# 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 > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A97-11637 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** May 12, 1997 - **Citation:** 62 FR 26041 ## Text 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 proces [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A97-11637. Public record. Not legal advice.