98-12575. Land Disposal Restrictions Phase IV: Final Rule Promulgating Treatment Standards for Metal Wastes and Mineral Processing Wastes; Mineral Processing Secondary Materials and Bevill Exclusion Issues; Treatment Standards for Hazardous Soils, ...  

  • [Federal Register Volume 63, Number 100 (Tuesday, May 26, 1998)]
    [Rules and Regulations]
    [Pages 28556-28753]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 98-12575]
    
    
    
    [[Page 28555]]
    
    _______________________________________________________________________
    
    Part II
    
    
    
    
    
    Environmental Protection Agency
    
    
    
    
    
    _______________________________________________________________________
    
    
    
    40 CFR Parts 148, 261, 266, 268, and 271
    
    
    
    Land Disposal Restrictions Phase IV: Final Rule Promulgating Treatment 
    Standards for Metal Wastes and Mineral Processing Wastes; Mineral 
    Processing Secondary Materials and Bevill Exclusion Issues; Treatment 
    Standards for Hazardous Soils, and Exclusion of Recycled Wood 
    Preserving Wastewaters; Final Rule
    
    Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules 
    and Regulations
    
    [[Page 28556]]
    
    
    
    ENVIRONMENTAL PROTECTION AGENCY
    
    40 CFR Parts 148, 261, 266, 268, and 271
    
    [EPA-F-98-2P4F-FFFFF; FRL-6010-5]
    RIN 2050 AE05
    
    
    Land Disposal Restrictions Phase IV: Final Rule Promulgating 
    Treatment Standards for Metal Wastes and Mineral Processing Wastes; 
    Mineral Processing Secondary Materials and Bevill Exclusion Issues; 
    Treatment Standards for Hazardous Soils, and Exclusion of Recycled Wood 
    Preserving Wastewaters
    
    AGENCY: Environmental Protection Agency.
    
    ACTION: Final rule.
    
    -----------------------------------------------------------------------
    
    SUMMARY: This rule promulgates Land Disposal Restrictions treatment 
    standards for metal-bearing wastes, including toxicity characteristic 
    metal wastes, and hazardous wastes from mineral processing. The set of 
    standards being applied to these wastes is the universal treatment 
    standards. These standards are based upon the performance of the Best 
    Demonstrated Available technologies for treating these, or similar, 
    wastes. This rule also revises the universal treatment standards for 
    twelve metal constituents, which means that listed and characteristic 
    wastes containing one or more of these constituents may have to meet 
    different standards than they currently do.
        In a related section regarding wastes and secondary materials from 
    mineral processing, EPA is amending the rules to define which secondary 
    materials from mineral processing are considered to be wastes and 
    potentially subject to Land Disposal Restrictions. The intended effect 
    is to encourage safe recycling of mineral processing secondary 
    materials by reducing regulatory obstacles to recycling, while ensuring 
    that hazardous wastes are properly treated and disposed. EPA also is 
    finalizing decisions on a set of mineral processing issues wastes which 
    courts have been remanded to EPA. These include retaining the Toxicity 
    Characteristic Leaching Procedure as the test for identifying the 
    toxicity characteristic for mineral processing wastes, and readdressing 
    the regulatory status of a number of miscellaneous mineral processing 
    wastes.
        This rule also amends the LDR treatment standards for soil 
    contaminated with hazardous waste. The purpose of this revision is to 
    create standards which are more technically and environmentally 
    appropriate to contaminated soils than those which currently apply.
        Finally, this rule excludes from the definition of solid waste 
    certain shredded circuit boards in recycling operations, as well as 
    certain materials reused in wood preserving operations.
    
    EFFECTIVE DATES: This final rule is effective on August 24, 1998.
        Compliance dates:
    
    --For prohibition on underground injection of certain wastes at 40 CFR 
    148.18: May 26, 2000;
    --For definition of solid waste provisions at 40 CFR 261.2, 
    261.4(a)(15), and 261.4(b): November 27, 1998;
    --For exclusion of recycled wood preserving wastewaters at 40 CFR 
    261.4(a)(9): May 26, 1998;
    --For prohibition on land disposal of wastes from elemental phosphorus 
    processing and on mixed radioactive wastes at 40 CFR 268.34(b): May 26, 
    2000; and
    --For land Disposal Restrictions treatment standards at 40 CFR 268.49 
    for soil contaminated with previously prohibited wastes: May 26, 1998.
    
    ADDRESSES: 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 docket 
    information number is F-98-2P4F-FFFFF. The RIC 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 any regulatory docket at no charge. Additional copies cost $0.15/
    page. The index and some supporting materials are available 
    electronically. See the ``Supplementary Information'' section for 
    information on accessing them.
    
    FOR FURTHER INFORMATION CONTACT: For general information, contact the 
    RCRA Hotline at (800) 424-9346 or TDD (800) 553-7672 (hearing 
    impaired). In the Washington, D.C. metropolitan area, call (703) 412-
    9810 or TDD (703) 412-3323.
        For more detailed information on specific aspects of this 
    rulemaking, contact 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, contact Elaine 
    Eby (703) 308-8449 or Anita Cummings at (703) 308-8303. For questions 
    on land disposal restrictions (LDR) treatment standards for mineral 
    processing wastes, radioactive mixed wastes, and grab versus composite 
    sampling methods, contact Anita Cummings at (703) 308-8303. For 
    information on treatment standards for manufactured gas plant wastes, 
    contact Rita Chow at (703) 308-6158. Contact Rhonda Minnick at (703) 
    308-8771 for information on improvements and corrections to the Land 
    Disposal Restrictions. For information on secondary mineral processing 
    materials and Bevill issues, call Ashley Allen at 703-308-8419 or 
    Stephen Hoffman of the Industrial and Extractive Wastes Branch at (703) 
    308-8413. For questions on treatment standards for hazardous soil, 
    contact Elizabeth McManus of the Permits and State Programs Division at 
    (703) 308-8657. Contact Stephen Bergman of the Hazardous Waste 
    Identification Division at (703) 308-7262 for questions on the 
    exclusion for wood preserving wastewaters. For information on the 
    capacity analyses, contact Bill Kline at (703) 308-8440 or C. Pan Lee 
    at (703) 308-8478. 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.
    
    Table of Contents
    
    I. Introduction to the Phase IV Rule
    II. Potentially Regulated Entities
    III. Revised Land Disposal Restrictions (i.e., Universal Treatment 
    Standards) for Metal Constituents in all Hazardous Wastes, Including 
    Toxic Characteristic Metals
        A. History of Metal Treatment Standards
        B. Applicability of Metal Treatment Standards
        C. Development of New Treatment Standards for Hazardous Wastes 
    Containing Metals
        1. Measuring Compliance by Grab or Composite Sampling
        2. Development of Treatment Standards for Metal Wastes
        a. Final Universal Treatment Standard for Nonwastewater Forms of 
    Antimony
        b. Treatment Standard for Wastewater Forms of Arsenic Waste
        c. Treatment Standards for Barium Waste
        d. Final Universal Treatment Standard for Nonwastewater Forms of 
    Beryllium Waste
    
    [[Page 28557]]
    
        e. Treatment Standards for Cadmium Wastes
        f. Treatment Standards for Chromium Wastes
        g. Final Treatment Standards for Lead Wastes
        h. Treatment Standards for Wastewater and Nonwastewater Forms of 
    Mercury Waste
        i. Final Universal Treatment Standard for Nonwastewater Forms of 
    Nickel
        j. Final Treatment Standards for Selenium Wastes
        k. Final Treatment Standards for Silver Wastes
        l. Final Universal Treatment Standard for Nonwastewater Forms of 
    Thallium
        m. Final Treatment Standard for Nonwastewater Forms of Vanadium 
    in P119 and P120 Wastes
        n. Final Treatment Standard for Nonwastewater Forms of Zinc in 
    K061 Waste
        D. Use of TCLP to Evaluate Performance of Treatment Technology 
    for Treating Hazardous Metal Constituents
    IV. Application of Land Disposal Restrictions to Characteristic 
    Mineral Processing Wastes
        A. Proposal, Comments, and Responses
        B. Clarification That Universal Treatment Standards Apply to 
    Ignitable, Corrosive, and Reactive Characteristic Mineral Processing 
    Wastes
        C. Use of TCLP to Evaluate Performance of Treatment Technology 
    for Treating Hazardous Metal Constituents in Mineral Processing 
    Wastes
    V. Other LDR Issues That May Affect Both Toxic Characteristic Metal 
    Wastes and Characteristic Mineral Processing Wastes
        A. Treatment Standards for Soil Contaminated with TC Metal 
    Wastes or Characteristic Mineral Processing Wastes
        1. Summary
        2. Discussion of Today's Approach
        B. LDR Treatment Standards for Manufactured Gas Plant Waste 
    (MGP)
        1. Summary
        2. Background
        3. Public Comments and EPA Responses
        C. Treatment Standards for Debris Contaminated with Phase IV 
    wastes
        D. Treatment Standards for Radioactive Mixed Waste
        1. Background
        2. Proposal and Issues Discussed by Comments
        E. Underlying Hazardous Constituents in TC Metal Wastes and 
    Characteristic
        Mineral Processing Wastes
        1. Background
        2. Discussion of Today's Approach
    VI. Issues Relating to Newly-Identified Mineral Processing Wastes
        A. Introduction
        B. Overview of Today's Rule
        1. Issues Related to Which Mineral Processing Secondary 
    Materials are Subject to LDRs
        2. Issues Related to Whether Materials are Within the Scope of 
    the Bevill Exclusion
        a. Use of Non-Bevill Materials as Feedstocks to Operations Whose 
    Waste is Bevill Exempt
        b. Uniquely Associated
        c. Bevill Mixtures
        d. Response to Court Remands Dealing with Other Issues Relating 
    to Mineral Processing and to Scope of Bevill Exclusion
        e. Reexamination of Bevill Exempt Wastes
        C. Analysis of and Response to Public Comments
        1. Jurisdiction
        a. EPA Authority to Regulate Mineral Processing Secondary 
    Materials Reclaimed Within the Industry
        b. Are There Limits on Jurisdiction? (Response to Public 
    Interest Group Position)
        c. Immediate Reuse
        d. Relation to the Current Regulatory Definition of Solid Waste
        e. Otherwise Excluded Mineral Processing Units Which Serve as 
    Disposal Units
        2. Scope of This Rule
        a. Mineral Processing Wastes Covered by This Rule
        b. Wastewater Treatment Surface Impoundments
        c. Materials Outside the Scope
        3. Mineral Processing Secondary Material Volumes and 
    Environmental Damages
        a. Volume of Secondary Materials and Large Volume Exemption
        b. Reliability of Damage and Environmental Release Reports
        4. Conditions to the Exclusion
        a. Legitimacy
        b. Design and Construction Standards
        c. Units Eligible for Conditional Exclusion and Conditions 
    Attached to Such Units
        d. Speculative Accumulation
        e. One Time Notification
        5. Bevill Related Issues
        a. Uniquely Associated
        b. Addition of Mineral Processing Secondary Materials to Units 
    Processing Bevill Raw Materials
        c. Bevill Mixture Rule and Disposal
        d. Remining
        6. Responses to Court Remands
        a. Applicability of the Toxicity Characteristic Leaching 
    Procedure (TCLP) to Mineral Processing Wastes
        b. Remanded Mineral Processing Wastes
        c. Lightweight Aggregate Mineral Processing Wastes
        d. Mineral Processing Wastes From the Production of Titanium 
    Tetrachloride
    VII. LDR Treatment Standards for Soil
    VIII. Improvements and Corrections to LDR Regulations
        A. Typographical Error in Sec. 261.1(c)(10)
        B. Typographical Error in Sec. 268.4(a)(2)(ii) and (a)(2)(iii)
        C. Clarifying Language Added to Sec. 268.7
        D. Correction to Section 268.40--Treatment Standards for 
    Hazardous Waste
        E. Removal of California List Requirements and de minimis 
    Provision from Sec. 268.42
        F. Typographical Errors and Outdated Cross-references in 
    Sec. 268.45
        G. Correction to Sec. 268.48 to Explain That Sulfides are not 
    Regulated as Underlying Hazardous Constituents in Characteristic 
    Wastes
        H. Cross References in Sec. 268.50(e)
        I. Mistakes in Appendices VII and VIII
        J. Clarification Regarding Point of Generation of Boiler 
    Cleanout Rinses
    IX. Capacity Determination for Phase IV Land Disposal Restrictions
        A. Introduction
        B. Available Capacity for Surface Disposed Wastes
        1. Stabilization
        2. Vitrification
        3. Metal Recovery
        4. Thermal Treatment
        C. Required Capacity and Variance Determination for Surface 
    Disposed TC Metal Wastes
        D. Required Capacity and Variance Determination for Surface 
    Disposed Mineral Processing Wastes
        E. Phase IV Mineral Processing and TC Metal Wastes Injected Into 
    Underground Injection Control (UIC) Class I Wells
        F. Mixed Radioactive Wastes
        G. Summary
    X. Change to Definition of Solid Waste to Exclude Wood Preserving 
    Wastewaters and Spent Wood Preserving Solutions From RCRA 
    Jurisdiction
        A. Summary of the Proposal
        B. Modifications to the Proposal
        1. Notification
        2. Conditions Under Which the Exclusion Would No Longer Apply
        C. Other Comments
        1. Oil Borne Facilities
        2. Application of the Conditions to Units Other Than the Drip 
    Pad
        3. Relationship of Today's Exclusion to Previous Industry 
    Exclusions
        4. Units That May Be Visually or Otherwise Determined to Prevent 
    Release
        5. CESQG Status
        D. State Authorization
    XI. Clarification of the RCRA Exclusion of Shredded Circuit Boards
    XII. Regulatory Requirements
        A. Regulatory Impact Analysis Pursuant to Executive Order 12866
        1. Methodology Section
        2. Results
        B. Regulatory Flexibility
        C. Unfunded Mandates Reform Act
        D. Paperwork Reduction Act
    XIII. Environmental Justice
        A. Applicability of Executive Order 12898
        B. Potential Effects
    XIV. State Authority
        A. Statutory Authority
        B. Effect on State Authorization
        C. Authorization Procedures
        D. Streamlined Authorization Procedures
    XV. Submission to Congress and General Accounting Office
    XVI. Executive Order 13045: Protection of Children from 
    Environmental Health Risks and Safety Risks
    XVII. National Technology Transfer and Advancement Act
    
    I. Introduction to the Phase IV Rule
    
        In the 1984 Hazardous and Solid Waste Amendments (HSWA) to the 
    Resource Conservation and Recovery Act (RCRA), Congress specified that 
    land disposal of hazardous waste is prohibited unless the waste first 
    meets
    
    [[Page 28558]]
    
    treatment standards established by EPA or is disposed in units from 
    which there will be no migration of hazardous constituents for as long 
    as the waste remains hazardous. The HSWA amendments require 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.
        Today's Phase IV final rule is the latest in a series of LDR rules 
    that establish treatment standards for wastes identified or listed as 
    hazardous after the date of the 1984 amendments. (See RCRA 
    Sec. 3004(g)(4)). EPA proposed the Phase IV rule in four Federal 
    Register notices, and issued three NODAs setting out additional data 
    relevant to this proceeding. In two Federal Register notices prior to 
    today's, EPA promulgated various rules proposed in the Phase IV 
    proposals: treatment standards for wood preserving wastes, paperwork 
    reduction, and clarification of treatability variances. Today's final 
    rule promulgates regulations addressing most of the remaining issues 
    discussed in Phase IV proposals and NODAs. The table at the end of this 
    introduction lists references for all the Phase IV Notices, plus others 
    cited frequently in the preamble.
        This final Phase IV preamble contains five major, interrelated 
    sections. The first section explains the new land disposal restrictions 
    treatment standards for wastes identified as hazardous because they 
    exhibit the toxicity characteristic for metals (referred to as ``TC 
    metal wastes''). The section also revises the universal treatment 
    standards (UTS) for 12 metal constituents in all hazardous wastes. The 
    TC metal wastes will now be required to meet the universal treatment 
    standards as do most other hazardous wastes. The second major preamble 
    section establishes the prohibition on land disposal plus treatment 
    standards for a particular type of newly identified hazardous waste: 
    mineral processing waste that exhibits a characteristic of hazardous 
    waste. The third section addresses additional issues affecting both TC 
    metal wastes and characteristic mineral processing wastes. The fourth 
    section amends the rules defining when secondary materials being 
    recycled are solid wastes. It states that secondary materials from 
    mineral processing which are generated and reclaimed within that 
    industry are not solid wastes unless they are managed in land disposal 
    units before being reclaimed. Such materials are not subject to 
    regulation as hazardous wastes. That part of the preamble also 
    addresses other issues related to mineral processing. The final major 
    preamble section promulgates amended treatment standards for soil that 
    contains hazardous waste or which exhibits a characteristic of 
    hazardous waste.
        Today's rule also includes two brief sections on hazardous waste 
    issues unrelated to the major sections. One clarifies that a 
    previously-promulgated exclusion from hazardous waste regulation for 
    recycled shredded circuit boards also applies to whole circuit boards 
    under certain conditions. The other section promulgates an exclusion 
    from RCRA jurisdiction for certain wood preserving wastewaters and 
    spent wood preserving solutions when recycled.
    
                                                         Table of Selected LDR Federal Register Notices                                                     
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                Common name                     Title of rule in Federal Register                          Date                            Citation         
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Third Third LDR Final Rule.........  Land Disposal Restrictions for Third Third      June 1, 1990...........................  55 FR 22520.              
                                          Scheduled Wastes; Rule.                                                                                           
    Phase II LDR Proposal..............  Land Disposal Restrictions for Newly            September 14, 1993.....................  58 FR 48092.              
                                          Identified and Listed hazardous Waste and                                                                         
                                          hazardous soil; Proposed Rule.                                                                                    
    Phase III LDR Proposal.............  Land Disposal Restrictions Phase III:           March 2, 1995..........................  60 FR 11702.              
                                          Decharacterized Wastewaters, Carbamate and                                                                        
                                          Organobromine Wastes, and Spent Potliners;                                                                        
                                          Proposed Rule.                                                                                                    
    Phase IV Original Proposal.........  Land Disposal Restrictions--Phase IV: Issues    August 22, 1995........................  60 FR 43654.              
                                          Associated With Clean Water Act Treatment                                                                         
                                          Equivalency, and Treatment Standards for Wood                                                                     
                                          Preserving Wastes and Toxicity Characteristic                                                                     
                                          Metal Wastes; Proposed Rule.                                                                                      
    Phase IV First Supplemental          Land Disposal Restrictions--Clarification of    January 25, 1996.......................  61 FR 2338.               
     Proposal.                            Bevill Exclusion for Mining Wastes, to the                                                                        
                                          Definition of Solid Waste for Mineral                                                                             
                                          Processing Wastes, Treatment Standards for                                                                        
                                          Characteristic Mineral Processing Wastes, and                                                                     
                                          Associated Issues.                                                                                                
    HWIR Media Proposal................  Requirements for Management of Hazardous        April 29, 1996.........................  61 FR 11804.              
                                          Contaminated Media.                                                                                               
    Phase IV NODA #1...................  Land Disposal Restrictions Phase IV Proposed    May 10, 1996...........................  61 FR 21417.              
                                          Rule--Issues Associated With Clean Water Act                                                                      
                                          Treatment Equivalency, and Treatment                                                                              
                                          Standards for Wood Preserving Wastes and                                                                          
                                          Toxicity Characteristic Metal Wastes; Notice                                                                      
                                          of Data Availability.                                                                                             
    Phase IV NODA #2...................  Land Disposal Restrictions--Phase IV:           March 5, 1997..........................  FR 62 10004.              
                                          Treatment Standards for Characteristic Metal                                                                      
                                          Wastes; Notice of Data Availability.                                                                              
    Phase IV LDR Wood Preserving Final   Land Disposal Restrictions Phase IV: Treatment  May 12, 1997...........................  62 FR 25998.              
     Rule.                                Standards for Wood Preserving Waste,                                                                              
                                          Paperwork Reduction and Streamlining,                                                                             
                                          Exemptions from RCRA for Certain Processed                                                                        
                                          Materials; and Miscellaneous Hazardous Waste                                                                      
                                          Provisions; Final Rule.                                                                                           
    Phase IV Second Supplemental         Land Disposal Restrictions Phase IV: Second     May 12, 1997...........................  62 FR 26041.              
     Proposal.                            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.                                                                                                    
    
    [[Page 28559]]
    
                                                                                                                                                            
    Phase IV NODA #3...................  Land Disposal Restrictions Phase IV: Second     November 10, 1997......................  62 FR 60465.              
                                          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; Notice of Data Availability.                                                                       
    Treatability Variance Final Rule...  Clarification of Standards for Hazardous Waste  December 5, 1997.......................  62 FR 64504.              
                                          Land Disposal Restriction Treatment Variances.                                                                    
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    
    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 or definitive with 
    respect to every case-specific circumstance. Rather, it is a general 
    guide for readers regarding 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, and failure to mention 
    them in the table should not be taken as any type of regulatory 
    determination on the part of the Agency.
    
