[Federal Register Volume 64, Number 236 (Thursday, December 9, 1999)]
[Proposed Rules]
[Pages 68968-68973]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-31965]
[[Page 68968]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 260
[FRL-6505-5]
Proposed Exclusion from the Definition of Solid Waste; Hazardous
Waste Management System; Identification and Listing of Hazardous Waste
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
grant a variance from EPA's hazardous waste requirements for certain
materials reclaimed by the World Resources Company (WRC) from metal-
bearing sludges. This action responds to a petition submittted by WRC
requesting that the Agency exclude from the RCRA definition of solid
waste its concentrate material that is partially reclaimed from metal-
bearing sludges and sold to smelters. If the Agency finalizes this
action, the variance will be limited to five years.
DATES: EPA will accept public comments on its proposed decision until
February 7, 2000.
ADDRESSES: Commenters must send an original and two copies of their
comments referencing docket number F-99-WRCP-FFFFF to: RCRA Docket
Information Center, Office of Solid Waste (5305G), U.S. Environmental
Protection Agency Headquarters, 401 M St., SW, Washington, DC 20460.
Hand deliveries of comments should be made to the Arlington, VA address
below. Comments may also be submitted electronically to: docket@epamail.epa.gov. Comments in electronic format should also be
identified by the docket number F-99-WRCP-FFFFF. All electronic
comments must be submitted as an ASCII file avoiding the use of special
characters and any form of encryption.
Commenters should not submit electronically any confidential
business information (CBI). An original and two copies of CBI must be
submitted under separate cover to: RCRA CBI Document Control Officer,
Office of Solid Waste (5305W), U.S. EPA, 401 M St. SW, Washington, DC
20460.
Public comments and supporting materials are available for viewing
in the RCRA Information Center (RIC) located at Crystal Gateway 1,
First Floor, 1235 Jefferson Davis Highway, Arlington, VA. The docket is
open from 9 a.m. to 4 p.m., Monday through Friday, excluding Federal
holidays. To review docket materials, it is recommended that the public
make an appointment by calling (703) 603-9230. The public may copy a
maximum of 100 pages from the regulatory docket at no charge.
Additional copies cost $0.15/page. The index is available
electronically. See the Supplementary Information section for
information on accessing it.
FOR FURTHER INFORMATION CONTACT: For general information, contact the
RCRA/Superfund/EPCRA/UST Hotline at (800) 424-9346 (toll free) or TDD
(800) 553-7672 (hearing impaired). In the Washington, DC metropolitan
area, call (703) 412-9810 or TDD (703) 412-3323. For more detailed
information on specific aspects of this rulemaking, contact Ms. Marilyn
Goode, U.S. Environmental Protection Agency, MC 5304W, 401 M Street SW,
Washington, DC 20460, (703) 308-8800, electronic mail:
goode.marilyn@epa.gov.
SUPPLEMENTARY INFORMATION: The index to the docket record is available
on the Internet. Follow these instructions to access the information
electronically:
WWW: http://www.epa.gov/epaoswer/osw/hazwaste.htm#id.
FTP: FTP: ftp.epa.gov.
Login: Anonymous
Password: Your Internet Address
Files are located in /pub/epaoswer.
The official record for this action will be kept in paper form.
Accordingly, EPA will transfer all comments received electronically
into paper form and place them in the official record, which will also
include all comments submitted directly in writing. The official record
is the paper record maintained at the address in ADDRESSES at the
beginning of this document. EPA responses to comments, whether the
comments are written or electronic, will be in a notice in the Federal
Register or in a response to comments document placed in the official
record for this rulemaking. EPA will not immediately reply to
commenters electronically other than to seek clarification of
electronic comments that may be garbled in transmission or during
conversion to paper form, as discussed above.
