Land Disposal Restrictions Phase IV: Second Supplemental Proposal on Treatment Standards for Metal Wastes and Mineral Processing Wastes, Mineral Processing and Bevill Exclusion Issues, and the Use of Hazardous Waste as Fill

ENVIRONMENTAL PROTECTION AGENCY

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

RIN 2050 AE05

[FRL-5816-6]

Land Disposal Restrictions Phase IV: Second Supplemental Proposal

on Treatment Standards for Metal Wastes and Mineral Processing Wastes,

Mineral Processing and Bevill Exclusion Issues, and the Use of

Hazardous Waste as Fill

AGENCY: Environmental Protection Agency.

ACTION: Supplemental proposed rule.

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

SUMMARY: This is the third proposed rule related to treatment standards

for certain metal wastes and wastes from mineral processing. EPA is

seeking comment on additional proposed provisions and on new data. This

proposed rule would revise universal treatment standards (UTS) for

twelve metal constituents when they are in hazardous waste. Affected

wastes include ``TC metal'' wastes (those containing high levels of

certain metals), mineral processing wastes, and other metal-bearing

wastes. These treatment standards are being revised to provide

consistency in the LDR standards while minimizing threats to human

health and the environment. This proposed rule also addresses the issue

of the sampling method for compliance with treatment standards. EPA is

seeking comment on a conditional exclusion for secondary mineral

processing materials, on co-processing of materials in Bevill-exempt

mining units, and on whether certain mineral processing and mining

wastes currently excluded from federal hazardous waste regulations

warrant regulatory controls. Also included is an exclusion from the

definition of solid waste for certain materials reused by wood

preserving operations, a clarified policy on EPA-approved variances

from hazardous waste treatment, and a prohibition on the use of most

hazardous wastes as fill material.

DATES: Comments on this proposed rule must be submitted by July 11,

1997.

ADDRESSES: Commenters must send an original and two copies of their

comments to: RCRA Information Center (RIC), Office of Solid Waste

(5305G), U.S. Environmental Protection Agency Headquarters (EPA, HQ),

401 M. Street, SW, Washington, DC 20460. Commenters must place Docket

Number F-97-2P4P-FFFFF on their comments. Hand deliveries of comments

should be made to the Arlington, VA, address below. An original and two

copies of Confidential Business Information (CBI) must be submitted

under separate cover to : RCRA CBI Document Control Officer, Office of

Solid Waste (5305W), U.S. EPA, 401 M Street, SW, Washington, DC 20460.

For information on submittal of comments electronically, see the

section called ``Electronic Submittal of Comments'' in SUPPLEMENTARY

INFORMATION below.

Public comments and supporting materials are available for viewing

in the RCRA Information Center (RIC), located at Crystal Gateway I,

First Floor, 1235 Jefferson Davis Highway, Arlington, Virginia. The RIC

is open from 9:00 a.m. to 4:00 p.m., Monday through Friday, except on

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 document at no

cost. Additional copies cost $0.15 per page. The index and some

supporting materials are available electronically. See the

SUPPLEMENTARY INFORMATION section for information on accessing them.

FOR FURTHER INFORMATION CONTACT: RCRA Hotline between 9:00 a.m. and

6:00 p.m. EST, toll free at (800) 424-9346; or (703) 412-9810 from

Government phones or if in the Washington, D.C. local calling area; or

(800) 553-7672 for the hearing impaired. Questions can also be directed

to the Waste Treatment Branch (5302W), Office of Solid Waste (OSW),

U.S. Environmental Protection Agency, 401 M Street S.W., Washington,

D.C. 20460; phone (703) 308-8434. For information on the issue of

treatment standards for metal-bearing wastes, ask for Elaine Eby or

Anita Cummings. Anita Cummings is the contact for LDR treatment

standards for mineral processing wastes and for the issue of grab

versus composite sampling methods. For information on secondary mineral

processing materials and Bevill issues, call Van Housman at (703) 308-

8419 or Stephen Hoffman at (703) 308-8413. Contact Stephen Bergman for

questions on the exclusion for wood preserving wastewaters. For

information on the capacity analyses, call Bill Kline at (703) 308-

8440. For questions on the regulatory impact analyses, contact Paul

Borst at (703) 308-0481. For other questions, call Sue Slotnick at

(703) 308-8462.

SUPPLEMENTARY INFORMATION:

Availability of Rule on the Internet

Please follow these instructions to access the rule:

From the World Wide Web (WWW), type http://www.epa.gov/rules and

regulations. In addition, several technical background documents

contained in the docket supporting this rule will be available on the

Internet at http://www.epa.gov/offices and regions/oswer.

Electronic Submittal of Comments

In an effort to reduce unnecessary paper use, EPA is asking

prospective commenters to voluntarily submit one copy of their

comments, in addition to the paper copy, in either of two electronic

methods: diskettes or the Internet. Commenters can send their comments

to the RCRA Information Center on labeled personal computer diskettes

in ASCII (TEXT) format or a word processing format that can be

converted to ASCII (TEXT). It is essential to specify on the disk label

the word processing software and version/edition as well as the

commenter's name. Please use mailing envelopes designed to physically

protect the submitted diskettes. To send copies by Internet, address

them to: [email protected]. All comments sent by Internet

must be ASCII files, avoiding the use of special characters and any

form of encryption. Comments in electronic format should also be

identified by the docket number F-97-2P4P-FFFFF. Commenters should not

submit electronically any confidential business information (CBI). EPA

emphasizes that submission of comments electronically is not mandatory,

nor will it result in any advantage or disadvantage to any commenter.

For further information on the electronic submission of diskettes,

contact Sue Slotnick at the Waste Treatment Branch, (703) 308-8462, or

Rhonda Minnick at (703) 308-8771.

Table of Contents

I. Background

II. Potentially Regulated Entities

III. Revised Treatment Standards for Twelve Metal Constituents in

Nonwastewater Forms of TC Metal and Other Wastes

A. Summary

B. Applicability

C. Background

D. Proposal of Revised Treatment Standards for Metal

Constituents in TC Metal and Other Metal-bearing Wastes

1. August 22, 1995 Proposed Treatment Standards for TC Wastes

2. Comments to the August 22, 1995 Proposal

3. Development of Revised UTS for TC Metal Wastes

[[Page 26042]]

4. Proposed Revision of UTS for Selenium

5. Proposed Revision of UTS for Beryllium

6. Proposed Revision of UTS for Silver

7. Demonstrating Compliance by Grab or Composite Sampling

IV. Revised Treatment Standards for Mineral Processing Wastes

A. Summary

B. Discussion

V. Proposal of New Options for Mineral Processing Materials

A. New Option--Land Storage of Secondary Materials

1. General Discussion

2. Criteria for High Volumes of Bevill-Exempt Mining and Mineral

Processing Wastes

3. Containment Units

4. Class of Materials Outside of RCRA Jurisdiction

B. New Option--Non-Bevill Materials Used as Alternative

Feedstocks

C. High Risk Mining Wastes Excluded by the Bevill Amendment

1. General Discussion

2. Wastes Eligible for the Bevill Exclusion

VI. Proposed Exclusion of Wood Preserving Wastewaters and Spent Wood

Preserving Solutions From Classification as Solid Waste under RCRA

A. Background

1. Request for Comment in Land Disposal Restrictions Phase IV

Proposed Rule

2. Statutory Remedy Considered by Congress

B. Rationale for Proposal

C. Wastes Commonly Reused by the Wood Preserving Industry

D. Current Regulatory Status of Recycled Wastewaters and Spent

Wood Preserving Solutions

E. Proposed Exclusion of Wastewaters and Spent Wood Preserving

Solutions that are Recycled

1. General

2. Conditions for Exclusion

3. Process Residuals

4. Notification

5. Conditions Under Which the Exclusion Would No Longer Apply

VII. Proposal to Amend Treatment Variance Rules

A. Background

B. Clarified Regulatory Language

C. The CITGO Variance Under the Proposed Standard

VIII. Ban on Use of Prohibited Hazardous Waste as Fill Material

IX. Capacity Determination

A. TC Metal Wastes

B. Mineral Processing Wastes

C. Phase IV Mineral Processing and TC Metal Wastes Injected Into

Underground Injection Control (UIC) Class I Wells

X. State Authority

A. Applicability of Rules in Authorized States

B. Abbreviated Authorization Procedures

C. Effect on State Authorization

D. Less stringent requirements

XI. Regulatory Requirements

A. Regulatory Impact Analysis Pursuant to Executive Order 12866

1. Methodology Section

2. Results

B. Regulatory Flexibility Analysis

C. Unfunded Mandates Reform Act

D. Paperwork Reduction Act

XII. Environmental Justice

A. Applicability of Executive Order 12898

B. Potential Effects

XIII. Appendices

I. Background

In the 1984 Hazardous and Solid Waste Amendments (HSWA) of the

Resource Conservation and Recovery Act (RCRA), Congress specified that

land disposal of hazardous waste is prohibited unless the waste meets

treatment standards established by EPA. HSWA requires that treatment

standards must substantially diminish the toxicity or mobility of

hazardous waste, so that short- and long-term threats to human health

and the environment are minimized. The treatment standards are part of

the Land Disposal Restrictions Program.

Today's proposed rule is one part of the collection of land

disposal restrictions (LDR) rules known as ``Phase IV.'' They are the

latest in a series of LDR rules that establish treatment standards for

newly listed and identified wastes, and that resolve other hazardous

waste matters. EPA proposed the Phase IV rule in two proposed rules (60

FR 43654, August 22, 1995; and 61 FR 2338, January 25, 1996). It

subsequently issued a Notice of Data Availability on Phase IV issues

(61 FR 21418, May 10, 1996). The attached proposed rule proposes, in

some cases, alternative approaches from those in earlier proposals.

These changes in approach are being proposed in response to additional

data or comments that were submitted on the previous proposals.

Other issues from the Phase IV notices did not require additional

proposal. These are being finalized today in a Phase IV rule appearing

elsewhere in today's Federal Register. The final rule is titled ``Land

Disposal Restrictions--Phase IV: Treatment Standards for Wood

Preserving Wastes, Paperwork Reduction and Streamlining, Exemptions

from RCRA for Certain Processed Materials; and Miscellaneous Hazardous

Waste Provisions.''

EPA estimates that the directly measurable benefits associated with

the land disposal restrictions treatment standards in this rule are

limited relative to the costs that may be incurred. Therefore, the

relative priority of addressing these risks could be questioned.

However, we do not believe, for this specific action, that a simple

cost effectiveness measure alone provides a sufficient basis for

decision-making. As discussed below, the preference for permanent

treatment of hazardous wastes is part of the basic policy structure

which Congress enacted when it amended RCRA in 1984, and reflects

concern over the technological uncertainties regarding risks and long

term protectiveness of land disposal and the intent to assure that

waste management practices are protective for future generations.

The whole premise of the LDR legislation is that risks posed by

land disposal of hazardous wastes are inherently uncertain to evaluate

and that land-based units are incapable of long term containment. Land

disposal units (such as landfills, surface impoundments, and waste

piles) are engineered units that can and have failed in the past with

significant consequences to human health and the environment. For this

reason, Congress required that hazardous wastes be pretreated before

disposal by ``treatment [which] should be the best that has been

demonstrated to be achievable.'' Congressional Record of July 25, l984

(S9178). The technology-based approach of the land disposal

restrictions provides a measure of insurance against the potential for

failure in these land based units.

Given these facts, and evident Congressional intent, EPA continues

to believe that the LDR prohibitions and treatment standards are

justified in many instances. EPA sets treatment standards that reduce

toxicity and mobility of hazardous constituents (or require recycling),

and EPA also requires that the treated wastes be placed in reasonably

secure land disposal units. However, EPA does believe that, in some

situations, the current LDR rules may not provide the optimum

regulatory approach. In those situations, EPA will look to other

mechanisms to address those relatively low risk scenarios.

II. Potentially Regulated Entities

Entities potentially regulated by this final rule vary according to

the section of the rule. The following table shows the industry

categories that may be regulated according to each major section of the

rule. The table is not intended to be exhaustive, but rather to provide

a guide for readers regarding entities likely to be regulated by this

action. This table lists the types of entities that EPA is now aware

could potentially be regulated by this action. Other types of entities

not listed in the table could also be regulated.

[[Page 26043]]

Table of Entities Potentially Affected by the Phase IV 2nd Supplemental

Proposal

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

Examples of entities

Section of the rule Category potentially affected

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

Treatment Standards for TC Small or Large Any party that

metal hazardous wastes, Quantity Generators generates greater

characteristic mineral of Toxicity than 100 kg of

processing wastes, and Characteristic (TC) hazardous waste or

other metal-bearing wastes. metal hazardous 1 kg of acute

wastes (D004-D011), hazardous waste,

characteristic and generates TC

mineral processing metal hazardous

waste, or any wastes or

hazardous waste characteristic

required to meet mineral processing

the LDR treatment wastes. Major

standard for industries

barium, cadmium, generating TC metal

chromium, lead, wastes include:

silver, selenium, primary mineral

antimony, processing,

beryllium, nickel, alkalines and

thallium, vanadium, chlorine,

or zinc. industrial

Facilities that inorganic

treat TC metal chemicals,

hazardous wastes, industrial organic

characteristic chemicals, blast

mineral processing furnaces and steel

wastes, and other mills, metal

metal-bearing plating and

hazardous wastes. polishing, aircraft

parts and

equipment.

Mineral Processing Secondary Generators.......... Any person who

Materials, and Bevill Storage and generates secondary

Issues. Recycling materials from the

Facilities. primary mineral

processing industry

that are destined

for recovery of

mineral values

Facilities that

store and/or

recycle secondary

materials from the

primary mineral

processing

industry.

Exclusion for Recycled Wood Wood Preserving Facilities that

Preserving Process Facilities. generate and

Wastewaters. reclaim drippage

and wastewaters on-

site from the wood

processing

industry.

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

III. Revised Treatment Standards for Twelve Metal Constituents in

Nonwastewater Forms of TC Metal and Other Wastes

A. Summary

EPA is proposing to revise the universal treatment standards (UTS)

for twelve metal constituents: barium, cadmium, chromium (total), lead,

selenium, silver, antimony, beryllium, nickel, thallium, vanadium, and

zinc that can be found in nonwastewater forms of hazardous waste.

(Note, vanadium and zinc are not regulated as underlying hazardous

constituents in characteristic wastes.) The revised standards for eight

of the metal constituents are higher numerical levels (less stringent)

than their existing UTS; the revised standards for four of the metal

constituents are lower than their existing UTS. In the original Phase

IV proposal (August 22, 1995; 60 FR 43582), EPA proposed to apply the

UTS to wastes that exhibit the characteristic of toxicity, as measured

by the Toxicity Characteristic Leaching Procedure (TCLP). See 40 CFR

261.24. This procedure measures the possibility that a waste may leach

toxic metals above a designated concentration level, and so is a

measure of the potential mobility of toxic metals in a waste.

Currently, TC metal wastes are subject to LDR standards that are the

same as the TC levels. However, these levels are typically higher than

those for which threats posed by land disposal of the wastes are

minimized. Chemical Waste Management v. EPA, 976 F.2d2, 13-14.26-27

(D.C. Cir. 1992); cert. denied 113 S. Ct. 1961 (1993). Consequently,

treatment to levels lower than the characteristic levels normally is

required. Id. Commenters took issue with the Agency's use of data from

previous rulemakings (those establishing UTS) in setting the TC metal

standards. After considering comments and new information, EPA believes

applying the UTS levels to TC metal waste is still quite valid, but in

some cases the new data indicate that the UTS levels should be modified

to better reflect the universe of wastes that would now be subject to

the standards.

