Standards for the Management of Specific Hazardous Wastes; Amendment to Subpart CRecyclable Materials Used in a Manner Constituting Disposal; Proposed Rule

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 266

[SW-FRL-4841-3]

Standards for the Management of Specific Hazardous Wastes;

Amendment to Subpart C--Recyclable Materials Used in a Manner

Constituting Disposal; Proposed Rule

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule and request for comment.

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

SUMMARY: The Environmental Protection Agency (EPA or Agency) is today

proposing to amend Sec. 266.20, which contains provisions for

conditionally exempting hazardous waste-derived products used in a

manner constituting disposal (i.e., applied to or placed on land) from

the Resource Conservation and Recovery Act (RCRA) Subtitle C

regulations. Specifically, the Agency is proposing to amend Sec. 266.20

so that non-encapsulated uses of slag residues produced from high

temperature metal recovery (HTMR) treatment of electric arc furnace

dust (EPA Hazardous Waste No. K061), steel finishing pickle liquor

(K062), and electroplating sludges (F006) are not exempt from RCRA

Subtitle C regulations. This action is being taken to partially

implement a settlement agreement entered into by the Agency on August

13, 1993 with the Natural Resources Defense Council (NRDC) and

Hazardous Waste Treatment Council (HWTC). If today's proposed rule is

finalized, non-encapsulated uses of HTMR slags derived from K061, K062,

and F006, as waste-derived products placed on the land, will be

prohibited unless there is compliance with all Subtitle C standards

applicable to land disposal. This rule would not prohibit encapsulated

uses of wastes that meet Sec. 266.20 requirements. The rule also would

not prevent the disposal of HTMR slags in a Subtitle D unit if the

residuals can meet the risk-based exclusion levels specified in

Sec. 261.3(c)(2). The Agency is currently assessing and also seeks

comments on whether the necessary data are available to establish risk-

based generic exclusion levels for HTMR slags used in non-encapsulated

manner.

DATES: EPA is requesting public comments on today's proposed rule and

criteria used for defining non-encapsulated uses. Comments must be

submitted by March 25, 1994. Since the Agency has entered into a

settlement agreement to promulgate this rule by August 12, 1994, no

extension to the comment period will be granted.

ADDRESSES: The public must send an original and two copies of their

comments to EPA RCRA Docket Number F-94-SSHP-FFFFF, room 2616 (Mail

Code 5305), 401 M Street SW., Washington, DC 20460. The docket is open

from 9 a.m. to 4 p.m., Monday through Friday, except on Federal

holidays. The public must make an appointment to review docket

materials by calling (202) 260-9327. A maximum of 100 pages may be

copied at no cost. Additional copies cost $0.15 per page.

FOR FURTHER INFORMATION, CONTACT: For general information contact the

RCRA Hotline, toll free at (800) 424-9346, or at (703) 412-9810. For

specific questions concerning this notice, contact Narendra Chaudhari,

Office of Solid Waste (Mail Code 5304), U.S. Environmental Protection

Agency, 401 M Street, SW., Washington, DC 20460, (202) 260-4787.

SUPPLEMENTARY INFORMATION:

I. Background

A. Existing Regulations for Hazardous Wastes Used in a Manner

Constituting Disposal

Currently, hazardous wastes that are used in a manner constituting

disposal (applied to or placed on land), as well as waste-derived

products that are produced in whole or in part from hazardous wastes

and used in a manner constituting disposal, are not subject to

hazardous waste disposal regulations provided the products produced

meet two conditions. First, the hazardous wastes must undergo a

chemical reaction in the course of becoming products so as to be

inseparable by physical means (see Sec. 266.20(b)). A second condition

for exemption is that the waste-derived products must meet best

demonstrated available technology (BDAT) treatment standards under the

land disposal restrictions program for every prohibited hazardous waste

that they contain before they are placed on land (see Sec. 266.20(b)).

Note that hazardous waste-derived fertilizers that utilize hazardous

waste K061 as a source of zinc are exempt from regulation without

complying with either of these two conditions (see also

Sec. 266.20(b)).