                            Table of Entities Potentially Affected by the Phase IV Final Rule                       
    ----------------------------------------------------------------------------------------------------------------
                                                                                           Examples of entities     
              Section of the rule                           Category                       potentially affected     
    ----------------------------------------------------------------------------------------------------------------
    LDR treatment standards for TC metal    Generators of Toxicity Characteristic     Facilities in the following   
     hazardous wastes, characteristic        (TC) metal hazardous wastes (D004--       industries: primary mineral  
     mineral processing wastes, and other    D011), characteristic mineral             processing, chemical         
     metal-bearing wastes.                   processing waste, or any hazardous        manufacturers, pharmaceutical
                                             waste required to meet the LDR            producers, paint producers,  
                                             treatment standard for antimony,          manufacturers of motor       
                                             barium, beryllium, cadmium, chromium,     vehicle parts, blast furnaces
                                             lead, nickel, selenium, silver,           and steel mills, metal       
                                             thallium, vanadium, or zinc.              plating and polishing, and   
                                                                                       aircraft parts and equipment.
                                            Facilities that treat and/or dispose of   Hazardous waste treatment and 
                                             TC metal hazardous wastes,                disposal facilities.         
                                             characteristic mineral processing                                      
                                             wastes, and other metal-bearing                                        
                                             hazardous wastes.                                                      
    LDR treatment standards for hazardous   Entities managing hazardous soil........  Private or public parties     
     soil.                                                                             remediating sites containing 
                                                                                       hazardous soil               
    Mineral Processing Secondary Materials  Facilities that generate, store, and/or   Copper smelters, gold         
                                             recycle secondary materials from          refiners, and other primary  
                                             primary mineral processing.               metals producers that return 
                                                                                       wastestreams to units for    
                                                                                       additional recovery          
    Exclusion for Recycled Wood Preserving  Wood Preserving Facilities..............  Facilities that generate and  
     Process Wastewaters.                                                              reclaim drippage and         
                                                                                       wastewaters on-site from the 
                                                                                       wood processing industry.    
    ----------------------------------------------------------------------------------------------------------------
    
    III. Revised Land Disposal Restrictions (i.e., Universal Treatment 
    Standards) for Metal Constituents in all Hazardous Wastes, 
    Including Toxic Characteristic Metals
    
    Summary
    
        There are two purposes to today's new treatment standards for 
    metal-containing wastes. First, EPA is revising the numerical standards 
    because new data are available on which to base more accurate 
    standards. Second, EPA is including a new set of wastes in the current 
    treatment standard regime, continuing EPA's efforts to apply the same 
    LDR treatment standards when technically and legally possible. (In a 
    subsequent section of this rule, EPA is expanding the treatment 
    standard regime to include yet another set of wastes. These are 
    characteristic mineral processing wastes that are not currently subject 
    to land disposal restrictions.)
        The numerical standards that EPA is revising are the universal 
    treatment standards (UTS) for 12 metal constituents. The new UTS will 
    apply to nonwastewater forms of any listed or characteristic hazardous 
    waste that is already required to meet the UTS for those constituents 
    in the waste. The revised UTS are less stringent for 7 constituents, 
    and more stringent for 5. The rule does not affect the UTS for 
    wastewater forms of these wastes, and does not change the UTS for any 
    other constituents, including any of the organics.
        The new set of wastes that EPA is bringing into the current LDR 
    regime is the group of 8 wastes known as TC metal wastes--wastes 
    identified as hazardous because they exhibit the toxicity 
    characteristic due to the presence of the metals enumerated in 261.24 
    (Waste codes D004-D011). These are wastes that exhibit the toxicity 
    characteristic because of high toxic metal content. By today's rule, 
    that key metal must be treated to the UTS for that metal. Furthermore, 
    any underlying hazardous constituents (UHCs) must be treated to UTS 
    levels as well, whether these UHCs are organics or metals. Both 
    wastewater and nonwastewater forms of the TC metal wastes are affected 
    by today's rule, except for arsenic, for which only the wastewater 
    forms are affected.
        Hazardous wastes that exhibit both the TC for metals and the 
    predecessor characteristic based on the Extraction Procedure (EP) are 
    presently only required to be treated to reduce metal levels to below 
    the characteristic level. Today's rule, for the most part, will require 
    additional treatment of these metal constituents before land disposal 
    can occur.
        The Agency also finds that the treatment standards established in
    
    [[Page 28560]]
    
    today's rule are not established below levels at which threats to human 
    health and the environment are minimized. See Hazardous Waste Treatment 
    Council v. EPA, 886 F.2d 355, 362 (D.C. Cir. 1990). That case held that 
    the statute can be read to allow either technology-based or risk-based 
    LDR treatment standards, and further held that technology-based 
    standards are permissible so long as they are not established ``beyond 
    the point at which there is no `threat' to human health or the 
    environment.'' Id. at 362. EPA's finding that today's standards are not 
    below a ``minimize threat'' level is based on the Agency's inability at 
    the present time to establish concentration levels for hazardous 
    constituents which represent levels at which threats to human health 
    and the environment are minimized. As the Agency has explained a number 
    of times, determining these levels on a national basis--which requires 
    determination of relevant exposure pathways and potential receptors for 
    all hazardous constituents in hazardous wastes, with all the attendant 
    uncertainties involved in such a national determination--has not yet 
    proven possible. See, e.g., 55 FR at 6642 (February 26, 1990). Thus, 
    the Agency continues to find that technology-based standards remain the 
    best approach for the national treatment standards since such standards 
    eliminate as much of the inherent uncertainty of hazardous waste land 
    disposal and so fulfill the Congressional intent in promulgating the 
    land disposal restrictions provisions. Id. However, the Agency believes 
    that it may be possible to make valid determinations that threats to 
    human health and the environment are minimized on an individualized 
    basis in the context of certain site-specific remediations, and 
    accordingly has provided in this rule a variance from technology-based 
    treatment requirements for contaminated soils generated in certain 
    remediations. See section VII below.
    
    A. History of Metal Treatment Standards
    
        Land disposal of hazardous wastes is largely prohibited by statute, 
    unless the wastes meet the applicable treatment standards established 
    by EPA prior to land disposal. See RCRA sections 3004(d)-(g), (m); (the 
    exception for no-migration units is not relevant to today's rule). 
    Until today's rule, metals that were characteristic because they failed 
    the Toxicity Characteristic Leaching Procedure (TCLP) and also failed 
    the Extraction Procedure (EP)--which preceded the use of the TCLP as a 
    means of identifying whether a waste exhibited a characteristic of 
    hazardous waste--were subject to treatment standards at levels equal to 
    the TC levels (55 FR 22520, June 1, 1990). (Note that wastes that were 
    characteristic according to the TCLP but did not fail the EP were 
    considered, until promulgation of today's rule, to be newly identified 
    wastes, and were not subject to the LDR requirements. Today's rule 
    makes these wastes subject to LDR). However, the TC levels are 
    typically higher than those treatment levels for which threats posed by 
    land disposal of the wastes are minimized. (Waste Management v. EPA, 
    976 F.2d 2, 13-14, 26-27, 32 (D.C. Cir. 1992). Consequently, treatment 
    to levels lower than the characteristic levels normally is required. 
    Id.
        In an effort to make treatment standards as uniform as possible 
    while adhering to the fundamental requirement that the standards must 
    minimize threats to human health and the environment, EPA developed the 
    UTS. Under the UTS, whenever technically and legally possible, the 
    Agency adopts the same technology-based numerical limit for a hazardous 
    constituent regardless of the type of hazardous waste in which the 
    constituent is present (see 40 CFR 268.40; and 59 FR 47982, September 
    19, 1994). In the original Phase IV proposal, EPA proposed to apply the 
    metal UTS, as measured by the TCLP (60 FR 43582, August 22, 1995; see 
    40 CFR 261.24), to all TC metal wastes. The TCLP measures the 
    possibility that a waste may leach toxic metals above a designated 
    concentration level under certain assumed disposal conditions, and so 
    is a measure of the potential mobility of toxic metals in a waste.
        Commenters in response to the original proposal took issue with the 
    Agency's use of data previously used to establish metal UTS as a basis 
    for establishing the treatment standards for characteristic metal 
    wastes. The commenters raised three basic issues with regard to the 
    data transfer. First, they said that characteristic metal wastes are 
    extremely variable and the data used to calculate the treatment 
    standards were not representative of the diversity of TC metal wastes. 
    Second, the commenters said that although two treatment technologies--
    high temperature metals recovery (HTMR) and stabilization--were 
    determined to be Best Demonstrated Available Technology (BDAT), the 
    current metals UTS were based solely on HTMR, a technology not 
    commercially available for many TC metal wastes. Finally, commenters 
    asserted that individual metal UTS values 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 more fully characterize the 
    diversity of treatment of these nonwastewaters. 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. 
    While extensive, the data unfortunately was based on composite samples 
    and could not be used as the basis for treatment standards (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 and 62 FR 26041 for a 
    discussion of grab and composite sampling).
        The Agency, however, was convinced that additional data were needed 
    to further assess the treatment of TC metal nonwastewaters. During 
    September 1996, EPA conducted site visits at three hazardous waste 
    treatment facilities and collected additional treatment performance 
    data. One facility was a large commercial TSDF that employed 
    conventional stabilization techniques to treat a wide array of 
    inorganic metal wastes. 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.
        Treatment data were collected for the following types of hazardous 
    waste: mineral processing waste, baghouse dust, battery slag, soils, 
    pot solids, recycling by-products, and sludge. See the memorandum, 
    Final Revised Calculation of Treatment Standards Using Data Obtained 
    From Rollins Environmental's Highway 36 Commercial Waste Treatment 
    Facility and GNB's Frisco, Texas Waste Treatment Facility, March 10, 
    1997 and the memorandum, Transferability of UTS to Mineral Processing 
    Wastes, January 28, 1997 for a complete description of the waste 
    constituents and concentrations. Most of the wastes contained multiple 
    metals in various concentrations while some had
    
    [[Page 28561]]
    
    significant concentrations of typically two metal combinations, 
    including lead and cadmium, barium and lead, and chromium and antimony. 
    In addition, between October 1994 and December 1995, the Agency 
    obtained performance data from one HTMR facility; (other HTMR data 
    became available very late in 1997). The assessment of the new data 
    sets began with the calculation of treatment standards for each of the 
    two data sets representing stabilization and HTMR. The same 
    methodology, sometimes called ``C 99,'' and used in past LDR 
    rulemakings, was used to calculate the treatment levels (see 56 FR 
    41164, August 18, 1991, and the BDAT Background Document for K061, 
    dated August, 1991). Next, the Agency compared the treatment levels for 
    stabilization verses HTMR. Based on this comparison, the Agency 
    selected the highest level for each metal as the proposed UTS to allow 
    for waste and process variability and detection limit difficulties. 
    This approach is consistent with the legislative goal of providing 
    substantial treatment through standards that are achievable by an array 
    of well-performing, available treatment technologies. See 130 Cong. 
    Rec. S 9184 (Daily ed., July 25, 1984) (statement of Senator Chafee).
        As a result, the Agency issued a Second Supplemental Proposal on 
    May 12, 1997 (62 FR 26041). In it, EPA proposed to change the numerical 
    limits for all nonwastewater wastes containing the following metal 
    constituents: antimony, barium, beryllium, cadmium, chromium, lead, 
    nickel, selenium, silver, and thallium. (62 FR at 26047, May 12, 1997). 
    The Agency also reproposed to change the numerical limits for vanadium 
    in P119 and P120 nonwastewaters, and for zinc in K061 nonwastewaters. 
    (62 FR at 26047, May 12, 1997). EPA also proposed these same UTS 
    treatment standards for TC metal wastes identified as hazardous due to 
    concentrations of barium, cadmium, chromium, lead, selenium and silver.
        The Agency would like to correct in today's rule a prior error that 
    was discovered in calculating the metals treatment levels using the 
    HTMR treatment data. As previously stated, in the Second Supplemental 
    and in today's preamble, in determining the treatment levels for each 
    metal constituent, the Agency compared the treatment standards 
    calculated with data from HTMR and stabilization. Based on this 
    comparison, the highest level for each metal was chosen as the 
    treatment standard. In reviewing the calculations from the HTMR data 
    set, the Agency discovered an error in the calculations. When applying 
    the methodology presented in USEPA, ``Final Best Demonstrated 
    Technology (BDAT) Background Document for Quality Assurance/Quality 
    Control Procedures and Methodology,'' dated October 23, 1991, it was 
    discovered that the Agency failed to conduct a ``Z-score test'' to 
    remove any outliers--data that is either so high or so low that it is 
    not considered to be representative of the population from which the 
    data are drawn. EPA uses this statistical method to confirm that 
    certain data do not represent treatment by a well-operated system, or 
    reflect anomalously low levels which are not typically achievable. This 
    error was found to have occurred only in the calculation of the 
    treatment standards based on the performance of HTMR; the treatment 
    standards based on the performance of stabilization were properly 
    calculated. The proposed treatment standards for cadmium, chromium, 
    nickel, and silver were affected. The application of the Z-score 
    outlier test resulted in 2 data points out of 40 being eliminated as 
    outliers for both cadmium and chromium. For nickel, 5 out of 122 data 
    points were identified as outliers.
        For silver, 3 out of 114 data points were identified as outliers. 
    Three of the resulting, calculated treatment standards changed slightly 
    and are slightly more stringent than the proposed standards: cadmium 
    from proposed 0.20 to corrected 0.11 mg/L TCLP; chromium from proposed 
    0.85 to corrected 0.60 mg/L TCLP; and nickel from proposed 13.6 to 
    corrected 11 mg/L TCLP. Silver, on the other hand, changed from the 
    proposed 0.11 mg/L TCLP to a corrected, slightly less stringent 0.14 
    mg/L TCLP. (Note: In re-calculating this standard, the Agency added an 
    additional 74 data points which were submitted by the INMETCO Company 
    (a high temperature metal reclaimer) in their comments to the May 12 
    supplemental proposal.) The Agency believes that these re-calculations 
    are not significant because these four revised standards are each still 
    achievable. See Memorandum, ``Calculation of Universal Treatment 
    Standard (UTS) for HTMR Residues Using Data Submitted by Horsehead 
    Research Development (HRD) Co., Inc. And INMETCO,'' December 17, 1997.
    
    B. Applicability of Metal Treatment Standards
    
        As noted earlier, today's rule finalizes LDR treatment standards in 
    two ways. First, it revises the UTS levels for 10 metal constituents in 
    nonwastewater forms of hazardous wastes. The 10 include antimony, 
    barium, beryllium, cadmium, chromium, lead, nickel, selenium, silver, 
    and thallium. These treatment standards will replace the existing UTS 
    values. In addition, EPA is applying UTS for the first time to 8 TC 
    metal wastes: arsenic, barium, cadmium, chromium, lead, mercury, 
    selenium, and silver. The UTS apply to both wastewater and 
    nonwastewater forms of the wastes (except for TC arsenic wastes, for 
    which the UTS apply to wastewater forms only), and to both organic and 
    metal underlying hazardous constituents in them. No TC metal wastes 
    have had to meet standards for underlying hazardous constituents before 
    today, and wastes exhibiting only the TC and not the EP were not yet 
    prohibited. (Note, some subcategories of mercury and arsenic TC metal 
    wastes have treatment methods requiring use of a specified technology, 
    and are not affected by today's rule.) The Agency is also adjusting the 
    treatment standards for vanadium in P019 and P020 nonwastewaters as 
    well as zinc in K061 nonwastewaters.
        The metal treatment standards being promulgated today have broad 
    applicability. They apply to the following metal-containing hazardous 
    wastes: (1) characteristic metal wastes, including both the newly 
    identified wastes that, heretofore, were not prohibited from land 
    disposal; and metal wastes that were identified as hazardous under the 
    predecessor leaching protocol, the Extraction Procedure (EP), which 
    remain hazardous because they also exhibit the TC by the TCLP; (2) 
    mineral processing wastes which exhibit the toxicity characteristic for 
    metal (this is actually a subset of wastes in (1) above); (3) listed 
    hazardous wastes which have metal constituents; (4) underlying 
    hazardous constituents (UHCs) that are metals in any characteristic 
    hazardous waste (including mineral processing waste which exhibit a 
    characteristic) that is disposed in other than a Clean Water Act (CWA) 
    or CWA-equivalent wastewater treatment system (see 40 CFR 268.2(i); 59 
    FR 47982, September 19, 1994); and (5) radioactive wastes mixed with 
    the wastes mentioned in (1)-(4) above.
    
    C. Development of New Treatment Standards for Hazardous Wastes 
    Containing Metals
    
    1. Measuring Compliance by Grab or Composite Sampling
        As explained in the May 12, 1997 Second Supplemental Phase IV 
    proposal, EPA establishes treatment standards using data obtained by 
    grab sampling, not composite sampling, and
    
    [[Page 28562]]
    
    likewise assesses compliance with these standards using grab sampling. 
    62 FR at 26047. This approach was sustained by the D.C. Circuit Court 
    of Appeals in Chemical Waste Management v. EPA, 976 F. 2d at 34, and 
    EPA did not and is not reopening the issue in this proceeding. The 
    Agency has now obtained requisite grab sampling data. As a result, the 
    treatment standards promulgated in this rule are all based upon 
    treatment performance that was measured through the use of grab 
    sampling. All compliance likewise will be based on grab sampling.
    2. Development of Treatment Standards for Metal Wastes
        All of the metals described below are on the UTS list and some are 
    also TC metals. This section discusses development of both the TC and 
    UTS treatment standard levels. The Agency is presenting the metal 
    treatment standards alphabetically by constituent. Depending on the 
    constituent, one or more treatment standards is discussed. For example 
    in the section entitled, ``Treatment Standards for Barium Waste,'' the 
    Agency discusses the promulgation of three treatment standards: (1) 21 
    mg/L TCLP for nonwastewater forms of D005 waste (based on the UTS); (2) 
    1.2 mg/L for wastewater forms of D005 waste (also based on the UTS); 
    and (3) a revised UTS of 21 mg/L TCLP for barium nonwastewaters. If a 
    metal constituent is not one of the TC metals, its presence cannot be 
    the basis for determining if a waste exhibits the toxicity 
    characteristic--but it could be an underlying hazardous constituent in 
    the waste, in which case that constituent would need to meet the 
    standard for that metal in today's rule before the waste could be land 
    disposed.
        a. Final Universal Treatment Standard for Nonwastewater Forms of 
    Antimony. The Agency proposed in the Second Supplemental (62 FR 26041, 
    May 12, 1997), to change the UTS for nonwastewaters containing antimony 
    from 2.1 mg/L TCLP to 0.07 mg/L TCLP. This proposed change was a result 
    of new data collection efforts conducted by the Agency to gather 
    performance data that was representative of the diversity of metal-
    containing wastes.
        In response, the Agency received several comments. Two commenters 
    supported the proposed change; however the remaining commenters argued 
    against the proposed level for antimony of 0.07 mg/L TCLP for a number 
    of reasons. One commercial waste management facility stated that very 
    few of the waste streams they treat using conventional stabilization 
    techniques, including furnace ash, incinerator ash, scrubber brine 
    sludge, furnace baghouse dust, and stripper rinse waters, would meet 
    the proposed standard. The commenter submitted 48 data points 
    supporting its claim. A third commenter stated that meeting the 
    standard would significantly increase their compliance costs. Another 
    stated that commercial stabilization techniques were not capable of 
    meeting the proposed UTS for antimony. In general, these commenters 
    suggested a higher UTS for antimony in the range of 1.3 mg/L TCLP to 
    2.98 mg/L TCLP.
        In response to the commenters' concerns regarding the difficulty in 
    treating antimony wastes, the Agency has conducted a thorough review of 
    its BDAT data set and has determined that while it represents a diverse 
    collection of waste streams containing metals, the concentration of 
    antimony in the 9 data points used to calculate the proposed standard 
    may not be representative of the most difficult to treat antimony 
    waste. The data used by the Agency to calculate the proposed UTS of 
    0.07 mg/L TCLP, showed a range of antimony concentrations in the 
    untreated waste of between 0.2440 mg/L TCLP and 16.1 mg/L TCLP. While 
    the Agency, at the time, believed that these data were sufficient to 
    establish a treatment standard, new data submitted by a commercial 
    hazardous waste treatment facility provide a compelling argument to 
    amend this standard. The new data consist of 48 additional data points 
    representing various multiple metal waste streams, including 
    incinerator or furnace ash, scrubber brine sludge, lab pack waste, 
    stripper rinse water and baghouse dust. These wastes have all been 
    treated with conventional stabilization techniques and meet the 
    proposed UTS values for all metal constituents except for antimony. The 
    Agency has reviewed the data, the treatment technology, and the QA/QC 
    information submitted by the commenter and believes that the data 
    should be incorporated into the existing BDAT data set. After doing so, 
    the Agency recalculated the treatment standard for antimony 
    nonwastewaters and is today promulgating a revised standard of 1.15 mg/
    L TCLP. All data available to the Agency indicate that the revised 
    treatment standard for antimony nonwastewaters can be achieved by 
    either stabilization or HTMR processes and addresses the commenter's 
    concerns.
        b. Treatment Standard for Wastewater Forms of Arsenic Waste.The 
    Agency proposed in the original Phase IV proposal (60 FR 43683, August 
    22, 1995), to change the treatment standard for wastewater forms of 
    toxicity characteristic arsenic (D004) waste from the characteristic 
    level of 5.0 mg/L established in the Third Third rule (55 FR 22520 June 
    1, 1990) to the previously promulgated UTS for arsenic wastewaters of 
    1.4 mg/L. The Agency did not propose to change the treatment standard 
    for nonwastewater forms of toxicity characteristic arsenic (D004) waste 
    in that the UTS of 5.0 mg/L TCLP was the same as the TC level. The 
    Agency received no comment on the proposed change to D004 wastewaters. 
    Therefore, the Agency is today promulgating as proposed the UTS 
    standard of 1.4 mg/L for D004 wastewaters.
        c. Treatment Standards for Barium Waste. (i) Treatment standards 
    for TC Barium (D005) Waste. In 60 FR 43684 (August 22, 1995), EPA 
    proposed to change the treatment standards for wastewater forms of TC 
    metal barium waste (D005) from the characteristic level of 100 mg/L 
    (established in the Third Third rule, 55 FR 22520, June 1, 1990) to the 
    previously promulgated UTS for barium of 1.2 mg/L. Likewise, EPA 
    proposed for D005 nonwastewaters a change from the characteristic level 
    of 100 mg/L TCLP (55 FR 22520, June 1, 1990) to the previously 
    promulgated UTS of 7.6 mg/L TCLP. In support of these revised treatment 
    standards, the Agency had performed a comprehensive re-evaluation of 
    the available treatment performance data from wastes containing 
    significant concentrations of barium.
        For D005 wastewaters, the Agency determined that the existing UTS 
    level for barium (1.2 mg/L) was appropriate, based on the performance 
    of lime conditioning followed by sedimentation and filtration as BDAT. 
    For D005 nonwastewaters, the Agency determined that the existing UTS 
    level of 7.6 mg/L TCLP, based on treatment of barium in K061 (electric 
    arc furnace dust) using HTMR was also appropriate. The Agency believed 
    that these treatment standards could be routinely met by industry. 
    Additionally, the Agency reviewed stabilization data and determined 
    that the treatment standards for barium could be achieved by 
    stabilization for a wide variety of waste matrices. (See Proposed Best 
    Demonstrated Available Technology (BDAT) Background Document for 
    Toxicity Characteristic Metal Wastes D004-D011, July 26, 1995.)
        The Agency received no significant comment on the proposed change 
    to the wastewater standard for D005. However, as previously discussed 
    in Section III.A of today's rule, new data collection efforts and new 
    analysis of BDAT data
    