As a result, the Agency is proposing to modify the proposal so that

the treatment standards for the following metal wastes would be higher

(less stringent) than the current UTS: barium, beryllium, cadmium,

nickel, lead, thallium, vanadium, and selenium. The Agency is proposing

to lower the UTS for antimony, chromium (total), silver, and zinc. The

revised UTS levels for all twelve metal constituents would apply to all

wastes, listed or characteristic, that are subject to UTS. In some

cases, the proposed increase in UTS still would lower the existing

standard (making it more stringent) for the TC metal waste in question.

An example is the constituent lead. The current UTS standard is 0.37

milligrams per liter, while the standard for TC metal wastes is 5.0

milligrams per liter, because these wastes have been subject to the TC

level rather than to UTS prior to this rule. Today's proposal would

revise the UTS level for lead from 0.37 milligrams per liter to 0.75

milligrams per liter TCLP. This would make the lead standard less

stringent for listed wastes (and characteristic wastes such as

corrosive wastes that are not characteristic for metals), but would

lower (make more stringent) the lead standard for TC metal wastes

required to meet UTS.

B. Applicability

The new treatment standards would apply to four sets of hazardous

wastes. The first is TC metal wastes, which are those found to be

characteristic because one of their metal concentrations is higher than

the TC level. One group of TC metal wastes would be subject to

treatment standards for the first time: those which are found hazardous

by testing with the Toxic Characteristic Leaching Procedure (TCLP) but

not by the Extraction Procedure that was formerly used. This somewhat

arcane distinction (necessitated by statutory language) is discussed in

more detail in the following section. EPA proposed standards for all TC

metal wastes on August 22, 1995 (60 FR 43582), and today's action would

modify the proposed standards, as discussed in detail below. The second

set of wastes affected by this rule are currently subject to UTS, so

for these wastes, the proposed standards may provide regulatory relief;

these are the other characteristic wastes (toxic organic, ignitable,

corrosive, or reactive) that contain any of the nine metal constituents

as underlying hazardous constituents. The third set of wastes also

would generally have less stringent standards. These are listed wastes

that are required to treat any of the nine metal constituents to meet

the

[[Page 26044]]

numerical universal treatment standards. Finally, one last set is being

required to meet LDR treatment standards for the first time: mineral

processing wastes that exhibit a hazardous waste characteristic. (See

55 FR at 22667 (June 1, 1990) explaining why mineral processing wastes

no longer considered eligible for exempt status under the Bevill

amendment are classified as ``newly identified'' for purposes of LDR

prohibitions, and, hence, not yet subject to LDRs until EPA adopts

regulations expressly prohibiting them from land disposal and

establishing treatment standards for them.) The Agency proposed

treatment standards for those wastes on January 25, 1996 (61 FR 2359),

and today's action seeks comment on revisions to those proposed

standards.

C. Background

Land disposal of hazardous wastes is largely prohibited by statute,

unless the wastes are treated before land disposal to satisfy treatment

standards established by EPA. RCRA sections 3004(d)-(g),(m). In

developing these treatment standards, EPA has sought to make the

standards as uniform as possible while adhering to the ultimate

requirement that the standards be sufficient to minimize threats to

human health and the environment. The results are the UTS whereby the

Agency has, wherever possible, developed the same numerical limit for a

hazardous constituent in all of the hazardous wastes where the

constituent is present. See 268.40 and 59 FR 47982, September 19, 1994.

Today's notice reproposes treatment standards for the following

toxic metals: barium, cadmium, chromium, lead, selenium, silver,

antimony, beryllium, nickel, thallium, vanadium, and zinc. Since it

affects the UTS, the following hazardous wastes would be affected: (a)

characteristic hazardous wastes where these metals are present as

Underlying Hazardous Constituents (See 268.2(I) and 59 FR 47982,

September 19, 1994); and (b) listed wastes which have treatment

standards for one or more of these metals. In addition, these standards

would affect the treatment standards for wastes that exhibit the

characteristic of toxicity as measured by the Toxicity Characteristic

Leaching Procedure (TCLP) because of the presence of these metals.

These include both the wastes that are newly identified because they

exhibit the toxicity characteristic (TC), which are not yet prohibited

from land disposal, and wastes that were already identified as

hazardous under the predecessor leaching protocol, the Extraction

Procedure (EP), which remain hazardous because they also exhibit the

TC. EPA already promulgated treatment standards for this latter class

of wastes (wastes identified as hazardous which exhibit both EP and TC

toxicity), but these standards were established at the characteristic

level. 55 FR 22520, June 1, 1990.

The D.C. Circuit remanded the standards for lead and chromium as

being insufficiently stringent when data indicated that further

increments of treatment were technically feasible. 976 F. 2d at 27, 32.

These proposed standards would, among other things, respond to that

remand. The standards also would satisfy EPA's legal obligations to

develop treatment standards for newly identified hazardous wastes

within 6 months following the wastes' identification as hazardous, RCRA

section 3004(g)(4), subsequently extended by consent decree. (EDF v.

Reilly, Cir No. 89-0598, D.D.C.)

D. Proposal of Revised Treatment Standards for Metal Constituents in TC

Metal and Other Metal-bearing Wastes

1. August 22, 1995 Proposed Treatment Standards for TC Wastes

In support of the Phase IV proposal (60 FR 43654), EPA performed a

comprehensive re-evaluation of the available treatment performance data

from both listed and characteristic wastes for all metal constituents

in the UTS table. This analysis was conducted in order to determine

whether UTS levels could appropriately be transferred to TC metal

wastes. Treatment standards for most of the toxic metals in

nonwastewater listed wastes were based upon the performance of High

Temperature Metal Recovery (HTMR), based on treatment of hazardous

wastes K061, K062 and F006 (59 FR 47998, September 19, l994). At that

time, the Agency determined that both HTMR and stabilization were BDAT

and that while the majority of the UTS numbers were based on High

Temperature Metal Recovery, stabilization was also capable of treating

to the UTS levels. (See USEPA, ``Background Document for Treatment

Technologies'', June 1991; and USEPA, ``Metals Recovery Processes for

RCRA Hazardous Waste'', December 1994). As such, the Agency proposed

that the metal UTS should also be the LDR treatment standards for

characteristic metal wastes. This resulted in the proposed change of

treatment standards for six TC metal constituents (barium, cadmium,

chromium (total), lead, selenium and silver). The Agency did not

propose a change in the treatment levels for arsenic (D004) or mercury-

retort residues (D007), and those constituents are not discussed

further in today's notice.

2. Comments to the August 22, 1995 Proposal

In response to the Phase IV proposal, the Agency received numerous

comments on the proposed treatment standards. The commenters raised

three basic issues with regard to the data used to develop the

standards: (1) characteristic metal wastes were extremely variable and

that the data used to calculate the treatment standards were not

representative of the diversity of TC metal wastes; (2) while both HTMR

and stabilization were determined to be BDAT, the standards were based

solely on HTMR, a technology not commercially available for many TC

metal wastes; and (3) the standards were not uniformly achievable when

waste streams with multiple toxic metals were being treated. In light

of these concerns, the commenters urged the Agency to obtain additional

data that would demonstrate the effectiveness of stabilization on TC

metal waste streams and to more fully characterize the diversity of

these waste streams.

The following commenters provided the Agency with stabilization

performance data: Battery Council International, American Foundrymen's

Association, Chemical Waste Management and the Environmental Treatment

Council. These commenters provided extensive composite data on the

stabilization of various TC metal wastes. While each of the data sets

provided information on the various performance levels of stabilization

treatment, they did not provide the Agency with the full range of

information necessary to re-evaluate or re-calculate the treatment

standards based on EPA's BDAT protocol (see USEPA ``Final Best

Demonstrated Available Technology (BDAT) Background Document for

Quality Assurance/Quality Control Procedures and Methodology'', Office

of Solid Waste, October 23, 1991). The Agency, convinced that

additional data were needed to further assess the treatment of TC metal

wastes, attempted to obtain the additional information from the

commenters; however, the information/data required by the commenters

that would result in the generation of a ``BDAT'' quality data set has

not been forthcoming. The reader is referred to the rulemaking docket

for analysis and discussion of the data submittals.

[[Page 26045]]

3. Development of Revised UTS for TC Metal Wastes

In response to the concerns raised by the commenters regarding the

lack of stabilization data for TC metal wastes, and the concern that

some UTS levels may be unachievable by stabilization, the Agency began

an effort to obtain additional treatment performance data that better

characterized the diversity of metal wastes. During September l996, EPA

conducted site visits at three hazardous waste treatment facilities.

These facilities represented different types of treatment operations:

one facility was a large commercial TSDF that employed conventional

stabilization techniques to treat a wide array of inorganic metal

wastes and another was an on-site treatment facility that focused on

the stabilization of inorganic metal slag. A third facility was

commercial and focused on stabilization of inorganic materials using

non-conventional stabilization techniques. During these site visits,

the Agency either gathered performance data from company records or

requested the collection of actual treatment performance data through

sampling and analysis. The facilities provided the Agency with detailed

performance data consistent with BDAT protocols (including effluent

grab samples).

The performance data represented a wide range of metal-bearing

wastes (both listed and characteristic) that the Agency believes

represents the most difficult to treat metal-bearing wastes. The types

of wastes treated included mineral processing wastes, baghouse dust,

battery slag, soils, pot solids, recycling by-products, and sludge.

TCLP values in the untreated wastes included 4430 mg/l lead, 1580 mg/l

chromium, 82 mg/l barium and 4280 mg/l cadmium. In addition, numerous

waste streams contained multiple metals which would be representative

of a characteristic waste with UHCs, while other waste streams had

significant concentrations of combination metals including: lead and

cadmium, barium and lead, and chromium and antimony. The Agency

reviewed all the performance data and the facility treatment

operations. It determined that at least two of the facilities were

well-designed and well-operated and represented BDAT technology for the

full range of TC metals and the metal UHCs that are often found in

these wastes. The reader is referred to the rulemaking docket for a

complete discussion of the site visits and the data collected by the

Agency. See item numbers 2, 5,6, 17, 18, 19,and 20 in the docket

submittal entitled, Documents Supporting the Reproposed Treatment

Standards for D005, D006, D007, D008, D010, and D011 Wastes and the

Proposed Revision to the Universal Treatment Standards for Barium,

Cadmium, Chromium (total), Lead, Selenium, Silver, Antimony, Beryllium,

Nickel, Thallium, Vanadium and Zinc. Note again that while EPA has

developed data and is proposing new treatment standards for vanadium

and zinc, they are not regulated as underlying hazardous constituents.

In addition, between October 1994 and December 1995, the Agency

obtained performance data from one HTMR facility based totally on grab

samples. (The reader is referred to items 3 and 16 in the

aforementioned docket materials for a complete discussion of the HTMR

data set.) The assessment of the new data sets began with the

calculation of treatment standards for each of the two data sets, i.e.,

stabilization and HTMR. Next, the Agency compared these treatment

levels. Based on this comparison, the Agency selected the highest

standard for each metal to establish UTS and to allow for process

variability and detection limit difficulties. The Agency believes that

this approach is consistent with the intent of UTS and derives limits

achievable by both HTMR and stabilization technologies. The new data

also confirmed that the other proposed levels (i.e., UTS) proposed on

August 22, 1995 for TC metal waste and on January 25, 1996 for mineral

processing waste are in fact achievable with grab sampling by both

stabilization and HTMR. Therefore, EPA is not proposing to modify any

levels except those discussed here.

As a result of this new analysis, the Agency is today proposing to

change the treatment standard for the following TC metal constituents

as well as their associated UTS: barium, cadmium, chromium, lead, and

silver. In addition, the Agency is proposing to change the UTS for

antimony, nickel, thallium, vanadium, beryllium, and zinc. With these

changes, the Agency is establishing metal treatment standards using

performance data based solely on grab samples. EPA used the same

methodology, sometimes called ``C 99'' in calculating today's proposed

levels (i.e., the proposed UTS levels) as has been used in past

rulemakings (56 FR 41164, August 18, 1991) and the BDAT Background

Document for K061 dated August 1991. The table at the end of this

section provides information detailing the standards generated by both

data sets as well as the newly proposed standards. The Agency discusses

next two metals where data are still limited.

4. Proposed Revision of UTS for Selenium

In the Phase IV proposal, the Agency proposed a treatment standard

of 0.16 mg/l for nonwastewater forms of D010-selenium (60 FR 43654,

August 22, 1995). This number was the UTS level for selenium that was

promulgated in the Phase II rule (59 FR 47980, September 19, 1994).

Today, the Agency is proposing to change the UTS for selenium to 5.7

mg/l TCLP and retain the current treatment standard of 5.7 mg/l TCLP

for D010 waste. This would in effect create a uniform standard of 5.7

mg/l TCLP for nonwastewater forms of selenium. (The Agency received no

comment on the proposed wastewater treatment standard for selenium and

is not asking for further comment on this issue.)

Several commenters suggested that EPA establish the treatment

standard for selenium at the TC level (1.0 mg/l) for nonwastewaters or

promulgate a revised treatment standard for D010 based on stabilization

performance data. Commenters proposed alternative treatment standards

for D010 wastes that ranged from 0.20 mg/l to 10.0 mg/l. The commenters

argued that the proposed standard of 0.16 mg/l which was based on the

performance of High Temperature Metals Recovery (HTMR) was not

achievable by stabilization and that commercial HTMR units may not

accept selenium-containing wastes making the technology unavailable, or

at least, not suitable as the technology basis for a uniformly-

applicable treatment standard. Furthermore, the commenters argued that

the Agency did not account for the difficulties in stabilizing wastes

containing high levels of selenium in conjunction with the presence of

other metals when developing the treatment standard.

One comment focused on the inability to stabilize selenium-

containing wastes in the presence of other metals. The commenter stated

that they did not feel that 0.16 mg/l TCLP for nonwastewater forms of

D010 was routinely achievable utilizing best operating practices. As

stated in their comment, selenium has a pH and solubility that is

significantly different from other characteristic metals. Selenium's

minimum solubility is at a neutral to mildly acidic pH (6.5-7.5), while

it is highly soluble in the alkaline pH range (8-12). The other

characteristic metals have a minimum solubility in the strongly

alkaline pH range (8-12), while their solubility increases at neutral

and acidic pH levels. This difference in solubilities, the commenter

stated, creates a problem for treating wastes with a mixture of

[[Page 26046]]

characteristic metals which include selenium. Since there is a

difference in solubilities for the metals depending on the pH of the

stabilized wastes, if a neutral pH is maintained in treatment, selenium

will not leach but the other metals will, if a high pH is maintained,

the selenium will leach while the other metals will not. In light of

these distinctly different pH/solubility curves for selenium and other

characteristic metals, the commenter believes that the treatment

standard for selenium should be established at a higher level. In

support of the commenters claims, a laboratory study was submitted

showing the leachability of selenium while varying pH and binder to

waste ratios.

The Agency has researched the claims made by the commenter and

concurs with his assertions. The Agency is convinced that wastes

containing selenium concentrations greater than 1.0 mg/l TCLP in the

presence of other metals, e.g., cadmium, lead or chromium may encounter

difficulties in stabilization due to the different solubility curves

noted above. While it may be possible to treat a D010 waste to the

proposed treatment standard of 0.16 mg/l TCLP, in the absence of other

metal contaminants, the Agency cannot be certain that this would or

could occur. The Agency believes that it is more realistic to assume

that treatment will occur in the presence of other metals thus limiting

the effectiveness of stabilization on selenium. As such, the Agency has

decided to propose to maintain the current treatment standard for

nonwastewater forms of D010 at 5.7 mg/l TCLP. This standard is based on

the stabilization of a D010 waste containing 700 ppm selenium and is

considered by the Agency to be the most difficult to treat selenium

waste. See the Third rule (55 FR 22574, June 1, 1990.)

The Agency notes that because this treatment standard is above the

level of leachable selenium that defines the waste as D010 (1.0 mg/l

TCLP), D010 wastes that are generated at a level between 5.7 mg/l and

1.0 mg/l TCLP meet the treatment standard but are still considered to

be hazardous wastes (assuming the TCLP value exceeds 1.0 mg/l) and,

therefore, must be land disposed in a Subtitle C facility. In addition,

since the treatment standard for selenium is above its characteristic

level, selenium would not be recognized as an UHC.