Table of Contents
I. Background
A. Authority
B. Summary of Petition
1. Applicability of the Variance
2. Description of WRC's Partial Reclamation Process
II. Summary of Regulatory Provisions Governing Petitions
III. Evaluation of WRC's Petition Against Each of the Established
Evaluation Factors
A. The Degree of Processing the Material has Undergone and the
Degree of Further Processing that is Required
B. Value of the Material After it Has Been Partially Reclaimed
C. The Degree to Which the Partially Reclaimed Material is Like
an Analogous Raw Material
D. The Extent to Which an End Market for the Partially Reclaimed
Material is Guaranteed
E. The Extent to Which the Partially Reclaimed Material is
Handled to Minimize Loss
IV. Summary of the Agency's Proposed Decision
V. Request for Comments
VI. Effect of Variance in Arizona
VII. Administrative Requirements
I. Background
A. Authority
Under 40 CFR 260.30(c), facilities may petition EPA to exclude from
the definition of solid waste material that has been reclaimed but must
be reclaimed further before recovery is complete. To qualify for the
exclusion, the material resulting from initial reclamation must be
commodity-like (even though it is not yet a commercial product, and has
to be reclaimed further). Petitioners must provide sufficient
information to EPA to allow the Agency to make a determination that the
material is not a solid waste, pursuant to criteria set forth at 40 CFR
260.31(c).
B. Summary of Petition
Pursuant to 40 CFR 260.30(c), WRC submitted to EPA a petition for a
variance from classification as solid waste for metal-rich concentrate
material produced at its facility in Phoenix, Arizona. WRC produces the
concentrate primarily from sludges generated by electroplating
operations. The sludges are rich in metals, and are generally classifed
as hazardous wastes. WRC then sells the partially reclaimed material to
primary smelters for metals extraction. Currently, the partially
reclaimed material produced at the Phoenix facility is fully regulated
as hazardous waste, must be managed and sold as hazardous waste, and
off-site shipments must be accompanied by a hazardous waste manifest.
In support of its variance application, WRC provided data and
information in its application about each of the factors listed in 40
CFR 260.31(c).
1. Applicability of the Variance
At its Phoenix facility, WRC principally reclaims wastewater
treatment sludges (F006) received from generators who conduct
electroplating and metal finishing operations. From
[[Page 68969]]
these sludges, WRC ``produces'' a metal-rich concentrate material. In
addition, the facility also receives and partly reclaims hazardous
wastes listed as F019 (wastewater treatment sludges from chemical
conversion coating of aluminum) and D004 through D011 (characteristic
hazardous wastes). WRC's petition, and the proposed exclusion addressed
in this notice, pertain only to the metal-bearing sludges listed as
hazardous wastes F006 and F019 and partially reclaimed at WRC's
Phoenix, Arizona facility. Other hazardous wastes managed by WRC at its
Arizona facility and all hazardous wastes managed at other WRC
facilities are not addressed in this proposed decision and must
continue to be managed as solid and/or hazardous wastes in accordance
with all applicable RCRA regulatory requirements.
The Agency notes that sludges that are hazardous only because they
exhibit a characteristic of hazardous waste that are reclaimed are
currently excluded from classification as solid waste pursuant to 40
CFR 261.2(c)(3). Therefore, sludges that are reclaimed by WRC and
designated as hazardous wastes D004 through D011 are not solid wastes.
In addition, if this variance is finalized and if these characteristic
sludges are mixed with the listed metal-bearing sludges covered by the
variance prior to or during the reclamation process at WRC's Phoenix
facility, the mixture will not be classified as a solid waste provided
the mixture is sent off-site for further reclamation and is handled in
accordance with all the conditions of this variance.
2. Description of WRC's Partial Reclamation Process
Operations at WRC's Phoenix facility are governed by a Consent
Agreement and Consent Order (CA/CO) executed by EPA Region IX, WRC, and
the Arizona Department of Environmental Quality, hereafter referred to
as ``ADEQ'' (see In the Matter of World Resources Company, EPA I.D. No.
AZD980735500, United States Environmental Protection Agency, Region IX,
September 3, 1996). The CA/CO includes a requirement to submit an
application for a treatment and storage permit to ADEQ. At the Arizona
facility, WRC accepts F006 raw material (as well as other metal-bearing
sludges) that it judges to be acceptable for recycling based on
laboratory and process testing of generated sludges. WRC prepares a
waste profile for the wastestreams received from each generator, which
includes physical descriptions and constituent content. The material is
unloaded, examined, and sampled on receiving pads in a processing
enclosure. WRC dries the received waste through evaporative processes.