    [[Page 28563]]
    
    for nonwastewaters resulted in a reproposal of the barium treatment 
    standard in the Phase IV Second Supplement (62 FR 26047) . In this 
    notice, the Agency proposed to revise the treatment standard for barium 
    nonwastewaters to 21 mg/L TCLP based on stabilization. The Agency 
    received no comments in response to the reproposal. Therefore, the 
    Agency today is promulgating a nonwastewater treatment standard of 21 
    mg/L TCLP as proposed in 62 FR 26041. In addition, the treatment 
    standard of 1.2 mg/L for wastewater forms of D005 is promulgated as 
    proposed in 60 FR 43654.
        (ii) Universal Treatment Standard (UTS) for Barium Nonwastewaters. 
    (Please refer to the discussion above about the development of the 
    treatment standard for D005 for additional information on the 
    development of the barium UTS levels.) The Agency proposed to change 
    the UTS for barium nonwastewaters from 7.6 mg/L to 21 mg/L TCLP (see 62 
    FR 26041). It was proposed that such a treatment standard would better 
    reflect the diversity of metal-containing waste streams and their 
    treatment.
        The Agency received no significant comment in response to the 
    reproposal. Therefore, the Agency is today promulgating a nonwastewater 
    UTS of 21 mg/L TCLP, as proposed.
        d. Final Universal Treatment Standard for Nonwastewater Forms of 
    Beryllium Waste. The Agency proposed in the original Phase IV proposal 
    (60 FR 43683, August 22, 1995), to revise the UTS for nonwastewaters 
    containing beryllium from 0.014 mg/L TCLP to 0.04 mg/L TCLP. As 
    previously discussed, new data collection efforts and new analysis of 
    BDAT data resulted in a reproposal of the beryllium treatment standard 
    to 0.02 mg/L TCLP in the Phase IV Second Supplemental (62 FR 26041, May 
    12, 1997).
        The Agency received numerous comments on the proposed revision. One 
    commenter supported the proposed treatment level for beryllium, but 
    stated that current stabilization technologies could achieve lower 
    treatment levels. Several other commenters stated that while the 
    proposed standard for beryllium was consistent with the data considered 
    by the Agency, the stabilization data for beryllium were quite limited 
    and reflected the treatment of wastes having very low beryllium 
    content. Commenters further questioned whether the proposed standard of 
    0.02 mg/L TCLP could be met by conventional stabilization techniques if 
    higher concentrations of beryllium were treated. Other commenters 
    stated that they could not support the treatment standards because EPA 
    has not demonstrated that existing commercial technologies were capable 
    of achieving the proposed standards or that technologies were otherwise 
    available.
        In light of the comments received, the Agency conducted a review of 
    the data set used to calculate the proposed standard. The review 
    indicated that, consistent with the commenter's concerns, the data used 
    by the Agency to calculate the standard were based on wastes containing 
    low concentrations of beryllium (between 0.0050 and 0.5 mg/L TCLP). 
    These concentration levels and the subsequent treatment standard 
    developed from them does not appear to adequately account for the 
    difficulty in treating wastes containing higher concentrations of 
    beryllium. Data generated and submitted by Brush Wellman, Inc., 
    consisting of seven data points, showed characteristic wastes (D008) 
    with concentrations of beryllium ranging from 32 to 95 mg/L TCLP. When 
    treated with conventional stabilization techniques, treatment resulted 
    in beryllium levels ranging from 0.05 mg/L to 0.31 mg/L TCLP. As a 
    result of these data, the proposed UTS for beryllium must be revised to 
    reflect a more difficult-to-treat or high-concentration beryllium 
    waste. Accordingly, the Agency is today promulgating a revised UTS for 
    beryllium nonwastewaters of 1.22 mg/L based on this newly acquired 
    data. All treatment performance data available to the Agency indicates 
    that this revised treatment standard can be met, thereby addressing 
    concerns raised by the commenters to the proposal. It should be noted 
    that the UTS for beryllium wastewaters remains unchanged at 0.82 mg/L.
        e. Treatment Standards for Cadmium Wastes. (i) Treatment standards 
    for TC Cadmium (D006) Waste. The Agency proposed to change the 
    treatment standards for wastewater forms of TC cadmium (D006) waste 
    from the characteristic level of 1.0 mg/L (established in the Third 
    Third rule (55 FR 22520. June 1, 1990) to the previously promulgated 
    UTS for cadmium wastewaters of 0.69 mg/L. EPA also proposed to change 
    the treatment standard for D006 nonwastewaters from the characteristic 
    level of 1.0 mg/L TCLP (55 FR 22520 (June 1,1990)) to the previously 
    promulgated UTS for cadmium nonwastewaters of 0.19 mg/L TCLP. In 
    support of these revised treatment standards, the Agency had performed 
    a comprehensive re-evaluation of the available treatment performance 
    data from wastes containing significant concentrations of cadmium.
        For D006 wastewaters, the Agency determined that the existing UTS 
    for cadmium (0.69 mg/L) based on a BDAT of lime conditioning followed 
    by sedimentation was appropriate. The treatment standard for 
    nonwastewater forms of D006 wastes was based on a transfer from the UTS 
    for cadmium of 0.19 mg/L TCLP based on the K061-HTMR treatment standard 
    data. The Agency chose to use these data because they represented 
    performance of an HTMR treatment unit. The UTS based on K061-HTMR could 
    be routinely met by industry. Additionally the Agency reviewed 
    stabilization performance data and determined that the UTS for cadmium 
    could be achieved by stabilization for a wide variety of waste 
    matrices. See Proposed Best Demonstrated Available Technology (BDAT) 
    Background Document for Toxicity Characteristic Metal Waste D004-D011 ( 
    July 26, 1995).
        The Agency received no comments on the proposed change to the 
    wastewater standard for D006. However, for reasons previously discussed 
    in Section III.A of today's preamble, the Agency in the Phase IV Second 
    Supplemental proposed to revise the treatment standard for cadmium 
    nonwastewaters to 0.20 mg/L TCLP based on HTMR.
        All comments received in response to the revised standard for 
    cadmium supported the change. However, as discussed earlier in Section 
    III.A of today's preamble, the Agency discovered an error in the 
    calculation of the treatment standard. In applying the LDR methodology 
    for calculating a treatment standard, the Agency failed to conduct a 
    ``Z-score'' outlier test. With the application of this test, 2 out of 
    the 40 data points were determined to be outliers, resulting in a 
    revised treatment standard for cadmium nonwastewaters of 0.11 mg/L 
    TCLP. (The proposed treatment standard of 0.20 mg/L TCLP was based on 
    all 40 data points.) The Agency has reviewed the comments in light of 
    this amended treatment standard and believes that it can be achieved by 
    both HTMR and stabilization treatment. Data submitted by commenters in 
    support of this rule does clearly indicate that the standard can be 
    achieved. See supporting information contained in docket for this rule. 
    Therefore, the Agency is today promulgating a nonwastewater treatment 
    standard of 0.11 mg/L TCLP for D006. In addition, the treatment 
    standard of 0.69 mg/L for wastewater forms of D006 waste is being 
    promulgated as proposed in 60 FR 43654.
    
    [[Page 28564]]
    
        (ii) Universal Treatment Standard (UTS) for Nonwastewaters 
    Containing Cadmium. The reader is referred to the above discussion 
    about the development of the treatment standard for D006 nonwastewaters 
    for additional information of the development of the UTS level for 
    cadmium nonwastewaters. EPA is promulgating an UTS of 0.11 mg/L TCLP 
    for nonwastewaters containing cadmium. No change was proposed for the 
    cadmium wastewater UTS; therefore it remains at 0.69 mg/L.
        f. Treatment Standards for Chromium Wastes. (i) Treatment Standards 
    for TC Chromium Wastes (D007). In 60 FR 43654 (August 22, 1995), the 
    Agency proposed to change the treatment standards for wastewater forms 
    of toxicity characteristic chromium (D007) waste from the 
    characteristic level of 5.0 mg/L (established in the Third Third rule 
    (55 FR 22520. June 1, 1990) to the previously promulgated UTS for 
    chromium (total) wastewaters of 2.77 mg/L. EPA also proposed to change 
    the treatment standards for D007 nonwastewaters from the characteristic 
    level of 5.0 mg/L TCLP (55 FR 22520, June 1,1990) (a standard remanded 
    by the D.C. Circuit as insufficiently stringent in Chemical Waste 
    Management v. EPA, 976 F. 2d at 32) to the previously promulgated UTS 
    for nonwastewater forms of chromium (total) of 0.86 mg/L TCLP. In 
    support of these revised standards, the Agency had performed a 
    comprehensive re-evaluation of the available treatment performance data 
    from wastes containing significant concentrations of chromium.
        For D007 wastewaters, the Agency determined that the existing UTS 
    (2.77 mg/L) based on a BDAT of lime conditioning followed by 
    sedimentation was appropriate. The treatment standard for D007 
    nonwastewaters was based on a transfer from the UTS for chromium 
    (total) of 0.86 mg/L TCLP based on the K061-HTMR treatment standard 
    data. In addition, the Agency reviewed stabilization performance data 
    and determined that the UTS for chromium (total) could be achieved by 
    stabilization for a wide variety of waste matrices. See Proposed Best 
    Demonstrated Available Technology (BDAT) Background Document for 
    Toxicity Characteristic Wastes D004-D011, July 26, 1995.
        The Agency received no comments on the proposed change to the 
    wastewater standard for D007. However, as previously discussed in 
    Section III.A of today's preamble, new data collection efforts and 
    further analysis of BDAT data, resulted in a proposed revision to the 
    treatment standard for nonwastewater containing chromium to 0.85 mg/L 
    TCLP based on a BDAT of stabilization (62 FR 26041).
        In response to the reproposal, the Agency received no significant 
    comments. However, as discussed earlier in Section III.A of today's 
    preamble, the Agency discovered an error in the calculation of the 
    treatment standard. In applying the LDR methodology for calculating a 
    treatment standard, the Agency failed to conduct a ``Z-score'' outlier 
    test. With the application of this test, 2 out of the 40 data points, 
    originally used to calculate the standard, were determined to be 
    outliers, resulting in a revised treatment standard for chromium 
    nonwastewaters of 0.60 mg/L TCLP. The Agency has reviewed the comments 
    in light of this amended standard and believes that it can be achieved 
    by both HTMR and stabilization technologies. Data submitted by 
    commenters in response to this proposal also support this conclusion. 
    See supporting information contained in the docket for this rule. 
    Therefore, the Agency is today promulgating an amended nonwastewater 
    treatment standard of 0.60 mg/L TCLP. In addition, EPA is also 
    promulgating a treatment standard of 2.77 mg/L for wastewater forms of 
    D007 as proposed in 60 FR 43654.
        (ii) Universal Treatment Standard (UTS) for Chromium 
    Nonwastewaters. (Please refer to the discussion above about the 
    development of the treatment standard for D007 for additional 
    information on the development of the chromium UTS levels.) The Agency 
    proposed to change the UTS for chromium (total) nonwastewaters to 0.85 
    mg/L TCLP to better reflect the diversity of metal-containing waste 
    streams and their treatment (see 62 FR 26041). No change was proposed 
    for the chromium wastewater UTS.
        The Agency received no significant comments on the reproposal. 
    However, as a result of an error in the calculation of the proposed 
    treatment standard, as previously discussed, the Agency is today 
    promulgating a revised chromium nonwastewater UTS of 0.60 mg/L TCLP. 
    The chromium wastewater UTS remains unchanged at 2.77 mg/L.
        g. Final Treatment Standards for Lead Wastes. (i) Treatment 
    standards for TC Lead Wastes (D008). In 60 FR 43654 (August 22, 1995), 
    the Agency proposed to change the treatment standards for wastewater 
    forms of toxicity characteristic lead (D008) waste from the 
    characteristic level of 5.0 mg/L established in the Third Third rule 
    (55 FR 22520, June 1, 1990) to the previously promulgated UTS for lead 
    wastewaters of 0.69 mg/L. EPA also proposed to change the treatment 
    standard for D008 nonwastewaters from the characteristic level of 5.0 
    mg/L TCLP (55 FR 22520, June 1, 1990) (a standard remanded by the D.C. 
    Circuit as insufficiently stringent in Chemical Waste Management v. 
    EPA, 976 F. 2d at 27) to the previously promulgated UTS for lead 
    nonwastewaters of 0.37 mg/L TCLP. In support of these revised treatment 
    standards, the Agency had performed a comprehensive re-evaluation of 
    the available treatment performance data from wastes containing 
    significant concentrations of lead.
        For D008 wastewaters, the Agency determined that the existing UTS 
    for lead (0.69 mg/L) based on a BDAT of lime conditioning followed by 
    sedimentation was appropriate. The treatment standard for nonwastewater 
    forms of D008 waste was based on a transfer from the UTS for lead of 
    0.37 mg/L TCLP, which in turn, was based on K061-HTMR treatment 
    standard data. The Agency believed that the UTS could be routinely met 
    by industry using HTMR. Additionally, the Agency reviewed stabilization 
    performance data and determined that the UTS for lead could also be 
    achieved by stabilization for a wide variety of waste matrices. See 
    Proposed Best Demonstrated Available Technology (BDAT) Background 
    Document for Toxicity Characteristic Metal Wastes D004-D011, July 26, 
    1995.
        The Agency did not receive any comments on the proposed change for 
    D008 wastewaters. However as previously discussed in today's preamble, 
    numerous comments on the proposed nonwastewater treatment standard were 
    submitted. As a result, the Agency in the Phase IV Second Supplemental 
    proposed to change the D008 nonwastewater standard to 0.75 mg/L TCLP 
    based on new BDAT stabilization data (62 FR 26047) collected by the 
    Agency. The Agency felt that these data better reflected the diversity 
    of lead-containing waste streams and their treatment.
        Numerous commenters concurred with the Agency's reproposal. 
    However, other commenters, specifically those representing various 
    sectors of the secondary lead industry, argued that EPA's proposed 
    treatment standard for lead was not achievable. In particular, comments 
    from Battery Council International (BCI) and the Association of Battery 
    Recyclers (ABR) argued that new data developed by their association 
    members showed that no facility in the secondary lead industry could 
    meet EPA's proposed treatment standard for lead. Instead, they 
    supported setting a treatment standard of 8.39 mg/L TCLP for D008 
    nonwastewaters based on
    
    [[Page 28565]]
    
    stabilization. The commenters argued that smelter slag has chemical and 
    physical characteristics distinctly different from the wastes used to 
    develop the treatment standard and that because of its physical 
    variability, treatment of secondary smelter slag through stabilization 
    was much less effective than other types of D008 wastes. The commenter 
    further questioned EPA's decision to ignore data submitted by BCI, ABR 
    and others in response to the original Phase IV proposal, stating that 
    these data were much more comprehensive and representative. The 
    commenter stated that these data contained 276 composite data points 
    for lead from secondary smelter slag, with a 99th percentile confidence 
    interval for stabilized slag of 2.97 mg/L TCLP. Another commenter, 
    which uses a chemical fixation process on the generated blast furnace 
    slag, argued that they could only meet a 2.0 mg/L TCLP for lead, based 
    on composite rather than grab sampling.
        In response to the commenters' concerns, the Agency would first 
    like to respond to the commenters' statement that data previously 
    submitted to the Agency was ignored. The Agency is careful to review 
    and analyze all data that are submitted in support or response to its 
    rulemakings. In fact, the referenced data were analyzed extensively, 
    but were found to be so seriously lacking in form and quality 
    assurance/quality control prerequisites that it was impossible to use 
    them for BDAT development. (In the docket for this rule see the 
    documents, ``Draft--Overview of Five Data Sets Submitted in Response to 
    the Land Disposal Restrictions Phase IV Proposed Rule: Treatment of 
    Metals,'' November 1996; and correspondence from Michael Petruska, 
    USEPA to David B. Weinberg, Battery Council International Re: Request 
    for Additional Data in Support of the Previous Submitted Data in 
    Response to the Land Disposal Restriction Phase IV,'' July 22, 1996). 
    Specifically, the data submitted to the Agency were (1) based on 
    composite samples rather than grab samples, the latter being the only 
    type used to develop treatment standards; (2) lacking in any quality 
    assurance/quality control (QA/QC) documentation; and (3) not 
    accompanied with specific treatment information, or any indication that 
    performance of the treatment process was in fact optimized. As such, 
    the Agency was unable to utilize these data.
        Other additional data were subsequently submitted by the commenter 
    in response to the ``Second Supplemental'' and analyzed by the Agency. 
    These data were based on grab sampling, but there were no specifics on 
    the type of stabilization treatment conducted on the waste. The data 
    does indicate that secondary smelter slags can be treated to meet 
    today's treatment standards for all metals except lead and thallium. 
    With respect to lead, approximately 24 out of 83 samples have treated 
    lead values greater than 0.75 mg/L TCLP, but less than the 
    characteristic level of 5.0 mg/L TCLP. No information was provided for 
    the majority of the thallium data sets. Based on these data, the 
    commenter proposed a treatment standard of 8.39 mg/L TCLP for lead 
    nonwastewaters and 0.79 mg/L TCLP for thallium nonwastewaters. However, 
    these data failed to show effective treatment of the thallium and lead 
    constituents. (In the docket for this rule, see memorandum to Nick 
    Vizzone, USEPA from Howard Finkel of ICF, ``Calculation of Universal 
    Treatment Standard (UTS) for Stabilized Secondary Lead Slag Using Data 
    Submitted by the Battery Council International and Association of 
    Battery Recyclers,'' December 5, 1997).
        Commenters have failed to provide reliable and convincing data or 
    information to persuade the Agency that stabilization can not meet the 
    proposed treatment standard of 0.75 mg/L TCLP for lead slags. While the 
    physical variability of the slag may indeed affect treatment 
    performance, the Agency is unconvinced that the commenter's data were 
    the result of optimized treatment conditions and, therefore, are not 
    indicative of true treatment difficulties. EPA's own performance data 
    from treatment of D008 battery slags (which were used in part for the 
    calculation of the treatment standard) clearly support the view that 
    slags from secondary battery recyclers can be treated to meet the 
    nonwastewater standard of 0.75 mg/L TCLP. These data indicate that 
    slags with lead concentrations ranging from 5 to 846 mg/L TCLP (a range 
    similar to that associated with the data submitted in response to the 
    May 12 Second Supplemental proposal and which are discussed above) can 
    be treated with stabilization techniques to levels less than 0.01 mg/L 
    to 0.3 mg/L TCLP. Furthermore, data and information available to the 
    Agency suggest that with optimized treatment these standards should be 
    achievable regardless of the waste matrix. (See ``Treatment Technology 
    Background Document'', January 1991, for a discussion of Waste 
    Characteristics Affecting Performance (WCAPS and other pertinent 
    material). As such, the Agency is unpersuaded by the commenter's 
    arguments and is today promulgating as proposed a treatment standard of 
    0.75 mg/L TCLP for D008 nonwastewaters and a standard of 0.69 mg/L for 
    D008 wastewaters. The Agency notes that if a particular waste is unique 
    or possesses properties making it unusually difficult to treat by the 
    treatment technologies whose performance was used to develop the 
    treatment standard, the affected party may petition the Agency, on a 
    case-by-case basis, for a treatment variance as provided in 40 CFR 
    268.44.
        (ii) Final Universal Treatment Standard (UTS) for Nonwastewaters 
    Containing Lead. (Please refer to the discussion above about the 
    development of the treatment standard for D008 for additional 
    information on the development of the lead UTS levels.) The Agency 
    proposed to change the UTS for lead nonwastewaters from 0.37 mg/L TCLP 
    to 0.75 mg/L TCLP to better reflect the diversity of metal-containing 
    waste streams and their treatment (see 62 FR 26041). In response to the 
    proposed revision, the Agency did receive a number of comments on the 
    nonwastewater level, discussed above. For reasons also discussed above, 
    the Agency is today promulgating a lead nonwastewater UTS of 0.75 mg/L 
    TCLP as proposed.
        (iii) Secondary Smelter Battery Slag--Additional Issue. EPA 
    published a Notice of Data Availability (NODA) on May 10, 1996 (61 FR 
    21419) that discussed, among other things, an issue regarding 
    application of the LDR standards to slags resulting from the smelting 
    of lead acid batteries. The LDR treatment standard, established in the 
    Third Third Rule in 1990, for lead acid batteries is RLEAD (see 40 CFR 
    268.40 and 268.42, Table 1), which means recovery of lead. The NODA 
    stated that ``[o]nce the batteries are smelted, the LDR requirements 
    have been satisfied, and, therefore, the slag resulting from this 
    smelting need not be treated further. The standards proposed under 
    Phase IV (i.e., compliance with UTS) would not apply to this slag, even 
    if the slag exhibits a characteristic of hazardous waste (i.e., 
    contains lead in amounts greater than 5.0 mg/L).'' This position was 
    based on EPA's usual interpretation that ``when EPA specifies a 
    treatment method as the treatment standard, residues resulting from the 
    required treatment method are no longer prohibited from land disposal 
    unless EPA should otherwise specify.'' (emphasis added) 55 FR at 22538 
    (June 1, 1990).
        After the publication of the May 10, 1996 NODA, EPA realized that 
    it had, in fact, ``otherwise specified'' that lead slags resulting from 
    the smelting of lead
    