The Agency has also decided to propose a change in the UTS for

selenium from 0.16 mg/l to 5.7 mg/l TCLP. While the Agency has

performance data showing treatment levels for selenium of between 0.16

to 0.29 mg/l TCLP for stabilization and HTMR technologies, these levels

seem to be achievable only with extremely low concentrations of

selenium in the untreated waste. Therefore, the Agency feels that this

standard does not reflect the true diversity of the waste stream, nor

is it reflective of the most difficult to treat selenium waste. As

such, the Agency feels that 5.7 mg/l TCLP is a better assessment of

treatability and a more appropriate standard.

5. Proposed Revision of UTS for Beryllium

In the Phase IV proposal, the Agency proposed to change the UTS for

beryllium from 0.014 mg/l TCLP to 0.04 mg/l TCLP, based on composite

data (60 FR 43683, August 22, 1995). A commenter was critical of the

proposed beryllium level and stated that 0.04 mg/l TCLP was too

stringent and not supported by stabilization data. However, the Agency

has been unable to obtain, despite repeated efforts, any treatment

performance data from that commenter to validate claims that the

treatment standard is not achievable. Also, the Agency recognizes that

proposing to use composite data was an error, as this is not consistent

with BDAT methodology, as discussed above. As such, the Agency is

proposing a UTS for beryllium based on available performance data from

the stabilization and HTMR facilities described above. These data,

which admittedly do not include incoming waste with high beryllium

levels, show that the appropriate treatment level is 0.018 mg/l.

Therefore, the Agency is today proposing a revised UTS of 0.018 mg/l

TCLP (actually 0.02 mg/l, due to rounding) for nonwastewaters based on

the performance of HTMR using grab samples. The Agency is however,

soliciting comment on whether there are difficulties in treating

various beryllium-containing waste streams. The Agency welcomes the

opportunity to evaluate any performance data and reminds the reader

should any hazardous beryllium production wastes fail to meet the 0.018

mg/l TCLP level (if finalized), the facility may apply for a

treatability variance under 40 CFR 268.42.

6. Proposed Revision of UTS for Silver

EPA proposed a concentration level of 0.30 mg/l as the treatment

standard for silver nonwastewaters, based on data from the treatment of

K061 waste sampled on a composite basis. See 60 FR 43684, August 22,

1995. Citing low human health risks from silver, commenters stated that

EPA should not be setting a treatment standard for silver that is lower

than the characteristic level of 5.0, and instead should remove silver

from the list of TC constituents altogether. Later, EPA issued a Notice

of Data Availability which stated that EPA was not prepared to make a

decision on whether or not to retain silver on the TC list, but that

the Agency was considering two new treatment standard options: a UTS

level of 5.0 mg/l, or a level of 5.0 mg/l for D011 while maintaining a

UTS of 0.30 mg/l for all other silver-containing waste. See 61 FR

21420, May 10, 1996.

EPA is still studying silver in order to decide on its status as a

TC waste, and is not proposing any change to that status in today's

notice. However, EPA is proposing a revised UTS, based on the new data

on metal constituents discussed above. For silver, the data is based on

treatment by High Temperature Metals Recovery and on the preferred

method of grab sampling. The data supports a level of 0.11 mg/l for

silver nonwastewaters, making the standard more stringent than proposed

in either of the earlier notices.

EPA believes that silver wastes are generally recycled due to their

economic value and are covered by the special streamlined standards for

recyclable materials utilized for precious metal recovery at 40 CFR

Part 266.70 Subpart F. There may be little or no land disposal of

silver wastes, hence little or no impact of applying a new treatment

standard. EPA is today seeking information on quantities of silver

nonwastewaters that would be affected by LDR treatment standards, and

on whether a level of 0.11 mg/l is achievable for those wastes if they

exist. However, as discussed above, standards in the LDR program can be

either technology- or risk-based. In the absence of definitive risk

information, the Agency sets technology-based standards. Data from both

HTMR and stabilization technologies show 0.11 mg/l is achievable for

nonwastewaters.

[[Page 26047]]

Proposed Universal Treatment Standards for Twelve Metal Constituents Calculated From HTMR and Stabilization

Sample Sets*

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

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

Proposed UTS

TC level (mg/ Existing UTS HTMR grab Stabilization level

Waste code Constituent l) level (mg/l samples (mg/ grab samples (revised)

TCLP) l TCLP) (mg/l TCLP) (mg/l TCLP)

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

D005................ Barium............. 100 7.6 3.3 21 21

D006................ Cadmium............ 1.0 0.19 0.20 0.014 0.20

D007................ Chromium........... 5.0 0.86 0.85 0.13 0.85

D008................ Lead............... 5.0 0.37 0.12 0.75 0.75

D010................ Selenium........... 1.0 0.16 0.29 0.12 5.7

D011................ Silver............. 5.0 0.30 0.11 0.0084 0.11

Antimony........... ............ 2.1 0.043 0.068 ** 0.07

Beryllium.......... ............ 0.014 0.02 0.012 ** 0.02

Nickel............. ............ 5.0 13.6 0.082 13.6

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

Vanadium ***....... ............ 0.23 0.015 1.6 1.6

Zinc ***........... ............ 5.3 3.8 4.3 4.3

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

* The proposed universal treatment standard (UTS) was established by selecting the higher of the two treatment

standards that were calculated from stabilized wastes and HTMR residues.

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

*** Vanadium and zinc are not underlying hazardous constituents.

7. Demonstrating Compliance by Grab or Composite Sampling

EPA has long preferred that compliance with the LDR standards for

nonwastewaters be based on grab samples (a one-time sample taken from

any part of the waste), rather than composite samples (a combination of

samples collected at various locations for a given waste, or samples

collected over time from that waste). This is because ``grab samples

normally reflect maximum process variability, and thus would reasonably

characterize the range of treatment system performance.'' (See 54 FR at

26605-06, June 23, 1989; 55 FR at 22539, June 1, 1990.) This type of

sampling is in keeping with the ultimate objective of the land disposal

restrictions program: that all of the hazardous waste to be land

disposed be treated in a way that minimizes the threats that land

disposal could pose, not just that some average portion of the waste be

so treated (a possible result of using composite sampling). In

addition, there is an implementation advantage to use of grab sampling,

since enforcement for EPA, authorized states, or citizen groups is

facilitated if enforcement can be based on individual sampling events

(as occurs with grab sampling).

The universal treatment standards for nonwastewaters are

consequently enforced on the basis of grab sampling. The revisions to

those standards for toxic metals reproposed today would likewise be

enforced on the basis of grab sampling, and, in all cases are based on

grab sampling data. EPA intends to maintain that regime, with the

temporary exception of three wastes: K061, K062, and F006 managed at

certain facilities, as described below.

Current treatment standards for hazardous waste K061, K062, and

F006 were based partially on the use of composite rather than grab

sampling. That is, the data for certain of the hazardous constituents

regulated under that standard-- namely beryllium, nickel, lead, silver,

cadmium, and thallium-- were obtained exclusively from composite

samples, and the data for vanadium and zinc came partially from

composite samples. (See memorandum from Richard Kinch to RCRA Docket

dated August 19, 1991, regarding promulgation of K061. See also 57 FR

at 37207, August 18, 1992, which explains that K061 standards were

transferred to K062 and F006). The BDAT technology for this waste code

was High Temperature Metal Recovery (HTMR), and the composite samples

used to develop parts of the standard indeed came from HTMR facilities.

Id. The two HTMR facilities involved in developing the data for the

current standards have pointed out in comments to the Phase IV proposal

and to earlier LDR rules that they may not be able to achieve the metal

treatment standards for these waste codes if enforcement is based on

grab sampling, and that such enforcement is unwarranted for their

facilities since the underlying data used to develop the treatment

standard for these wastes included composite data. (See comments from

Horsehead Resource Development Company, Inc. and International Metals

Reclamation Company, Inc. in the docket for the Phase IV proposal, 60

FR 43654, August 22, 1995).

EPA is rectifying this problem in the short term by allowing two

HTMR facilities, Horse head Resource Development Company Inc. and

International Metals Reclamation Company Inc. to comply with the

current treatment standards for K061, K062, and F006 through use of

composite samples. The two facilities must follow the procedures

contained in two documents in appendices to this preamble, entitled

``Procedures For Horse Head Development Company to Establish Compliance

With RCRA Treatment Standards at 40 CFR 268.40 and 268.48 for K061,

K062, and F006 residuals; and ``Procedures For INMETCO to Establish

Compliance With RCRA Treatment Standards at 40 CFR 268.40 and 268.48

for K061, K062, and F006 residuals.''

However, EPA's ultimate intent is to require compliance with UTS on

a grab basis for all facilities, including HTMR facilities treating

K061, K062, or F006. As discussed above, EPA has received additional

grab sample data on metal-bearing hazardous waste that was not

available at the time UTS was promulgated. As discussed above, EPA has

proposed to use the new data to revise the UTS standards for some

constituents. It appears that with the new UTS metal levels proposed in

this notice, that HTMR facilities should be able to meet UTS on a grab

sampling basis. There are some data (from one facility) supporting this

position, and EPA has requested additional data from the other

facility, which has indicated it will provide additional data within

six

[[Page 26048]]

months. Therefore, EPA will consider data received until six months

from the date this notice is published in the Federal Register before

making a final decision. The Agency will act sooner, if in its

judgement there is little likelihood that additional data will be

available within six months. Currently the Agency's view is that the

UTS levels proposed today can be met by both stabilization and HTMR,

and grab sampling must be required in all cases.

IV. Revised Treatment Standards for Mineral Processing Wastes

A. Summary

EPA is proposing to apply Universal Treatment Standards, as revised

today, to the newly identified mineral processing wastes. The revised

treatment standards can be found in the table at the end of the section

in this preamble on treatment standards for TC metal wastes.

B. Discussion

On August 22, 1995 the Agency requested comment on a proposed

rulemaking which would apply LDR treatment standards to all

characteristic metal wastes (60 FR 43654), and on January 25, 1996 EPA

proposed that those same standards apply to mineral processing waste

that exhibit a characteristic of hazardous waste. As noted above, such

wastes are considered to be ``newly identified'' for purposes of timing

of LDR prohibitions. The comments received suggested that the proposed

treatment standards could not be achieved using stabilization

treatment; and that more stabilization technology performance data was

necessary to set treatment levels for TC metals. Since the receipt of

these comments the Agency has conducted site visits to facilities using

stabilization technology to treat mineral processing or similar wastes,

i.e. TC metal wastes. See Section II above for the discussion of TC

metal waste.

The new data from these site visits reaffirm the Agency's position

that the mineral processing wastes are similar (i.e., no harder to

treat) than those wastes from which the Universal Treatment Standards

(UTS) were established. (In addition to the new data on TC metal waste

referenced above, see: Modified Background Document dated December,

1996 and BDAT Background Document for TC Metals dated August, 1995; and

Background Document for Universal Treatment Standards dated September,

1994). Specifically, the new site visit data came from facilities

treating primary or secondary mineral processing (68%); facilities that

generated metal-bearing remediation waste (10%), metal manufacturing

waste (10%), foundry wastes (6%), and spent metallic wastes (6%), most

of which exhibited a characteristic or were listed hazardous wastes. As

discussed in section II above, this new data has convinced the Agency

that some revisions should be made to the UTS. With these revisions,

the Agency concludes that UTS levels are achievable for mineral

processing wastes, as for other TC metal wastes.

V. Proposal of New Options for Mineral Processing Materials

Today's proposal seeks comment on several specific options

considered by the Agency related to recycling of secondary materials

from mineral processing, and to wastes excluded by the Bevill

Amendment. This proposal is a supplement to, and not a replacement of,

the January 25, 1996 proposed rule.

The first issue pertains to the land storage of hazardous mineral

processing secondary materials--that is, sludges, byproducts or spent

materials generated by and legitimately recycled within the mineral

processing industry sector, which secondary materials would be either

identified or listed as hazardous wastes if they are first classified

as solid wastes (see 50 FR at 616, n.4, and 627 (Jan. 4, 1985))-- and

when such storage could occur without the secondary materials being

RCRA ``solid wastes''. The second issue involves whether the wastes

generated when a facility uses alternative feedstocks along with Bevill

raw materials retain Bevill-exempt status. EPA is proposing and seeking

comment on new options for addressing these issues. The final matter

addressed is a limited solicitation of comment on the question of

whether the risks posed by some wastes which are currently Bevill-

exempt warrant future regulatory controls by the Agency.

A. New Option--Land Storage of Secondary Materials

1. General Discussion

In the January 25, 1996, rule, the Agency proposed changes to the

current definition of solid waste by providing a conditional exclusion

for primary mineral processing secondary materials that are further

processed within the industry. Under this approach, mineral processing

secondary materials would not be solid wastes if certain conditions are

met. These conditions included meeting criteria to ensure that

legitimate reprocessing was occurring and that the land-based unit was

functioning as a process unit and not a waste disposal unit. These

include: a performance standard through groundwater monitoring;

technical standard by design and construction; or a determination by a

state or EPA Region that the unit is functioning as a process unit. See

generally 61 FR at 2339-2351. In response to this proposal, the Agency

received 101 comments, many providing the Agency new information about

the identification, management, and volumes of particular wastes.

The information from the comments, further analysis of existing

data, and new data collected since the January 25, 1996 proposal

indicate that mineral processing secondary materials are generated in

smaller volumes than EPA previously believed. Further, this new

information indicates that a significant number of secondary mineral

processing materials are not stored in land-based units. The Agency

also has gathered additional data indicating that land-based storage of

secondary materials contributes to environmental releases. Based on

this information, the Agency questions the necessity of land-based

storage units for most of the mineral processing industry.

The Agency today is proposing a new option that would restrict the

use of land-based units for secondary materials generated by and

recycled within the mineral processing industry. This new option would

condition exclusion from being a solid waste on storage in units that

are not land-based--typically tanks, containers, or buildings. Thus, if

a hazardous secondary material from mineral process is legitimately

recycled within another mineral processing operation, it would not be a

solid waste provided the storage that precedes the recycling does not

entail land placement. This proposal is conceptually the same as the

one EPA proposed for the oil-bearing secondary materials generated by

and recycled within the petroleum industry. See 60 FR 57753 (Nov. 20,

1995). The Agency would make an exception where there is a volumetric

necessity to use land-based storage units to store hazardous secondary

materials. The Agency is proposing as the volumetric cut-off 45,000

tons per year for solids and one million tons per year for liquids--

consistent with the high volume criteria previously established by the

Agency for 20 special mineral processing wastes. (See 54 FR 36629,

September 1, 1989). High volume hazardous secondary materials, to the

extent that any exist, would be subject to the land storage conditions

based on the concepts proposed in the January 25, 1996 Proposed Rule.

(See 61 FR at 2345-48). Further, in today's notice EPA is providing

information on what types

[[Page 26049]]

of tanks, containers, and buildings would be suitable as storage

structures. In general, the Agency is proposing that these units be

able to contain the secondary materials, but would not require that the

units satisfy subtitle C design, operation, and performance standards.

(See Non-RCRA Tanks, Containers, and Buildings, EPA, 1997). This

approach, again, is analogous to that proposed for oil-bearing

secondary materials generated by and recycled within the petroleum

industry.

The Agency received comments that land based units were not

protective due to uncontrolled releases of hazardous constituents. In

evaluating the comments, the Agency identified additional information

which characterizes how mineral processing land-based units can release

or threaten to release hazardous constituents. (See Damage Cases and

Environmental Releases, EPA 1997). Also, the Agency has found that use

of land-based units to store hazardous secondary materials is less

common than EPA previously believed, indicating that land-based storage

may not be such an integral practice of the mineral processing

industry. Further, as noted in the preceding paragraph, the information

provided by commenters indicates that the volumes of mineral processing

secondary materials may be lower than expected, indicating that land-

based storage may not always be necessary because comparable quantities

of secondary materials from other industrial sectors are typically

managed in tanks, containers, and buildings. This information is

provided in the RCRA docket for public review and comment. (See

Characterization of Mineral Processing Wastes and Materials, EPA 1997).

