[Federal Register Volume 63, Number 168 (Monday, August 31, 1998)]
[Rules and Regulations]
[Pages 46332-46334]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-23084]
[[Page 46331]]
_______________________________________________________________________
Part IV
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 268 Hazardous Waste Recycling; Land Disposal Restrictions;
Final Rule
Federal Register / Vol. 63, No. 168 / Monday, August 31, 1998 / Rules
and Regulations
[[Page 46332]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 268
[FRL-6153-2]
RIN 2050-AE05
Hazardous Waste Recycling; Land Disposal Restrictions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency is issuing an amendment to
the final rule, published on May 26, 1998 (63 FR 28556), which, in
part, amended the Land Disposal Restriction (LDR) treatment standards
for metal-bearing hazardous wastes which exhibit the characteristic of
toxicity. EPA is amending the rule only insofar as it applies to zinc
micronutrient fertilizers which are produced from these toxicity
characteristic wastes. The Agency is taking this action because it
appears that the new treatment standards are not well suited for zinc
micronutrient fertilizers, and also could result in greater use of zinc
fertilizers that contain relatively higher concentrations of hazardous
constituents. The Agency expects to develop a more consistent and
comprehensive approach to regulating hazardous waste-derived
fertilizers, and currently intends to leave this amendment in place
until those new regulations are adopted. In the interim, the
fertilizers affected by this amendment would remain subject to the
previous treatment standards for toxic metals.
EFFECTIVE DATE: August 21, 1998.
ADDRESSES: The public docket for this rule is available for public
inspection at EPA's RCRA Information Center, located at Crystal
Gateway, First Floor, 1235 Jefferson Davis Highway, Arlington,
Virginia. The regulatory docket for this rule contains a number of
background materials. To obtain a list of these items, contact the RCRA
Docket at 703 603-9230 and request the list of references in EPA Docket
#F-98-PH4S-FFFFF.
FOR FURTHER INFORMATION CONTACT: For general information contact the
RCRA Hotline at (800) 424-9346 (toll free) or (703) 920-9810 in the
Washington, DC metropolitan area. For information on this notice
contact David M. Fagan (5301W), Office of Solid Waste, 401 M Street,
SW, Washington DC 20460, (703) 308-0603.
SUPPLEMENTARY INFORMATION:
Availability of Rule on Internet
This notice is available on the internet, at: www: http://
www.epa.gov/oswer/hazwaste/ldrmetal/facts.htm
Table of Contents
I. Background
II. Today's Action
III. Legal Authority
IV. Analysis under Executive Order 12866, Executive Order 12875, the
Paperwork Reduction Act of 1995, National Technology Transfer and
Advancement Act of 1995, Executive Order 13045, and Executive Order
13084: Consultation and Coordination with Indian Tribal Governments.
V. Submission to Congress and the General Accounting Office
I. Background
Under RCRA, hazardous wastes are prohibited from land disposal
unless they meet treatment standards established by EPA. (The major
exception, not relevant here, is if the wastes are disposed in a unit
from which there will be no migration of hazardous constituents for as
long as the wastes remain hazardous.) See RCRA sections 3004(g)(5) and
(m); 63 FR 28557-28558. The land disposal restriction treatment
standards also apply to certain products that are made from hazardous
wastes, and that are placed on the land. See 40 CFR 266.20(b). This
``use constituting disposal'' provision in the RCRA regulations, which
was promulgated on August 17, 1988, was intended to provide an
additional degree of environmental protection for hazardous waste-
derived products that are used in this manner (i.e., that are
introduced directly into the environment by being placed on the land).
One particular category of hazardous waste-derived products that
have been subject to these regulatory provisions are zinc micronutrient
fertilizers that are produced from or which otherwise contain hazardous
wastes. See 40 CFR 261.2(c)(1)(B) (defining hazardous secondary
materials used in this manner as solid wastes for purposes of RCRA
subtitle C). This type of fertilizer can be manufactured from several
types of hazardous wastes that have high zinc content, such as dusts
collected in emission control devices (``baghouse dust'') from electric
arc steel making furnaces and brass foundries, ash from combustion of
used tires, and other sources. These fertilizers can also be made from
waste materials that are not classified as hazardous wastes, as well as
from virgin raw materials such as refined zinc ores.
Prior to promulgation of the May 26, 1998 rule (commonly referred
to as the ``Phase IV'' LDR rule), zinc micronutrient fertilizers made
from hazardous waste secondary materials were subject (with one
specific exemption, described below) to the treatment standards
promulgated by EPA in the ``Third Third'' LDR rules (see 55 FR 22688,
June 1, 1990, establishing prohibitions for wastes which exhibit the
toxicity characteristic for metals). Those regulations essentially
required that the fertilizer products be treated such that they no
longer exhibited a hazardous waste characteristic before they could be
applied to the land. However, the Phase IV regulations (which revised
the standards in Sec. 268.40 that apply to toxicity characteristic
metal wastes) now require treatment below the hazardous waste
characteristic levels. Such treatment standards are consistent with the
D.C. Circuit's ruling in Chemical Waste Management v. EPA, 976 F. 2d 2,
13-14 (D.C. Cir. 1992), that hazardous wastes must be treated so that
threats posed by land disposal of their hazardous constituents are
minimized (within the meaning of RCRA section 3004(m)), and treating to
the hazardous waste characteristic level does not always guarantee that
the requisite minimization has occurred. (See also RCRA Docket document
#F93TTCFS0008, stating that this principle applies to hazardous wastes
used in a manner constituting disposal.)