The exemption in Sec. 266.20 is used for residuals (``slag'')

generated from the treatment of hazardous waste K061 (and, to a limited

extent, F006) using high temperature metal recovery (HTMR) processes.

Section 266.20 is applicable because the majority of this slag is used

in highway construction materials (e.g., as road-base), and a limited

amount is also used by directly applying it to road surfaces (i.e., as

an anti-skid or deicing agent). (See 56 FR 15020, April 12, 1991.)

On August 18, 1992 (see 57 FR 37194), the Agency finalized a

generic exclusion for nonwastewater slag residues generated from the

HTMR treatment of several metal-bearing hazardous wastes (K061, K062,

and F006). This rule expanded a generic exclusion EPA originally

published that applied only to HTMR slag from K061 (see 56 FR 41164,

August 19, 1991) to include slags from F006 and K062. These HTMR slag

residues (i.e., from K061, K062, and F006) are currently excluded from

the hazardous waste regulations provided they meet designated

concentration levels for 13 metals, are disposed of in subtitle D

units, and exhibit no characteristics of hazardous waste (see

Sec. 261.3(c)(2)).

The generic exclusion levels for the metals were based on the use

of the EPA Composite Model for Landfills (EPACML), which predicts the

potential for groundwater contamination from wastes that are placed in

a landfill. The Agency limited the generic exclusion to residues

disposed of in a Subtitle D unit because it could not properly evaluate

concerns over potential releases to other media resulting from uses of

the HTMR slag as product, especially as an anti-skid material on road

surfaces. In the original rule proposing the generic exclusion for K061

HTMR slag (see 56 FR 15020, April 12, 1991), the Agency solicited

comment to identify other significant routes of exposure for product

uses of the slag. The rule specifically sought suggestions for methods

to evaluate exposures from the use of the slag as anti-skid material.

Although EPA received comments concerning possible risks from road

uses, no useful data, methods, or models were submitted to assist the

Agency in evaluating exposures from releases to media other than

groundwater.

As the Agency noted in the final rule for the initial generic

exclusion for K061 residues (see 56 FR 41164, August 19, 1991), the use

of HTMR residues as anti-skid material was not prohibited, provided the

residue meets the exemption conditions given in Sec. 266.20. The Agency

also noted in the same notice that it would further evaluate the uses

of K061 HTMR residues that constitute disposal, and would consider

amendments to Sec. 266.20 for HTMR slags that might require further

controls on such uses.

B. Summary of Petition and Settlement Agreement

The Natural Resources Defense Council (NRDC) and the Hazardous

Waste Treatment Council (HWTC), collectively ``NRDC Petitioners'',

filed a petition for review challenging EPA's decision not to apply

``generic exclusion levels''--levels at which K061 slags are deemed

nonhazardous--to K061 slags used as waste-derived ``products'' and

applied to or placed on land. The generic exclusion levels established

for some metals in the K061 HTMR slags are lower than the BDAT

standards that apply to K061. Therefore, while the generic exclusion

requires that the nonhazardous K061 slag that meets exclusion levels be

disposed of in a Subtitle D unit, K061 HTMR slag that may exhibit metal

levels above the exclusion levels (but below BDAT) may be used as a

product in a manner constituting disposal under the exemption in

Sec. 266.20(b). The petitioners pointed out the anomaly of the slag

used in an uncontrolled manner being effectively subject to lesser

standards than slag disposed in a controlled landfill.

On August 13, 1993, EPA entered into a settlement agreement with

NRDC Petitioners which would address their concerns through two

separate notice-and-comment rulemakings. EPA agreed to propose the

first rule within 6 months of the settlement date (and issue a final

rule within 12 months) to either establish generic exclusion levels for

``non-encapsulated'' uses of K061 slags, or effectively prohibit such

uses of K061 slags on the land. EPA also agreed to propose a second

rule within 16 months of the settlement date (and issue a final rule

within 28 months), to establish generic exclusion levels for

encapsulated uses of K061 slags on the land. The agreement specified

that the generic exclusion levels for K061 slags will be based on an

evaluation of the potential risks to human health and the environment

from the use of K061 slags as waste-derived products, taking into

account all relevant pathways of exposure.