The information collected by the Agency indicates that mineral

processing hazardous secondary materials stored in land-based units can

pose actual and potential threats to human health and the environment.

Due to particle size reduction, heat, and chemical reactions in the

processing steps, metal compounds and other constituents become more

mobile and concentrated. (54 FR 36614-36619, September 1, 1989).

Specifically, EPA has found cases where land storage (surface

impoundments and piles) of hazardous secondary mineral processing

materials awaiting recycling increase the potential for groundwater

contamination, contaminated runoff, windblown dust, and soil

contamination and increase the cost of cleanup. (See Damage Cases and

Environmental Releases, EPA, 1997).

In the case of piles, the storage practice of allowing secondary

materials to erode due to rainfall and to be carried away by the

prevailing winds can pose actual or potential threats to human health

and environment and are suggestive of waste disposal practices. (See

Damage Cases and Environmental Releases, EPA, 1997). The same is true

for surface impoundments where materials are allowed to migrate to

contaminate soils and groundwater. In contrast to these practices, most

other industries which generally store secondary materials destined for

recycling in tanks, containers, or buildings. Further, and more

importantly, these land-based storage practices can result in the types

of environmental damage that RCRA was designed to prevent.1

Such materials can be viewed as ``part of the waste disposal problem''

when stored in land-based units, and hence ``discarded'' (within the

meaning of the statutory definition of solid waste, RCRA section 1004

(27)). American Mining Congress v. EPA, 907 F.2d 1179, 1186 (D.C. Cir.

1990). The Agency is proposing conditions that would better define when

discard is not occurring, such as storage in a tank, container, or

building.

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

\1\ See RCRA Section 1003(b), 42 U.S.C. 6902(b) (``The Congress

hereby declares it to be the national policy of the United States

that, wherever feasible, the generation of hazardous waste is to be

reduced or eliminated as expeditiously as possible. Waste that is

nevertheless generated should be treated, stored, or disposed of so

as to minimize the present and future threat to human health and the

environment.'')

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

The Agency received sufficient comment on the jurisdictional solid

waste issues in the January 25, 1996 rule and requests that commenters

direct their comments solely to the new options in today's notice.

As noted earlier, EPA initially found that land-based units at

mineral processing sites have historically been a significant part of

the production processes typical of the mining and mineral processing

industries. (See 61 FR at 2340-41). The Agency reasoned that land-based

units were necessary due to large volumes of materials managed by this

industry (or, in some cases, due to the heat of the material precluding

any other type of immediate handling) and historical practices for the

mineral industry. However, the Agency also noted that there is a trend

for some mineral processing facilities to manage secondary materials in

tanks or other units which provide containment integrity. The Agency

believes that the trend toward storage of secondary materials in tanks,

containers, and buildings is a function of technological advances,

process changes, and sometimes in response to increasing environmental

liability.

The Agency's review of comments on the volumes and the management

practices of secondary materials generated support the observation that

facilities are less likely to use land-based units and are managing

more hazardous secondary materials in contained units. Based on the

comments received and further evaluation of new data, the Agency has

found the volumes of hazardous secondary materials from mineral

processing to be much lower than earlier believed. Specifically, EPA

found that of the 119 hazardous waste streams, 117 (98 percent) were

generated in quantities lower than the respective Bevill high volume

cutoffs for solid and liquids. Even more demonstrative is that 79 (48

solid wastes and 31 liquid wastes) of the 119 waste streams are

generated in quantities less than 5,000 tons per year. (See

Characterization of Mineral Processing Wastes and Materials, EPA,

1997).

EPA's assumption that there was production-related necessity for

mineral processing facilities to utilize land-based storage units is

also called into question by comparison of other industries' storage

practices with respect to comparable metal-bearing wastes which are

likewise recycled for metal recovery. For example, electric arc furnace

dust from steel smelting (K061) is a similar metal-bearing waste that

is also re-processed. K061 is generated at the average rate of 4,662

tons per facility per year. However, K061 is stored in tanks,

containers, and buildings, not on the land. There is no evidence that

such management poses an undue burden on the generators or processors

of K061. Further, there are many similarities between the recycling of

K061 and the recycling of hazardous secondary materials by the mineral

processing industry. In both cases, metal-bearing dust that bears

resemblance to the raw material metal concentrate being smelted is

generated as part of a smelting process.

The Agency has seen a trend for mineral processing wastes to be

placed in tanks upon generation and treatment. This is the case for

spent potliners K088 listed waste, a primary mineral processing waste

and one of the remanded smelting wastes. Approximately 23 facilities

generate an average of 5,400 tons per year of K088, an aggregate of

125,000 tons per year.2 One facility, Reynolds Metal

Company,

[[Page 26050]]

is able to store and treat almost the entire nation's production of

K088 in tanks, containers, and buildings. In the case of spent aluminum

potliners, the industry does not appear to be unduly burdened by

storing this waste in tanks, containers, or buildings.

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

\2\ EPA Background Document for Capacity Analysis for Land

Disposal Restrictions, Volume 1, February 1996.

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

Commenters presented little in the way of data or compelling

technical reasons why mineral processing hazardous secondary materials

cannot be stored in units other than land-based units. One commenter

stated that molten copper slag needs to be poured onto the ground

because no container would withstand the heat during the cooling

process. However, the Agency finds this example unpersuasive because

copper slag is one of the special 20 mineral processing wastes and

therefore isn't subject to subtitle C regulation (See 261.4(b)(7)). In

any case, the copper slag is stored and transported in metal containers

prior to being land applied, indicating that land storage is not an

exclusive alternative. In addition, the slag is typically put back into

the beneficiation or smelting operation within 24 hours, which is a

practice indicating immediate reuse and not discard. (Additional

discussion on the concept of immediate reuse can be found in Section

IV.A.4-Class of Materials Outside of RCRA Jurisdiction.) One commenter

stated that red and brown muds from bauxite refining required surface

impoundment due to large volumes. Here also the Agency finds this

example unpersuasive because red and brown muds are included in the

special 20 mineral processing wastes and therefore are not subject to

subtitle C regulation (See 261.4(b)(7)). Commenters did not identify

any other materials for which land-based storage was a compelled mode

of management.

2. Criteria for High Volumes of Bevill-Exempt Mining and Mineral

Processing Wastes

High volume is the principal indicator of whether a particular

waste is amenable to management under Subtitle C of RCRA. In developing

the high volume criterion for special mineral processing waste, the

Agency evaluated four methodological issues: (1) The appropriate degree

of aggregation of waste streams; (2) the basis for quantitative

analysis (facility specific vs. industry wide); (3) the units of

measure; and, (4) the types of other wastes to be used as the basis for

comparison. (For a detailed discussion on establishing the high volume

criteria see 54 FR 15327-31, April 17, 1989). The Agency established a

high volume cutoff for solid wastes from mineral processing at 45,000

tons per facility waste stream per year and the high volume cutoff for

liquids at one million tons per facility waste stream per year. In the

case of extraction/beneficiation wastes, the Agency published a

determination that regulation of such wastes under Subtitle C of RCRA

was not warranted, primarily because traditional hazardous waste

controls applied to large volume mining wastes may be technically

infeasible or economically impractical. July 3, 1986 (51 FR 24496). In

today's rule, the Agency is soliciting comment on whether large volume

secondary materials from mineral processing should similarly be given

special consideration. The Agency is soliciting comment on whether

large volume secondary materials from mineral processing may require

land-based storage because of technical infeasibility or production-

related necessity.

Under this new option, (actually a subset of the January 25

proposal) those mineral processing secondary materials that meet or

exceed the high volume criteria would be eligible for the conditional

exclusion as proposed in the January 25, 1996 Proposed Rule (61 FR

2338). Specifically, if large volume secondary materials are stored on

the land, such storage unit must meet either risk based performance

standards, or minimum design criteria, or receive a site-specific

determination that the unit is a process unit and not a waste disposal

unit. 61 FR at 2345-47. The generally applicable conditions related to

legitimate recycling and speculative accumulation would also apply. 61

FR at 2342-45. In essence, today's proposal applies one additional

condition: to be stored in a land-based unit, the secondary material

must be generated on a per waste stream annual basis that meets or

exceeds the high volume criteria. The Agency solicits comments on this

proposed regulatory approach.

3. Containment Units

EPA has collected information on a variety of tanks, containers,

and buildings. The unit must function as a process unit and should be

designed to contain the material placed in it with reasonable

certainty, that is, the secondary materials must be stored in a way

that distinguishes the unit from a waste disposal unit. Generally, a

containment unit should be an engineered unit made of non-earthen

materials providing structural support. The Agency believes that most

containment units currently in use by the mineral industry would meet

this description. The Agency's review of currently available tanks,

containers, and buildings indicates that wide variety of commercially

available units meet or exceed these criteria. The capacity, design,

and function of these containment units are as varied as the

construction materials. (See Non-RCRA Tanks, Containers, and Buildings,

EPA, 1997). This report provides examples of what the Agency considers

to be acceptable containment units for the storage of mineral

processing secondary materials.

As discussed in this report, an acceptable tank or container must

be free standing and not a surface impoundment, be manufactured of a

material suitable for storage of its contents, and meet comparable

specification as those established by ASTM, API, or other industry

standards. Additional descriptions of these standards and examples of

acceptable storage units are described in EPA's technical background

document. (See Non-RCRA Tanks, Containers, and Buildings, EPA, 1997.)

An acceptable building containment unit must be a man-made structure

and foundation constructed from non-earthen materials, have walls

(which may be removable), and have a roof suitable for diverting

rainwater away from the foundation. In considering criteria for tanks,

containers, and buildings, EPA is placing special emphasis upon

practical considerations, such as the need to transport materials in

and out of the unit in a reasonable fashion. The Agency believes that

buildings with one or more open doors or removable walls accessible to

machinery, such as a front-end loader, are acceptable. The Agency

solicits comment as to whether a three sided concrete bunker, with no

roof, used to store flue dust is an acceptable building or whether a

tank or container needs to be covered or have a fixed or removable lid.

Such containment units may be acceptable in geographic regions with

sparse rainfall.

The Agency would not require that these units meet full Subtitle C

requirement for storage units of hazardous wastes. Specifically, the

Subpart J requirements for tanks at 40 CFR 265.190-265.201 would not be

required. The Agency believes that an appropriate indicia of

containment should include a comparison of how this industry stores its

primary feedstocks and products, which is typically in non-subtitle C

tanks, containers, or buildings. The Agency believes that it is

reasonable not to condition an exclusion on using units that meet all

of the subtitle C standards. These standards were not created to

demarcate a line between wastes and non-wastes, and, similarly, are not

the

[[Page 26051]]

necessary benchmark for ascertaining if a unit functions as part of a

production process or is being used as a mode of discard. Indeed, even

raw materials containment structures would not meet all of the subtitle

C requirements. The Agency solicits comment on this approach.

4. Class of Materials Outside of RCRA Jurisdiction

In the January 25 proposal, the Agency stated that the statutory

definition of solid waste, as well as the judicial opinions construing

it, must be taken into account in addressing EPA's jurisdiction over

mineral processing secondary materials. 61 FR 2341. In American Mining

Congress v. EPA, 824 F. 2d 1177 (D.C. Cir. 1987) (``AMC I''), the court

found that EPA's jurisdiction does not extend to materials that are

destined for immediate reuse in another phase of the industry's ongoing

production process. 824 F. 2d at 1186. Subsequent judicial opinions

have clarified the narrow scope of AMC I, so that the only absolute bar

on the Agency's authority to define recycled secondary materials as

solid wastes is to ``materials that are destined for immediate reuse in

another phase of the industry's ongoing production process' and that

have not yet become part of the waste disposal problem.''' American

Mining Congress v. EPA, 907 F. 2d 1179, 1186 (D.C. Cir. 1990) (``AMC

II'') quoting AMC I, 824 F. 2d at 1186 n2. In the January 25 rule, the

Agency focused its attention on land-based units which by their very

nature are unable to prevent releases of secondary materials. 61 FR

2342. While storage of secondary materials on the land is one

indication of discard, other practices such as lack of immediate reuse

is an indication that unit is part of the waste management problem. The

Agency has damage case information involving the environmental release

of product-like materials being stored for extended periods of time.

(See Damage Cases and Environmental Releases, EPA, 1997). Conversely,

materials that are immediately reused in a process is a practice

indicative of on-going processing that is outside the scope of RCRA

subtitle C.

Based on the Agency's study of mineral processing industry

practices and review of comments on this subject from the January 25

proposal, the Agency believes initially that there are two categories

of materials that are included in the definition of immediate reuse.

The first are materials that by their very nature are being continually

processed and whose management practices indicate that discard is not

occurring. These materials have always been outside of RCRA

jurisdiction and are unaffected by this or the January 25 proposal. An

example are copper reverts, a refined copper material that falls on the

ground when molten copper is transferred within the

smelter.3 The common industry practice is to pick up reverts

on an hourly basis and put them back into the smelting process. These

are not secondary materials (sludges, spent materials, or byproducts)

at all but rather some type of in-process material that is being put to

further use. There is no use for reverts other than to be added to a

copper smelting operation for continued refining. Further, the Agency

is not aware of any case where reverts have been abandoned, discarded,

or whose land storage has contributed to environmental problems. Copper

reverts have always been outside of RCRA jurisdiction.

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

\3\ Reverts are matte and copper spilled in the converter aisle

in the process of being transferred to ladles from one part of the

smelting process to another. See Memorandum from Roderick Dwyer,

National Mining Association, to James Berlow, EPA, August 31, 1995.

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

The second category are secondary materials whose management

practices indicate that ongoing process immediate reuse is occurring.

An example of an immediately reused secondary material would be copper

flue dust generated from smelting operations. Most facilities routinely

store flue dusts for very short periods of time before returning the

material to the smelting process. Similar to reverts, copper flue dust

has no other use other than to be returned to the smelting process for

continued refining. However, unlike reverts, the Agency has information

indicating that some flue dusts are stored for extended periods of time

and have contributed to environmental problems. (See Damage Cases and

Environmental Releases, EPA, 1997). The Agency believes that

environmental releases are a function of the length of storage time for

these materials.

Defining a particular time period that constitutes immediate reuse

raises several considerations. The Agency has found that most mineral

processing facilities operate 365 days per year, 24 hours per day.

Because of this continuous production schedule, secondary materials

that are destined for immediate reuse are routinely placed back into

the process on an hourly basis and most are recycled within one or two

days. The Agency believes that a time period of two days is an

appropriate standard for immediate reuse. This means that a secondary

material that is put back into production within two days of generation

is outside of RCRA jurisdiction, regardless of whether it is stored on

the land. The Agency believes that while most facilities could comply

with a much shorter time period, the two day period allows flexibility

to perform the major steps necessary for recycling. The Agency believes

that there are generally five major steps: (1) Generation of the

secondary material; (2) sampling of the material (3) chemical and

property analysis of the material; (4) processing decisions; and (5)

placing material back into the process.4 Even if only one of

the steps were to occur in a separate eight hour shift the entire

sequence would require 40 production hours, which is well within the

two day allowable period. The Agency believes that this is a worst case

scenario, and certainly within the zone of reasonable durations from

which EPA could select a value, because most facilities process

materials in a much shorter time period than the two day (48 hour)

period.

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

\4\ These steps are based upon information obtained from the

Society of Mining Engineers Mineral Processing Handbook, Volume 2,

Section 30--Sampling and Testing, and Section 14G--Purchase of

Copper Concentrates and Cement Copper (1985); By-products Recycling

at ASARCO. Processing of Drosses, Slages, and Dusts, G. Archer, B.