Since zinc micronutrient fertilizers often contain measurable
levels of lead and cadmium (which are hazardous constituents and are
not agriculturally beneficial), the new Phase IV treatment standards
for these metals are particularly relevant with regard to fertilizers
that are made from characteristic hazardous wastes. Under the Phase IV
rules, such fertilizer products would have to meet the treatment
standards of .75 ppm for lead and .11 ppm for cadmium, both as measured
by the toxicity characteristic leaching procedure (TCLP). These
treatment standards would supersede the existing standards of 5ppm for
lead, and 1ppm for cadmium (also measured in leachate).
As mentioned above, fertilizers made from one particular type of
hazardous waste--electric arc furnace dust (RCRA hazardous waste code
K061)--are not currently subject to the LDR treatment standards. See 40
CFR 266.20(b), final sentence. EPA decided to provide this exemption in
1988, since based on the data available at the time it did not appear
that fertilizers using K061 as an ingredient were significantly
different, with respect to concentrations of hazardous constituents,
than other zinc
[[Page 46333]]
micronutrient fertilizers. 53 FR 31164 (August 17, 1988).
II. Today's Action
EPA is today amending Sec. 268.40 by adding a new paragraph (I),
which will in effect stay the Phase IV rule insofar as it applies
treatment standards for hazardous constituent metals in zinc-containing
fertilizers that are produced from hazardous wastes which exhibit the
toxicity characteristic. The Agency is persuaded that this particular
stay of the Phase IV rule is appropriate, for several reasons. For one
thing, in retrospect the Agency is not certain that these treatment
standards are well suited for micronutrient fertilizers. Compliance
with the new LDR standards could require that the hazardous metal
constituents be immobilized or stabilized such that they do not leach
above the prescribed regulatory levels. However, such treatment would
likely also immobilize the zinc component of the fertilizer, which
would render it unsuitable for plant food use. Cf. 50 FR 628-629 (Jan.
4, 1985) (imposition of normal subtitle C standards on uses
constituting disposal means in most cases that the activity will not
occur).
EPA is also concerned that applying the Phase IV standards to zinc
fertilizers could have the effect of eliminating from the market
certain fertilizer products that contain relatively low levels of
hazardous constituents (e.g., lead and cadmium), while other fertilizer
products that contain higher levels of contaminants, including some
produced from hazardous wastes, would be unaffected. It is likely that
some zinc fertilizers that are made from hazardous wastes (and that
have been in compliance with the existing RCRA treatment standards)
will be unable to meet the new Phase IV standards. (See letter from
Chris S. Leason, July 6, 1998.) However, some zinc fertilizers that are
manufactured from non-waste materials can contain considerably higher
concentrations of non-beneficial metals than the fertilizers that would
be affected by the Phase IV standards. Thus, by eliminating from the
market the regulated waste-derived products, the Phase IV rules could
actually have the effect of increasing consumption of fertilizers with
higher contaminant levels.
Similarly, the Phase IV rules could encourage the use of zinc
fertilizers made from K061, which is exempt from regulation (and thus
does not have to meet RCRA treatment standards) when used to
manufacture fertilizer. Although not apparent in 1988 when EPA
promulgated this exemption, further study makes clear that these
fertilizers typically contain higher concentrations of hazardous
constituents (e.g., lead and cadmium) than zinc-containing fertilizers
produced from characteristic hazardous wastes. (Letter from Chris
Leason, August 17, 1998.) Thus, the Phase IV rule, by foreclosing the
use of these less contaminated waste-derived fertilizers, could
actually result in greater use of K061-derived fertilizers, which
generally contain higher levels of contaminants.
The Agency recognizes that the Phase IV rulemaking has highlighted
the anomalous and inconsistent nature of the current RCRA regulations
that apply to use of hazardous wastes in fertilizer manufacture.
Consequently, the Agency is now planning to develop a more consistent
and comprehensive set of regulations for controlling such practices,
and expects to publish a Notice of Proposed Rulemaking in 1999. Issues
that we expect to examine in the context of this rulemaking process
include the appropriateness of the exemption for recycling of K061 in
fertilizers, whether or not the current treatment standards should be
replaced with a set of standards more specifically tailored to
fertilizers, and the need to clarify the applicability of current
regulatory provisions on ``use constituting disposal'' in subpart C of
40 CFR part 266.
Until this regulatory proceeding is completed, the Agency believes
that it is inappropriate to apply the Phase IV treatment standards to
hazardous waste-derived zinc micronutrient fertilizers. Accordingly,
EPA is staying that portion of the Phase IV regulation. As a result,
the zinc micronutrient fertilizers affected by this administrative stay
will continue to be subject to the regulations in effect prior to the
Phase IV regulations.