II. Proposed Decision

This rule proposes to prohibit non-encapsulated uses of products

derived from hazardous HTMR slags (K061, K062, and F006), if these

products are used in a manner constituting disposal. The term ``non-

encapsulated'' use is being defined in this rule as a use in which: the

material is not contained, controlled, covered, or capped in a manner

that eliminates or significantly reduces its mobility and potential for

release into the environment. The uses of HTMR residues on roads as

anti-skid or deicing materials are considered to be non-encapsulated

product uses.

Accordingly, the Agency is proposing to amend the existing

regulations under Sec. 266.20 that conditionally exempt hazardous

waste-derived products used in a manner constituting disposal from RCRA

Subtitle C regulations to reflect this change. The language of

Sec. 266.20 would be revised to prohibit non-encapsulated uses of

products derived from hazardous HTMR slags, unless they comply with all

of the applicable Subtitle C standards (i.e., permitting, minimum

technology standards for land disposal units, financial responsibility,

etc.). Since these requirements cannot realistically be met by entities

that would use the HTMR slag in a non-encapsulated fashion (i.e.,

entities are unlikely to seek land disposal permits for the placement

of deicing materials on roads), the Agency is effectively proposing to

prohibit non-encapsulated uses of the slags.

The Agency is proposing this action for the following reasons.

First, non-encapsulated uses of HTMR slags may pose potential risk to

human health and the environment, and this risk may be greater for non-

encapsulated uses than for any other disposition of the slags. This is

because the slags contain significant total concentrations of toxic

metals of concern. For example, the concentrations of lead in the slags

are typically in the range of 1000-2000 parts per million (ppm) and

concentrations of chromium can approach 1000 ppm. (See data from the

BDAT Background Document for K061 slag in the RCRA public docket for

today's rule.) These slags may also potentially leach metals at levels

that would require regulation under subtitle C (i.e., at levels greater

than the generic exclusion levels in Sec. 261.3(c)(2)).

Second, non-encapsulated uses of the slags may be viewed as

uncontrolled disposition of the material. Thus, this may lead to many

potential exposure pathways for the waste, not just those the Agency

previously evaluated in assessing this wastes' hazardousness. The major

non-encapsulated use of K061 slag is as an anti-skid material on road

surfaces. This involves spreading the material on road surfaces during

icy or snowy conditions to provide traction for vehicles (see comments

from Horsehead Resource Development Company on April 12, 1991

proposal). Although the K061-derived slag as applied to the road

surface is initially relatively coarse, the wear caused by vehicular

traffic will break down the slag into finer particles. These particles

may then be dispersed through particulate releases to the air, or to

surface and ground water by run-off during precipitation or melting

ice/snow. Some commenters were concerned about potential exposure to

metals in the K061 slag through inhalation of air releases and

ingestion of nearby contaminated soils, concerns the Agency shares.

Without a more detailed assessment of the risks posed by such non-

encapsulated uses, the Agency believes it is appropriate to prohibit

these uses at this time.

Third, these potential risks are ones that are very difficult for

the Agency to evaluate with certainty with available methodology,

particularly given the current lack of data the Agency has on non-

encapsulated uses of the slags and the tight timeframe for this rule.

Because of this, some of the potential exposure pathways, such as

ingestion, inhalation or surface water runoff pathways, cannot be

readily evaluated. Additionally, commenters to the August 19, 1991

rulemaking did not provide any reliable means for assessing the risks

posed by non-encapsulated uses of these slags. (See 56 FR 41172.)