    [[Page 28566]]
    
    acid batteries would be a separate treatability group in the Third 
    Third rule, and they would indeed require further treatment if the 
    slags exceeded the TC for lead (5.0 mg/L) as generated. See 55 FR at 
    22568 (June 1, 1990). The Third Third rule states that ``The residuals 
    from the recovery process are a new treatability group (i.e., the 
    residues are not lead acid batteries) and, therefore, their status as 
    prohibited or nonprohibited is determined at the point the residues are 
    generated. Such residues would thus only be prohibited and therefore 
    require further treatment if they exhibit a characteristic.'' This 
    point was clarified both in person and in a letter, dated July 31, 
    1996, sent to representatives of Battery Council International. The 
    letter explained that the Agency had mischaracterized the status of 
    lead slags in the May 10, 1996 NODA and requested comment on the 
    appropriate treatment standard for these lead slags.
        EPA published the Phase IV Second Supplemental Proposed Rule on May 
    12, 1997, and among other things, used new data from the treatment of 
    lead slags in revising the treatment standards for lead. In response to 
    this issue, one commenter stated that EPA was prohibited under RCRA 
    3004(m) from requiring further treatment for residuals that resulted 
    from a treatment process that was determined to be BDAT (such as 
    RLEAD). The commenter believes RCRA 3004(m) states that once threats 
    are minimized, EPA cannot require further treatment of the residuals 
    after the specified BDAT treatment has been performed on the waste, or 
    the BDAT numerical level has been achieved. Because the Agency's data 
    on lead slag residuals show concentrations of 283 mg/L TCLP lead are 
    not uncommon, potential threats from treated lead slag (using RLEAD 
    only) are clearly not minimized. In fact, the concentrations of lead in 
    these residuals resulting from RLEAD of lead acid batteries are among 
    the most concentrated TC lead wastes for which the Agency has data. The 
    Agency only is requiring further treatment of slag residuals which 
    exhibit the characteristic for lead (i.e., contain lead in amounts 
    greater than the TC level of 5.0 mg/l). Those residuals, by definition, 
    are still hazardous and potential threats posed by their land disposal 
    have not been minimized.
        Another commenter raised the issue of whether there had been 
    adequate notice and comment given regarding the status of lead slag 
    residuals. The Agency believes that adequate notice and opportunity to 
    comment were given in light of the facts recited. We note also that all 
    comments received on the Phase IV second supplemental rule regarding 
    lead slag residuals took issue with the treatment standard for lead and 
    the data used to develop the standard, but did not question that the 
    slags could be required to be treated further. Commenters appeared to 
    clearly understand that slags are covered by the Phase IV rule 
    establishing standards for TC lead wastes.
        Therefore, lead slag residuals resulting from the smelting of lead 
    acid batteries are included under today's rulemaking. If such residuals 
    exhibit a lead toxicity characteristic (i.e., have lead levels 
    exceeding 5.0 mg/L) after RLEAD is employed, they would have to be 
    treated again for lead and any other underlying hazardous constituents 
    present in waste until the treatment standards are achieved. For a 
    discussion on the development of these numerical standards being 
    promulgated today; see the discussion in section (i) above.
        (iv) Addition of Iron Filings to Stabilize Lead-Containing Wastes. 
    Today, the Agency is codifying the principle that the addition of iron 
    metal, in the form of fines, filings, or dust, for the purpose of 
    ostensibly achieving a treatment standard for lead is ``impermissible 
    dilution'' under 40 CFR 268.3. The Agency has determined that this 
    waste management practice does not minimize threats posed by land 
    disposal of lead-containing hazardous waste because the practice 
    essentially ``blinds'' the analytic method but would not in fact 
    prevent lead from leaching under actual disposal conditions. Affected 
    wastes include: toxic characteristic lead wastes (D008), any 
    characteristic waste containing lead as an underlying hazardous 
    constituent, and listed wastes for which lead is regulated.
        On March 2, 1995, EPA published the LDR Phase III proposal (60 FR 
    11702). Among other things EPA proposed that the addition of iron dust 
    to stabilize lead in characteristic hazardous waste constituted 
    impermissible dilution, rather than treatment legitimately meeting the 
    LDR treatment standards (60 FR 11731). In the proposal, the Agency 
    stated that certain industries were adding iron dust or iron fines to 
    some characteristic hazardous waste (nonwastewaters) as an ostensible 
    form of treatment for lead. As an example, the Agency noted that 
    foundries were known to mix iron dust or filings with the D008 sand 
    generated from their spent casting molds, viewing this practice as a 
    form of stabilization. In the proposal, the Agency stated that such 
    stabilization practices were inadequate to minimize threats posed by 
    land disposal of metal-containing hazardous waste, and proposed to 
    clarify that waste management practice as ``impermissible dilution'' 
    under 40 CFR 268.3.
        In response to the proposal, the Agency received numerous comments. 
    Commenters in support of the ``impermissible dilution'' designation 
    agreed with EPA's discussion in the preamble that no chemical or 
    pozzolanic reaction was possible from iron dust or filings and that 
    standard chemistry showed that metals such as lead were not bound in a 
    non-leachable matrix when using iron dust or filings as a stabilizing 
    agent. One commenter further mentioned many instances where generators 
    have avoided treatment costs by adding iron to their metal and cyanide-
    bearing waste streams, thus providing the short-term ability to, as the 
    commenter stated, ``fool'' the test for both amenable cyanide and 
    leachable metals. The commenter pointed out that EPA's adoption of a 
    total cyanide treatment standard had essentially solved the issue of 
    ineffective treatment of cyanide using iron, but the issue of metals 
    treatment still remained. The commenter concluded that the prohibition 
    on the use of iron dust and filings would promote more treatment of 
    toxic metal-bearing wastes.
        Other commenters discussed analytical concerns with the TCLP test 
    when used on iron-treated wastes. One commenter stated that the 
    addition of iron to D008 waste sand may mask the presence of lead in 
    two ways: first, iron is more easily oxidized than lead so that under 
    the conditions of the TCLP test, iron may be preferentially leached out 
    into solution, leaving the lead in an insoluble, undetectable state. A 
    second problem with the presence of iron in the TCLP test is spectral 
    interference with the analysis of lead, which could result in positive 
    interference and a raised detection limit for lead.
        Numerous commenters representing the foundry industry, however, 
    argued extensively against the ``impermissible dilution'' designation 
    for iron treatment of characteristic metal wastes. The commenters 
    stated that EPA's position was neither justified nor supported by any 
    technical documentation. The commenters further stated that: (1) iron 
    added to lead bearing waste foundry sand effectively immobilizes the 
    lead and yields a treatment residue that consistently passes the TCLP; 
    (2) TCLP tests, run on foundry sand that was treated with iron and 
    landfilled 8-10 years ago, yielded lead results below the 5 ppm level; 
    (3) analytical results for total iron from landfill samples clearly 
    show the iron has not oxidized after
    
    [[Page 28567]]
    
    several years; and (4) iron treatment has long-term stability. The 
    commenters further stated that no evidence either from leaching tests 
    or from real-world experience showed that iron treatment is not a 
    successful long-term treatment for brass foundry sand when the 
    treatment is conducted in an appropriate manner. On March 5, 1997, the 
    Agency addressed the issue and industry arguments in Land Disposal 
    Restriction--Phase IV Treatment Standards for Characteristic Metal 
    Wastes; Notice of Data Availability (NODA) (62 FR 10004). In this NODA, 
    new studies and data were presented on the issue of the treatment 
    adequacy of adding iron to characteristic metal wastes as a method of 
    treatment. As explained in the Phase III proposed rule (60 FR 11702), 
    and again in the NODA of March 5, 1997, the addition of iron seems to 
    temporarily retard the leachability of lead in spent foundry sand, thus 
    allowing the waste to pass the TCLP test, but not to be permanently 
    treated. At the time of the Phase III final rule, EPA decided not to 
    finalize a determination that the practice was a form of impermissible 
    dilution in the Phase III final rule without studying the issue 
    further. See 61 FR 15569, April 8, 1996. In the March 5, 1997 NODA, two 
    studies were noticed that had recently been completed.
        One study was developed by Dr. John Drexler of the University of 
    Colorado and the other by Dr. Douglas Kendall of the National 
    Enforcement Investigation Center (NEIC). The results of these studies 
    indicated that the addition of iron filings or iron dust to spent 
    foundry sands (D008) did not constitute adequate treatment of the waste 
    because high concentrations of lead remained available to the 
    environment and indeed have been shown to leach in actual field testing 
    of units receiving the spent foundry wastes. (The reader is referred to 
    62 FR 10004, March 5, 1997 for a full discussion of the studies).
        Specifically, Dr. Drexler's study concluded: (1) the spent foundry 
    wastes placed in Nacodoches Municipal Landfill remained hazardous; (2) 
    the addition of iron filings to spent foundry sand does not cause 
    chemical reduction (i.e., the hazardous lead remains oxidized); (3) the 
    addition of iron filings to the spent foundry sand promoted a 
    physicochemical dilution of the sample during the TCLP by producing 
    significant increases in surface area sorption sites; (4) the addition 
    of iron filings to the waste artificially altered the environmental 
    character of the TCLP test by increasing pH and lowering Eh (redox 
    potential) and DO (dissolved oxygen); and (5) in-vitro testing shows 
    that these ``treated'' wastes maintain a high bioavailability of lead.
        Dr. Kendall's study concluded that the addition of iron is not a 
    permanent way to treat lead-contaminated waste. Specifically, he 
    concluded that: (1) no reaction occurs when metallic iron is mixed with 
    lead-contaminated foundry sand (D008); (2) during the TCLP process, 
    lead begins to leach into the solution and if metallic iron is present, 
    the lead concentration in solution will decrease by an oxidation/
    reduction reaction to levels below the lead characteristic; (3) only if 
    fresh metallic iron is regularly introduced into the mixture, can 
    soluble lead be kept at low levels; and (4) upon placement of the waste 
    in a landfill and left alone, the iron will oxidize, losing its ability 
    to reduce lead ions.
        Peer review of the studies concurred with the findings that the 
    addition of iron filings to spent foundry sand is not treatment of 
    hazardous waste and that the scientific data presented in the studies 
    were based on sound scientific research and support the conclusions 
    made. (See ``Peer Review Report, September 3, 1996, submitted by A.T. 
    Kearney, Inc., Dallas, Texas to Rena McClurg, Regional Project Officer, 
    USEPA, Dallas, Texas.)
        The Agency received several comments in response to the NODA. One 
    State agency commented that based on the evidence gathered by the EPA, 
    the addition of iron fines as treatment of lead containing wastes 
    appears to be unacceptable under most disposal criteria. Furthermore, 
    it was the commenter's contention that the method in question should be 
    rejected where disposal of wastes so treated may be subjected to acid 
    leaching and chemical oxidation, in particular disposing of wastes in a 
    municipal solid waste landfill. The commenter did note however that 
    data exist to support the contention that the treatment may be 
    acceptable for brass foundries under specified monofill disposal 
    criteria. Another commenter requested clarification as to whether iron-
    bearing lead waste products, i.e., from the steel bridge blast cleaning 
    and painting industry, would be impacted. The commenter recommended 
    that all waste debris from any lead abatement project be deemed 
    hazardous and treated appropriately regardless of the type of abrasive 
    blast media used.
        Two commenters argued that the conclusions drawn from the studies 
    conducted by Drs. Kendall and Drexler were erroneous or misplaced from 
    a regulatory standpoint. In particular the commenters argued, among 
    other things, that given the biased sampling, i.e., sampling of only 
    ``hot spots'' in the landfill and disregard for SW-846 statistical 
    analysis, EPA should reconsider its view on the treatment of foundry 
    sands with iron filings. (The reader is referred to the ``Comment 
    Response Document'' for this final rule for a more complete discussion 
    of the comments received on this issue.)
        EPA has evaluated all the comments on the subject studies and on 
    the issue of iron filings as a treatment method for lead 
    nonwastewaters. The regulatory issue at hand--and the focus of the 
    studies--is whether or not adding iron metal is adequate treatment for 
    LDR purposes. Several commenters have elected to take issue with points 
    that are not the central focus of the two studies. While a statistical 
    evaluation is used to determine if a waste is hazardous, all parts of 
    the waste must be treated to meet the applicable standards, not just a 
    representative sample. Thus, if results show that ``hot spots'' remain, 
    this is presumptive evidence that treatment was not effective and there 
    is noncompliance with the LDR treatment requirements. In the preceding 
    determination of whether a waste is hazardous, the Agency guidance in 
    SW-846 provides basic sampling strategies for simple and stratified 
    random sampling of the waste as a whole. However, in application of the 
    land disposal treatment standards, all portions of the waste must meet 
    the applicable treatment standards, i.e., no portion may exceed the 
    regulatory limit. See 40 CFR 268.40. Hence, commenters that focused on 
    the SW-846 sampling issue largely misconstrued the central findings of 
    the studies.
        In response to comments pointing to the disposal of a waste in a 
    monofill, while data may suggest that disposal of iron treated waste in 
    this type of controlled environment may be protective in some 
    scenarios, RCRA section 3004(m)(1) requires treatment to substantially 
    diminish the toxicity of the waste or substantially reduce the 
    likelihood of migration of hazardous constituents from the waste so 
    that short-term and long-term threats to human health and the 
    environment are minimized. This statutory requirement has not been met 
    with iron addition plus placement in a monofill since ultimate 
    placement of the waste in a monofill is not germane to the key issue at 
    hand--is the treatment prior to land placement effective.
        With respect to this key issue, the Agency's determination that the 
    addition of elemental iron in the form of fines, filings, etc., 
    constitutes impermissible dilution is predicated on the fact that the 
    adsorption of soluble
    
    [[Page 28568]]
    
    lead on to the iron surface is a reversible reaction and once the iron 
    surfaces oxidize (which naturally occurs when the treated waste is 
    exposed to air), the ability of the additive (iron) to scavenge soluble 
    metals is diminished. Therefore, the treatment is not permanent. In 
    addition, adsorption alone is not a reliable method of permanently 
    immobilizing lead which both studies conclude. The authors have also 
    concluded, and the Agency agrees, that the prohibition should apply to 
    any lead-containing waste. As stated by Dr. Kendall in his response to 
    comments, ``Lead-contaminated foundry sand is no different from any 
    other waste which fails the TCLP test because of excessive amount of 
    extractable lead. The addition of iron metal (zero valence iron) is not 
    a permanent treatment because iron oxidizes. Since iron addition is not 
    a permanent treatment, it should not be allowed for hazardous wastes 
    which are to be land disposed, regardless of their origin.'' (See 
    memorandum from Samuel Coleman, USEPA to James R. Berlow, USEPA Re: 
    ``Reply to Comments Concerning Prohibition of Land Disposal of Iron 
    Treated Lead Contaminated Wastes''. November 17, 1997.)
        As indicated above, the addition of iron metal is not a permanent 
    treatment because the iron inevitably oxidizes and loses its 
    adsorptivity for soluble lead ions. After oxidation of the iron 
    surfaces, surface adsorption of lead ions ceases and the lead-bearing 
    waste returns to its original state; all pretext of treatment is lost. 
    Since iron addition is not effective, it cannot be allowed for 
    hazardous lead-containing hazardous wastes that are to be land 
    disposed, regardless of their origin (i.e., all lead-bearing wastes, 
    not just foundry sands).
        The Agency concludes that addition of iron metal, in the form of 
    fines, filings, or dust, fails to provide long-term treatment for lead-
    containing hazardous wastes. EPA is codifying this determination by 
    calling the practice impermissible dilution, and so invalidating it as 
    a means of treating lead in lead-containing hazardous wastes. It can 
    also be simply viewed as a type of treatment that fails to minimize the 
    threats to human health and the environment posed by disposal of lead-
    containing hazardous wastes, because lead mobility is not substantially 
    reduced when the waste is disposed.
        In response to comments whether use of iron-containing abrasives to 
    remove lead-based paint, for example from the steel bridge blast 
    cleaning and painting industry, may be a type of impermissible 
    dilution, the Agency notes that the dilution prohibition does not apply 
    to processes which generate a waste, only to processes that treat a 
    waste which already has been generated. See S. Rep. No. 284, 98th Cong. 
    2d Sess. 17 (1984). As such, it would not appear that abrasive blasting 
    is impermissible dilution since it is part of the process generating 
    the waste, i.e., the removed paint. If generators added iron filings/
    dust or discarded, off specification steel shots to lead-based paint 
    waste (similar to the current foundry practices), it is analogous to 
    impermissible dilution and this rule bans such practice. However, 
    addition of iron filing/dust to a hazardous waste (before the hazardous 
    waste determination) is a lot different from using steel pellets/shots, 
    silica-containing products, and other abrasive materials for paint 
    removal.
        The Agency has been pursuing several specific efforts to evaluate 
    the environmental hazards caused by disposal of lead-containing wastes, 
    including evaluation of damage case information included in the 1996 
    Hazardous Waste Characteristic Scoping Study, re-examination of the 
    risk modeling used for the 1995-proposed Hazardous Waste Identification 
    rule, and evaluation of fate and transport in other environmental media 
    from industrial nonhazardous solid waste disposal facilities. Upon 
    completion of these activities, the Agency will be in a better position 
    to decide whether disposal of lead-containing waste is a health and 
    environmental concern warranting listing or whether revising the TC 
    regulatory limit would be more appropriate.
        In addition, the Agency notes that a determination that a waste is 
    not hazardous (here because addition of iron during a generating 
    process results in a determination that paint waste does not exhibit a 
    characteristic) may not be a shield against future liability, if the 
    disposal results in environmental damage. Note that under CERCLA, not 
    just generators are liable for any environmental damage caused by the 
    release of hazardous material into the environment. CERCLA liability is 
    independent of any hazardous waste determination that previously may 
    have been made. EPA believes that in light of CERCLA liability and the 
    available environmental contamination data, it would be prudent for 
    generators to examine their waste generation and management practices 
    with an eye toward segregation of lead-based paint waste and iron dust/
    flakes or steel shots, and potential re-smelting of the lead-bearing 
    residuals.
        As a final matter, it has been argued to the Agency that the 
    proposed (and now final) action regarding addition of iron filings is 
    analogous to treatment of fluoride in a process for treating aluminum 
    spent potliner waste (K088) operated by Reynolds Metals Company. See 
    generally Docket P33F-S0069 p. 6 (July 7, 1997) and 62 FR 37694, 37697 
    (July 14, 1997) (responding to comment and establishing October 8, 1997 
    as the date prohibition of land disposal of K088 wastes takes effect). 
    The argument goes that in the Reynolds treatment process, reagents are 
    added to the process that only allow the fluoride to meet the LDR 
    treatment standard by blinding the analytical method (the TCLP), but do 
    not result in permanent reduction of fluoride mobility in the treated 
    wastes. See 62 FR at 37695, noting that levels of fluoride in the 
    leachate from actual disposal are well in excess of the levels 
    established in the treatment standard (as measured by the TCLP). Hence, 
    it is asserted, this process must be an example of impermissible 
    dilution.
        The Agency disagrees. First, EPA calculated that the process did 
    reduce fluoride mobility on the order of 28%. Docket P33F-S0064. This 
    estimate may in fact understate the extent of treatment. The maximum 
    amount of fluoride detected in actual leachate from the disposed 
    treatment residue is 2228 mg/L. 62 FR 37695. However, untreated 
    potliners leached fluoride at concentrations ranging from 7730-8860 mg/
    L when exposed to the same type of leaching medium (simulated monofill 
    leaching medium). Docket P33F-S0049 data set J. Thus, EPA finds that 
    the process is resulting in non-dilutive treatment of fluoride. In 
    addition, the reagent used for fluoride treatment serves another 
    legitimate function in the process--as a fluxing agent to prevent 
    agglomeration of material in the rotary kiln. 62 FR at 37695. Dilution 
    which is a necessary part of a treatment process is normally 
    permissible. 51 FR at 40592 (November 7, 1986); 62 FR at 37697. 
    Consequently, EPA does not regard the treatment of fluoride in the 
    Reynolds K088 treatment process to be a form of impermissible dilution.
        h. Treatment Standards for Wastewater and Nonwastewater Forms of 
    Mercury Waste. The Agency, in the original Phase IV rule, proposed to 
    change the treatment standard for one subcategory of TC mercury 
    wastewaters (D009--All Others) from the characteristic level of 0.20 
    mg/L (established in the Third Third rule (55 FR 22520. June 1, 1990) 
    to the previously promulgated UTS for mercury wastewaters (Mercury--All
    