Dunn, and F. Ojebuoboh, The Minerals, Metals, and Materials Society

(1991).

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

The Agency realizes there are occasions where a processing device

must be taken off line for maintenance. There are occasions where

machinery breaks down and extensive repair is needed. In such cases,

the facility usually has parallel or backup devices to continue

production. Nevertheless, the Agency realizes that this may not always

be the case and that sometimes production stops for extended periods of

time. The point is that notwithstanding the main line production

stoppages, secondary materials destined for immediate reuse are

routinely put back into production expeditiously. To make allowance for

production stoppages, the Agency is proposing that the tolling of the

two day period for immediate reuse would also stop. The tolling would

continue on the next production day. Put another way, a production day

counts towards one day of the two day limit.

In today's proposal, the Agency is limiting the two day immediate

reuse exclusion only to on-site processing, that is, where a material

is generated and reused in the same or similar process at the same

facility. EPA believes that this is a reasonable interpretation of the

``immediate reuse'' test articulated in the judicial opinions. Once

secondary materials are transferred off-site, the transaction is less

continuous, and elements of discard

[[Page 26052]]

such as use of land-based storage can be assessed in determining if

management of the material has become part of the waste disposal

problem. AMC II, 907 F. 2d at 1186. Further, the exclusion does not

apply to secondary materials in either category that are managed in a

way indicative of disposal.

The Agency solicits comment on the appropriateness of a two day

time period; whether there are more practical or appropriate measures

of immediate reuse; and whether this exclusion should apply beyond on-

site processing. Further, the Agency solicits comment on what other

specific materials would qualify under the immediate reuse exception.

B. New Option--Non-Bevill Materials Used as Alternative Feedstocks

The Agency is proposing an option related to the case where a

process which generates a waste exemption from subtitle C regulation

under the Bevill amendment uses as partial feedstock something other

than a Bevill raw material. An example would be a copper beneficiation

mill which uses by-products from primary zinc manufacture as an

auxiliary feedstock along with copper ore. This new option would limit

availability of the Bevill exemption to wastes generated exclusively

from the use of Bevill raw materials, namely ores and minerals. Because

of the potential additive risk posed by the co-processing of non-Bevill

materials, the Agency is proposing an option that would `prevent

contaminants from non-Bevilled materials to be afforded the Bevill

exclusion. This option is not an alternative to the option of

restricting use of land-based storage units discussed in the section

entitled ``New Option--Land Storage of Secondary Materials.'' It is an

independent proposal which could be adopted regardless of the Agency's

decision on land-based storage units.

In the January 25 proposal, the Agency discussed one option for

evaluating wastes generated from these types of co-processing

operations. 61 FR at 2351. In order for the waste to qualify for the

Bevill exclusion under that proposal, the Agency proposed the following

criteria: (1) The waste needs to result from operations that process

greater than 50% beneficiation raw materials; (2) the material being

co-processed would have to meet the tests for legitimate recycling

proposed in the January 25 notice; and (3) the resulting waste could

not be ``significantly affected'' by addition of the co-processed,

alternative feedstock. This ``significantly affected'' test involved

comparing wastes generated by processing exclusively Bevill raw

materials with wastes from co-processing alternative feedstocks and

showing that the addition of the alternative feedstocks did not have

either a statistically significant effect, or, in the alternative, an

environmentally significant effect. Wastes not ``significantly

affected'' remained the type of waste EPA had determined warrant

Subtitle C exemption. 61 FR at 2351.

Most industry commenters supported the 50 percent criteria but

disagreed with the need for a quantified legitimacy test and the

significantly affected test. Further, industry commenters argued that

these tests were unworkable as applied to their wastes. Industry

commenters also argued that Congress intended the Bevill Amendment to

be interpreted broadly, to include not only solid waste from the

extraction, beneficiation, and mineral processing of ores and minerals

but also wastes generated when (1) non-Bevill feedstocks are added to a

unit that generates a Bevill waste and (2) non-Bevill wastes are added

directly to a Bevill waste.

At the outset, it is important to note the distinction between

these two scenarios. The new option discussed in today's proposal

addresses the first scenario in which non-Bevill feedstocks are co-

processed with Bevill raw materials in a unit that generates a Bevill

waste. The second scenario, which refers to direct disposal of a non-

Bevill waste with a Bevill waste, was addressed in the January 25, 1996

proposed rule and EPA's proposed approach for dealing with that

scenario is not being modified by today's notice.5

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

\5\ See Proposed Amendment to Bevill Mixture Rule, 61 FR at

2352. The Agency proposed that Subtitle C requirements would apply

when non-Bevill hazardous wastes are disposed with, stored with,

mixed with or otherwise combined with Bevill-exempt solid wastes.

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

Under today's new option, in order for a waste to qualify for the

Bevill exclusion, all feedstocks entering the unit must be solely

derived from the extraction, beneficiation or processing of a virgin

ore or mineral. This means that only extracted virgin ores used as a

feedstock to a beneficiation operation and only concentrates derived

from beneficiation and then used as a feedstock to mineral processing

would be eligible for the Bevill exclusion. If alternative materials

are used as feedstocks, the resulting waste would not be eligible for

the Bevill exclusion. For purposes of this proposal, alternative

feedstocks include secondary materials generated from mineral

processing operations and any materials generated in industries other

than mining or mineral processing, regardless of whether the material

exhibits a hazardous characteristic.

Under this option, the 50 percent criteria for Bevill eligibility,

as discussed in the January 25, 1996 proposed rule at 61 FR 2351, would

not be applicable. Similarly, the significantly affected test proposed

at 61 FR 2351 would no longer be applicable. Since under today's

proposal, any addition of a non-Bevill feedstock would disqualify the

resulting wastes from the Bevill exemption, the 50 percent and

significantly affected tests would be redundant.

This proposal is based on the following principles. First, the

Bevill exemption allows for management of what would otherwise be

hazardous waste outside of subtitle C controls. This uncontrolled

management has led to instances of, widespread, and serious

environmental damage. (See Damage Cases and Environmental Releases,

EPA, 1997). In light of this, EPA believes it is sound policy to

interpret the scope of the exclusion to the narrowest permissible in

order to limit the amount of hazardous waste escaping regulatory

control. Second, the Bevill amendment creates an unfortunate incentive

to maximize volume of Bevill waste generated. Put another way, there is

an incentive to maximize the volume of material processed through the

Bevill circuit because the resulting wastes are accorded Bevill exempt

status. Compounding the problem, the co-processing can frequently make

the resulting wastes more toxic. Again, given the exempt status of the

wastes, EPA believes it makes sense to limit the scope of the exemption

and reduce this incentive for waste maximization. These points are

discussed more fully below. Co-processing of non-Bevill feedstock has

changed significantly since the Agency performed its Congressionally

mandated studies. When EPA studied extraction, beneficiation, and

mineral processing wastes in the 1985 and 1990 Reports to Congress, the

Agency did not specifically study the practice of co-processing

alternative feedstock with Bevill feedstocks. In the case of

beneficiation, the Agency believed this practice was conducted on such

a small scale as to warrant little or no mention in the 1985 Report to

Congress and 1986 Regulatory Determination. For mineral processing the

Agency believed that both co-processing and co-disposal of hazardous

materials was performed on such a small scale that it addressed both

situations under a general Bevill mixture rule. (See 54 FR 36622-23 and

[[Page 26053]]

also 61 FR 2352). The Agency's continued study of mining and mineral

processing indicates that co-processing of non-Bevill feedstocks is

becoming much more prevalent. This could be because as EPA has

implemented the LDR program, generators have sought alternative outlets

for waste rather than paying for the required treatment. For example,

copper smelting operations currently process a substantial portion of

the nation's F006 listed hazardous electroplating wastes, a practice

that did not exist when EPA studied the Bevill special waste, copper

slag, produced by this smelting. Based on environmental damages from

copper slag and other Bevill wastes, the Agency is concerned about the

contribution of contaminants from non-Bevill sources. The Agency seeks

additional data on the types, quantities, and management practices of

non-Bevill feedstock which are co-processed by units that generate

Bevill wastes.6

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

\6\ EPA notes that it has established a different type of rule

covering the status of cement kiln dust generated when a cement kiln

co-processes hazardous waste fuel along with its normal raw

materials. In this case, the cement kiln dust retains Bevill status

so long as the dust is not ``significantly affected'' by the

hazardous waste co-processing. 40 CFR 266.112. There is an important

distinction between this situation and co-processing in the

beneficiation/mineral processing setting which justifies a different

regulatory approach. A cement kiln which burns hazardous waste must

obtain a subtitle C permit for its hazardous waste storage and

combustion activities, and must subject its entire facility

(including cement kiln dust management) to RCRA corrective action in

the event of releases. There thus are substantial environmental

safeguards present which justify a more lenient interpretation of

Bevill status.

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

The Agency believes that the addition of hazardous substances from

non-Bevill sources only makes the risk posed by exempt mining wastes

greater. In light of the environmental damages caused by Bevill wastes,

the high cost of remediation, and the contribution of contaminants from

non-Bevill feedstocks, the Agency is taking comment on a rigorously

narrow reading of the Bevill exemption and proposing this option which

removes the Bevill exclusion for wastes that are generated from a unit

or device that co-processes non-Bevill alternative feedstocks. Under

this option, non-Bevill feedstocks may still be processed in a Bevill

device or unit; however, the resulting wastes will not be afforded the

Bevill exclusion. The Agency found cases where alternative feedstocks

may have contributed to the quantities of hazardous constituents found

at mining and mineral processing sites. (See Damage Cases and

Environmental Releases, EPA, 1997.) In addition, the Agency has

reviewed other damage cases from beneficiation and mineral processing

sites and similarly found that non-Bevill materials may have

contributed to the environmental problems at these sites. Id. Because

of the potential additive risk posed by the co-processing of non-Bevill

materials, the Agency is proposing an option that would prevent

contaminants from non-Bevill materials being afforded the Bevill

exclusion.

The Agency believes that co-processing even nonhazardous

alternative feedstocks can also potentially pose additional risks when

co-processed in a unit generating Bevill waste. Some alternative

feedstocks, while not exhibiting a RCRA hazardous characteristic, often

still contain hazardous constituents that ultimately are disposed with

the Bevill wastes. These hazardous constituents are found in

remediation wastes at mining sites, adding to the cleanup costs. (See

Damage Cases and Environmental Releases, EPA, 1997). The Agency's views

are influenced in part on Horsehead Resources Corp. v. Browner 16 F.3d

1246, 1258 where the Court held that ``it simply makes no sense to

permit Bevill devices to become inadequately regulated dumping grounds

for hazardous materials.'' The Agency is proposing that the co-

processing of alternative feedstocks, even those that do not exhibit a

characteristic under RCRA, results in the loss of the Bevill exemption

for the resulting wastes. The Agency solicits comment on this approach.

There are situations where secondary materials generated from

mineral processing would be given Bevill protection. This is when the

secondary material is independently classified as a Bevill waste, for

example, it is one of the enumerated special mineral processing wastes

streams or a beneficiation waste. (See Sec. 261.4(b)(7)). Under today's

proposal, the use of a Bevill waste as an alternative feedstock does

not change the Bevill status of a resulting waste. For example, copper

slag (a special 20 waste) used as an alternative feedstock for a copper

beneficiation operation would not change the Bevill status of the

resulting tailings. The Agency believes that use of a Bevill waste as

an alternative feedstock does not have an overall impact on the

toxicity of the resulting waste since any Bevill waste can be land-

disposed without regard to co-disposal with another Bevill waste.

The benefits to the option proposed today include a reduction of

hazardous substances found in the resulting Bevill wastes and a

potential reduction of environmental risks. The environmental cleanup

costs due to hazardous substances found at mine and mineral processing

sites is significant (See Costs of Remediation at Mine Site, EPA,

1997).

The Agency also believes that this approach could assist in more

simpler application of the exemption. The application of the Bevill

exemption poses many practical difficulties, especially where non-

Bevill feedstocks are co-processed and other industrial wastes are

stored and mixed with Bevill feedstocks. There can be a significant

implementation burden (e.g., analytical testing, assessing a facility's

material balance and operating costs) associated with discerning in

some cases whether co-processing of alternative feedstocks is a

legitimate form of recycling or simply a method of disposal.

In these instances, as noted earlier, the Bevill exemption creates

an incentive to maximize generation of wastes. Any secondary materials,

including those that are low volume and highly toxic, that are used as

a feedstock in a beneficiation unit are afforded the same Bevill

protection as a large volume mining waste. Given that beneficiation

units generally recover only a fraction of material in a feedstock

(often less than one percent of the volume or weight) the majority of

the alternative feedstock ultimately is discarded along with the Bevill

waste. Further, the remainder often has contaminant concentrations

greater than the Bevill waste. (See Characterization of Mineral

Processing Wastes and Materials, EPA, 1997) By clearly defining which

feedstocks are derived from the mining of an ore or mineral and

therefore Bevill eligible, regulators would be more readily able to

determine which wastes found at a mine or mineral processing sites

qualify for the Bevill exemption and which do not.

However, there would be negative aspects of this restriction on

alternative feedstocks. First, there are limits to EPA's knowledge of

environmental damage caused by Bevill wastes. Most Bevill wastes are

disposed of in land-based units and the Agency can measure the degree

of contamination caused by the overall disposal practice. In many cases

it is difficult to distinguish between the contribution of contaminants

from alternative feedstocks and contaminants from Bevill-exempt wastes.

Some alternative feedstocks may not pose any additive risk to the

resulting Bevill wastes, and this option may needlessly restrict

legitimate recycling and cause industry to forgo economical recovery of

minerals. This may be especially true in the case where the alternative

feedstock does not exhibit the toxicity

[[Page 26054]]

characteristic (TC). Removing Bevill-exempt status if such materials

are used as an alternative feedstock may therefore not result in

improved environmental management. A useful means of recycling the

alternative feedstock also might be eliminated. The Agency solicits

comment on this proposed option generally as well as the specific

proposal to eliminate the applicability of Bevill for co-processing

nonhazardous materials.

This restriction would not be applicable to materials such as water

or acid that are otherwise effective substitutes for commercial

products; these materials are not being reclaimed and are not solid

wastes. (See 261.2(e)(ii)). The Agency solicits comment on whether

there may be situations where water or acid is a solid waste because

they are being reclaimed in a Bevill unit and whether the alternative

feedstock restriction should apply.

The Agency seeks comment on this option, which would remove the

Bevill exclusion for wastes resulting from the co-processing of non

Bevill feedstocks. As previously stated, the Agency also seek comments

on whether this restriction should apply to all non-Bevill feedstock or

only to those that exhibit a hazardous characteristic, specifically the

TC. (261.24).

C. High Risk Mining Wastes Excluded by the Bevill Amendment

1. General Discussion

The Agency is presenting new information on threats to human health

and the environment from Bevill mining and mineral processing wastes

and posing the question of whether certain wastes currently excluded

under Bevill warrant further study or regulatory controls. The Agency

also is soliciting comment on whether a high volume test or other

method should be applied to wastes in order to determine Bevill

eligibility.

As part of the information gathering efforts under the Phase IV

rulemaking, the Agency has continued to learn more about management

practices in the mining and mineral processing industry, and has

reached the point where public input would help focus the Agency's

future efforts in determining how best to address the risks posed by

Bevill wastes. The Agency's concerns include issues involving

environmental and natural resource damages from acid mine drainage, the

use of cyanide and other toxic chemicals, radioactivity, stability of

tailings and waste rock piles, and in-situ mining methods. The Agency

prepared a report that includes a history of the Bevill Amendment and

the Agency's activities, description of mining practices, information

about actual and potential environmental threats caused by mining and

mineral processing wastes, and information about new risk assessment

techniques that may be applicable to mining wastes. This report is

presented in the RCRA docket for review and comment. (See Risks Posed

by Bevill Mining Wastes, EPA, 1997). Any regulatory activity regarding

the examination of risk posed by Bevill wastes would be addressed in a

future rulemaking other than Phase IV.