The material is spread out in a controlled area, mechanically furrowed,
and periodically rotor-tilled to facilitate drying. The physical
characteristics of the material changes from a wet cohesive nonfree-
flowing mass into a granular free-flowing form. The moisture content of
the F006 received is reduced by one-half. The entire processing area is
located on a concrete pad which covers several acres, with a compacted
native soil and flexible membrane liner underneath the pad.
The F006 is then blended by mechanical mixing with other waste
streams received from various generators to achieve concentrates that
meet the contractual specifications (e.g, recoverable metals contents)
of its customers. Other than water, WRC neither adds any materials to,
nor removes any materials from the F006 and F019 metal-bearing sludges
that it receives from generators and processes. The resulting
concentrate contains metal hydroxides and oxides of iron, aluminum and
magnesium. WRC markets the concentrates as copper, nickel, and tin
concentrates to smelters that recover various metals contained in these
concentrates.
II. Summary of Regulatory Provisions Governing Petitions
40 CFR 260.30 provides that the EPA Administrator may grant a
variance from the classification of solid waste, on a case-by-case
basis, for materials that have been reclaimed but must be reclaimed
further before recovery is completed. Such a variance generally is
contingent upon the material resulting from the initial reclamation
being ``commodity-like.'' If this variance is finalized, the
concentrates partially reclaimed from metal-bearing sludges F006 and
F019 that are shipped to smelters may travel without a hazardous waste
manifest and will not be subject to any RCRA controls other than the
conditions of this variance (discussed in section IV of this notice).
Incoming hazardous waste received by WRC at the Phoenix facility is not
covered by the variance and must be manifested and managed as a
hazardous waste until shipped to smelters for further reclamation.
40 CFR 260.31(c) specifies five criteria for evaluating whether a
specific material qualifies for a ``partially reclaimed material''
variance from the definition of solid waste. In addition, 40 CFR
260.31(c)(6) allows EPA to consider ``other relevant factors'' when
determining whether or not to grant a requested variance for materials
that have been reclaimed, but must be reclaimed further. The first
evaluation criterion (40 CFR 260.31(c)(1)) is the degree of processing
a material has undergone and the degree of further processing that is
required for the material to be rendered ``commodity-like.'' Materials
that have undergone substantial processing to reclaim valuable or
recyclable materials (but still must undergo a degree of further
processing) generally satisfy this criterion. Materials that are still
substantially ``waste-like'' and that need a significant degree of
further processing or ``treatment'' to be rendered ``commodity-like''
do not satisfy the evaluation criterion.
The second evaluation criterion (Sec. 260.31(c)(2)) requires an
evaluation of the economic value of the material that has been
reclaimed, but must be further reclaimed. This criterion is also useful
in determining whether a material is indeed ``commodity-like.'' To
satisfy this criterion, petitioners must demonstrate that the initial
reclamation process increases or contributes to the value of the
material and that there is a market for the reclaimed material.
Petitioners generally can demonstrate that this factor is met by
providing sales information, including quantities of the material sold,
additional demand for the material (if any), and the price paid for the
material by purchasers.
The third evaluation criterion (40 CFR 260.31(c)(3)) is the degree
to which the reclaimed material is like an analogous raw material.
Petitioners must demonstrate that the partially reclaimed material is
similar to an analogous raw material or feedstock for which the
material may be substituted in a production or reclamation process. In
addition, the petitioner should demonstrate that the partially
reclaimed material does not contain significant concentrations of
hazardous constituents not found in an analogous raw material and that
do not contribute to the value of the partially reclaimed material when
used for its intended purpose.
Under the fourth evaluation criterion (40 CFR 260.31(c)(4)),
petitioners must demonstrate that an end market for the partially
reclaimed material is guaranteed. Petitioners must demonstrate that
there is a secure demand and long-term market for the partially
reclaimed material and that the chance of large quantities of the
material being stockpiled due to insufficient demand is unlikely. If a
petitioner cannot demonstrate that the material enjoys a consistent
level of demand, with reasonable expectations for the
[[Page 68970]]
same or greater level of demand once a variance is granted, there may
be risk of the material being stockpiled or stored for a significant
period of time in containers or other storage units that do not have to
meet RCRA Subtitle C storage standards. Such situations may pose
significant risks to human health or the environment.