    [[Page 28569]]
    
    Others) of 0.15 mg/L. (60 FR 43654, August 22, 1995.) The Agency 
    received no comments on this proposed change. As such, the Agency is 
    promulgating a treatment standard of 0.15 mg/L for wastewater forms of 
    D009--All Others.
        The Agency also proposed to revise the treatment standard for TC 
    mercury nonwastewaters (D009--All Others) from the characteristic level 
    of 0.20 mg/L TCLP to 0.025 mg/L TCLP. The nonwastewater UTS for mercury 
    is based on the mercury standard developed from K071 waste treatment 
    data. The only comments received on the achievability of this proposed 
    change were regarding the application of this treatment standard to TC 
    mercury soil. TC soils are subject to specific treatment standards 
    being finalized elsewhere in today's rule. More detail can be found on 
    the mercury soil comments in the Response to Comments Background 
    Document. Therefore, the Agency is promulgating a treatment standard of 
    0.025 mg/L TCLP for nonwastewater forms of D009--All Others in today's 
    rule.
        With respect to the broader issue of mercury treatment, the Agency 
    plans to conduct an intensive review of traditional and innovative 
    technologies over the next year or so. Outreach to various industry, 
    academic, and other groups is also being investigated as to its 
    feasibility. Key information, when available, on this effort can be 
    obtained from the RCRA Hotline, and notices of significant public 
    events will be placed in the Federal Register and on EPA's Internet 
    home page.
        i. Final Universal Treatment Standard for Nonwastewater Forms of 
    Nickel. The Agency proposed in the Phase IV Second Supplemental to 
    change the UTS for nonwastewaters containing nickel from 5.0 mg/L TCLP 
    to 13.6 mg/L TCLP. This revision to the UTS was based on new 
    performance data obtained by the Agency and presented in that notice. 
    The Agency did not receive any significant comments on this issue. 
    However, as discussed in an earlier section of today's preamble, the 
    Agency discovered an error in the calculation of the treatment 
    standard. In applying the LDR methodology for calculation of a 
    treatment standard, the Agency failed to conduct a ``Z-score'' outlier 
    test. With the application of this test, 5 out of the 122 data points 
    originally used in the calculation of the standard, were determined to 
    be outliers. This error resulted in a revised treatment standard for 
    nickel nonwastewaters of 11.0 mg/L TCLP. In light of this amended 
    standard, the Agency has reviewed all of the comments and data 
    submittals, and has determined that all the treatment data for nickel 
    is below 11.0 mg/L TCLP. Accordingly, the Agency is today promulgating 
    a final UTS for nickel nonwastewaters of 11.0 mg/L TCLP. No change was 
    proposed for nickel wastewater; therefore, the UTS remains at 3.98 mg/L 
    for these wastes.
        j. Final Treatment Standards for Selenium Wastes. (i) Treatment 
    standards for TC Selenium Wastes (D010). The majority of commenters 
    supported the Agency proposal to maintain the 5.7 mg/L TCLP level for 
    D010 nonwastewaters. They strongly agreed with the Agency's reasoning, 
    and urged EPA to adopt the proposed treatment standard.
        One commenter, however, maintains that the Agency should establish 
    a ``High Selenium Greater Than 200 ppm'' subcategory for 
    nonwastewaters, with a corresponding treatment standard of 10 mg/L 
    TCLP. The commenter has cited technical problems in achieving the 
    proposed treatment standard level for highly contaminated selenium 
    wastes. The commenter states that, since 1995, they have consistently 
    experienced problems treating waste streams from glass manufacturing 
    companies with wastes that contain high concentrations of selenium. The 
    commenter provided treatability testing data from a selenium waste 
    stream, containing 80 mg/L TCLP, which showed that 16 different 
    treatment recipes were tested prior to finding one that would treat a 
    selenium waste to below 5.7 mg/L TCLP. The other data, from three 
    different generators of selenium waste, suggest TCLP values of 
    untreated waste of between 465-1064 ppm TCLP, with treated wastes 
    achieving between 2.5 and 45.6 mg/L TCLP.
        The Agency has reviewed all the treatment data and, for the most 
    part, waste streams containing selenium exist either in relatively low 
    concentrations (0.1-0.13 mg/L TCLP) or in extremely high concentrations 
    (greater than 450 mg/L TCLP). Because of the highly divergent nature of 
    these wastes and the difficulty in treating selenium with multiple 
    metals at almost any concentration, it seems unreasonable to mandate 
    that one treatment standard could be applicable to both. Calculations 
    of a revised treatment standard, based only on the newly submitted 
    treatment data for the high selenium concentration wastes, would yield 
    a standard of 77.0 mg/L TCLP for selenium nonwastewaters. If a 
    calculation is done after pooling all selenium data (including low 
    concentration selenium data), a standard of 261 mg/L TCLP would result. 
    The Agency is reluctant to establish a treatment standard for selenium 
    nonwastewaters of either 77.0 mg/L or 261 mg/L TCLP on a national 
    level. Earlier data suggest and commenters concur that for the majority 
    of selenium wastes the proposed standard of 5.7 mg/L TCLP for selenium 
    nonwastewaters is appropriate. Furthermore, only three high selenium 
    concentration waste streams that could apparently not be treated to 
    this level. Therefore, there is little reason to pool all treatment 
    data or to engage in bifurcation of the selenium standard.
        Accordingly, the Agency is promulgating a treatment standard of 5.7 
    mg/L TCLP for nonwastewaters containing selenium. The Agency, however, 
    is convinced that the high-level selenium waste streams for which data 
    were submitted to EPA will be unable to be treated to achieve the 5.7 
    mg/L TCLP standard. Therefore, in a Federal Register notice that will 
    be published shortly, the Agency will be requesting comment on a 
    proposal to grant a site-specific treatment variance for Waste 
    Management, Inc. for the treatment of some D010 wastes containing high 
    concentrations of selenium.
        The Agency also is promulgating as proposed a wastewater treatment 
    standard of 0.82 mg/L for D010 wastewaters. No comments were received 
    on this issue.
        (ii) Universal Treatment Standard (UTS) for Selenium. As noted 
    above, in the May 12, l997 reproposal of the Phase IV rule, the Agency 
    proposed to change the UTS for selenium nonwastewaters from 0.16 mg/L 
    to 5.7 mg/L TCLP. For the reasons discussed above for D010 
    nonwastewaters, 5.7 mg/L TCLP is a better reflection of treatability of 
    difficult-to-treat selenium waste streams than 0.16 mg/L TCLP. This is 
    the level being promulgated today for the selenium nonwastewater UTS. 
    (It should be noted that because the UTS is above the TC level for 
    selenium, selenium is not considered an ``underlying hazardous 
    constituent'' (UHC) in characteristic waste, according to the 
    definition at 268.2(i)). The wastewater UTS for selenium remains 
    unchanged at 0.82 mg/L.
        k. Final Treatment Standards for Silver Wastes. (i) Treatment 
    standards for TC Silver Wastes (D011). In today's final rule, EPA is 
    promulgating a nonwastewater treatment standard of 0.14 mg/L TCLP for 
    characteristic silver (D011). For wastewaters, EPA is promulgating a 
    treatment standard of 0.43 mg/L as proposed in the original Phase IV 
    proposal on August 22, 1995 (60 FR 43684). EPA is in the process of 
    determining whether silver should
    
    [[Page 28570]]
    
    remain on the TC list at 40 CFR 261.24(b) Table 1 or whether the 
    current TC level should be altered. If EPA alters the status of silver 
    on that TC list, EPA will revisit the treatment standards for silver.
        (ii) Proposals, Comments, and Responses. Until today's notice, the 
    treatment standards for wastewater and nonwastewater forms of D011 have 
    both been 5.0 mg/L TCLP, which is the TC level. In 1995, EPA proposed a 
    treatment standard of 0.43 for wastewaters and 0.30 mg/L for 
    nonwastewater, based on the best treatment data in EPA's possession at 
    that time (60 FR 43684). EPA received comments urging the Agency to 
    refrain from setting a treatment standard lower than the TC level and 
    instead suggesting that EPA remove silver from the TC list altogether 
    due to new information on the low risk of silver to human health.
        In a 1996 Notice of Data Availability (NODA), EPA presented the 
    option of retaining the 5.0 mg/L treatment standard for D011 wastes (61 
    FR 21420, May 10, 1996). Comments were divided in two groups: those 
    which supported the option, and those which stated that EPA had no firm 
    basis for such a decision, given the potential toxicity of silver to 
    aquatic life.
        Since receipt of the comments on the NODA, EPA acquired more recent 
    treatment data on TC metals, including silver. Based on these data, EPA 
    learned that D011 nonwastewaters could be successfully treated to a 
    level of 0.11 mg/L using HTMR, and EPA proposed revising the UTS for 
    silver in its Phase IV Second Supplemental proposal. The grab data used 
    to establish this treatment standard was submitted to the Agency by an 
    HTMR facility (62 FR 26041) (Background Documents from Second 
    Supplemental proposal). Commenters on the Second Supplemental 
    reiterated that silver should not be on the TC list. However, the 
    commenters continued, if silver remains on the list for now, EPA should 
    not set a more stringent standard than the current one of 5.0 mg/L, but 
    rather it should choose a risk-based standard. Commenters explained 
    further that little D011 is disposed, because silver is generally 
    recovered from silver wastes.
        In response to the reproposal, the Agency received no significant 
    comment on the technical aspects of achieving the proposed treatment 
    standard; however the Agency did receive from International Metals 
    Company (INMETCO) an additional 74 grab data points on the treatment of 
    silver using HTMR. (See memorandum from Howard Finkel, ICF, Inc., to 
    Nick Vizzone, USEPA Re: ``Calculation of Universal Treatment Standards 
    (UTS) for HTMR Residues Using Data Submitted by Horsehead Research 
    Development Company, Inc. and INMETCO,'' December 17, 1997.) The Agency 
    used INMETCO data for the calculation of the proposed treatment 
    standard and determined that this additional data should be included in 
    the data pool. As previously discussed in Section III.A. of today's 
    preamble, the Agency discovered an error in the calculation of the 
    treatment standard. In applying the LDR methodology for calculating a 
    treatment standard, the Agency failed to conduct a ``Z-score'' outlier 
    test. With the application of this test and the inclusion of the 74 
    additional data points, 3 out of the 114 data points, were determined 
    to be outliers, resulting in a revised treatment standard for silver 
    nonwastewaters of 0.14 mg/L TCLP. The Agency has reviewed the comments 
    in light of this amended standard and believes that it can be achieved 
    by both HTMR and stabilization technologies. Data submitted by 
    commenters in response to this proposal also support this conclusion. 
    See supporting information contained in the docket for this rule.
        The Agency does not have an adequate basis for taking the actions 
    recommended by some commenters, i.e. to remove silver from the TC list, 
    or regulate it at a less stringent level than the proposed technology-
    based treatment standard. EPA is in the process of determining whether 
    silver should remain on the TC list at 40 CFR 261.24(b) Table 1, or 
    whether the current TC level should be altered. In addition, EPA 
    continues its work on the Hazardous Waste Identification Rule (HWIR) to 
    establish risk-based exit levels for hazardous wastes. The Agency is 
    not yet able to establish a nationally-applicable risk-based level for 
    silver that fulfills the statutory charge of minimizing threats of 
    hazardous waste to human health and the environment.
        The process of establishing such a level is technically complex; 
    EPA is currently modeling the ecological and human health effects of 
    exposure to silver through numerous pathways. Several issues remain 
    unresolved concerning human health and environmental risk. EPA is 
    continuing to investigate these issues. The Agency recently acquired 
    studies indicating that silver may be connected to central nervous 
    system and other non-cancer effects in humans. The draft Reference Dose 
    for these effects have not been finalized by the Agency for use in risk 
    assessments. (A Reference Dose is a benchmark level for chronic 
    toxicity that is protective of human health.) In addition to potential 
    adverse human health effects, uncertainties and concerns also remain 
    for potential adverse environmental effects. Although EPA removed the 
    Maximum Contaminant Level (MCL) for silver in drinking water, the 
    Ambient Water Quality Criteria remain in effect due to potential 
    aquatic toxicity. Further areas of uncertainty are how silver speciates 
    after release (i.e. which valence state of silver would be present). 
    The issue could be important since potential toxic effects differ 
    depending on the species of silver present. In short, EPA's work on 
    understanding risks from disposal of silver-containing hazardous wastes 
    is ongoing, and it would be premature to establish a treatment standard 
    based on risk at this time.
        In the absence of such ``minimize threat'' levels for hazardous 
    constituents, the Agency establishes standards based on Best 
    Demonstrated Available Technology (BDAT). (See full explanation in the 
    preamble of the Phase II Final LDR rule at 59 FR 47986, September 19, 
    1994.) The fact that the UTS for nonwastewater forms of silver is being 
    lowered (made more stringent) from the existing level of 0.30mg/L to 
    0.14 mg/L is due to new data on what treatment technology achieves. As 
    explained in the summary of this preamble section (Section III: Revised 
    Land Disposal Restrictions for Metal Constituents in All Hazardous 
    Wastes, Including Toxic Characteristic Metals), technology-based 
    standards are the best assurance that threat is minimized, given the 
    uncertainty as to the level at which threats of hazardous waste 
    disposal are minimized.
        EPA expects that the new treatment standard for silver wastes will 
    have little, if any impact on the regulated community. As stated by 
    commenters, high-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. Moreover, the Regulatory Impact Analysis for 
    this rule estimated that the new, more stringent UTS levels for metal 
    constituents, including silver, will not increase compliance costs. 
    This is because the current treatment methods already achieve the new 
    standard of 0.14 mg/L in silver nonwastewaters. (Achievability of the 
    UTS for TC silver wastewaters is not an issue; EPA received no comments 
    nor data on its proposal to apply the existing UTS of 0.43 mg/L.)
        Thus, the Agency is promulgating the wastewater standard of 0.43 
    mg/L as proposed and the nonwastewater
    
    [[Page 28571]]
    
    standard of 0.14 mg/L. If EPA changes the status of silver on the TC 
    list, EPA will revisit the treatment standards for silver wastes.
        (iii) Universal Treatment Standard (UTS) for Silver Nonwastewaters. 
    (Please refer to the discussion above about the development of the 
    treatment standard for characteristic silver for information on the 
    development of the UTS levels.) In today's final rule, EPA is 
    promulgating a nonwastewater UTS of 0.14 mg/L TCLP for silver.
        l. Final Universal Treatment Standard for Nonwastewater Forms of 
    Thallium. The Agency proposed in the Second Supplemental Proposed Rule 
    to change the UTS for thallium-containing nonwastewaters from 0.078 mg/
    L TCLP to 0.20 mg/L. (The original standard was based on composite 
    sampling from an HTMR facility). This proposal was based on new data 
    obtained by the Agency and presented in that notice. Several commenters 
    supported the change. However, two commenters argued that EPA had not 
    demonstrated that existing commercial technologies were capable of 
    achieving the proposed standards or that technologies were otherwise 
    available. The Agency remains unconvinced by the arguments of the 
    commenters and notes that they supplied no treatment data in support of 
    their contentions. Accordingly, the Agency is today promulgating as 
    proposed a revised UTS for nonwastewaters containing thallium of 0.20 
    mg/L TCLP. No change was proposed for wastewater containing thallium; 
    therefore the UTS remains 1.4 mg/L.
        m. Final Treatment Standard for Nonwastewater Forms of Vanadium in 
    P119 and P120 Wastes. The Agency proposed in the Second Supplemental 
    Proposed rule to change the UTS for nonwastewaters containing vanadium 
    in P119 and P120 wastes from 0.23 mg/L TCLP to 1.6 mg/L TCLP. This 
    proposal was based on new data obtained by the Agency and presented in 
    that notice. Commenters were supportive of the change. The treatment 
    standard of 1.6 mg/L TCLP is being promulgated as proposed. No change 
    was proposed for wastewater containing vanadium in P119 and P120 
    wastes, therefore, the UTS remains 4.3 mg/L. The Agency would like to 
    point out that vanadium is not an ``underlying hazardous constituent'' 
    in characteristic waste, according to the definition at 268.2(i).
        n. Final Treatment Standard for Nonwastewater Forms of Zinc in K061 
    Waste. The Agency proposed in the Second Supplemental Proposed rule to 
    change the treatment standard for zinc nonwastewaters in K061 waste 
    from 5.3 mg/L to 4.3 mg/L . This proposal was based on new data 
    obtained by the Agency and presented in that notice. One commenter was 
    supportive of the change, while two other commenters were concerned 
    with zinc being identified as an UHC. Still another commenter, a major 
    HTMR facility, submitted data (152 data points) showing 100% compliance 
    with the standard after 6 high statistical outliers were removed. 
    Indeed, the great majority of these data showed zinc at levels an order 
    of magnitude below the promulgated standards. EPA believes these data 
    confirm the achievability of today's standard. Therefore, the Agency is 
    today promulgating a revised nonwastewater treatment standard of 4.3 
    mg/L TCLP for K061 waste. No change was proposed for wastewater 
    containing zinc in K061; therefore the UTS remains 2.61 mg/L. In 
    response to the comments regarding zinc as an UHC, the Agency would 
    like to point out that zinc is only regulated in K061 waste; it is not 
    defined as an ``underlying hazardous constituent'' in characteristic 
    waste, according to the definition at 268.(i).
    