Based on the information in this report, the Agency is therefore

seeking comment on whether reexamination of some Bevill wastes is

warranted. In today's notice, the Agency is not proposing any specific

change to the current Bevill exclusion nor has it concluded that any

particular course of action is most appropriate. Rather, the Agency is

presenting new information on risks posed by Bevill wastes and is

posing the question of whether some waste streams require additional

study or regulatory controls given the availability of new risk

assessment techniques. Conversely, the Agency is also soliciting

comment on whether more protective environmental practices have been

put in place and, if so, whether future regulatory actions are

necessary.

2. Wastes Eligible for the Bevill Exclusion

Commenters on the January 25 proposed rule contend that the Agency

was proposing to narrow the current Bevill exemption by identifying

certain wastes in its technical background documents that would be

subject to Subtitle C requirements. The Agency includes a discussion in

that document and made it available to the public because EPA believes

that it is helpful for all parties to understand which wastes are

indeed eligible for the Bevill exclusion for purposes of this rule when

finalized. As discussed in previous sections of today's notice, small

volume hazardous waste may contribute to the overall risk posed by some

Bevill wastes and reduction of these waste streams would be desirable.

The Agency currently determines whether Bevill is applicable on a case-

by-case qualitative basis. The Agency is soliciting comment on whether

to maintain the current qualitative assessment, or establish some other

method to determine Bevill eligibility.

In addressing the issue of whether certain wastes should be

eligible for the Bevill exclusion, the D.C. Circuit Court of Appeals

found that Congress intended the Bevill Amendment to be limited to

``special wastes'' that are high volume and low hazard.7 The

Agency subsequently defined special wastes to include only extraction/

beneficiation wastes and 20 mineral processing wastes. The Agency

developed a high volume, low hazard criteria (e.g., 45,000 tons per

year for solids, one million tons per year for liquids as generated)

for mineral processing waste, consistent with the direction from the

D.C. Circuit decisions, but did not apply these criteria on a

wastestream by wastestream basis for the previously addressed

extraction/beneficiation wastes. 54 FR 36619. Courts have also found

that small volume hazardous wastes are outside the scope of

Bevill.8 It is clear from the legislative history that both

EPA and Congress intended the ``special waste'' concept to have a

finite scope that did not encompass wastes from operations that produce

wastes in volumes similar to other manufacturing operations. 54 FR

15325. Further, the Court in Horse head Resources v. Browner (16 F.3d

1246, 1258) held that the large volume criteria applies to all Bevill

wastes, and not just those from mineral processing.

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

\7\ ``[T]he structure of the Bevill Amendment suggests that

Congress intended to single out high-volume `special wastes' for

regulatory suspension when it excluded `solid waste from the

extraction, beneficiation and processing of ores and minerals.' ''

Environmental Defense Fund v. EPA, 852 F.2d 1316, 1327 (D.C. Cir.

1988). The Court also decided that ``[t]he legislative history of

the Bevill Amendment establishes that the key to understanding

Congress' intent is the concept of ``special waste'' articulated in

the regulations proposed by EPA on December 18, 1978 following the

enactment of RCRA.'' Id. See 43 FR 58911 (1978) and 50 FR 40293

(1985).

\8\ The D.C. Circuit Court of Appeals held that the Agency's

attempt to exclude six low volume, high hazard smelting wastes was

an ``impermissibly over broad interpretation of the Bevill

Amendment.'' EDF II at 1330. ``Since EPA found that those six

smelter wastes are low volume and high hazard wastes, it cannot

refuse to list them [as hazardous wastes].'' EDF II at 1327. The

Agency notes that these six smelting wastes (which includes K088

potliners and K064 acid plant blowdown) are generated in quantities

greater than most of the non-Bevill secondary materials at issue.

``Because the Court explicitly determined that the six smelting

wastes are not high volume, low hazard wastes, the generation rates

of these wastes can and should serve as a lower bound below which

wastes should not be afforded Bevill status.'' 54 FR 15330 April 17,

1989.

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

Under section 3001(b)(3)(A)(ii) of RCRA, the Bevill exclusion is

available for ``solid waste from the extraction, beneficiation and

process of ores and minerals'' (emphasis added). In determining whether

a particular waste is, in fact, from one of these processes, the Agency

has generally evaluated whether the waste is ``uniquely

[[Page 26055]]

associated'' with the enumerated processes. The Agency defines non-

uniquely associated wastes to be non-indigenous to mining, small in

volume, and generated by many other non-Bevill industrial operations.

(See 45 FR 76619, November 19, 1980 and 54 FR 36623, September 1,

1989). Examples of non-uniquely associated wastes include spent

solvents, pesticide wastes, and discarded commercial chemicals. In the

Agency's view, these wastes are logically viewed as not being ``from''

mineral processing, beneficiation or extraction and therefore are not

subject to the Bevill exclusion.

When applied to ancillary operations located at a mine site, such

as degreasing solvents from vehicle maintenance, it is relatively

straightforward to apply the uniquely associated principle and

determine that the spent solvents are not uniquely associated with

mining and therefore are not eligible for the Bevill exclusion. In this

example the solvents are small volume, highly toxic, not indigenous to

the ore being mined, and commonly generated from other industrial

sectors.

However, it becomes more difficult to make such determinations when

a small volume material comes into contact with a beneficiated ore or

mineral during normal operations. Through contact the small volume

material may acquire some of the chemical composition of the Bevill

waste (e.g., a solvent absorbs some of the Bevill waste). Having

acquired some of the chemical properties of the Bevill waste, under

what circumstances, if any, should the solvent be considered a Bevill

waste when discarded? Some commenters contend that Congress intended

the Bevill Amendment to be interpreted broadly and that the Agency's

application of the uniquely associated principle is an impermissible

interpretation.9

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

\9\ Comments of the National Mining Association on the

supplemental Proposal to Phase IV, April 24, 1996. Docket F-95-PH4A-

FFFFF.

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

In its studies of the mineral industry, the Agency found several

small volume wastes that come into contact with a Bevill

waste.10 These include lead anodes, spent kerosene solvent,

and crud from copper solvent extraction and electrowinning; and

crucibles, cupels, and acid cleaning solution from gold heap leach

operations. All of these small volume wastes are inherently hazardous

(they would be hazardous waste when disposed regardless of whether

contact occurred). The Agency believes that these wastes may be viewed

as not being uniquely associated with mineral processing, beneficiation

and extraction, and this conclusion is reflected in the technical

background document to the Phase IV proposal. As stated in the previous

section, the Agency believes it is sound policy to interpret the scope

of the exclusion narrowly in order to prevent Bevill waste from being a

dumping ground for hazardous waste and to reduce any incentives for

waste maximization. The Agency believes that, given the extent of

interest in EPA's practice in this area, solicitation of public comment

would help ensure that EPA's application of the Bevill exclusion in

particular cases is based on sound policies reflecting public input.

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

\10\ Identification and Description of Mineral Processing

Sectors and Waste Streams, EPA, 1995.

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

Recognizing that the ``uniquely associated'' principle can be

difficult to apply in certain cases, the Agency is considering whether

a simple application of the high volume thresholds to determine Bevill

eligibility for beneficiation and extraction wastes discussed above

might be preferable to application of the uniquely associated

principle. Under this option, there would be no need to consider the

non-uniquely associated principle because any waste stream from the

extraction, beneficiation, or processing of an ore or mineral that is

not high volume would not be a Bevill waste. This option has the

advantage of being simple to apply and is consistent with the broad

parameters of Congressional intent that Bevill generally applies only

to high volume wastes. This option would help prevent additional toxic

constituents being disposed with Bevill wastes, encourage recycling,

and may result in reduction of cleanup costs. The Agency solicits

comment on whether a large volume standard should be a determining

factor for Bevill eligibility and, if so, whether the mineral

processing high volume standards of 45,000 tons per year per waste

stream for solids and one million tons per year per waste stream for

liquids are appropriate measures of high volume.

The Agency also solicits public input regarding other potential

approaches that could be applied in evaluating whether a particular

waste is uniquely associated, and therefore excluded under the Bevill

Amendment. One approach would be to adhere to a principle that any

material that comes into contact with a Bevill waste, feedstock, or

product during normal process operations becomes a uniquely associated

Bevill waste when discarded. This approach would be consistent with

past determinations that non-contact operations are non-uniquely

associated, such as degreasing solvents from vehicle maintenance. The

approach, however, would alter some determinations contained in the

technical background document to the Phase IV Supplemental Proposal

involving contact operations. Lead anodes, spent kerosene solvent, and

crud from copper solvent extraction and electrowinning; and crucibles,

cupels, and acid cleaning solution from gold heap leach operations,

would all be considered uniquely associated and therefore Bevill wastes

under this approach. A variation of this approach would be to utilize

the contact principle, as stated above, but to consider small volume

wastes that exhibit a hazardous characteristic both before and after

contact with the Bevill waste, feedstock, or product, as being non-

uniquely associated. This option would maintain the determination that

non-contact wastes are non-uniquely associated. Where contact is

involved, the option may increase the number of uniquely associated

wastes identified in the technical background document to the Phase IV

Supplemental Proposal. However, lead anodes, spent kerosene solvent,

and crud from copper solvent extraction and electrowinning, and

crucibles, cupels, and acid cleaning solution from gold heap leach

operations would be considered non-uniquely associated (all of these

small volume wastes are inherently hazardous--they would be hazardous

waste when disposed regardless of whether contact occurred). The Agency

solicits comment on whether to stay with the existing qualitative

approach, or whether any of the above options provides a clearer and

more appropriate definition of the uniquely associated principle. The

Agency solicits comment on this and other potential analytical

frameworks that the Agency and States could utilize in evaluating

whether a particular waste is subject to the Bevill exclusion.

VI. Proposed Exclusion of Wood Preserving Wastewaters and Spent Wood

Preserving Solutions From Classification as Solid Waste Under RCRA

Summary: EPA is proposing to amend the regulations under the

Resource Conservation and Recovery Act (RCRA) to provide an exclusion

from the definition of solid waste for certain materials generated and

recycled by the wood preserving industry. Specifically, the provisions

would exclude wood preserving wastewaters and spent wood preserving

solutions from classification as solid waste under RCRA, provided that

they are recycled and reused on-site in the production process for

their original intended purpose, the materials are managed to prevent

release, and

[[Page 26056]]

they meet other conditions specified in the following section. The

Agency seeks public comment on this proposal.

A. Background

EPA first raised the possibility of providing a regulatory

exclusion from the definition of solid waste for the wood preserving

industry's recycled wastewaters in the August 22, 1995 Land Disposal

Restrictions (LDR) Phase IV proposed rule (60 FR 43654). In that

proposed rule EPA stated that it may be inappropriate to regulate a

reclamation process under RCRA when that process is an essential part

of production and the materials being reclaimed are not part of the

waste disposal problem. We acknowledged that under the current system,

it is possible for a wood preserving plant that reclaims its

wastewaters as an essential step in the production process to

successfully petition EPA for a site-specific variance (even though

these wastes contact a drip pad, which is a regulated hazardous waste

management unit), provided that the reclamation operation meets the

standards and criteria identified under 40 CFR 260.31(b).

Under the current regulatory program, EPA may grant site-specific,

case-by-case variances from the definition of solid waste (and

therefore from the regulations under RCRA to which persons handling

solid and hazardous waste are subject) for materials that are recycled

in certain ways, (see 40 CFR 260.30 and 40 CFR 260.31). Any solid waste

generator may petition EPA for a variance from the definition of solid

waste based upon these criteria.

1. Request for Comment in Land Disposal Restrictions Phase IV Proposed

Rule

In the August 22, 1995 LDR proposal, EPA requested comment on

granting an exclusion from the definition of solid waste for production

wastewaters being reclaimed by the wood preserving industry if the wood

preservers could demonstrate on an industry-wide basis that reclamation

of these wastewaters when reclaimed meet the eight variance criteria

under Sec. 260.31(b). EPA asked for comment on the extent to which the

industry as a whole could meet the criteria. We expressed particular

interest in the extent to which the industry could show that its

reclamation operations meet the criterion under Sec. 260.31(b)(3). This

provision requires a demonstration that a material is handled in a

manner that minimizes loss before reclamation.

EPA received comments from the wood preserving industry, a state

regulatory agency, and a national environmental organization. These

comments were noticed in a May 10, 1996 Notice of Data Availability

(NODA) at 61 FR 21418 for the LDR proposed rule and were made available

for public review as part of the docket for that rule. All comments

received to date concerning a possible exclusion for recycled wood

preserving wastewaters are currently available in the docket for the

August proposal or the NODA.

2. Statutory Remedy Considered by Congress

While EPA was soliciting comment on the feasibility of an exclusion

for the industry's recycled wastewaters, Congress was considering

action to provide a statutory exclusion from the definition of solid

waste for these materials. Congressional staff asked EPA to provide

technical review and advice as they developed H.R. 2335, a bill that

would have exempted ``materials contained, collected, and reused in an

on-site production process that prevents releases to the environment''

from the definition of solid waste.

As part of this process, EPA staff participated in a number of

meetings with Congressional staff and representatives from the wood

preserving industry and was able to gather additional information to

assist EPA in determining whether or not the industry would be able to

successfully meet the evaluation criteria EPA had discussed in the

August 22, 1995 Federal Register notice. EPA added this information,

submitted by both EPA and industry representatives at the request of

Congressional staff, to the LDR Phase IV rulemaking docket. This

information was not referenced in the May 10, 1996 NODA because EPA had

not yet gathered it. It is currently available for review in the docket

for the May 10, 1996 NODA.

B. Rationale for Proposal

The August 22, 1995 LDR notice provided no specific regulatory

language for an exclusion for the wastewaters generated and recycled by

the wood preserving industry because the Agency was at that time

soliciting information to determine whether proposing such an exclusion

would be justified given the criteria referenced above. Based upon the

information EPA received, EPA believes an exclusion is appropriate and

therefore, today, EPA is soliciting public comment on a conditional

exclusion from the definition of solid waste for wood preserving

wastewaters and spent wood preserving solutions that are recycled and

reused on-site at a wood preserving plant for their original intended

purpose. Under today's approach, wastewaters and spent wood preserving

solutions that are recycled on-site for their original intended purpose

at a wood preserving facility are not solid wastes if they are recycled

in a manner that meets the conditions discussed below. We believe that

an exclusion is justified given the degree to which recycling of these

materials as evaluated using the criteria set out in 40 CFR 260.31(b)

is, on an industry-wide basis, an essential part of the production

process and does not contribute to the waste management problem. It is

important to clarify that today's proposal is for an exclusion from the

definition of solid waste and not for a variance as provided for under

40 CFR 260.30. EPA is simply using the Sec. 260.31(b) variance criteria

to aid in an evaluation of whether an industry-wide exclusion is

justified. It is only through compliance with the conditions EPA is

presenting today that a wood preserving plant would be able to claim

the exclusion.

In its comments on the August 22, 1995 Federal Register (in a

letter dated November 20, 1995, hereafter referred to as ``the AWPI

letter''), the American Wood Preservers Institute (AWPI) addressed the

Sec. 260.31(b) criteria and explained how the wood preservers meet them

on an industry-wide basis. AWPI's comments are included in the docket

for the August 1995 proposed rule.