The Agency is again soliciting information that may be used to

estimate potential risks for non-encapsulated uses of HTMR slag and the

likely exposure pathways of greatest concern. When used as an anti-skid

agent, HTMR materials could accumulate on the road surface and travel

to nearby receptors. Particulates could be inhaled by people downwind

or transported in the air and deposited on land or water bodies. Storms

can also wash HTMR materials to the roadside. At the edge of the road,

constituents in the slags could either travel overland to water bodies

or percolate into the ground and reach the groundwater. Ingestion of

contaminated soil could occur either from the deposition of HTMR slag

particulates or from highway run-off. The Agency requests comment on

other potentially significant exposure pathways.

Although there are techniques that may be used to estimate

pollutant loadings from roads, these techniques would have to be

tailored to the characteristics of non-encapsulated uses of HTMR slags.

The following paragraphs describe potential approaches to estimate the

risks from these pathways and the data or assumptions necessary to

construct estimates of potential risks.

Airborne Particulates

With the appropriate data, the Agency believes it is possible to

estimate the rate at which particulates become airborne from road

surfaces. Critical parameters include the traffic volume, the mean

vehicle speed, the type of road surface (e.g., unpaved or paved),

particle density, and particulate size. The Agency believes that HTMR

slags are most likely to be applied as an anti-skid agent on paved

roads. Many State transportation departments have traffic volume

estimates for most significant roads in their jurisdiction which could

be used to estimate particulate generation rates. The Agency does not

have adequate data regarding the distribution of particle size in HTMR

anti-skid material or how that distribution could change after

weathering and vehicular traffic.

Another critical parameter is the frequency at which HTMR slags

would be applied to roads as a de-icing agent. The Agency does not have

direct measurements of application rates of HTMR materials as de-icing

agents. In 1981, the Federal Highway Administration (FHWA) reported

that application rates of de-icing salt ranged from 400 to 1200 pounds

per mile of two-lane road. The Agency requests comment on whether HTMR

materials would be applied at rates comparable to that of de-icing salt

or other compounds.

Run-off

Modeling pollutants in run-off from road surfaces requires

estimating rainfall and run-off rates, accumulation rates of pollutants

on the road surface, pollutant wash-off during run-off, and constituent

loading at potential receptors. While the Agency often relies on

standard techniques to predict rainfall and run-off (e.g., see docket

for approach used to estimate soil run-off in USDA Handbook, No. 282,

1978), accumulation of HTMR slags will depend on the application rates.

The FHWA has also developed an approach that relates pollutant

accumulation with traffic volume. Combining the FHWA techniques and the

loading rates discussed above would yield an estimate of total

accumulation of a constituent on a road surface. The FHWA also has

estimated pollutant wash-off rates for various types of road surfaces,

including rural roads with flush, unpaved shoulders. The Agency

requests comment on this approach to estimate run-off rates and

pollutant loadings.

Once run-off reaches the side of a road, it can either flow along

natural contours or be channeled by engineering controls. Many roads

are constructed with catch basins, swales, or other structures designed

to control water and sediment flow. (See docket for examples from

Chapter 11 in Highway Engineering, by Oglesby and Hicks, 1982.)

Engineered barriers may significantly retard or block the flow of

constituents of concern from reaching receptors adjacent to the road or

from nearby water bodies. The Agency requests comment on the prevalence

and effectiveness of these controls.

Groundwater

If HTMR Materials accumulate on a road surface, the paving will

likely block any leaching of constituents from the materials into the

subsurface. However, if run-off transports the material off the road,

constituents could leach into the subsurface. The Agency requests

comments on how to estimate the flux rate of metals from the HTMR slag

into the subsurface.

The Agency would need adequate estimates of the above key

parameters (particulate generation, run-off, and leaching rate), in

order to apply fate and transport models to estimate potential

concentrations at receptors. EPA also has limited information as to

where HTMR residuals are applied as an anti-skid agent, and what

potential receptors could be exposed. Further, were the Agency to

develop generic exclusion levels for non-encapsulated uses, EPA would

need to ensure that these levels would be protective in a wide range of

potential settings. Therefore, the Agency requests data on likely

receptor points (e.g., water bodies, residences) that would be affected

by non-encapsulated uses of HTMR slag, and what, if any, exposure

assumptions the Agency could use to ensure an appropriate level of

protection.