                               Universal Treatment Standards for Twelve Metal Constituents                          
              [Affecting Nonwastewater TC Metal Wastes and Nonwastewater Metal Constituents in All Wastes]          
    ----------------------------------------------------------------------------------------------------------------
                                                                                               2nd                  
                                                                            Existing UTS  supplemental    Final UTS 
                Waste code                  Constituent       TC level (mg/  level (mg/L  proposed UTS   level (mg/L
                                                                   L)           TCLP)      level (mg/L      TCLP)   
                                                                                              TCLP)                 
    ----------------------------------------------------------------------------------------------------------------
    D005.............................  Barium...............         100           7.6          21.0          21.0  
    D006.............................  Cadmium..............           1.0         0.19          0.20          0.11 
    D007.............................  Chromium.............           5.0         0.86          0.85          0.60 
    D008.............................  Lead.................           5.0         0.37          0.75          0.75 
    D009- all others.................  Mercury..............           0.2         0.025         0.025         0.025
    D010.............................  Selenium.............           1.0         0.16          5.7           5.7  
    D011.............................  Silver...............           5.0         0.30          0.11          0.14 
                                       Antimony.............                       2.1         * 0.07          1.15 
                                       Beryllium............                       0.014       * 0.02          1.22 
                                       Nickel...............                       5.0          13.6          11.0  
                                       Thallium.............                       0.078         0.20          0.20 
                                       Vanadium **..........                       0.23          1.6           1.6  
                                       Zinc **..............                       5.3           4.3           4.3  
    ----------------------------------------------------------------------------------------------------------------
    * 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.                                                 
    Note: Treatment standards for TC metal wastewaters have also been revised in today's rule, but are not reflected
      in this table.                                                                                                
    
    D. Use of TCLP to Evaluate Performance of Treatment Technology for 
    Treating Hazardous Metal Constituents
    
        Commenters did not question the appropriateness of using the TCLP 
    as a means of evaluating the performance of the treatment technology 
    used to treat metal hazardous constituents in hazardous wastes. EPA is 
    addressing the issue sua sponte to set out why the recent opinion of 
    the D.C. Circuit in Columbia Falls Aluminum Co. v. EPA (No. 96-1234, 
    April 3, 1998) does not affect use of the TCLP for this purpose.
        Columbia Falls presented an unusual set of facts. EPA had 
    established treatment standards for spent aluminum liners (waste K088), 
    which standards used the TCLP to measure performance of the treatment 
    technology for several hazardous constituents, including arsenic and 
    fluoride. All of the commercial treatment capacity for this waste was 
    provided by a single facility, and all of the treatment residue from 
    this single process was disposed at a single location. Slip op. at p. 
    6; 62 FR
    
    [[Page 28572]]
    
    at 1993 (Jan. 14, 1997). Notwithstanding that the treatment process was 
    able to achieve the treatment standards for arsenic and fluoride as 
    measured by the TCLP (i.e., the treatment residue, when tested with the 
    TCLP, never exceeded the regulatory levels), actual leachate from the 
    disposal site contained significantly higher levels of these 
    constituents. Id. EPA also had not offered any substantive explanation 
    for continued use of the TCLP to measure performance of the treatment 
    process for these constituents after the extreme disparities in actual 
    performance in the field became known. Id. p. 18. Under these 
    circumstances, the court held that it was arbitrary and capricious to 
    continue to use the TCLP because it bore no rational relationship to 
    what was actually occurring. Id. p. 19.
        None of these circumstances are present here. The TCLP has not been 
    shown here to be underpredictive of performance of treatment technology 
    for key hazardous constituents for any wastes, much less, as in 
    Columbia Falls, to be drastically underpredictive (for two 
    constituents) for 100 % of the wastes to which the test applied. 
    Moreover, the wastes affected by the standard in today's rule will not 
    uniformly be going to a single disposal environment where actual 
    leaching of key constituents is shown to be higher than the regulatory 
    level. Rather, the wastes will be decharacterized and so can be 
    disposed in any landfill: municipal, subtitle D or subtitle C. Given 
    the enormous diversity of characteristic wastes and the diversity of 
    likely disposal environments, the TCLP will not pervasively 
    underpredict as was the case with spent potliners. Unlike the situation 
    in Columbia Falls, therefore, there is no argument that application of 
    the TCLP to measure treatment performance will fail to minimize threats 
    posed by these wastes' land disposal.1
    ---------------------------------------------------------------------------
    
        \1\Nor is there a legitimate argument that the TCLP is 
    impermissibly overpredictive. Indeed, since the TCLP has already 
    been upheld as a means of identifying many of these metal-containing 
    wastes as hazardous, Edison Electric Inst. v. EPA, 2 F.3d 438, 444-
    45 (D.C. Cir. 1993), and since the `minimize threat' requirement in 
    section 3004(m) is a more stringent test, HWTC III, 886 F.2d at 363, 
    a fortiorari it is reasonable to use the TCLP as part of the process 
    of assuring that threats posed by land disposal of these wastes are 
    minimized.
    ---------------------------------------------------------------------------
    
        EPA also emphasizes that the LDR treatment standards are 
    technology-based, not risk-based. A key role of the TCLP in the 
    treatment standard is to measure whether the best demonstrated 
    treatment technology has been properly applied to the waste. Thus, 
    unlike the situation when the test is used as a means of identifying 
    whether or not wastes are hazardous, the TCLP is not principally 
    serving a predictive function when it is used as a component of an LDR 
    treatment standard. The test is normally a good measure of evaluating 
    the performance of treatment technology both because it is a widely-
    available test for metal mobility, and also because it is typically 
    somewhat aggressive (Edison Electric, 2 F.3d at 445). Thus, it is a 
    useful tool for measuring whether metal mobility has been substantially 
    reduced in order that threats posed by land disposal be minimized (as 
    required by section 3004 (m)). In the Agency's view, therefore, 
    questions as to the validity of the TCLP as a component of LDR 
    treatment standards are raised only under the extreme circumstances 
    present in Columbia Falls, where, for all wastes and all disposal 
    scenarios affected by the standard, large disparities between actual 
    environmental field results and the treatment standard raise 
    significant questions as to whether treatment is minimizing threats. 
    These questions are not present for the metal-containing wastes here.
    
    IV. Application of Land Disposal Restrictions to Characteristic 
    Mineral Processing Wastes
    
    Summary
    
        EPA is today finalizing its proposal to apply the Universal 
    Treatment Standards (UTS), as revised in part today, to the newly 
    identified characteristic mineral processing wastes. In earlier rules 
    and a Report to Congress, EPA has determined which mineral processing 
    wastes are not excluded in the Bevill Amendment and are thus considered 
    ``newly identified'' wastes subject to RCRA regulations. (See 54 FR 
    36592, September 1, 1989; 55 FR 2322, January 23, 1990; and Report to 
    Congress on Special Wastes from Mineral Processing, USEPA, July 31, 
    1990.) The treatment standards being promulgated today are located in 
    the table ``Treatment Standards for Hazardous Wastes'' at 268.40 in the 
    regulatory language for today's rule. The wastes are identified by 
    characteristic waste code (e.g. D002 corrosive waste, or D008 TC lead 
    waste); there is no separate section in that table for characteristic 
    mineral processing wastes.
    
    A. Proposal, Comments, and Responses
    
        In the original Phase IV, EPA proposed to apply the metal UTS, as 
    measured by the TCLP (60 FR 43582, August 22, 1995) to all TC metal 
    wastes. On January 25, 1996, EPA further proposed to apply the existing 
    UTS to the newly identified mineral processing wastes, i.e., mineral 
    processing wastes that exhibit a characteristic and do not have Bevill 
    status and are not excluded from being a solid wastes due to recycling. 
    The Agency stated in this proposal that existing data showed that these 
    ``newly identified'' mineral processing wastes were similar to those 
    wastes for which the UTS was achievable, and consequently the UTS 
    fairly reflected the performance of Best Demonstrated Available 
    Technology (BDAT) for these wastes. (See 61 FR 2338 for a complete 
    discussion of the Agency's rationale for extending the UTS to both 
    wastewater and nonwastewater forms of ``newly identified'' mineral 
    processing wastes.)
        Many commenters in response to this proposal took issue with the 
    Agency's conclusions that the existing data demonstrated that the UTS 
    was achievable for the newly identified mineral processing wastes and 
    stated that the record for the rulemaking reflected no such showing. 
    The commenters further argued that to develop representative treatment 
    standards for mineral processing wastes, the Agency must: (1) Collect 
    and analyze a representative mineral processing waste characterization 
    and treatability data set; (2) analyze that data using well-reasoned 
    and documented methods for determining the treatability of the subject 
    wastes; (3) make a determination as to whether the UTS or some other 
    LDR treatment standards are appropriately applied to mineral processing 
    wastes; and (4) provide notice and an opportunity to comment on that 
    determination prior to imposing any LDR treatment standards on such 
    wastes. Several other commenters took issue with the Agency's use of 
    only HTMR data to develop the treatment standards.
        As a result of these comments and others received in response to 
    the original Phase IV rule, the Agency decided to further assess the 
    treatment of TC metal wastes and mineral processing wastes. As 
    previously discussed in today's preamble, the Agency collected actual 
    stabilization performance data during three site visits conducted in 
    September 1997. In particular, treatment data were collected for the 
    following primary mineral processing wastes: cadmium sponge residue, 
    cupel and crucibles from fire assay laboratories, slag from fire assay 
    laboratory, soil and debris contaminated with sulfuric acid, blast 
    furnace slag, baghouse dust, lead/bromide residue, and gold ore leach 
    tailings. In addition, treatment data from the following secondary 
    mineral processing wastes
    
    [[Page 28573]]
    
    were also collected: lead slag waste, lead-bearing assay laboratory 
    wastes, lead contaminated wastes, cupels, and debris; blast furnace 
    slag, lead recycling by-products, lead contaminated soils, and lead 
    battery recycling slag waste. Many of these wastes were particularly 
    difficult to treat due to high total and leachable levels of metals, 
    extreme Ph, and presence of multiple hazardous metal constituents.
        As previously discussed in an earlier section of today's preamble, 
    the Agency assessed two data sets representing performance of 
    stabilization and HTMR for the treatment of metal-containing waste 
    streams. This assessment began with the calculation of treatment 
    standards for each of the two data sets. Next, the Agency compared the 
    treatment levels for stabilization versus HTMR. Based on this 
    comparison, the Agency selected the highest level for each metal as the 
    proposed UTS to allow for process variability and detection limit 
    difficulties. As noted earlier, this approach is consistent with the 
    legislative goal of providing substantial treatment through standards 
    that are achievable by an array of well-performing available treatment 
    technologies.
        On May 12, 1997, the Agency issued a Second Supplemental Proposal 
    (62 FR 26041). In it, EPA proposed to change the numerical limits for 
    all nonwastewater wastes containing the following metal constituents: 
    antimony, arsenic, barium, beryllium, cadmium, chromium, lead, mercury, 
    nickel, selenium, silver, thallium, vanadium, and zinc. EPA also 
    proposed these same UTS treatment standards for TC metal wastes 
    identified as hazardous due to the concentration of barium, cadmium, 
    chromium, lead, selenium, or silver. Based on the data collection 
    efforts, the methodology used to develop these revised standards, and 
    the preponderance of mineral processing treatment data used to 
    calculate the standards, the Agency was convinced that the 
    transferability of the universal treatment standards to mineral 
    processing wastes was well supported.
        In response to these revised treatment standards and their 
    application to mineral processing wastes, the Agency received few 
    comments. Several commenters supported the Agency's decision to apply 
    the LDR treatment standards to mineral processing wastes. A limited 
    few, however, continued to argue that EPA's application of the LDR 
    program to mineral processing wastes was not supported by the record. 
    The commenters' position is unsubstantiated, relying entirely upon 
    assertions that the standards are not achievable. No data was submitted 
    to support the commenters' position. Conversely, the data in hand (some 
    of which reflect successful treatment of hard-to-treat mineral 
    processing wastes) show that the treatment standards are achievable 
    using either stabilization or HTMR for mineral processing wastes. As a 
    result, the Agency is today finalizing the applicability of the 
    existing UTS to the newly identified mineral processing wastes.
        The reader is referred to an earlier section of today's preamble 
    for a complete discussion of treatment standards for metal wastes being 
    promulgated today.
    
    B. Clarification That Universal Treatment Standards Apply to Ignitable, 
    Corrosive, and Reactive Characteristic Mineral Processing Wastes
    
        As discussed above, the treatment standards promulgated in this 
    rule will apply to all the newly identified characteristic wastes from 
    mineral processing operations. This includes not only the mineral 
    processing wastes exhibiting the toxicity characteristic (TC), but also 
    wastes that exhibit the characteristic of ignitability (D001); 
    corrosivity (D002); or reactivity (D003). (See definitions of these 
    characteristics at 40 CFR 261.20 through 261.23.) The treatment 
    standards found in 40 CFR 268.40 require removal of the characteristic 
    as well as meeting the treatment standards for all underlying hazardous 
    constituents (UHCs) reasonably expected to be present at levels above 
    the UTS. The Agency received no comment on this issue at proposal (see 
    61 FR 2338, January 25, 1996). Therefore, the Agency has no reason to 
    believe that the UTS are not achievable for mineral processing wastes 
    also exhibiting the characteristic of ignitability, corrosivity and/or 
    reactivity. As such, the Agency is today promulgating the application 
    of UTS to D001, D002, and D003 mineral processing wastes.
    
    C. Use of TCLP to Evaluate Performance of Treatment Technology for 
    Treating Hazardous Metal Constituents in Mineral Processing Wastes
    
        Part of this rulemaking involves consideration of what the 
    appropriate regulatory test is to determine if mineral processing 
    wastes exhibit the toxicity characteristic. The Agency addresses this 
    issue in detail later in this preamble when discussing retention of the 
    TCLP for this purpose. Here, we confirm that the Agency will also 
    continue to use the TCLP as part of the LDR treatment standard for 
    these wastes. Although commenters did not raise this issue, the Agency 
    feels that addressing it is appropriate in light of the D.C. Circuit's 
    recent decision in Columbia Falls Aluminum Co. v. EPA (No. 96-1234, 
    April 3, 1998).
        The critical component in making waste identification 
    determinations (i.e., to determine whether a waste should be regulated) 
    is ascertaining a plausible mismanagement scenario for the waste if 
    unregulated, and finding a predictive model that can reasonably 
    evaluate whether the waste is capable of posing substantial present or 
    potential harm to human health and the environment under those 
    conditions. Edison Electric Inst., 2 F. 3d at 444. This issue simply 
    does not arise in the LDR context since the wastes subject to LDR are 
    regulated hazardous wastes, and the issue of where and how they would 
    have been managed absent Subtitle C regulation is irrelevant.
        In the LDR context, all land disposal (except that occurring in no-
    migration units) is defined as being unprotective (see, e.g. RCRA 
    section 3004(d)(1)), largely due to the ``long-term uncertainties 
    associated with land disposal'' (id.). For this reason, treatment 
    standards reflecting performance of Best Demonstrated Available 
    Technology provide an objective means of removing as much of this 
    inherent ``long-term uncertainty'' as possible, and so permissibly 
    achieve the ultimate requirement of minimizing threats posed by land 
    disposal of hazardous wastes. HWTC III, 886 F. 2d at 362-65; 55 FR at 
    6642 (Feb. 26, 1990). The principal role of the TCLP in these treatment 
    standards is assuring the performance levels achievable from use of 
    these best treatment technologies, not predicting environmental fate in 
    the disposal environment.
        As discussed earlier, the TCLP is historically accepted as being 
    well-suited for evaluating performance of treatment technology for 
    metals given its availability and general aggressiveness for mobilizing 
    metals. Also, we note that since the TCLP serves a different purpose in 
    the LDR treatment standards than it serves for identifying wastes as 
    hazardous, and since it is well-suited for that purpose, there would be 
    no contradiction in using it as part of the LDR standard even if a 
    different test were to be used (presumably in the future) for waste 
    identification.
        Nor does the Columbia Falls opinion undercut use of the TCLP as a 
    component of treatment standards for mineral processing wastes. As 
    noted earlier with respect to other toxic metal-containing wastes, EPA 
    does not view Columbia Falls as requiring a change in
    
    [[Page 28574]]
    
    use of the TCLP as part of the LDR treatment standards. The TCLP has 
    not been shown generally to be underpredictive of performance of 
    treatment technology for key hazardous constituents for any wastes, 
    much less, as in Columbia Falls, to be drastically underpredictive (for 
    two constituents) for 100% of the wastes to which the test applied. For 
    all mineral processing wastes to which it was applied, the TCLP test 
    has not been shown to be underpredictive either, and so would be part 
    of the mechanism for assuring that treatment minimizes threats posed by 
    land disposal of these wastes. Moreover, it should be noted that 
    mineral processing wastes can be and are treated commercially, and the 
    treatment residues are then disposed along with other wastes in 
    different types of disposal units. See, e.g. the document entitled, 
    ``Background Documents Supporting the Phase IV Final Rule: Metal 
    Treatment Standards'' in the RCRA Docket (commercial treatment company 
    treating mineral processing wastes along with other metal-containing 
    wastes and disposing of commingled treatment residues). These units 
    certainly can generate mildly acidic leachate. 51 FR at 40594 (Nov. 7, 
    1986). Given these circumstances, the TCLP is an appropriate part of a 
    standard which minimizes threats posed by land disposal of these 
    wastes.
    
    V. Other LDR Issues That May Affect Both Toxic Characteristic Metal 
    Wastes and Characteristic Mineral Processing Wastes
    
    A. Treatment Standards for Soil Contaminated With TC Metal Wastes or 
    Characteristic Mineral Processing Wastes
    
    1. Summary
        EPA has decided that the LDR treatment standards (i.e., UTS) for 
    toxicity characteristic metals (D004-D011) and newly identified mineral 
    processing wastes being promulgated in today's rulemaking will not 
    apply to soils contaminated with these hazardous wastes. Instead, these 
    contaminated soils will be subject to the treatment standards for soil 
    originally proposed in a separate rulemaking entitled the Hazardous 
    Waste Identification Rule for Contaminated Media (``HWIR-Media'') (61 
    FR 11804, April 29, 1996). These treatment standards are being 
    finalized in a separate section of today's rule. However, because of 
    their impacts on TC metal and mineral processing wastes, a brief 
    introductory discussion is warranted at this point.
    2. Discussion of Today's Approach
        In the Phase IV proposed rule (60 FR 43682, August 22, 1995), the 
    Agency did not specifically exempt soil contaminated with TC metal 
    wastes from the newly proposed LDR standards; thus, the UTS standards 
    for metals would have applied to TC metal soils. In the Phase IV First 
    Supplemental Proposal (61 FR 2338, January 25, 1996), the Agency 
    proposed applying existing universal treatment standards to newly 
    identified mineral processing wastes, i.e., to mineral processing 
    wastes that exhibit a characteristic, do not have Bevill status, and 
    are not excluded from being solid wastes due to recycling. As a 
    consequence, soils contaminated with these newly identified mineral 
    processing wastes would also have been subject to UTS.
        In today's rule, the Agency is finalizing alternative treatment 
    standards for contaminated soil reproposed in the HWIR-Media 
    rulemaking. (See the section of this preamble on treatment standards 
    for contaminated soil.) These treatment standards for hazardous 
    contaminated soils are being finalized for all hazardous wastes, 
    including TC metal and newly identified mineral processing wastes.
    
    B. LDR Treatment Standards for Manufactured Gas Plant Waste (MGP)
    
    1. Summary
        Today, the Agency is promulgating treatment standards for hazardous 
    MGP wastes and soils, i.e., wastes and contaminated soils that resulted 
    from processing coal to produce gas and that exhibit a characteristic 
    of hazardous waste. Typically these operations were conducted at 
    manufactured gas plants until the 1950s, and wastes remain at those 
    closed MGP sites. MGP wastes are among the mineral processing wastes 
    which the Agency determined in 1989 and 1990 to be subject to RCRA 
    jurisdiction because they are not excluded from RCRA by the Bevill 
    Amendment. See 54 FR 36592 (September 1, 1989). Hence, they are a 
    subset of the newly identified mineral processing wastes covered by the 
    prohibitions and treatment standards promulgated in this rule.
        On January 25, 1996, EPA proposed to apply LDR treatment standards 
    to MGP wastes (61 FR 2360). MGP wastes are no longer being produced, 
    since manufactured gas plants are no longer in operation. The Agency 
    notes that the LDRs only apply at closed MGP sites that are excavated 
    and managed in a way that constitutes placement in a land disposal unit 
    (See 61 FR 18805, April 29, 1996.) The LDRs would require that actively 
    managed MGP wastes be treated to eliminate any characteristics and to 
    achieve the UTS for any underlying hazardous constituents prior to land 
    disposal. Today's rule finalizes the UTS for MGP wastes that exhibit 
    the toxicity characteristic. However, for soils contaminated with MGP 
    wastes, EPA is today promulgating treatment standards specifically for 
    hazardous soil. These soil standards, generally, require treatment to 
    achieve 90 percent reduction of hazardous constituent levels, or 10 
    times the UTS levels. See Section VII of this preamble.
        Today's rule does not alter the Agency's 1993 memorandum that 
    interpreted existing rules to say that the ash that results from 
    burning MGP remediation wastes along with coal in utility boilers 
    remains covered by the Bevill amendment and hence is not regulated 
    under Subtitle C rules. (See memorandum, dated April 26, 1993, entitled 
    ``Remediation of Historic Manufactured Gas Plant Sites'', from Sylvia 
    K. Lowrance, Director of the Office of Solid Waste, to EPA Regional 
    Waste Management Division Directors. The memorandum is located in the 
    RCRA docket for the Phase IV Supplemental Proposal dated January 25, 
    1996; 61 FR 2338.) Such residuals are considered to be covered by the 
    Bevill amendment because they result primarily from the combustion of 
    coal (assuming, if the MGP remediation wastes that are co-burned are 
    hazardous, the residues are not significantly affected by burning the 
    MGP wastes, within the meaning of 40 CFR section 266.112).
    2. Background
        Manufactured gas plants were designed to generate gas from coal. 
    The coal tar residuals generated from the process remain at these 
    historic MGP sites. Many of these sites have soils contaminated with 
    these coal tar residuals. The majority of these contaminated soils will 
    come from the cleanup of historic MGP sites. A significant portion of 
    the soil is nonhazardous, but approximately 15 percent of the soils 
    fail the toxicity characteristic leaching procedure test for benzene. 
    These toxicity characteristic (TC) soils also typically contain PAHs, 
    heavy metals, inorganics, volatile aromatics, and phenolics. At certain 
    closed MGP sites, there can be non-soil hazardous wastes, e.g., coal 
    tars in tar holders, which may need to be treated to UTS levels if they 
    are actively managed and land disposed.
    