The fifth evaluation criterion (40 CFR 260.31(c)(5)) concerns the
extent to which the partially reclaimed material is handled to minimize
loss. Petitioners must demonstrate that the material is handled as if
it were a valuable commodity and in a manner that is protective of
human health and the environment.
In addition to the five evaluation factors discussed above, EPA may
consider other relevant factors in determining whether or not to grant
a variance from the definition of solid waste for materials that have
been reclaimed but must be reclaimed further before recovery is
complete (40 CFR 260.31(c)(6)). These other factors may be raised by
the petitioner, the Agency, or other interested parties. Such factors
may be directly applicable to EPA's decision to grant a variance, or
may be indirectly applicable, but relevant in assigning priorities for
evaluating a particular petition. For example, EPA might choose to
evaluate the long-term viability of the recycling or reuse market for
the partially reclaimed material and the contribution that a variance
may play in expanding or stabilizing this market. In addition, EPA
might wish to assess past or ongoing releases at facilities managing
the partially reclaimed material, or the degree to which corrective
action activities are being conducted at facilities managing the
material.
III. Evaluation of WRC's Petition Against Each of the Established
Evaluation Factors
A. The Degree of Processing the Material has Undergone and the Degree
of Further Processing That is Required
The processing steps performed by WRC include sampling and testing
incoming batches of sludge, evaporating water from the sludges, and
blending certain listed metal-bearing sludges from different sources to
form a metal concentrate. The procedure is not elaborate, and the lack
of substantial physical processing could, under different
circumstances, lead the Agency to conclude that this criterion had not
been met. However, despite the elementary nature of the physical
processing, EPA has concluded that the company is nevertheless
performing a valuable service for generators of F006 by testing,
drying, and blending their sludges to ensure that the resultant
materials are judged by smelters to be acceptable feedstocks. Many
smelters are reluctant to take F006 sludges directly from
electroplating operations because of the administrative, handling, and
quality control activities necessary to manage the relatively small
volumes generated by individual electroplaters and to ensure that
materials sent to smelters are appropriate and acceptable for the
smelting process. The blending, drying, consolidating, and analytical
processes conducted by WRC may eliminate the amount of pre-processing
and quality control of sludges that would otherwise be necessary at the
smelting facility. In support of this view, WRC has long-term contracts
with generators of F006 sludges to perform this testing, drying, and
blending service, and the contracts appear to ensure acceptability of
the material by smelting facilities. In addition, the Agency notes that
WRC's concentrate has considerably higher economic value than ``as-
generated'' F006 sludges. This indicates that, despite the simple
nature of the physical processing involved, the resultant product is
more ``commodity-like'' than ``waste-like,'' and thus the intent of
this criterion would be satisfied.
However, the Agency has a potential concern about the legitimacy of
the WRC reclamation process. This concern is whether the F006 and F019
sludges accepted and blended to form a concentrate have sufficiently
high levels of metals to contribute to an end product that is
acceptable to smelters. If listed sludges containing low or virtually
no metal content are accepted at the facility and blended with other
materials (e.g., non-RCRA wastes from electroplating operations) to
produce a material that is acceptable to smelters, the facility may
actually be ``treating'' the low metal-content sludge and not
legitimately recycling the RCRA hazardous waste. Since metal recovery
is the ultimate purpose for the recycling or reclamation operation, the
minimum metal content of the incoming hazardous wastes is an important
factor in evaluating the legitimacy of the process and the
applicability of the variance. Having a recoverable amount of metals in
each of the F006 and F019 incoming sludges is a necessary condition for
WRC's process to be judged a legitimate reclamation operation.
To address this legitimacy concern, the Agency is proposing to
condition the exclusion for the partially reclaimed material on the
requirement that all F-listed sludges received destined for partial
reclamation to produce the concentrate material must have a minimum
copper, nickel or tin content of two percent on a dry-weight basis, or
the equivalent economic value in precious metals (e.g., gold, silver,
platinum, or palladium). To set this condition, EPA analyzed smelter
specifications for incoming materials and concluded, generally, that
metal-bearing secondary materials with a content of less than two
percent on a dry weight basis for copper, nickel, or tin (or an
equivalent precious metal value) are not acceptable material at
smelters. The minimum metal content for F-listed sludge materials
received by WRC is based upon information collected by the Agency on
smelter specifications for minimum metal content in an ore or reclaimed
material. This information is available in the rulemaking docket for
this proposed variance. The minimum metal content based on smelter
specifications (rather than use of a higher minimum for metals) is also
designed to provide incentives for recycling F006 and F019.
