
extracted or leached, especially those that are relatively non-soluble.
Perhaps the simplest way to compare the numbers, however, is to assume
that 100% of the metals in a TCLP sample become dissolved in the tested
leachate. Since the acidic test medium used in the TCLP dilutes the
concentration of the metals by a factor of twenty, the maximum total
concentration of metals
[[Page 70969]]
in a given sample can be assumed to be twenty times the TCLP leachate
concentration.
Thus, under the assumption that 100% of the metals are leached, the
maximum contaminant level for a toxic metal in fertilizer would be
twenty times the toxicity characteristic limit. For lead, for example,
this would be 100 ppm (5 ppm x 20) total concentration. In reality,
of course, the concentration of lead in an actual tested fertilizer
sample would likely be considerably higher than 100 ppm, since it is
likely that not all of the lead in the sample would leach. The
following is a comparison of today's proposed conditional limits for
metals in 35.5% zinc fertilizer (the typical zinc content of most dry
ZSM fertilizers \6\), and the highest levels that would be allowed
under the current regulations using this very conservative approach to
comparing leachate levels to total concentration levels \7\.
---------------------------------------------------------------------------
\6\ Other zinc fertilizers have lower zinc contents and would,
therefore, have proportionally lower exclusion levels.
\7\ Note that the exclusion levels listed in the table would be
lower for a fertilizer that contained less than 35.5% zinc. For
example, the limit for lead in a 20% zinc fertilizer would be 56 ppm
(i.e., 2.8 x 20).
------------------------------------------------------------------------
Proposed
exclusion 20 x TCLP
levels limit, mg/
Metal (35.5% kg dry
zinc), mg/ weight
kg dry wt.
------------------------------------------------------------------------
Arsenic....................................... 21.3 100.0
Cadmium....................................... 49.7 20.0
Chromium...................................... 21.3 100.0
Lead.......................................... 99.4 100.0
Mercury....................................... 10.7 4.0
Nickel........................................ 49.7 (1)
------------------------------------------------------------------------
1 No limit.
Using this simplistic comparison method, most of the proposed
exclusion levels are at or below the maximum levels allowed by the
current regulations. The proposed levels for cadmium and mercury exceed
the worst-case TCLP standards, but are well within the same order of
magnitude, and could be lower than what is actually allowed under the
current standards, depending on the leachability of the metals in the
tested fertilizers. Thus, EPA considers the exclusion levels proposed
today to be more stringent than the existing standards, for the purpose
of state authorization (see discussion in Section VII of this
preamble). EPA requests comments on the incremental benefits to having
more stringent standards, as well as the costs of such an approach.
Note that fertilizer manufacturers would always have the opportunity to
continue using current standards.
The proposed product specifications are expressed as concentrations
of metals in product, per unit of zinc. In this case one unit of zinc
equals one percent. The primary reason for expressing the standards in
this way is that the zinc content of fertilizers varies widely. If the
standards were not tied to the percentage of zinc in the product,
fertilizers with low zinc content could much more easily comply with
the standards due to the dilution effect of the other materials in the
fertilizer. EPA requests comments on the relative merits of basing
exclusion levels on zinc concentrations versus the total product
content.
For reasons explained below, the Agency has decided to base today's
proposed product specifications for metals in conditionally excluded
zinc fertilizers on the levels that have been demonstrated as
technically (and economically) achievable in ZSM fertilizers. See
Sec. 261.38 (specifications for toxic constituents in fuels based on
levels in commercial fossil fuels). ZSM is a common, commercially
available product manufactured by several companies in the United
States and elsewhere. It can be made from hazardous waste feedstocks,
as well as a variety of non-hazardous raw material or secondary
material feedstocks. ZSM fertilizers are marketed in solid (granular or
powdered) form or in a liquid solution. Since zinc fertilizer is
applied sparingly to agricultural land (i.e., a few pounds per acre per
year), it is almost always blended with other fertilizers before
application, either by manufacturers or in the field by fertilizer
applicators. It should be noted that ZSM is also widely used as an
animal feed supplement, and can be used as an ingredient in a variety
of consumer products as well.