    [[Page 28575]]
    
    3. Public Comments and EPA Responses
        Commenters expressed several major concerns about the Phase IV 
    proposal to apply UTS to MGP wastes. First, they urged the Agency to 
    delay implementing the soil standards until the final HWIR-media rule 
    becomes effective. In addition, commenters requested that EPA re-affirm 
    the Agency's 1993 co-burning memorandum for MGP wastes. Finally, 
    commenters urged the Agency to establish specified treatment methods 
    for those MGP wastes that will not be managed according to the Agency's 
    1993 co-burning memorandum, rather than making the wastes subject to 
    the UTS concentration levels as proposed. One commenter identified 
    several methods of management that could be specified: ``recycling 
    technologies including the use of coal tar residuals to manufacture 
    asphalt, bricks, and cement; and combustion technologies that include 
    utility boiler co-burning, incineration and thermal desorption.'' The 
    commenter stated that specified methods would preserve flexibility for 
    managing MGP site remediations and remove regulatory barriers to 
    expeditious site cleanups.
        Regarding the commenter's concern about the coordination of Phase 
    IV standards and the HWIR-media rule, the Agency is finalizing 
    treatment standards for hazardous contaminated soils in a separate 
    section of today's rule. Also, although the Agency did not reopen the 
    issue, the Agency confirms that the 1993 co-burning interpretation 
    remains in effect.
        The Agency has studied carefully the comment urging the Agency to 
    specify incorporation of MGP waste into asphalt, bricks, or concrete as 
    a designated method of treatment, which would have the effect of making 
    wastes so treated not subject to meeting numerical treatment standards 
    for hazardous constituents. The recycling of hazardous waste-
    contaminated soil in asphalt, brick, or cement manufacturing produces 
    products that potentially could be applied or placed on the land. These 
    recycling practices incorporate the contaminated soils into the 
    products, and, thus, are considered to be a ``use constituting 
    disposal'' (see section 261.2 (c) (1)). The use constituting disposal 
    practice (assuming legitimate recycling is occurring) is regulated per 
    the provisions of 40 CFR sections 266.20 through 266.23. This issue is 
    discussed in more detail in section VII of the preamble.
        At this time, the Agency does not have adequate information on 
    asphalt, brick, or cement produced from MGP hazardous waste to 
    determine whether these waste-derived products minimize threats posed 
    by land disposal of MGP wastes. (See also response to USWAG comment 
    #00035 in ``Phase IV Response to Comments'' in the docket to this 
    rule.) Until the Agency can further study the issue, it is not 
    designating production of these materials from MGP soils as a specified 
    method of treatment. Existing 266.23 (a) continues to apply. And, as 
    noted earlier, for MGP sites in particular, the Bevill exclusion still 
    applies for MGP wastes co-burned in coal-fired utility boilers.
        EPA is aware that the regulated community has requested various 
    types of flexibility from LDR treatment standards in managing their 
    site-specific cleanup, remediation, and/or removal activities of these 
    wastes and contaminated soils. With the possible exception of use 
    consituting disposal scenarios, the Agency continues to believe that 
    more complete relief for remediation wastes is needed, particularly 
    with respect to the land disposal restrictions and is best provided by 
    targeted statutory change. Thus, the Agency will continue to 
    participate in discussion of potential legislative solutions on this 
    important issue.
        Please refer to the Phase IV response to comments document that is 
    available at the RCRA docket for responses to other issues raised by 
    commenters.
    
    C. Treatment Standards for Debris Contaminated With Phase IV wastes
    
        The Agency is clarifying that debris contaminated with TC metal or 
    characteristic mineral processing wastes can be disposed if it meets 
    the treatment standards established in this rule, but also can be 
    disposed if it meets the standards for debris set out at 40 CFR 268.45.
    
    D. Treatment Standards for Radioactive Mixed Waste
    
    1. Background
        Radioactive mixed wastes are wastes which satisfy the definition of 
    radioactive waste subject to the Atomic Energy Act (AEA) 10 CFR Part 61 
    and also contain waste that is either listed as a hazardous waste in 
    Subpart D of 40 CFR Part 261, or that exhibits any of the hazardous 
    characteristics identified in Subpart C of 40 CFR Part 261. Since the 
    hazardous portions of the mixed waste are subject to RCRA, the land 
    disposal restrictions apply to the mixed waste. Today's rule 
    promulgates revised treatment standards for radioactive wastes that are 
    mixed with metal characteristic wastes and do not currently have a 
    method of treatment (i.e. HLVIT) specified as BDAT.
        Treatment standards for radioactive waste mixed with metal-bearing 
    waste were first promulgated in the Third Third rule at 55 FR 22626 
    (June 1, 1990). That rule established a subcategory of mixed wastes for 
    a specific high level wastestream at the Savannah River site, for which 
    a specified method of treatment is currently required. This method is 
    HLVIT (vitrification of high-level radioactive waste) for radioactive 
    high-level wastes generated during the reprocessing of fuel rods mixed 
    with characteristic metal wastes. This was done because of the human 
    health hazards associated with sampling that would be required if 
    numerical standards were applied. The Third Third rule stated that all 
    the promulgated treatment standards in that rule for RCRA listed and 
    characteristic wastes apply to the RCRA hazardous portion of mixed 
    radioactive (high-level, TRU, and low-level) wastes, unless EPA has 
    specifically established a separate treatability group for a specific 
    category of mixed waste. Thus, that rule required that radioactive 
    waste mixed with metal characteristic waste would have to comply with 
    the LDR treatment standard for the metal characteristic waste, as well 
    as any requirements set forth by the NRC for the radioactive component 
    of the mixed waste.
        Because today's rule revises the treatment standards for metal 
    characteristic wastes (i.e., revising certain metal numeric treatment 
    standards, and applying UTS levels to underlying hazardous constituents 
    in the characteristic waste), the treatment standards for radioactive 
    waste mixed with metal characteristic waste that were not specifically 
    subcategorized in the Third Third rule are also affected. Today's rule 
    also revises treatment standards for twelve metal constituents in all 
    wastes, including radioactive mixed wastes. In conclusion, unless 
    specifically noted in Section 268, the treatment standards promulgated 
    today apply to all mixed wastes.
    2. Proposal and Issues Discussed by Comments
        In addition to revising metal characteristic treatment standards 
    that apply to mixed waste, the Phase IV proposal also discussed mixed 
    radioactive and characteristic metal wastes which have been previously 
    stabilized to meet the LDR requirements, and are now being stored until 
    disposal capacity becomes available. The rule proposed to allow this 
    particular category of stabilized
    
    [[Page 28576]]
    
    characteristic metal mixed wastes to comply with the LDR metal 
    standards that were in effect at the time the waste was stabilized. 
    More simply, they would require no further treatment to comply with the 
    newly promulgated TC metal standards. The proposal stated that mixed 
    radioactive/characteristic metal wastes that are stabilized after the 
    effective date of Phase IV would be subject to the metal treatment 
    standards promulgated in the Phase IV rulemaking.
        The majority of commenters agreed with this approach. The Agency 
    believes that requiring facilities to re-treat the wastes could pose 
    significant threats to human health and the environment (worker 
    exposure, environmental releases). Essentially, requiring these wastes 
    to meet the newly promulgated treatment standards could necessitate 
    treaters opening sealed drums of stabilized mixed waste, grinding the 
    stabilized material, and re-treating to comply with the treatment 
    standards for the few constituents for which EPA is lowering the 
    standards. One commenter wanted the exemption to be broadened to 
    include wastes that were treated by methods other than stabilization. 
    Because the exposure concerns of re-treating the previously stabilized 
    waste primarily center around the idea of first grinding up the 
    stabilized material to retreat it and the potential added radiological 
    exposures attendant thereto, the broadening of this exemption without 
    more specific information is not warranted at this point. Of course, if 
    any wastes already meet the applicable treatment standards, for example 
    macroencapsulation, then there is no need to initiate further 
    treatment. It is important to emphasize that the Agency does not want 
    any more handling of this material than is necessary, and we will 
    entertain site-specific treatment variances to ensure that the 
    appropriate balance is struck to ensure minimization of threats.
        As noted, the majority of commenters agreed that hazards from added 
    worker radiation exposure associated with re-treatment (i.e., opening 
    drums, grinding already treated masses of mixed waste) would probably 
    offset any gain in protection of human health and the environment 
    resulting from compliance with the new metal treatment standards 
    proposed in Phase IV. It was pointed out by one commenter that this is 
    consistent with the Storage Prohibition (40 CFR 268.50(e) ), where 
    wastes that have met the applicable treatment standards are excluded 
    from the storage prohibition. In addition, one commenter stated that 
    these wastes have been treated to meet the LDR standards in place at 
    the time of treatment, and the only reason they have not already been 
    land disposed is that capacity has not been available. The one 
    commenter who disagreed with the proposal stated that neither 
    retreatment nor an exemption from the new standards are reasonable 
    options, but prefers retreatment. The commenter did not provide 
    support, and the Agency is not persuaded that retreatment is 
    environmentally preferable. Thus, the Agency is promulgating the 
    exemption as proposed. In response to comments, EPA is also indicating 
    that the same principle applies with regard to listed wastes stabilized 
    to meet a previous treatment standard, which standard is affected by 
    this rule because the metal UTS have changed. Again, retreating these 
    wastes would likely create new threats, not minimize them.
        One DOE facility requested that the Agency clarify whether a waste 
    required to be treated by a specific technology (i.e., HLVIT) would be 
    required to be further treated for any UHCs present in the waste above 
    UTS levels. The Agency is not imposing additional treatment 
    requirements on those wastes for which a method of treatment (HLVIT) is 
    specified.
        Four facilities are concerned that uranium mills tailings will not 
    remain exempt under RCRA. These wastes are by-product materials from 
    uranium mining (i.e., waste acids from solvent extractions, barren 
    lixiviants, slimes from solvent extraction and waste solvents generated 
    in the beneficiation process during the extraction of uranium ore) and, 
    therefore, are excluded from the treatment standards being promulgated 
    today for TC metal wastes. With respect to the radioactive mineral 
    processing wastes, RCRA Section 1004 (27) as codified in 40 CFR 
    261.4(a)(4) states that ``...source, special nuclear or by-product 
    material as defined by the Atomic Energy Act of 1954 as amended, 42 
    U.S.C. 2100 et seq...'' are not solid wastes. Therefore, such excluded 
    materials are not subject to this rule. However, all other wastes not 
    excluded under 40 CFR 261.4 are subject to today's rulemaking (assuming 
    the waste is otherwise subject to today's rule).
        Therefore, the Agency is today finalizing as proposed numerical 
    treatment standards for radioactive waste mixed with metal-bearing 
    characteristic waste for which no method of treatment has been 
    established as the treatment standard.
    
    E. Underlying Hazardous Constituents in TC Metal Wastes and 
    Characteristic Mineral Processing Wastes
    
        Summary: As with other characteristic wastes, TC metal wastes 
    (D004--D011) and newly identified mineral processing wastes cannot be 
    land disposed until the characteristic is removed and any underlying 
    hazardous constituents (UHCs) are below universal treatment standards.
    1. Background
        In 1993, EPA began requiring that, in addition to removing the 
    characteristic in the characteristic wastes, treatment must ensure that 
    UHCs are below their UTS levels. (58 FR 29860; see also 59 FR 47982. 
    See also Chemical Waste Management v. EPA, 976 F. 2d at 13-14, 16-18 
    (treatment standards may be lower than the level at which waste is 
    identified as hazardous, and underlying hazardous constituents must be 
    treated to minimize threats posed by land disposal)). UHCs are any 
    constituents in 40 CFR 268.48 that are reasonably expected to be 
    present at levels above the UTS at the point of generation of the 
    characteristic waste. See 40 CFR 268.2(i). EPA's review of the 
    treatment data on TC metal and mineral processing wastes shows that 
    these wastes often contain underlying hazardous constituents, and that 
    UTS are achievable for the UHCs.
    2. Discussion of Today's Approach
        In the August 22, 1995 Phase IV proposed rule, EPA proposed to 
    apply treatment standards to all TC metal wastes, and on January 25, 
    1996, EPA further proposed the same for characteristic mineral 
    processing wastes. See 60 FR 43654 and 61 FR 2338. Furthermore, EPA 
    proposed that when the new treatment standards were promulgated, all of 
    those newly identified wastes would have to be treated not only to meet 
    the proposed treatment standards, but also to meet treatment standards 
    for any UHCs reasonably expected to be present (at levels above UTS) in 
    those wastes at the wastes' point of generation. See 60 FR 43654.
        One commenter disagreed with the Agency's proposal, stating that 
    the TC metal wastes that also contain organic UHCs would have to be 
    treated by combustion technologies to achieve the organic UTS levels. 
    The Agency disagrees. The organic UTS levels were based on the 
    performance of combustion as well as other removal and destruction 
    technologies. These other removal and destruction technologies can be 
    used to treat organic UHCs to UTS levels in TC
    
    [[Page 28577]]
    
    metal wastes. Thus, pretreatment of the waste can be used to achieve 
    the organic UTS levels. In addition, the commenter believed there would 
    be difficulties in stabilizing incinerator ash to meet the finalized 
    UTS levels for the metals. The Agency does not agree. In determining 
    the UTS numbers for each metal, the wastes with the most difficult to 
    treat metal constituents were treated by HTMR and stabilization 
    technologies. The higher value between the two technologies was 
    selected as the treatment standard. Thus, treatment using either HTMR 
    or stabilization is expected to achieve the final metal UTS levels. It 
    should be noted that selenium is not being regarded as a UHC since its 
    treatment standard is above its characteristic level. Thus, a selenium 
    characteristic waste will always be hazardous unless the selenium 
    concentration is below the characteristic level of 1 mg/L TCLP. 
    Fluoride, vanadium, and zinc are other metals not considered UHCs in 
    characteristic wastes because these three metals are not on the 
    Hazardous Constituents Table, 40 CFR 261 Appendix VIII (i.e., they are 
    not ``hazardous constituents''). (See Background Document for Phase IV 
    Second Supplemental Proposed Rule.)
    
    VI. Issues Relating to Newly-Identified Mineral Processing Wastes
    
        As explained above, EPA considers mineral processing hazardous 
    wastes to be newly identified or listed for purposes of determining 
    when LDR prohibitions apply, since their status as hazardous wastes was 
    not established until after 1984. Today's rule establishes prohibitions 
    and treatment standards for these wastes, pursuant to RCRA section 
    3004(g)(4).
        However, there are a series of important threshold issues in 
    determining what these prohibitions and treatment standards apply to, 
    generally involving the issues of whether primary mineral processing 
    secondary materials are solid and hazardous wastes. There are three 
    main issues. A fundamental first issue is whether, if a mineral 
    processing secondary material (which would otherwise be a hazardous 
    waste) is recycled within the mineral processing industry sector, it is 
    a solid waste. Of particular importance in assessing applicability of 
    the LDR program, is a second issue: whether there is land placement of 
    the mineral processing secondary material before recycling, or during 
    the recycling process. If the material is a waste, a third issue is 
    relevant: is the waste a beneficiation/extraction waste or one of 20 
    mineral processing wastes that are excluded from subtitle C regulation 
    under the Bevill exclusion (see RCRA 3001 (b)(3)(A)(ii)).
        In this rulemaking, EPA also is addressing certain sub-issues that 
    are related to determining whether a particular mining waste is subject 
    to the Bevill exclusion, including whether a waste is ``uniquely 
    associated'' with mining, how the introduction of non-exempt, mineral 
    processing feedstocks into a Bevill process may affect the Bevill 
    status of the waste generated from the process, and how the mixture of 
    Bevill wastes with other hazardous wastes affects the Bevill status of 
    the resulting wastes when disposed.
        As stated in the January 1996 proposal, EPA is not reopening in any 
    respect the Bevill determinations previously made by the Agency, 
    including the Agency's articulation in 1989 of the functional 
    distinctions between beneficiation and mineral processing. See 61 Fed. 
    Reg. 2354. Some commenters misinterpreted EPA's statements in the 
    proposal generally describing the beneficiation/processing distinction 
    as somehow reinterpreting the scope of the Bevill amendment. That 
    discussion was intended, however, merely to restate principles 
    articulated by EPA in 1989 (see 54 Fed. Reg. 36619), not to reopen in 
    any way the distinctions as articulated previously by the Agency. 
    Whether a particular waste is from beneficiation or mineral processing 
    will continue to be determined based on 40 CFR 261.4(b)(7) and criteria 
    articulated by EPA in the 1989 preamble.
        The following sections of the preamble discuss these threshold 
    issues.
    
    A. Introduction
    
        In July of 1988, the U.S. Court of Appeals, for the D.C. Circuit in 
    Environmental Defense Fund v. EPA (EDF II), 852 F.2d 1316 (D.C. Cir. 
    1988), cert. denied, 489 U.S. 1011(1989), ordered EPA to restrict the 
    scope of the Bevill mining waste exclusion, as it applied to mineral 
    processing wastes, to include only ``large volume, low hazard'' wastes. 
    In response, the Agency promulgated several rules that delineated the 
    scope of the Bevill exemption for extraction/beneficiation and mineral 
    processing wastes. In these rulemakings, the Agency applied high-
    volume/low toxicity criteria for determining whether a particular waste 
    was subject to the Bevill exemption. The Agency also described the 
    general characteristics that would distinguish extraction/beneficiation 
    wastes from mineral processing wastes. The rules also evaluated which 
    specific mineral processing wastes were in conformance with these high 
    volume/low toxicity criteria and thus were eligible for the exclusion 
    provided by RCRA 3001(b)(3)(A)(ii) (the ``Bevill exclusion'').
        These rules were promulgated on September 1, 1989 (54 FR 36592) and 
    on January 23, 1990 (55 FR 2322). EPA was required to prepare a Report 
    to Congress which further studied mineral processing wastes identified 
    in the 1990 rule to determine their regulatory status under the Bevill 
    exclusion. This report was issued on July 31, 1990 (Report to Congress 
    on Wastes from Mineral Processing). EPA fully considered information 
    from, and comments on, the Report to Congress in a regulatory 
    determination published on June 13, 1991(56 FR 27300). The list of 
    Bevill exempt activities and wastes is set out at 40 CFR 261.4(b)(7).
        Many mineral processing wastes that EPA determined did not fall 
    within the Bevill exclusion as a result of the 1991 rule appear to 
    exhibit the toxicity characteristic due to metal content (D004-D011), 
    and also exhibit corrosivity (D002), and/or reactivity (D003). For 
    purposes of LDR applicability, these wastes are ``newly identified'' 
    because they were brought into the RCRA Subtitle C system after the 
    date of enactment of the Hazardous and Solid Waste Act Amendments on 
    November 8, 1984. (See 55 FR at 22667 (June 1, 1990). Hence, their land 
    disposal has not been prohibited until today's rule.
        The Agency is currently required by a court approved consent decree 
    (EDF v. Browner, No. 89-0598 (D.D.C.)) to promulgate LDR restrictions 
    for characteristic and listed mineral processing wastes, and metal 
    wastes hazardous under the revised toxicity characteristic, by April 
    15, 1998. On April 14, 1998, EPA filed an unopposed motion requesting 
    the Court to extend the deadline to April 30, 1998 to establish Land 
    Disposal Restrictions for newly identified mineral processing wastes by 
    April, 1998. The legal obligation to establish prohibitions on land 
    disposal and treatment standards for newly identified mineral 
    processing wastes is established by statute. RCRA section 3004(g)(4).
    