The Agency's present evaluation is that non-encapsulated uses of

the slags may pose potential risks to human health and the environment

that may warrant control, and that the Agency lacks the necessary

information and time for assuring that these non-encapsulated uses are

safe. If the Agency were to receive sufficient data that would allow

EPA to carry out a more complete evaluation of non-encapsulated uses,

EPA will reconsider its present decision to effectively prohibit non-

encapsulated uses of HTMR slag. However, EPA does not anticipate being

able to complete the evaluation of any new data and assess the risks

posed by non-encapsulated uses until the second rulemaking that EPA

agreed to conduct as part of the settlement with the NRDC petitioners

(i.e., the rule to establish generic exclusion levels for encapsulated

uses of HTMR slags).

The Agency also considered another important factor in making the

determination to effectively prohibit non-encapsulated uses of HTMR

slags. Information available to EPA indicates that most HTMR slags are

in fact used in an encapsulated manner, for example as road-base

material with some form of cover or ``cap''. Encapsulation may prevent

dispersal of the slag through the exposure pathways noted above.

Indeed, as the Agency noted in the August 19, 1991 rulemaking, use of

these slags as road-base may be analogous to a capped disposal unit.

(See 56 FR 41172.) In meetings with EPA, industry representatives

indicated that non-encapsulated uses account for a relatively small

fraction (less than 15%) of the HTMR slag used in a manner constituting

disposal. (See memorandum of a March 30, 1993 meeting with Horsehead

Resource Development Co., Inc. in the RCRA public docket for today's

rule.) Therefore, the Agency believes that there should be adequate

capacity for all of the slag to be used in an encapsulated manner. An

important part of the basis for today's proposal is the expectation

that a prohibition on non-encapsulated uses would result in a more

environmentally acceptable means of reuse of the material without

significant dislocations.

This proposal would thus effectively prohibit non-encapsulated uses

of HTMR slag, whether or not the slag meets the existing exclusion

levels in Sec. 261.3(c)(2). As noted earlier in this proposal, the

methodology EPA used to set the generic exclusion levels was based on

potential risks posed by releases to ground-water from HTMR slag in a

landfill setting. The existing exclusion levels do not consider other

possible exposures (e.g., through air releases) arising from non-

encapsulated uses.

EPA is consequently proposing to amend Sec. 266.20 such that non-

encapsulated uses of HTMR slag are no longer exempt from the Subtitle C

standards applicable to land disposal. The Agency expects that this

will have the effect of essentially prohibiting non-encapsulated uses

of HTMR slags derived from K061, K062, and F006. With this proposal,

the Agency solicits comment on possible means of demonstrating when

these non-encapsulated uses do not pose significant potential risks to

human health and the environment. In order to support such a

demonstration, the Agency solicits comments on possible generic

exclusion levels for HTMR slags used in non-encapsulated manners, and

on the basis for setting these exclusion levels. The Agency will

consider such comments in the context of the later rulemaking (which

EPA also agreed to conduct as part of the settlement with the NRDC

petitioners) to establish generic exclusion levels for encapsulated

uses of HTMR slags.

III. Request for Information

EPA is also taking the opportunity in this proposal to solicit all

available information on product uses of HTMR slag materials derived

from K061, K062, and F006, including information that provides

responses to the following questions:

What are the various product uses of HTMR slags that

result in placement on the land, and the relative annual volumes of

these slags going to each use?

What, if any, historical data are available with regard to

the environmental impact from product uses of HTMR slags?

How are HTMR slags processed and distributed prior to use?

What are the similarities or differences in the physical/

chemical properties of HTMR slags and materials that may be used as

substitutes (e.g., blast furnace slags)?

What, if any, toxicity tests have been conducted with the

HTMR slag material itself (e.g., aquatic toxicity tests), and are data

from these tests available for review?

What requirements, if any, are needed to ensure that the

slag is not used for prohibited uses?