As mentioned above, in the August 22, 1995 Federal Register notice

EPA expressed particular interest in the extent to which the industry

could show that its reclamation operations meet the Sec. 260.31(b)(3)

criterion that a material be handled before reclamation to minimize

loss. Accordingly, EPA is today proposing conditions that should ensure

that any facility meeting the conditions would be minimizing loss of

its wastewaters and spent wood preserving solutions prior to

reclamation. With respect to other criteria under Sec. 260.31(b), EPA

believes that the recycling of wastewaters and spent wood preserving

solutions is essential to the financial well being of waterborne wood

preserving plants (see discussion under section D below and page eight

of the AWPI letter) and therefore meets the criteria set out in

Sec. 260.31(b)(1) for those plants. Without recycling their wastewater

and preservative, wood preserving plants would have to purchase fresh

water and preservative and pay for their disposal. It is our

understanding that reuse of wastewaters and spent wood preserving

solutions is standard practice at waterborne plants, which are subject

to zero discharge

[[Page 26057]]

requirements under the federal Clean Water Act and therefore, those

plants meet the criteria set out in Sec. 260.31(b)(2). The condition

that these materials be recycled and reused on-site virtually assures

close proximity of the recycling operation to the primary production

process (Sec. 260.31(b)(5)) and that the materials are generated and

reclaimed by the same party (Sec. 260.31(b)(7)). In its letter, AWPI

stated that ``in both oilborne and waterborne processes, the

reclamation operation is located within, and is an integral component

of, the production process area.'' We are also proposing that the

exclusion for wastewaters and spent wood preserving solutions being

reclaimed be conditioned on the reclaimed materials being used for

their original intended purpose when returned to the production process

(Sec. 260.31(b)(6)). It is EPA's understanding (and is stated by AWPI

in their letter) that the reused materials, once reclaimed, are

returned to the process in substantially their original form

(Sec. 260.31(b)(6)), and that the short amount of time . EPA believes

that the industry also meets Sec. 260.31(b)(4) criteria concerning the

amount of time between generation and reclamation and reclamation and

return to the primary production process Sec. 260.31(b)(4)) supports

finding that reclamation is an essential part of the production

process. According to AWPI's letter, recoverable materials are

reclaimed immediately upon generation at both waterborne and oilborne

plants; and are immediately available for reuse at waterborne plants

and are available for reuse after 24-48 hours at oilborne plants.

EPA believes that plants meeting the conditions proposed today will

be recycling their wastewaters and spent solutions in a manner that is

protective of human health and the environment. Today APIARY seeking

comment on the regulatory language proposed below that would allow for

the implementation of this exclusion.

C. Wastes Commonly Reused by the Wood Preserving Industry

Wood preserving wastewaters containing spent wood preserving

solutions are commonly reused by wood preserving plants that use

chromated copper arsenate (CCA) as a preservative and by other

waterborne plants (as opposed to oilborne plants which use

pentachlorophenol or creosote as a preservative). Typical pressure

treatment processes involve the reuse of preservatives from work,

storage, and mixing tanks for use in the retort. Preservative

formulation lost with wastewater or through drippage into the door

sumps (which collect liquid outside of the retort) is often collected

and fed back into the production process. The industry also commonly

reuses both drippage collected from drip pads (as is required under

RCRA regulations) and wastewaters that it generates during production.

The combination of the economic incentive to make use of existing

resources and the regulatory requirements under the Clean Water Act

(see 40 CFR Part 429) for the discharge of the industry's effluent

waste, including a zero discharge requirement for waterborne plants,

make the reuse of wastewater an attractive and necessary alternative to

disposal.

D. Current Regulatory Status of Recycled Wastewaters and Spent Wood

Preserving Solutions

Under the current regulations, wood preserving wastewaters and

spent wood preserving solutions are regulated as solid and hazardous

wastes until they are reclaimed by filtration, oil water separation or

other means. The reclaimed materials are no longer regulated as solid

and hazardous wastes once the reclamation process is completed provided

they are used to treat wood. EPA issued a Federal Register Notice

clarifying the regulatory status of these materials on July 1, 1991 (56

FR 30192). For example, water that is used to wash spent wood

preserving solutions from a drip pad is regulated as a solid and

hazardous waste under the current system. Once the water containing the

spent solutions has been reclaimed, it is no longer considered a solid

and hazardous waste if it is put back into the retort or otherwise used

to treat wood. See Sec. 261.3(c)(2)(i) (final sentence). (Once the

recycled water has been used to treat wood and is ready for discard or

further reclamation, it is again regulated as a solid and hazardous

waste.)

E. Proposed Exclusion of Wastewaters and Spent Wood Preserving

Solutions That are Recycled

1. General

Today EPA is asking for comment on amending the definition of solid

waste to exclude wastewaters and spent wood preserving solutions that

are recycled from regulation as solid and hazardous wastes if they are

managed in a way that meets certain conditions. This would mean that,

if this proposal is finalized, wastewaters and spent wood preserving

solutions that are currently regulated as solid and hazardous wastes

prior to reclamation, would no longer be regulated as solid and

hazardous wastes if they are recycled according to the conditions

discussed below.

2. Conditions for Exclusion

a. Materials are Recycled and Reused On-Site in the Production

Process for Their Original Intended Purpose. Under this proposal, the

exclusion would apply only to wastewaters and spent wood preserving

solutions that are recycled and reused on-site in the production

process for their original intended purpose. As mentioned above, when

EPA initially raised the possibility of developing an exclusion for in-

process wastewaters recycled on-site at wood preserving plants (60 FR

43654), the Agency said that a decision to grant such an exclusion

would be based upon the degree to which the industry could demonstrate

that the handling of these materials at wood preserving plants meet the

40 CFR 260.31(b) criteria, on an industry-wide basis. One of these

criteria is ``whether the reclaimed material is used for the purpose

for which it was originally produced when it is returned to the

original process * * *'' (40 CFR 260.31(b)(6)). By requiring that these

materials be used for their original intended purpose, it is our

intention that they should be generally reused to treat wood. For

example, at many wood preserving plants once water has been used to

wash hazardous wastes off drip pads, it is collected and returned to a

tank in order to be used to treat wood, with no releases to the

environment. Because such a recycling operation (provided that it is

managed to prevent releases to the environment) returns the

preservative to the process to treat wood and adequately addresses the

eight variance criteria, EPA is proposing an exclusion for

appropriately managed wastewaters and wood preserving solutions that

are reused for their original intended purpose. EPA has not evaluated

whether any other use of these materials might merit an exclusion from

the definition of solid waste. Therefore, for the purposes of today's

proposal ``original intended purpose'' does not include uses other than

treating wood.

b. Materials are Managed to Prevent Release. The exclusion EPA is

proposing today would only apply to those materials that are managed to

prevent releases to the land and groundwater. This condition is to

assure that any plant claiming this exclusion is adequately handling

its recyclable wastewaters and spent wood preserving solutions to

minimize loss prior to reclamation. Based on our experience, management

to prevent releases would include, but not necessarily be limited

[[Page 26058]]

to, compliance with the standards for drip pads under Subpart W of 40

CFR Parts 264 and 265 and maintenance of the sumps receiving the

wastewaters and spent solutions from the drip pad and retort to prevent

leaching into the land and groundwater.

This exclusion would not apply to wastewaters and spent wood

preserving solutions that are at any time managed in a surface

impoundment. We would not consider this type of operation to be

adequate management of these materials to minimize loss prior to

reclamation.

c. Units Can Be Visually or Otherwise Determined to Prevent

Releases. In order for EPA to adequately assure compliance with the

condition to prevent releases to the land and groundwater, the Agency

proposes to require that any plant claiming this exemption assure that

inspectors are able to visually or otherwise determine that the plant

is preventing such releases. For example, an inspector should be able

to visually or otherwise ascertain whether the bottom and sides of a

sump (which is often made of concrete) are preventing releases to the

land and groundwater. This could be assured by having a secondary

containment system that could be observed or by providing a means to

easily empty a sump to allow for inspection or through other means.

d. Drip Pads Must Comply with Subpart W Standards. The exclusion

that EPA is proposing today would require any plant claiming the

exclusion and collecting or managing its wastes on a drip pad to comply

with the regulatory drip pad standards referenced above. EPA has

recognized that there is a potential for certain plants that are

currently large quantity generators to be newly classified as

conditionally exempt small quantity generators (CESQG) (see 40 CFR

261.5) solely by virtue of the exclusion proposed today. Unless EPA

explicitly requires compliance with the Subpart W drip pad standards as

EPA proposes to do, were a plant to avail itself of this new generator

status, it would not be compelled to comply with these requirements.

The Agency is convinced that a plant's failure to comply with the drip

pad standards under RCRA would result in failure to meet the 40 CFR

260.31(b) variance criteria (See, e.g., 260.31(b)(3)). Therefore, the

Agency is proposing that in order to qualify for this exclusion, a

plant would need to comply with the Subpart W drip pad standards

regardless of whether that plant generates no more than 100 kg of

hazardous waste per month (which is the definition of a CESQG under 40

CFR 261.5(a)) once its wastewaters and spent wood preserving solutions

are excluded from the definition of solid waste under this provision.

It is not EPA's intent or belief that the proposed exclusion for

recycled wood preserving wastewaters and spent solutions in any way

reduces the obligations that wood preserving plants have under 40 CFR

Part 264, Subpart W and Part 265, Subpart W, including the requirements

for drip pads and the requirements under Sec. 264.570(c) and

Sec. 265.440(c) for response to infrequent and incidental drippage in

storage yards. EPA requests comment from any party who believes it does

reduce these requirements.

3. Process Residuals

The Agency wishes to emphasize that today's proposed exclusion from

the definition of solid waste for wood preserving wastewaters and spent

wood preserving solutions which are recycled and reused on-site in the

production process for their original intended purpose at wood

preserving plants pertains only to these materials. The proposed

exclusion does not apply to residuals which may be produced from, i.e.,

derived from, these wastewaters and spent wood preserving solutions.

Process residuals derived from these excluded wastewaters and spent

wood preserving solutions continue to meet the hazardous waste listing

description for EPA hazardous waste numbers FO32, FO34 and FO35 (See

Sec. 261.31(a)) and must be managed as RCRA hazardous wastes.

4. Notification

Today the Agency is also seeking comment on whether a plant

claiming the proposed exclusion should be required to place a

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

to submit it to either EPA or a state regulatory authority so that an

inspector is able to review it. The notification form would identify,

among other things, the specific dates for which a wood preserving

plant was claiming this exclusion.

5. Conditions Under Which the Exclusion Would No Longer Apply

Today EPA is also seeking comment concerning the conditions under

which the proposed exclusion, once claimed, would no longer apply. For

example, among other things, EPA seeks comment on whether the spill of

a small quantity of excluded material would void the exclusion for only

the spilled material or for all of the wastewaters and spent wood

preserving solutions generated by the plant and, if so, for how long.

VII. Proposal to Amend Treatment Variance Rules

Summary: EPA is also proposing today to clarify the regulatory

standard under which variances from treatment standards adopted to

implement the Land Disposal Restrictions (LDR) program are decided, see

40 CFR 268. 44 (a) and (h), to explicitly reflect EPA's long-standing

and reasonable interpretation that a treatment variance can be granted

when treatment of the waste to the level or by the method specified in

the regulations is not appropriate, whether or not it is technically

feasible to treat the waste to that level or by that method. In

addition, EPA is clarifying that, in EPA's view, the one such variance

(involving CITGO Petroleum) adopted through rulemaking under the

existing regulations using the ``not appropriate'' test satisfies the

clarified regulations just as it satisfied the existing rules. To

eliminate any ambiguity, EPA is considering recodifying the CITGO

variance under the clarified standard; the Agency requests comment on

this approach.

A. Background

Under RCRA section 3004(m), EPA is required to promulgate treatment

standards for a hazardous waste which ``specif[y] those levels or

methods of treatment, if any, which substantially diminish the toxicity

of the waste or substantially reduce the likelihood of migration of

hazardous constituents from the waste so that short-term and long-term

threats to human health and the environment are minimized.'' RCRA

section 3004(m)(1). These treatment standards are typically expressed

as constituent concentration limits; however, in some cases the

treatment standard is specified as a method of treatment. LDR treatment

standards typically must be satisfied before a hazardous waste is land

disposed. To satisfy RCRA Section 3004(m), EPA has chosen to promulgate

treatment standards based on performance of the ``best demonstrated

available technology'' (BDAT), see 51 FR 40, 572, 40, 578 (Nov. 7,

1986); provided such standards are not established at a point beyond

which threats are minimized. See Hazardous Waste Treatment Council v.

EPA, 886 F.2d 355, 361-66 (D.C. Cir. 1989) (upholding establishing

technology-based treatment standards as a reasonable construction of

section 3004(m)), cert. denied, 498 U.S. 849 (1990) (``HWTC III'').

When EPA decided to implement RCRA section 3004(m) by means of

technology-based treatment standards, the Agency recognized that there

may be

[[Page 26059]]

wastes for which the treatment standards would be unachievable or for

which the treatment standards would be inappropriate. 51 FR at 40605-06

(Nov. 7, 1986). For such wastes, EPA established standards and

procedures for granting so-called treatment variances. 40 CFR 268.44. A

treatment variance establishes an alternative LDR treatment standard

for the waste in question. 40 CFR 268.44(o). Section 268.44(a) states:

``where the treatment standard is expressed as a concentration in a

waste or waste extract and a waste cannot be treated to the specified

level, or where the treatment technology is not appropriate to the

waste, the generator or treatment facility may petition the

Administrator for a variance from the treatment standard. The

petitioner must demonstrate that because the physical or chemical

properties of the waste differs significantly from the wastes analyzed

in developing the treatment standard, the waste cannot be treated to

specified levels or by the specified methods.''

This same standard applies when a treatment variance is granted on

a site-specific basis, see 268.44 (h), although site-specific variances

may be processed without rulemaking. 53 FR at 31199-200 (August 17,

1988).

EPA has consistently interpreted the 40 CFR 268.44 treatment

variance provision as creating two independent tests under which

treatment variance applications can be considered: first, where the

waste in question cannot be treated to the levels or by the methods

established in the rules; and second where such treatment may be

feasible but nevertheless ``not appropriate''. See 61 FR 55718 at

55720-21 (Oct. 28, 1996); 53 FR at 31200 (August 17, 1988); 55 FR 8666,

8760 (March 8, 1990); 61 FR 18780, 18811 (April 29, 1996). The test

based on unachievability requires a demonstration that the waste's

physical or chemical properties differ from those used to establish the

treatment standard and must include a demonstration that the waste

``cannot be treated to specified levels or by specified methods'' (see

second sentence of 268. 44 (a) and (h)). The ``not appropriate'' test

is not elaborated upon in the rule. In the Agency's experience,

treatment variances approved under the ``not appropriate'' test are

often based on the totality of site-and waste-specific circumstances at

any given site. EPA has most often approved treatment variances using

the ``not appropriate'' test in situations where imposition of BDAT

treatment, while technically feasible, nevertheless is unsuitable or

impractical from a technical standpoint, for example when the treatment

standard would result in combustion of large amounts of soil or

wastewater, given that EPA's policy is that combustion of large amounts

of contaminated media is generally inappropriate. See 55 FR at 8760,

8761. EPA has also approved treatment variances using the ``not

appropriate'' test in situations where imposition of BDAT treatment

would lead to environmentally counterproductive results, notably by

creating disincentives to engage in remediation, see 61 FR at 55720-22;

54 FR 15566, 15568 (October 10, 1989); 55 FR at 8760-62; 61 FR at

18812; and EPA believes its long-standing interpretation that 40 CFR

268.44 provides two separate, independent tests under which treatment

variance applications can be evaluated to be a reasonable reading of

the regulatory language. In particular, the clause in the first

sentence of 268. 44 (a) that waste ``cannot be treated to the specified

level'' is mirrored in the second sentence of the rule, where a

demonstration must be made that ``waste cannot be treated to specified

levels or by specified methods'' (emphasis added). The second sentence

of the rule--referring to a demonstration that the waste differs

chemically or physically--thus relates to the first treatment variance

test: technical infeasibility. It does not (or need not be read to)

apply to situations where treatment is ``not appropriate'', since this

test on its face deals with situations where wastes can be treated to a

specified level or by a specified method, but it is inappropriate to do

so. However, commenters on previous EPA actions have pointed out that

the language of the rule is ambiguous, in that it might be read to

require a demonstration that a waste is physically or chemically

different along with a showing that the waste cannot be treated to a

specified level or by a particular method whenever a treatment variance

is sought, even if such treatment would be inappropriate; this was not

EPA's intent.11 Given the importance of treatment variances

to the various EPA remediation programs, see 55 FR at 8760-61 and

National Electrical Manufacturers Association v. EPA, 99 F.3d 1170,

1171 (D.C. Cir. 1996), EPA presently believes it better to re-draft 40

CFR 268.44 to explicitly conform with the Agency's long-standing and

reasonable interpretation of the regulatory standards for treatment

variances and to remove possible confusion. This proposed clarification

is included in today's notice. EPA is further clarifying that the one

national treatment variance finalized thus far using the ``not

appropriate'' test would also satisfy the clarified regulations being

proposed today. This is the treatment variance recently granted to

CITGO Petroleum Co. 61 FR 55718 (Oct. 28, 1996). In EPA's view, the

revision of the treatment variance regulations it is proposing today

simply clarifies, and in no way changes, the current standards for

evaluating treatment variances; therefore, by definition the variance

already issued to CITGO under the current regulations and standard

would satisfy the clarified regulations. However, to remove any

ambiguity on the status of CITGO's treatment variance, and the standard

it must meet, EPA is considering whether it would be better to re-

codify the variance under the clarified regulations (should the Agency

finalize that part of today's proposal).