To ensure compliance with the minimum metal content condition for
F-listed metal-bearing sludges received by WRC's Phoenix facility, the
Agency is placing an additional condition upon the facility to ensure
that WRC adequately monitors the metals content of the hazardous waste
materials received for reclamation. Upon receipt of any non-conforming
shipment of sludge material, WRC must contact the generator and notify
the generator that WRC cannot accept further material due to the low
metal content of the waste. However, WRC may accept one additional non-
conforming shipment if it arrives within fourteen days of the first
shipment. The Agency is allowing the facility to receive two non-
conforming shipments over a period of 14 days to provide WRC with
sufficient time to contact the generator and discuss a remedy or
designate a different waste management alternative. The 14-day period
allows WRC to receive shipments that may already be in transport at the
time the facility discovers that the first shipment is not in
compliance with the metal content condition of the exclusion. After
this 14-day grace period, WRC may not accept additional materials from
that generator until WRC determines that the generator's subsequent
sludge shipments will meet the minimum metal content requirements of
this variance.
To ensure that all concentrates covered by this variance are sent
to smelters rather than to disposal
[[Page 68971]]
facilities, WRC has also agreed to provide to ADEQ an annual audit,
performed by an independent third party mutually acceptable to WRC and
ADEQ, to be completed within the six months following the end of each
calendar year. The scope of the annual audit will cover WRC's
concentrate shipments during the year to certify that all outgoing
shipments of concentrate were: (1) Made to metal smelting facilities;
(2) documented and shipped in accordance with all applicable U.S.
Department of Transportation regulations; and (3) documented to have
reached the designated destination.
B. The Value of the Material After It Has Been Partially Reclaimed
The concentrate produced by WRC has a positive economic market
value and is purchased by metals smelters. WRC provided sales data to
the Agency for the period of January 1, 1994 to June 30, 1995
documenting that the facility sold its partially reclaimed material to
smelters and received a positive economic value (after taking into
account average transportation costs).
C. The Degree to Which the Partially Reclaimed Material is Like an
Analogous Raw Material
WRC asserts that its partially reclaimed materials are analogous to
virgin ores used as raw materials by metal smelters. WRC's partially
reclaimed materials are marketed by WRC as copper, nickel, and tin
concentrates. Each concentrate contains various mixes of these metals,
as well as precious metals such as gold, silver, platinum and
palladium. WRC submitted analytical data to the Agency indicating that
its concentrates contain recoverable levels of metals and metals
concentrate at levels higher than the metal content specifications for
incoming materials for smelters.
The Agency conducted an analysis comparing the toxic constituents
in the metals concentrates managed by WRC with the constituents in
analogous virgin ore concentrates. The Agency found, for the most part,
that the concentration levels for the toxic constituents found in the
WRC concentrates are comparable to the concentrations of toxic
constituents typically found in virgin metal concentrates. The
exception is cyanide. Metals concentrates reclaimed by WRC have higher
concentrations of cyanide than typically found in virgin ore
concentrates.
As a result of its comparative analysis of the toxic constituents
in WRC concentrate materials and virgin metal concentrates, as well as
the results of a ground water risk screening analysis conducted by the
Agency (and explained below), the Agency is proposing to set a limit on
the level of cyanide in WRC metals concentrate as a condition of the
variance. The Agency is proposing to condition its proposed grant of
the variance on the requirement that the level of cyanide in WRC's
metal concentrate (produced at the Phoenix facility) is below the best
demonstrated available technology (BDAT) treatment standards for
cyanide at 40 CFR 268.40 (i.e., 590 ppm cyanide.) For a more detailed
discussion of the proposed cyanide limit, see Section E. below.
D. The Extent to Which an End Market for the Partially Reclaimed
Material is Guaranteed
The concentrate produced by WRC appears to have a stable long-term
market. WRC has multi-year contracts for the sale of its reclaimed
materials with at least four smelters. Additional market information
provided by WRC indicates that its purchasers have additional excess
smelting capacity that exceeds WRC's production capabilities.