In recent years there has been a marked increase in manufacturing
capacity of ZSM fertilizers, combined with a downward trend in
production of oxy-sulfates made from K061 and other materials. For
example, one major manufacturer (Bay Zinc of Moxee, WA), citing
changing market conditions, recently changed its manufacturing process
to begin producing a line of ZSM products, and is phasing out its
production of other types of zinc fertilizers. The manufacturing
process for ZSM involves a series of chemical purification steps that
remove the great majority of non-nutritive metals. This is generally
not the case for other types of zinc fertilizers, such as oxy-sulfates
made from recycled K061. Thus, the concentrations of non-nutritive
metals in ZSM are typically much lower than in other types of zinc
fertilizers. To illustrate, several manufacturers guarantee a lead
content in ZSM fertilizers (35.5% zinc content) of less than 50 ppm,
while lead concentrations in K061-derived fertilizers (which often have
lower zinc content) are often above 10,000 ppm.
The proposed concentration limits for metals in conditionally
excluded zinc fertilizers are based on the Agency's analysis of ZSM
contaminant data from a number of different sources, and represent
products marketed at the time of sampling by at least nine different
companies. The concentration limits were calculated to include a small
margin to account for variabilities in the manufacturing process. A
summary of available data on contaminant levels in ZSM products is
included in the record for today's proposal.
By basing today's product specifications on contaminant levels that
can be routinely and reliably achieved in ZSM fertilizer products, the
Agency in effect is using a technology-based approach to setting
specifications for these products. The proposed specifications are not
intended to represent the very lowest levels of contaminants that could
technically be achieved. Rather, they are intended as a reasonable
measure of fertilizer product quality from both a commercial and
environmental standpoint. It is entirely possible that some
manufacturers could achieve significantly lower levels than those
proposed today--for example, the average lead levels in ZSM (35.5%
zinc) made by at least two different manufacturers typically do not
exceed 10 ppm, while the proposed standard would be approximately 100
ppm of lead. For the purpose of this rulemaking, however, the Agency
does not believe that it is necessary from an environmental perspective
to set standards based on the very lowest levels that may technically
be achieved. We do not believe that levels below those proposed would
result in any significant gain in environmental protection. In
addition, establishing more stringent standards for metal contaminants
could force some manufacturers to make substantial additional
investments to ensure that the standards were met. As discussed further
in section VIII.A of this preamble, this could result in unnecessary
dislocations in the zinc fertilizer market, and could raise the prices
that farmers must pay for zinc fertilizer, with virtually no
commensurate environmental benefit.
EPA also acknowledges the possibility that the proposed product
specifications
[[Page 70970]]
for metal contaminants may not sufficiently account for process
variabilities, and could thus be unnecessarily stringent. The proposed
specifications were based on a qualitative assessment of the
variability of contaminant levels in ZSM fertilizers; for each metal
the specification was set at slightly above the ``high end'' range of
concentration levels, based on available data. For example, the
distribution of lead levels in ZSM (35.5% zinc) indicates that most
samples contained well below 50 ppm lead, with a few samples in the 80
to 90 ppm range. The proposed specification for lead in such products
would be approximately 100 ppm, to account for such variabilities.
Some ZSM manufacturers have argued that significantly higher limits
(e.g., 500 ppm lead) should be established to account for these
variabilities (``Land Application of Hazardous Waste Derived
Micronutrient Fertilizer,'' Bay Zinc Company and Tetra Technologies,
Inc., November 19, 1999). The Agency solicits comment (and supporting
data) as to whether the proposed product specification limits for
metals are unnecessarily stringent, and what alternative contaminant
concentration limits may be more appropriate for this rulemaking.
Alternatives Considered. The Agency examined several different
approaches to setting limits on metals in conditionally excluded zinc
fertilizers. These included: (a) Developing new risk-based limits
specifically for fertilizers; (b) using the EPA standards for bioso ![[logo] US EPA](http://www.epa.gov/epafiles/images/logo_epaseal.gif){kind=logo}