IV. Limited Effect of Proposed Rule

The proposed amendment to Sec. 266.20 would effectively prohibit

non-encapsulated uses of HTMR slags derived from K061, K062, and F006.

Although BDAT standards provide some measure of safety, it is the

Agency's intent to further evaluate these uses based on risks posed to

human health and the environment and to determine if additional generic

exclusion levels should be proposed in the near future. As discussed

above, information provided by representatives of the major generator

of HTMR slag indicates that the portion of HTMR slags that are

currently being processed for non-encapsulated product uses is

relatively small (less than 15% of the HTMR slags that are used as

waste-derived products). Following the prohibition, this portion of

HTMR slags may be used to produce other waste-derived products that are

still exempt under Sec. 266.20(b). These other uses (e.g., use as road-

base material) are encapsulated uses that appear to present much lower

risk to human health and the environment. There also exists a generic

exclusion under Sec. 261.3(c)(2) that allows for the disposal of HTMR

slags in subtitle D units. Finally, if it is not possible to meet the

conditions of the exemption or the generic exclusion, the HTMR slags

would be subject to full regulation as hazardous wastes.

The Agency is not changing the notification, record-keeping and

reporting requirements contained in existing regulations for hazardous

waste being used to produce products used in a manner constituting

disposal.

V. Effective Date

The Agency is proposing that this rule be effective six months

after the date of publication of the final rule. (See RCRA section

3010(a)). The Agency believes that this would provide sufficient time

for affected parties to comply with the proposed change.

VI. State Authority

A. Applicability of Rule in Authorized States

Under section 3006 of RCRA, EPA may authorize qualified States to

administer and enforce the RCRA program within the State. Following

authorization, EPA retains enforcement authority under sections 3008,

3013, and 7003 of RCRA, although authorized States have primary

enforcement responsibility. The standards and requirements for

authorization are found in 40 CFR part 271.

Prior to the Hazardous and Solid Waste Amendments (HSWA) of 1984, a

State with final authorization administered its hazardous waste program

in lieu of EPA administering the Federal program in that State. The

Federal requirements no longer applied in the authorized State, and EPA

could not issue permits for any facilities that the State was

authorized to permit. When new, more stringent Federal requirements

were promulgated or enacted, the State was obliged to enact equivalent

authority within specified time frames. New Federal requirements did

not take effect in an authorized State until the State adopted the

requirements as State law.

In contrast, under RCRA section 3006(g), new requirements and

prohibitions imposed by HSWA take effect in authorized States at the

same time that they take effect in nonauthorized States. EPA is

directed to carry out these requirements and prohibitions in authorized

States, including the issuance of permits, until the State is granted

authorization to do so. While States must still adopt HSWA-related

provisions as State law to retain final authorization, HSWA applies in

authorized States in the interim.

B. Effect on State Authorization

EPA views today's proposed rule as a HSWA regulation. The proposed

rule can be viewed as part of the process of establishing land disposal

prohibitions and treatment standards for K061, K062, and F006 hazardous

wastes. (See 56 FR 41175). The ultimate goal of the land disposal

prohibition provisions is to establish standards, ``if any'', which

minimize short-term and long-term threats to human health and the

environment posed by hazardous waste land disposal. (See RCRA section

3004(m)(1)). In this case, the Agency is uncertain what level of

treatment would assure that these threats are minimized when HTMR slag

is used in a non-encapsulated manner, and consequently is effectively

proposing a prohibition on this type of use. (See 57 FR at 37237,

August 18, 1992, interpreting ``if any'' clause in section 3004(m)(1)).

Thus, as noted above, EPA will implement today's rule, if finalized, in

authorized States until their programs are modified to adopt the new

prohibition and the modification is approved by EPA.

Today's proposed rule will result in more stringent Federal

standards. Section 271.21(e)(2) requires that States that have final

authorization must modify their programs to reflect Federal program

changes and must subsequently submit the modifications to EPA for

approval.