III. Legal Authority
EPA is issuing this administrative stay pursuant to 5 U.S.C. 705,
authorizing administrative agencies to stay administrative action
pending judicial review when ``justice so requires.'' See also Rule 18
of the Federal Rules of Appellate Procedure authorizing issuance of
administrative stays pending review. (A petition for review has been
filed regarding applicability of the Phase IV standards to zinc
micronutrient fertilizers produced from characteristic hazardous
wastes.) EPA believes that issuance of a stay for these zinc
micronutrient fertilizers is needed because the promulgated regulation
could result in discontinuance of use of the material and encourage use
of a hazardous waste-derived zinc micronutrient fertilizers which are
more contaminated. The administrative stay is needed to prevent this
anomalous result. These same reasons provide good cause (pursuant to 5
U.S.C. 553 (b)) to issue this administrative stay immediately, to the
extent good cause is needed to justify issuing this immediately
effective rule.
IV. Analysis Under Executive Order 12866, Executive Order 12875,
the Paperwork Reduction Act, National Technology Transfer and
Advancement Act of 1995, Executive Order 13045, and Executive Order
13084: Consultation and Coordination With Indian Tribal Governments
This action stays treatment standards established in the recently
promulgated LDR Phase IV Rule for zinc micro-nutrient fertilizers (63
FR 28556). Today's action has been deemed by the Agency as being a
``significant regulatory action'' for the purposes of Executive Order
12866, and is, therefore, subject to review by the Office of Management
and Budget. Today's rule does not, however, impose obligations on
State, local or tribal governments for the purposes of Executive Order
12875. Furthermore, this action is not subject to the Regulatory
Flexibility Act (RFA) since this rule is exempt from notice and comment
rulemaking requirements for good cause which is explained in section
III. The Administrator is, therefore, not required to certify under the
RFA. Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Pub. L. No. 104-113, section 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
There are no voluntary consensus technical standards directly
applicable to metal contaminants in zinc micronutrient fertilizers.
Therefore, EPA did not consider the use of any voluntary standards in
this rulemaking. Today's rule is not subject to E.O. 13045, entitled
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because this action is not an
[[Page 46334]]
economically significant rule, and it is not expected to create any
environmental health risks or safety risks that may disproportionately
affect children. Under the Paperwork Reduction Act, 44 U.S.C. 3501 et
seq., EPA must consider the paperwork burden imposed by any information
collection request in a proposed or final rule. This rule will not
impose any new information collection requirements. Under Executive
Order 13084, EPA may not issue a regulation that is not required by
statute, that significantly or uniquely affects the communities of
Indian tribal governments, and that imposes substantial direct
compliance costs on those communities, unless the Federal government
provides the funds necessary to pay the direct compliance costs
incurred by the tribal governments. If the mandate is unfunded, EPA
must provide to the Office of Management and Budget, in a separately
identified section of the preamble to the rule, a description of the
extent of EPA's prior consultation with representatives of affected
tribal governments, a summary of the nature of their concerns, and a
statement supporting the need to issue the regulation. In addition,
Executive Order 13084 requires EPA to develop an effective process
permitting elected and other representatives of Indian tribal
governments ``to provide meaningful and timely input in the development
of regulatory policies on matters that significantly or uniquely affect
their communities.'' Today's rule does not significantly or uniquely
affect the communities of Indian tribal governments. This action stays
treatment standards established in the recently promulgated LDR Phase
IV Rule for zinc micro-nutrient fertilizers (63 FR 28556). Accordingly,
the requirements of section 3(b) of Executive Order 13084 do not apply
to this rule.
V. Submission to Congress and the General Accounting Office
The Congressional Review Directory Act, 5 U.S.C. 801 et seq., as
added by the Small Business Regulatory Enforcement Fairness Act of
1996, generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. Section 808 allows the issuing agency to
make a good cause finding that notice and public procedure is
impracticable, unnecessary or contrary to the public interest. This
determination must be supported by a brief statement. 5 U.S.C. 808(2).
As stated previously, EPA has made such a good cause finding, including
the reasons therefore, and thus is promulgating this administrative
stay as a final rule. EPA will submit a report containing this rule and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. This action is not
a ``major rule'' as defined by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 268
Environmental protection, Hazardous waste, Land disposal
restrictions.
Dated: August 21, 1998.
Carol M. Browner,
Administrator.
For the reasons set forth in the preamble, Title 40 chapter I of
the Code of Federal Regulations is amended as follows:
PART 268--[AMENDED]
Subpart D--Treatment Standards
1. Section 268.40 is amended by adding paragraph (i), to read as
follows:
Sec. 268.40 Applicability of treatment standards
* * * * *
(i) Zinc-containing fertilizers that are produced for the general
public's use and that are produced from or contain recycled
characteristic hazardous wastes (D004-D011) are subject to the
applicable treatment standards in Sec. 268.41 contained in the 40 CFR,
parts 260 to 299, edition revised as of July 1, 1990.
[FR Doc. 98-23084 Filed 8-28-98; 8:45 am]
BILLING CODE 6560-50-P