E. The Extent to Which the Partially Reclaimed Material is Handled to
Minimize Loss
Operations at WRC's Phoenix facility are governed by the CA/CO
described in section I.B.2 of this document, and will be covered by a
RCRA Part B treatment and storage permit. Incoming material is
accompanied by a hazardous waste manifest, and all processing is
performed on a concrete pad, with a compacted native soil and flexible
membrane liner beneath the pad. Treatment and storage activities prior
to shipment off-site are subject to all applicable 40 CFR Part 265
standards, including general facility standards, preparedness and
prevention, groundwater protection and monitoring, closure and post-
closure requirements, and financial responsibility.
The partially reclaimed materials produced by WRC's Phoenix
facility are shipped to smelters by either highway or rail. The
Department of Transportation (DOT) regulations specify that the
materials must be classified and handled as a hazardous material due to
the fact that the materials contain nickel hydroxide. Shipments of
materials classified by DOT as hazardous materials are subject to the
marking, labeling, and shipping requirements of 49 CFR part 172,
including the requirement that the materials must be accompanied by a
shipping paper, or bill of lading, completed in accordance with Subpart
C of 49 CFR part 172. Copies of these papers must be retained by the
shipper and carrier for a period of one year.
WRC has demonstrated that its partially reclaimed metal-bearing
sludges are managed in a way that is designed to prevent loss, both at
the Phoenix facility and at the smelters. WRC also points out that the
company enters into recycling agreements with the generators from whom
WRC receives F006 sludge (as well as other metal-bearing sludges).
These agreements obligate WRC to recycle all of the wastes and to
annually certify to the generators that all shipments of the waste are
accepted and recycled. Therefore, WRC has the incentive to handle all
incoming wastes in a manner that prevents releases or losses to the
environment. WRC also points out that the value of its recycled
material represents a significant investment by WRC that can only be
recovered by delivering the reclaimed material to smelters in
accordance with its sales contracts.
EPA agrees that the economic value of the partially reclaimed
material produced by WRC and the facility's contractual relationships
with smelters provide sufficient incentives for WRC to prevent releases
to the environment. In addition, the Agency notes that granting this
variance may produce environmental benefits by increasing the volume of
F006 that is recycled, thus reducing copper and nickel mining which
have caused environmental concerns in the past.
However, to address all concerns about safe handling of WRC
concentrate, the Agency is proposing to condition the grant of the
variance on the requirement that WRC include a provision in its
contractual agreements with metal smelting facilities that smelters
receiving partially reclaimed materials from WRC do not store the
materials on the land. In this manner, metal concentrates produced by
WRC from listed hazardous wastes and transported to smelting facilities
will be precluded from land storage. In addition, EPA is proposing to
condition the grant of the variance on the requirement that WRC send a
one-time notification of the variance and its conditions to any
countries where metal smelters accepting WRC concentrate are located.
To evaluate the potential for releases of cyanide from the
partially reclaimed material stored at smelters, the Agency conducted a
ground water risk screening analysis to assess the risk levels
associated with potential releases of cyanide from electroplating
sludges. To accomplish this analysis, EPA conducted a risk screening
that modeled total cyanide concentrations of 590
[[Page 68972]]
ppm, the current treatment standard for F006 under the land disposal
restriction program (40 CFR 268.40.) The purpose of EPA's risk
screening analysis for cyanide in electroplating sludge was to
determine whether or not the concentration of cyanide in the ground
water at a receptor well down gradient of a waste pile of
electroplating sludge will exceed the Federal Drinking Water Standard
limit of 0.20 mg/L. The risk screening analysis was performed using
EPA's Composite Model for Leachate Migration and with Transformation
Products (EPACMTP, EPA 1997, 1996a, 1996b, 1996c).
The approach used by the Agency in the risk screening analysis
assumed two waste management scenarios representing a median or central
tendency risk level scenario and a high-end risk scenario. The
``central tendency'' risk level scenario included a waste pile directly
on the ground with a total area of 465.40 square meters and located 430
meters from the nearest drinking water well. The ``high end value''
risk level scenario simulated a waste pile having a total area of
18,575.7 square meters and located 102 meters from the nearest drinking
water well. 1
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\1\ ``Ground Water Risk Screening Analysis for Cyanide in
Electroplating Sludge Managed in Waste Piles,'' HydroGeoLogic Inc.,
June 1997.