States with authorized RCRA programs may already have requirements

similar to those in today's proposed rule. These State regulations have

not been assessed against the Federal regulations being proposed today

to determine whether they meet the tests for authorization. Thus, a

State is not authorized to implement these requirements in lieu of EPA

until the State program modifications are approved. Of course, States

with existing standards could continue to administer and enforce their

standards as a matter of State law. In implementing the Federal

program, EPA will work with States under agreements to minimize

duplication of efforts. In many cases, EPA will be able to defer to the

States in their efforts to implement their programs rather than take

separate actions under Federal authority.

VII. Regulatory Impact

A. Executive Order 12866

Under Executive Order 12866 (see 58 FR 51735, October 4, 1993), EPA

must determine whether the regulatory action is ``significant'' and

therefore subject to OMB review and the requirements of the Executive

Order. The order defines ``significant regulatory action'' as one that

is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or

adversely affect in a material way the economy, a sector of the

economy, productivity, competition, jobs, the environment, public

health or safety, or State, local, or tribal governments or

communities;

(2) Create a serious inconsistency or otherwise interfere with an

action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants,

user fees, or loan programs or the rights and obligations of recipients

thereof; or

(4) Raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

the Executive Order.

Pursuant to the terms of Executive Order 12866, it has been

determined that this rule is a ``significant regulatory action''

because it raises novel policy issues in terms of defining when

products used in a manner constituting disposal should be regulated. As

such, this action was submitted to OMB for review. Changes made in

response to OMB suggestions or recommendations will be documented in

the public record.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq.,

whenever an Agency is required to issue a general notice of rulemaking

for any proposed or final rule, it must prepare and make available for

public comment a regulatory flexibility analysis that describes the

impact of the rule on small entities (i.e., small businesses, small

organizations, and small governmental jurisdictions). No regulatory

flexibility analysis is required, however, if the head of the Agency

certifies that the rule will not have any impact on any small entities.

This amendment will not have any impact on any small entities,

since the regulated community will continue to have other readily

available options for using and managing HTMR slags. Therefore,

pursuant to section 605(b) of the Regulatory Flexibility Act, the

Administrator certifies that this regulation will not have a

significant economic impact on a substantial number of small entities.

This regulation, therefore, does not require a regulatory flexibility

analysis.

C. Paperwork Reduction Act

The Agency has determined that there are no additional reporting,

notification, or recordkeeping provisions associated with this proposed

rule. Such provisions, were they included, would be submitted for

approval to OMB under the Paperwork Reduction Act, 44 U.S.C. 3501 et

seq.

List of Subjects in 40 CFR Part 266

Environmental protection, Energy, Hazardous waste, Petroleum,

Recycling, Reporting and recordkeeping requirements.

Dated: February 15, 1994.

Carol M. Browner,

Administrator.

For the reasons set out in the preamble, 40 CFR part 266 is

proposed to be amended as follows:

PART 266--STANDARDS FOR THE MANAGEMENT OF SPECIFIC HAZARDOUS WASTES

AND SPECIFIC TYPES OF HAZARDOUS WASTE MANAGEMENT FACILITIES

1. The authority citation for part 266 continues to read as

follows:

Authority: 42 U.S.C. 6905, 6912(a), 6924, and 6934.

Subpart C--Recyclable Materials Used in a Manner Constituting

Disposal

2. Section 266.20 is amended by adding a new paragraph (c) to read

as follows:

Sec. 266.20 Applicability.

* * * * *

(c) Non-encapsulated uses of slags, which are generated from high

temperature metals recovery (HTMR) processing of hazardous waste K061,

K062, and F006, in a manner constituting disposal are not covered by

the exemption in paragraph (b) of this section and remain subject to

regulation. Non-encapsulated uses are those uses in which the HTMR slag

is not contained, controlled, covered, or capped in a manner that

eliminates or significantly reduces its mobility and potential for

release into the environment (e.g., uses as anti-skid or deicing

materials).

[FR Doc. 94-4052 Filed 2-22-94; 8:45 am]

BILLING CODE 6560-50-P