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

\11\ The Environmental Technology Council and the Louisiana

Environmental Action Network (LEAN) have petitioned for review of a

particular treatability variance and are arguing that the provision

can only be read in this manner. LEAN v. EPA, no. 97- (D.C. Cir.).

EPA disagrees and believes its present long-standing interpretation

to be a reasonable construction of the rule's language, and to be

amply supported on policy grounds. 61 FR at 55721.

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

B. Clarified Regulatory Language

EPA is proposing to revise 40 CFR 268.44 (a) and (h) to clarify

that there are two separate and independent tests for approving

treatment variances. The amended rule (if finalized) would thus

explicitly conform with EPA's long-standing and reasonable

interpretation that treatment variances may be granted for either of

two independent reasons: 1) where, due to physical or chemical

differences in the waste matrix, the waste cannot be treated to the

level used as the basis for the treatment standard (or, in those few

instances where the treatment standard is a method of treatment, where

the method physically cannot be performed); and 2) where it is

inappropriate to require treatment to the level or by the method set

out in the regulations although such treatment is technically possible.

In EPA's experience, approval of treatment variances based on the

``inappropriate'' test depends largely on site-and waste-specific

circumstances. Therefore, the Agency is not proposing detailed

regulatory criteria for approving variances based on the

``inappropriate'' standard. Based on our implementation of the program

to date, some examples of where variances based on the

``inappropriate'' test might be approved are where the treatment

standard is unsuitable from a technical standpoint, as when it would

result in combustion of large amounts of soil or

[[Page 26060]]

other media that contain hazardous waste or where imposition of the

treatment standard can reasonably be found to increase risks for

example, by discouraging optimized remediation of land disposal units.

A specific example of this second situation would be at a remediation

site where the cost of LDR treatment would lead a reasonable remediator

to choose the legally permissible option of managing wastes within an

``area of contamination'' (which would not trigger LDRs and would

likely involve little or no waste treatment) over a more protective

option of removing the wastes for treatment and disposal (which would

trigger LDRs) (see 55 FR at 8760). Situations where imposition of the

BDAT treatment standard (or specified treatment method) could expose

site workers to immediate dangers, such as from explosion or fire and

situations where an innovative technology that, while not BDAT, results

in significant treatment and shows significant promise could be other

examples of cases where the BDAT standard (or specified treatment

method) might be inappropriate. EPA specifically solicits comment as to

whether these circumstances (or other circumstances) are reasonable

formulations of circumstances where treatment variances based on the

``inappropriate'' test might be considered and on whether EPA should,

in future rulemakings, further define regulatory criteria for variances

approved based on the ``inappropriate'' test.

In all cases, treatment variances must result in an alternative

treatment standard which would have to be satisfied before the waste

could be land disposed. These alternative treatment standards must

comply with the statutory standard of RCRA Section 3004(m) by

minimizing threats to human health and the environment.

Some commenters on previous EPA actions have questioned EPA's legal

authority to vary from treatment standards based on BDAT absent a

finding that the BDAT standard is outright unachievable because of

physical or chemical differences in the waste. EPA disagrees for the

following reasons.

First, the ``minimize threat'' standard in RCRA Section 3004 (m)

allows EPA latitude in determining what levels or methods of treatment

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

environment. Not only is the statute ambiguous on the degree to which

threats must be minimized (see HWTC III, 886 F.2d at 372 (concurring

opinion)), but the legislative history to section 3004 (m) states

explicitly that the treatment standards are not to be technology-

forcing. See 131 Cong. Rec. S 9178 (daily ed., July 25, 1984)

(statement of Sen. Chaffee); see also 56 FR at 12355 (March 25, 1991);

55 FR 6640-43 (Feb. 26, 1990); Chemical Waste Management v. EPA, 976

F.2d 2, 15-16 (treatment standard need not be based on BDAT, in this

case, treatment standards for ignitable, corrosive, or reactive wastes)

(D.C. Cir. 1992).

Second, EPA does not believe that RCRA Section 3004(m) requires, or

Congress intended, that EPA impose technically inappropriate

technologies even when they arguably could lead to lower treatment

levels. For example, EPA has generally based the national LDR treatment

standards for organic contaminants in wastewaters on technologies other

than incineration (or other combustion), even though such organics

could be treated to lower levels if the wastewaters were incinerated.

This is because incineration (or other combustion) is not normally an

appropriate technology for wastewaters, notwithstanding its capability

of achieving lower constituent concentration levels than conventional

wastewater treatment. See 55 FR 8761. Similarly, EPA has long believed

that combustion of large volumes of contaminated soil, such as much of

the soil routinely encountered during CERCLA remedial actions or RCRA

corrective actions, is inappropriate and would yield little, if any,

environmental benefit over non-combustion treatment options. In other

situations, EPA has found that imposition of the BDAT standard, while

technically possible, provides a strong incentive for facility owner/

operators to choose legal remedial alternatives that minimize

applicability of the RCRA land disposal restrictions (e.g.,

consolidating and capping waste within an area of contamination), a

result obviously not contemplated by Congress in enacting the land

disposal restriction. EPA believes that in the limited situations where

an existing treatment standard is reasonably found to be inappropriate

because imposition of the BDAT standard is technically inappropriate or

would increase risks, including risks posed by continued land disposal,

the facts would also indicate that the alternative standard set out in

the treatment variance legitimately minimizes threats posed by land

disposal, taking into account both the land disposal that has already

occurred and that which will occur. In this regard, EPA notes that the

Agency believes it can be argued that where imposition of the BDAT

standard results in treatment technically inappropriate to the matrix

at hand or in foregoing other, substantial environmental benefits, that

standard is not ``best.'' See 61 FR at 55724 and at 55721 (citing case

authority).

Finally, some commenters on previous EPA actions have expressed

serious concern that considering treatment variances in situations

where application of the nationally applicable LDR standard might cause

a net environmental detriment could subject EPA to a form of

``environmental blackmail,'' where the Agency might be pressured to

adjust an appropriate treatment standard in order to allow less

treatment as part of site remediation and, therefore, this approach

should be precluded. While EPA agrees that the net environmental

detriment approach should be carefully applied in consideration of

site-and waste-specific circumstances, EPA does not agree with

commenters who suggested it be precluded. In implementing its various

remedial programs, EPA has found that there simply are situations where

federal law provides a legal alternative to leave wastes in place, and

direct application of the existing treatment standards may create an

incentive to utilize that legal alternative. Id.; 54 FR at 41566-569.

It is at least worth examining through the treatment variance process

whether there is an alternative that serves the dual statutory

objectives of safe remediation and pretreatment before land disposal.

C. The CITGO Variance Under the Proposed Standard

It is EPA's view that the treatability variance granted to CITGO

Petroleum, 55 FR 55718 (Oct. 28, 1996), remains valid under the

clarified treatment variance standard proposed in this notice. CITGO

operates a large (26 acre) surface impoundment which must be closed.

The impoundment contains approximately 375,000 tons of wastewater

treatment sludge listed as hazardous wastes F037 and F038. The State of

Louisiana, EPA's Region 6, and the company all believe the best way to

close the unit is to remove the sludge, treat it through air sparging

to remove and destroy the most hazardous constituent (benzene) to

levels achievable by BDAT, treat cyanide and metals to levels

achievable by BDAT, and treat semi-volatile hazardous constituents

significantly, although not to levels meeting the BDAT standard. (While

the alternative treatment standards established in the treatment

variance for semi-volatiles are, for some constituents, significantly

higher than the treatment standard based on BDAT,

[[Page 26061]]

the semi-volatile constituents are treated and, in any case, are not

the constituents in the CITGO waste that drive its risk to human health

or the environment.) Treatment residues are then disposed in a

commercial subtitle C landfill. CITGO successfully removed and treated

approximately 600,000 tons of sludge by this method before the LDR

prohibition for F 037/038 wastes took effect. Treatment of the

remaining sludge to meet standards reflecting performance of BDAT (in

this case, almost certainly some type of combustion process) is likely

to be cost-prohibitive and, at the least, creates an incentive for the

company to seek to avoid triggering LDR requirements even if it means

forgoing optimal closure of the impoundment. The federal rules do

provide closure options by means other than waste removal. The closure

rules provide that an impoundment can close with wastes in place

provided it can satisfy the standards for post-closure care of a

landfill. 40 CFR 265.111, 265.228 and 265.310. EPA found that CITGO

would likely pursue these options, delaying if not precluding closure

by removal, and possibly resulting in no treatment of the hazardous

sludges at all. For these reasons, EPA found that the treatment

technology on which the standard is based is not appropriate for this

waste because imposition of the requirement would likely result in a

net environmental detriment. 55 FR at 55719-722. The alternative

treatment standard requires the same level of treatment which had

proved successful on the 600,000 tons of sludge before the LDR

prohibition took effect.

In EPA's view, these facts satisfy the ``not appropriate'' test in

the clarified treatment variance regulations proposed today, just as

they satisfy the existing rules. EPA has already found that the

situation presented in CITGO's treatment variance application meets the

standards of 40 CFR 268.44 (a) and (h) as the Agency interprets and

implements them. By definition, if EPA amends 40 CFR 268.44 (a) and (h)

to explicitly conform to the Agency's longstanding and reasonable

interpretation of the treatment variance regulations, then the one

national variance (CITGO) approved under the current regulations would

meet the terms of the new, clarified, regulations. EPA, however,

recognizes that the same ambiguity that commenters have identified in

the current 268.44 (a) and (h) regulations underlies EPA's approval of

the CITGO treatment variance. EPA therefore requests comment on whether

the Agency should eliminate any ambiguity over the CITGO treatment

variance by re-codifying the variance under the clarified regulations

(assuming EPA finalizes this portion of today's proposal).

VIII. Ban on Use of Prohibited Hazardous Waste as Fill Material

SUMMARY: EPA is today supplementing its March 2, 1995 proposal (60 FR

at 11732) to ban the placement of prohibited hazardous wastes (that is,

wastes prohibited from land disposal unless they meet land disposal

restrictions treatment standards, including wastes that initially

exhibited a characteristic of hazardous waste but no longer do at the

point they are placed as fill material) as a fill material. This

proposal would ban use as fill unless the waste meets the LDR treatment

standard applicable to it, and either of two conditions are satisfied:

(a) The placement occurs exclusively in a regulated unit (i.e. a unit,

like a landfill, which is subject to subtitle C regulation); or, (b)

the person intending to utilize the hazardous waste as fill material is

able to make a demonstration to the appropriate regulatory officials

that the placement of the waste will be protective of human health and

the environment (within the meaning of RCRA section 3004(d)(1)), taking

into account the factors enumerated in RCRA section 3004(d)(1)(A), (B),

and (C), as well as all possible exposure pathways, i.e., exposure

pathways that may reasonably occur at the specific site. As EPA

explains more fully in today's supplemental notice, this demonstration

must be made ``to a reasonable degree of certainty,'' as set out in

RCRA section 3004(d)(1). By ``fill material,'' EPA means prohibited

waste used in place of such materials as sand or dirt which fills in

significant levels of depression in the land, such as gullies or

ditches. Revised regulatory language is provided to help clarify the

scope of the proposal, and the process for demonstrating that the use

is safe.

A. General Discussion

The basis for this proposal is essentially the same as EPA

originally proposed. Utilization of prohibited hazardous wastes as fill

material is, in the abstract, the least protective type of land

disposal in that there are no commercial specifications or necessary

physical constraints on the placement of the waste. There thus are no

safeguards to prevent exposure to humans or to the environment from the

hazardous constituents that are released, and no barriers stopping the

releases from occurring. The types of potential exposure pathways

include direct exposure via inhalation, ingestion (particularly by

small children), dermal contact, surface runoff, and leaching to

groundwater. Human exposure can also occur via indirect exposure

pathways, such as ingestion of fish, animals, fruits or vegetables

which have been contaminated by hazardous constituents released from

the fill area. The number of environmental exposure pathways are just

as numerous.

This potential for harm is confirmed by many damage incidents

caused by utilization of wastes as fill material. The damage incidents

include sites now on the Superfund National Priorities List, and an

incident of direct human exposure (resulting in elevated blood lead

levels in children) when prohibited hazardous wastes were used as fill

material in a residential area. See summaries in the administrative

record.

If one assumes that utilization of wastes as fill material is a

type of hazardous waste recycling activity,\12\ the current RCRA rules

would classify it as a type of ``use constituting disposal.'' 40 CFR

261.2(c)(1). The rules then provide that a use constituting disposal

can legally occur if the hazardous wastes are incorporated into a

product, undergo a chemical reaction so as to be inseparable by

physical means, and meet all treatment standards established under the

Land Disposal Restrictions (LDR) program applicable to the hazardous

waste incorporated into the waste-derived product. 40 CFR 266.20(b). In

adopting these standards, EPA was not certain that any of these uses

could be conducted in a protective manner. 50 FR at 646, 647 (Jan. 4,

1985); 53 FR at 17605 (May 17, 1988). However, the Agency was unwilling

to prohibit all such uses--the likely effect of imposing full-scale

subtitle C

[[Page 26062]]

controls--and also felt that imposition of the LDR treatment standard

requirement afforded some level of protection. 53 FR at 17605.

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

\12\ See 45 FR at 33093 (May 19, 1980); 48 FR at 14985 (April 4,

1983); and 60 FR at 14732 (March 2, 1995) where EPA noted that in

most cases that this activity is a sham use. This is due to the

marginal nature of the claimed recycling activity (replacing dirt to

fill depressions), resemblance of the activity to uncontrolled waste

dumping, and likelihood that hazardous constituents in the wastes

are just being gotten rid of. Thus, the threshold step in

determining whether disposition of hazardous waste as fill material

is legal is to determine if this is a ``use'' at all, or simply is

sham recycling, i.e., land disposal pure and simple. See United

States v. Marine Shale Processors, 81 F.3d 1361, 1365 (5th Cir.

1996) (``sham recycling, as opposed to legitimate recycling, occurs

when the hazardous waste purportedly recycled contributes in no

significant way to the production of the product allegedly resulting

from the recycling'') id., at 1366 (endorsing so-called toxics along

for the ride concept, whereby it is relevant in assessing whether an

activity is sham recycling to determine what hazardous constituents

contribute to the alleged recycling activity and conceivably to find

that an activity is a sham if the hazardous constituents do not

contribute significantly).

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

Because utilization of hazardous wastes as fill material is lacking

in any control, EPA has concluded that this current conditioned

deferral of regulation should not apply to the activity. Th

This text is long and has been trimmed here. Open the source document for the complete record.