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The results of the model simulations for both scenarios indicated
that concentrations of cyanide in the ground water do not exceed the
maximum Federal Drinking Water Standard of 0.20 mg/L. The maximum
receptor well concentration for the central tendency scenario was zero
and that of the high-end scenario was 0.0175 mg/L. The most important
parameter responsible for the low concentrations of cyanide in these
results is the assumed rapid hydrolysis rate of cyanide,
8.4y-1. This rate corresponds to a half-life of
approximately 30 days. The model results predict that the cyanide will
have been completely transformed before it reaches the receptor in the
central tendency scenario. In the high-end case, the ground water
travel time is sufficiently short that cyanide reaches the well,
although the maximum concentration is below the drinking water
standard. If these results are compared to corresponding scenarios that
assume no hydrolysis, the maximum receptor well concentration for the
central tendency is 0.07 mg/L and the maximum receptor well
concentration for the high-end scenario is 17.79 mg/L.2 In
the case of no hydrolysis, the predicted concentration of cyanide in
ground water exceeds the Federal Drinking Water Standard by a multiple
of 0.35 under the central tendency scenario and by a multiple of 88.45
under the high-end scenario.
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\2\ Model runs were made with and without the hydrolysis rate to
isolate the impact of storage time duration from the overwhelming
effect of hydrolysis rate.
---------------------------------------------------------------------------
Given these results, the Agency has determined that it is important
to establish a limit on the level of cyanide in the partially reclaimed
materials produced and sold by WRC. The Agency has decided to establish
this limit at 590 ppm cyanide, which was used as the model cyanide
concentration in its risk screening analysis. This level is the limit
established as the BDAT treatment standard limit under the Land
Disposal Restrictions Program. WRC claims that its partially reclaimed
product does not exceed a cyanide concentration limit of 590 ppm. The
Agency points out that if the partially reclaimed material should
exceed the established concentration limit for cyanide and the facility
must treat the material to reduce the cyanide concentration, the
material would no longer qualify for this variance. Under such
circumstances, the material is substantially ``waste-like.'' In
addition, the facility would have to manage the material as a RCRA
hazardous waste and comply with all applicable hazardous waste
management requirements (e.g. storage, transportation, and land
disposal restriction (LDR) requirements)).
IV. Summary of the Agency's Proposed Decision
The Agency is proposing to conditionally grant the petitioner's
(WRC's) request for a variance from classification as solid waste for
the metal concentrate partially reclaimed from materials listed as
hazardous waste F006 and F019 received at its Arizona facility, which
are sold to metal smelters or other metal recovery facilities after
being partially reclaimed by WRC. The Agency is proposing to grant this
variance for a time period of five years, subject to the following
conditions:
(1) Metal-bearing sludges F006 and F019 accepted by the facility
from off-site and used in the production of the partially reclaimed
concentrate materials must have a metals concentration level of no less
than two percent on a dry weight basis, or an equivalent economic value
in precious metals (e.g., gold, silver, platinum, or palladium). In
addition, the facility may only process two shipments of listed sludge
materials that do not meet the two percent metals concentration level
from a single generator within a 14-day time period before taking
action to ensure that subsequent shipments will meet the minimum metal
content. Specifically, WRC may not accept more than one non-conforming
shipment from a generator, unless the second non-conforming shipment is
received within 14 days following the first event. Thereafter, WRC may
not accept additional materials from that generator until WRC
determines that the generator's subsequent sludge shipments will meet
the minimum metal content requirements of this condition.
(2) WRC shall provide to ADEQ an annual audit, performed by an
independent third party mutually acceptable to WRC and ADEQ, to be
completed within the six months following the end of each calendar
year. The scope of the annual audit will cover WRC's concentrate
shipments during the year to certify that all shipments were: (1) Made
to metal smelting facilities; (2) documented and shipped in accordance
with all applicable U.S. Department of Transportation regulations; and
(3) documented to have reached the designated destination.
(3) The partially reclaimed concentrate materials must have a
cyanide concentration of no greater than 590 ppm and may not be placed
on the land at metal smelting facilities. To ensure compliance with
this condition, WRC must place a provision stipulating no land
placement of the materials in its contractual agreements with smelting
facilities.
(4) WRC must send a one-time notification of the variance and its
conditions to any country where metal smelters accepting WRC
concentrate are located. In addition, WRC must include on its Material
Safety Data Sheet shipped with the concentrate a notification that the
concentrate may contain up to 590 ppm cyanide and that low pH
environments can result in the production of hydrogen cyanide gas.
The Agency reiterates that this proposed conditional variance from
classification as solid waste for the metal concentrate reclaimed from
listed hazardous wastes F006 and F019 at WRC's Phoenix, Arizona
facility does not affect the regulatory status of any other hazardous
wastes handled by WRC at the Phoenix facility. In addition, the
proposed variance does not apply to or affect the regulatory status of
any wastes managed at any other WRC facility.
V. Request for Comments
The Agency will accept and consider comments on this proposed
decision until the date shown at the beginning of this notice. After
EPA reviews and considers any public comments received on the proposed
decision, the
[[Page 68973]]
Agency will publish a final decision in response to the petition.
VI. Effect of Variance in Arizona
EPA notes that Arizona is authorized to administer and enforce the
RCRA hazardous waste program pursuant to section 3006 of RCRA.
Generally, when EPA grants a variance under 40 CFR 260.30, the variance
would be automatically effective only in unauthorized States. However,
there are two circumstances that make this variance effective in the
State of Arizona. First, WRC, EPA Region IX and the Arizona Department
of Environmental Quality (ADEQ) executed a Consent Agreement and
Consent Order (CA/CO) that finalized regulatory requirements for the
WRC recycling facility at Phoenix. Under the CA/CO, if EPA makes a
favorable decision regarding WRC's petition for a variance, Arizona is
obligated to ``honor and give legal effect to the variance
determination within the State of Arizona.'' Second, Arizona's
regulations at A.A.C. R18-8-260(J) (Supp. 98-2) (which incorporates and
modifies 40 CFR 260.30 entitled ``Variances from classification as a
solid waste'') provides that ``any person wishing to submit a variance
petition shall submit the petition, under this subsection, to EPA.
Where the Administrator of EPA has granted a variance from
classification as a solid waste under 40 CFR 260.30, 260.31, and
260.33, the Director shall accept the determination, provided the
Director determines that the action is consistent with the policies and
purposes of the HWMA'' (the Hazardous Waste Management Act underlying
Arizona's authorized status). Since the Director has made such a
determination, no further action will be necessary before the variance
takes effect under state law upon promulgation by EPA.
VII. Administrative Requirements:
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a rule of general applicability and therefore is not a
``regulatory action'' subject to review by the Office of Management and
Budget. Because this action is a rule of particular applicability
relating to a facility, it is not subject to the regulatory flexibility
provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), or
to sections 202, 204 and 205 of the Unfunded Mandates Reform Act of
1995 (UMRA) (Pub. L. 104-4). Because the rule will affect only one
facility, it will not significantly or uniquely affect small
governments, as specified in section 203 of UMRA, or communities of
tribal governments, as specified in Executive Order 13084 (63 FR 27655,
May 10, 1998). For the same reason, this rule will not have substantial
direct effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132 (64 FR 43255, August 10, 1999). This rule also
is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997),
because it is not economically significant.
This rule does not involve technical standards; thus, the
requirements of section 12(c) of the National Technology Transfer and
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required
by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996),
in issuing this rule, EPA has taken the necessary steps to eliminate
drafting errors and ambiguity, minimize potential litigation, and
provide a clear legal standard for affected conduct. EPA has complied
with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining
the takings implications of the rule in accordance with the ``Attorney
General's Supplemental Guidelines for the Evaluation of Risk and
Avoidance of Unanticipated Takings'' issued under the executive order.
This rule does not impose an information collection burden under the
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.).
Dated: December 3, 1999.
Carol M. Browner,
Administrator.
[FR Doc. 99-31965 Filed 12-8-99; 8:45 am]
BILLING CODE 6560-50-U