    B. Overview of Today's Rule
    
    1. Issues Related to Which Mineral Processing Secondary Materials are 
    Subject to LDRs
        As noted above, a threshold question when considering whether 
    wastes are prohibited from land disposal is whether the mineral 
    processing secondary materials are ``solid wastes''
    
    [[Page 28578]]
    
    under RCRA. The issue is of importance with respect to land disposal 
    prohibitions for the mineral processing industry because this industry 
    recycles mineral processing secondary materials that exhibit hazardous 
    waste characteristics, and sometimes uses land-based units--piles and 
    impoundments--to store these materials before recycling. Thus, there is 
    an issue as to whether such materials are solid wastes subject to the 
    land disposal prohibition (as well as to the rest of Subtitle C). The 
    Agency issued two proposals (61 FR 2338, January 25, 1996, and 62 FR 
    26041, May 12, 1997) which discussed potential RCRA jurisdiction over 
    secondary materials from mineral processing that are reclaimed within 
    the industry sector and sought comment on a proposed conditional 
    exclusion from the definition of solid waste.
        We now further summarize how today's rule deals with issues raised 
    by whether and when mineral processing secondary materials, when placed 
    in land-based storage units, are subject to the LDR standards and other 
    Subtitle C controls. The rationale for the Agency's decisions are 
    described below.
        To be a hazardous waste, a material must first be a solid waste. 
    RCRA section 1004 (5). To be a ``solid waste'' a material must in some 
    sense be ``discarded.'' RCRA section 1004 (27). A material is not 
    ``discarded'' if it is ``destined for immediate reuse in another phase 
    of the industry's ongoing production process and [has] not yet become 
    part of the waste disposal problem.'' American Mining Congress v. EPA, 
    907 F. 2d 1179, 1186 (D.C. Cir. 1990).
        This rule amends the current RCRA rules (existing 40 CFR 
    261.2(c)(3)) defining which ``secondary materials''--sludges, by-
    products and spent materials--being generated by and reclaimed by 
    mineral processing or beneficiation facilities are solid wastes. The 
    rule does so by creating a conditional exclusion to the regulatory 
    definition of solid waste, so that:
        (a) Mineral processing secondary materials may not be stored on the 
    land before they are reclaimed. The rule provides a partial exception 
    to this principle: if the pile is placed on a pad which has been 
    approved as protective by an EPA Region or a State with an authorized 
    program, the pile would not be considered to be storing solid or 
    hazardous waste, and so would be outside RCRA jurisdiction. Thus, if 
    storage is used prior to reentry into a mineral processing reclamation 
    process, to be excluded, all mineral processing secondary materials 
    must be placed in tanks, containers, buildings, or approved piles 
    resting on pads;
        (b) Mineral processing secondary materials must be legitimately 
    recycled to recover metal, acid, cyanide, water, or other values:
        (c) Mineral processing secondary materials cannot be accumulated 
    speculatively; and
        (d) Facilities utilizing this conditional exclusion must submit a 
    one-time notification of their recycling activities to EPA or the 
    authorized State describing: the materials being recycled and the 
    processes into which they are recycled; where storage units are located 
    and their design. Facilities must update the notification if their 
    recycling activities change.
        EPA is thus essentially disclaiming authority over mineral 
    processing secondary materials that are reclaimed within the mineral 
    processing or mining/beneficiation industry sector, so long as there is 
    no land-based storage preceding reclamation. Further, potential 
    jurisdiction affects only storage. EPA is not asserting authority over 
    any mineral processing production unit, even if the unit is land-based.
    2. Issues Related to Whether Materials are Within the Scope of the 
    Bevill Exclusion
        a. Use of Non-Bevill Materials as Feedstocks to Operations Whose 
    Waste is Bevill Exempt. Today's rule also allows secondary materials 
    from mineral processing to be co-processed with normal raw materials in 
    beneficiation operations which generate Bevill exempt wastes, without 
    changing the exempt status of the resulting Bevill waste, provided that 
    legitimate recovery of the mineral processing secondary material is 
    occurring, and provided that primary ores and minerals account for at 
    least 50 percent of the feedstock. The Agency voiced concern at 
    proposal that the addition of mineral processing secondary materials 
    into a Bevill exempt extraction/beneficiation process could have the 
    potential to increase the risk of the resulting wastes. The Agency 
    proposed adding a condition--the use of a significantly affected test 
    (similar to the existing test used in the Burning in Industrial 
    Furnaces (BIF) Rule (see 40 CFR 266.112))--as a means of assuring that 
    resultant Bevill wastes were not adversely impacted by co-processing. 
    EPA also considered simply limiting eligibility for Bevill status to 
    situations where Bevill raw materials comprised the sole feedstock to 
    the process.
        After considering public comments, the Agency has decided to adopt 
    the general approach proposed in January 1996, with one change. The 
    Agency now does not believe that the use of the ``significantly 
    affected'' test would appreciably reduce risks posed by the resulting 
    wastes, and the Agency is concerned that it would severely disrupt 
    legitimate recycling practices within beneficiation and mineral 
    processing industries. Even in situations where a constituent may 
    increase due to recycling, the increase may not be environmentally 
    significant, may be balanced by the lowering of other constituents, or 
    may be off-set by having to dispose of the material and utilize 
    additional raw material feedstocks.
        b. Uniquely Associated. The Bevill exclusion for the primary metal 
    sector is limited to extraction/beneficiation wastes and 20 mineral 
    processing wastes. Under Section 3001(b)(3)(A)(ii) of RCRA, the Bevill 
    exclusion is available for ``solid waste from the extraction, 
    beneficiation and processing of ores and minerals.'' Under the Agency's 
    longstanding interpretation, a waste must be ``uniquely associated'' 
    with mining and processing of ores and minerals to be subject to the 
    Bevill exclusion. The Agency currently uses a qualitative approach (see 
    45 FR 76619 and 54 FR 36623) to determine if a waste is uniquely 
    associated. Because of public interest in how the Agency makes these 
    determinations, the Agency sought comment on alternative approaches for 
    making ``uniquely associated'' determinations.
        The Agency is retaining and clarifying in this rule its use of its 
    qualitative approach. The Agency recognizes that determining whether a 
    particular waste is uniquely associated with extraction, beneficiation, 
    and processing involves an evaluation of the specific facts of each 
    case. While the Agency discussed, in the May 1997 proposal, several 
    options that would establish a bright line for making this 
    determination, the Agency is concerned that any of these tests could 
    potentially be either over- or under-inclusive of the wastes that, in 
    EPA's view, are best viewed as uniquely associated.
        In the Agency's view the following qualitative criteria should be 
    used to make such determinations on a case-by-case basis:
        (1) Any waste from ancillary operations are not ``uniquely 
    associated'' because they are not properly viewed as being ``from'' 
    mining or mineral processing.
        (2) In evaluating wastes from non-ancillary operations, one must 
    consider the extent to which the waste originates or derives from 
    processes that serve to remove mineral values from the ground, 
    concentrate or otherwise enhance their characteristics to remove 
    impurities,
    
    [[Page 28579]]
    
    and the extent to which the mineral recovery process imparts its 
    chemical characteristics to the waste.
        c. Bevill Mixtures. EPA first addressed mixing of hazardous wastes 
    with Bevill wastes in 1989 (see 54 FR 36622-23). That rule provided 
    that mixtures of Bevill wastes and listed wastes would be considered a 
    hazardous waste unless and until the mixture was delisted. A mixture of 
    Bevill waste and non-excluded characteristic hazardous waste, however, 
    would be considered hazardous if it exhibited a characteristic of the 
    non-excluded waste, but not if it exhibited a characteristic imparted 
    to it by the Bevill waste. As explained in the proposal, this Bevill 
    mixture rule was remanded to the Agency in Solite Corp v. EPA, 952 F.2d 
    472, 493-94 (D.C. Cir. 1991), and an emergency reinstatement of that 
    rule was vacated on procedural grounds in Mobil Oil v. EPA, 35 F.3d 579 
    (D.C. Cir. 1994). Today EPA is reinstating the 1989 Bevill mixture 
    rule. Under this 1989 rule, a mixture of a Bevill-exempt waste and a 
    characteristic hazardous waste (or a waste listed solely because it 
    exhibits a hazardous characteristic) is a hazardous waste if it 
    continues to exhibit the characteristic of the non-excluded waste. 
    Mixtures of Bevill wastes and other listed wastes are hazardous wastes 
    unless and until delisted. In addition, the act of mixing Bevill and 
    and non-Bevill wastes is subject to all normal Subtitle C consequences 
    (i.e., requires a permit if it constitutes treatment, storage of 
    disposal of hazardous wastes). EPA is adopting this approach because it 
    preserves the Bevill exclusion for mixtures that are characteristically 
    hazardous due to Bevill wastes, but nonetheless ensures that the Bevill 
    Amendment is not used to allow Bevill wastes to shield/immunize non-
    Bevill hazardous wastes from regulatory controls that would otherwise 
    apply to those wastes.
        d. Response to Court Remands Dealing with Other Issues Relating to 
    Mineral Processing and to Scope of Bevill Exclusion. (i) Toxicity 
    Characteristic Leaching Procedure (TCLP) The applicability of the TCLP 
    test to mineral processing wastes was challenged in Edison Electric 
    Institute v. EPA, 2 F.3d 438 (D.C. Cir. 1993). In that case the Court 
    held that the Agency must provide at least some factual support that 
    the mismanagement scenario assumed in developing the TCLP is plausible 
    when applied to mineral processing wastes or, alternatively, that 
    mining wastes are exposed to conditions similar to those simulated by 
    the TCLP, namely ``contact with some form of acidic leaching media''. 2 
    F. 3d at 447. EPA prepared a technical background document in support 
    of the January, 1996 proposal, which presented data on this issue. This 
    report concluded that mineral processing wastes had in the past been 
    co-disposed with municipal wastes, and due to the location of mineral 
    processing plants near large urban areas, it was plausible that these 
    wastes could be mismanaged with municipal wastes. EPA also solicited 
    information from the public that would help the Agency evaluate 
    industry comments that the Synthetic Precipitation Leaching Procedure 
    (SPLP) would provide a more accurate measure of how mineral processing 
    wastes behave in the environment. EPA received extremely limited data 
    from the public on this issue.
        EPA has concluded, based on the information available to the Agency 
    and review of public comments, that co-disposal of mineral processing 
    wastes with municipal wastes is a plausible mismanagement scenario and 
    that, therefore, application of the TCLP to these wastes continues to 
    be appropriate. Moreover, comments from industry during the rulemaking 
    stated that certain facilities co-manage mineral processing wastes with 
    extraction and beneficiation wastes. Given the well-documented, acidic 
    nature of some extraction and beneficiation wastes, mineral processing 
    wastes disposed of in this manner may be subject to the kinds of low pH 
    conditions that are reflected in the TCLP. For this additional reason, 
    EPA finds that, under the plausible mismanagement standard articulated 
    in Edison Electric, application of the TCLP to mineral processing 
    wastes is appropriate in light of the information at the Agency's 
    disposal. While the Agency has received comments seeking to compare the 
    TCLP and the SPLP, the Agency has concluded, for reasons discussed 
    later in this preamble, that this information is not sufficient to 
    support adopting the SPLP as the appropriate test for mineral 
    processing wastes at this time.
        The Agency recognizes that the methodology underlying the TCLP may 
    not reflect the variety of conditions under which some types of mineral 
    processing wastes are disposed. As a result, the Agency will undertake, 
    and within three to five years, conclude a review of the 
    appropriateness of using the TCLP and other leaching protocols in this 
    and other contexts.
        (ii) Listed Hazardous Wastes. In American Mining Congress v. EPA, 
    907 F.2d 1179 (D.C. Cir. 1990), the Court found that the Agency's 
    record regarding the listings of five waste streams (K064, K065, K066, 
    K090, K091) did not adequately address certain issues raised in 
    comments. EPA indicated its intent not to list these five waste streams 
    in the January, 1996 proposal and placed a technical background 
    document in the docket enumerating the reasons for those decisions. 
    Many of these wastes are either no longer generated, or managed in a 
    fashion not warranting listing. EPA did not receive any comments 
    challenging those proposed decisions. Therefore, in this rule, EPA is 
    not listing these five smelting wastes as hazardous wastes. Instead, 
    EPA will rely on the RCRA hazardous waste characteristics to identify 
    those portions of the wastes requiring management as hazardous wastes.
        (iii) Titanium Tetrachloride. In 1989, EPA determined that wastes 
    from the production of titanium tetrachloride were mineral processing 
    wastes. DuPont challenged this decision, and the Court remanded EPA's 
    decision for further consideration on grounds that the Agency's 
    decision was unclear (see Solite Corporation v. EPA, 952 F.2d at 494-95 
    (D.C. Cir. 1991)). EPA reevaluated data on wastes from the production 
    of titanium tetrachloride, and placed results of this reevaluation in 
    the docket in support of the January 1996 proposal. EPA also has met 
    with representatives of DuPont to discuss their process further. Based 
    on the Agency's reevaluation of this issue, EPA, in this rule, 
    concludes that iron chloride waste acid generated from the chloride-
    ilmenite process of titanium tetrachloride production should be 
    classified as a mineral processing waste. The Agency has reached this 
    decision because this process significantly affects the physical/
    chemical structure of the raw feedstock through chlorination and this 
    reaction creates new chemicals (iron chloride and titanium 
    tetrachloride gases). This meets the definition of mineral processing 
    rather than beneficiation.
        (iv) Air Pollution Control Dust and Sludges Generated From 
    Lightweight Aggregate Production. Finally, since 1995, the Agency has 
    conducted reviews of air pollution control dust and sludges generated 
    from lightweight aggregate production, and has met with representatives 
    of this industry sector. The Agency also has issued a Report to 
    Congress and a regulatory determination on Cement Kiln Dust (CKD) (59 
    FR at 709, January 6, 1994 and 60 FR at 7366, February 7, 1995). EPA 
    has found that some aggregate kilns and cement kilns use hazardous 
    waste fuels to fire their units. Both types of facilities generate 
    dusts which may be either reintroduced
    
    [[Page 28580]]
    
    into the kiln or blended into the final product. While these dusts 
    rarely exhibit any of the RCRA hazardous waste characteristics, the 
    resultant product could be classified as hazardous waste due to the 
    ``derived from'' rule if listed hazardous wastes are combusted. The 
    Agency is seeking a way to encourage the legitimate and environmentally 
    sound reuse of dusts, from both cement and lightweight aggregate 
    manufacture. In an effort to develop a consistent regulatory approach, 
    EPA, therefore, has decided to defer any decision on the Bevill status 
    of air pollution control dust and sludges generated from lightweight 
    aggregate production until evaluation of issues related to CKD and 
    lightweight aggregate dust handling, use, and disposal can be 
    completed.
        e. Reexamination of Bevill Exempt Wastes. The May 12 proposal 
    sought general comment on whether a reexamination of some Bevill waste 
    is warranted given that additional risk assessment techniques and 
    additional information are available since making the 1986 Bevill 
    regulatory determination (51 FR at 24496, July 3, 1986) on mining and 
    the 1991 Bevill regulatory determination on mineral processing (56 FR 
    27300, June 13, 1991). EPA presented information from Superfund sites 
    and other sources which indicate that some Bevill wastes continue to 
    cause environmental damage (see environmental damage and risk technical 
    background documents placed in the January 1996, and April, 1997 
    dockets). The Agency also posed the question of whether some waste 
    streams require additional study or regulatory controls. Today's rule 
    is not making any changes to the status of Bevill exempt extraction and 
    beneficiation wastes or the 20 exempt mineral processing wastes.
    
    C. Analysis of and Response to Public Comments
    
    1. Jurisdiction
        a. EPA Authority to Regulate Mineral Processing Secondary Materials 
    Reclaimed Within the Industry. Many industry commenters maintained that 
    EPA lacks jurisdiction over mineral processing secondary materials 
    reclaimed within the industry because such materials cannot be ``solid 
    wastes.'' The argument is straight-forward: a solid waste regulated 
    under RCRA must be a ``discarded material,'' RCRA section 1004 (27), 
    and these materials are not discarded. The comments suggest that, under 
    the case law, (in particular American Mining Congress v. EPA, 824 F. 2d 
    1177 (D.C. Cir. 1987) (``AMC I'')), these materials are part of an on-
    going production process within the generating industry, and so cannot 
    be ``discarded.''
        EPA disagrees that there is an absolute jurisdictional barrier to 
    regulating any management of mineral processing secondary materials 
    which are reclaimed within the industry. Although the AMC I court found 
    that, in some respects EPA's 1985 rules exceeded the statutory grant of 
    authority, subsequent judicial opinions have sharply limited the scope 
    of AMC I. The only absolute bar on the Agency's authority to define 
    recycled mineral processing secondary materials as solid wastes is for 
    ``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 1186.2) The case law likewise makes clear 
    that ``discarded'' is an ambiguous term, within EPA's discretion to 
    interpret, consistent with RCRA's overall goals and purposes. AMC II, 
    907 F.2d at 1179; American Petroleum Inst. v. EPA, 906 F.2d 726, 
    741(D.C. Cir. 1990).
    ---------------------------------------------------------------------------
    
        \2\The other cases which have similarly stressed this narrow 
    reading of AMC I are American Petroleum Inst. v. EPA, 906 F. 2d 726, 
    741 (D.C. Cir. 1990); Shell Oil v. EPA, 950 F. 2d 741, 755-56 (D.C. 
    Cir. 1991); Chemical Waste Management v. EPA, 976 F. 2d 2, 14 (D.C. 
    Cir. 1992); United States v. Ilco, Inc., 996 F. 2d 1126, 1131 (5th 
    Cir. 1993); and Owen Electric Steel Co. v. Browner. 37 F. 3d 146, 
    149-50 (4th Cir. 1994).
    ---------------------------------------------------------------------------
    
        Applying this test, today's rule states that any mineral processing 
    secondary materials which are being reclaimed immediately within the 
    mineral processing industry (or within beneficiation) are not a solid 
    waste. However, as explained below, EPA does not view mineral 
    processing secondary materials which have been removed from a 
    production process for storage as being ``immediately reused,'' and so 
    such materials are not automatically excluded from jurisdiction. EPA 
    reiterates that there is a jurisdictional bar against regulating the 
    actual production process (see Steel Manufacturers Association v. EPA, 
    27 F.3d 642, 647 (D.C. Cir. 1994); EPA also interprets the holding of 
    AMC I to mandate this result), so today's rule does not assert 
    authority over mineral processing production units. However, if 
    production units are also used to dispose of hazardous wastes, those 
    units are subject to RCRA Subtitle C.
        With respect to mineral processing secondary materials which are 
    stored before being reclaimed at mineral processing or beneficiation 
    facilities--i.e. that are not being immediately reused--the Agency has 
    established a conditional exclusion from the definition of solid waste, 
    the conditions being designed to assure that management of these 
    materials are not ``part of the waste disposal problem.'' The main 
    condition is that mineral processing secondary materials not be stored 
    on the land (except for storage on approved pads) and not be stored in 
    disposal units.
        In considering the question of scope of jurisdiction, it is useful 
    to remember that this rule applies to a continuum of potential recovery 
    practices. At the one end of the continuum, where EPA's authority is 
    most certain, would be the situation where mineral processing company A 
    sends its secondary materials to unrelated mineral processing company B 
    processing a different metal than company A. The case law indicates 
    that EPA retains discretion to classify the material as a solid waste. 
    API, 906 F.2d at 741 (transfer of steel industry dust to a metal 
    reclaimer processing exclusively steel industry secondary materials can 
    involve a RCRA solid waste). It should be remembered that EPA views 
    ``mineral processing'' broadly in this rule to include all primary 
    mineral processing sectors (see, e.g., the Agency's 1996 Identification 
    and Description of Mineral Processing Sectors and Waste Streams). This 
    document identified 41 different sectors involved in primary mineral 
    processing. Primary mineral processing involves changing the physical 
    and chemical structure of ores and minerals. For example, mineral 
    processing includes the production of steel and the production of gold. 
    These sectors generate very different types of wastes and recycle them 
    under different conditions. Thus, the API principle of no absolute 
    jurisdictional bar applies.
        Points further in on the continuum would be if companies A and B 
    process the same metal but are unrelated companies (also potentially 
    within the API framework), and where companies A and B are under common 
    ownership but not at the same site. The point on the continuum closest 
    to on-going production is where secondary materials are reclaimed at 
    the generating site, but where the process is non-continuous due to 
    storage of materials. Immediate recovery on-site without storage would 
    then mark the other end of the continuum, and would illustrate when 
    materials are immediately reused within a continuous process, and so
    
    [[Page 28581]]
    
    absolutely outside Subtitle C jurisdiction.3
    ---------------------------------------------------------------------------
    
        \3\ The Agency indicated in its January 1996 proposal that some 
    lower value mineral processing secondary materials are from 
    ancillary production operations and that those materials were often 
    placed in land-based storage units. 61 FR at 2340. Industry comments 
    challenged this discussion as over broad and misplaced. Upon review, 
    the Agency acknowledges that mineral processing facilities generate 
    a wide range of secondary materials, which also have a wide range of 
    values to the facility owner.
    ---------------------------------------------------------------------------
    
        EPA believes that it has discretion to consider whether any of 
    these situations short of immediate reuse involve solid wastes, this 
    discretion being limited by the second part of the Court's articulated 
    test: is the non-continuous management of the mineral processing 
    secondary materials part of the waste disposal problem. Thus, EPA in 
    today's rule has focused on the storage of these materials. The leading 
    authority for this approach is AMC II, where the Court found that 
    secondary materials generated and reclaimed on-site could be classified 
    as solid wastes because they were stored in surface impoundments. 907 
    F. 2d at 1186. The case involved a single plant which stored its 
    secondary materials --sludges--in an impoundment before reclaiming all 
    of the accumulated sludges in its own smelting process. 50 FR at 40292, 
    40296 (October 1985). Several comenters argued that AMC II involved 
    only specutlative accumulation. This is not the case. The wastes 
    generated in the impoundment were actually recycled 100 percent, not 
    stored with expectation of recycling. 50 FR at 40292, 40296; Brief of 
    Petitioner Amercian Mining Congress in AMC II (filed March 30, 1990) 
    pp. 18, 29. The Court nonetheless held that the sludges were discarded, 
    stressing the special sensitivity in RCRA to land-based units such as 
    surface impoundments, and explaining how storage of secondary materials 
    in such units can be part of the waste disposal problem (907 F. 2d at 
    1186-87). Thus, EPA believes that mineral processing secondary 
    materials stored on the land are discarded.
        Land-based storage of mineral processing sludges, spent materials, 
    and by-products can be viewed by EPA as being part of the waste 
    disposal problem. There is no dispute that a considerable amount of 
    mineral processing secondary materials contain hazardous constituents 
    that can threaten human health and the environment (see U.S. EPA, 
    Office of Solid Waste, Human Health and Environmental Damages from 
    Mining and Mineral Processing Wastes, 1995, and Damage Cases and 
    Environmental Releases, 1997). Land-based units, and impoundments in 
    particular, have certain inherent indicia of discard due to their 
    inability to prevent releases of contained materials. RCRA section 
    1002(b)(7); AMC II, 907 F.2d at 1187; 53 FR at 521, 525 (Jan. 8, 1988). 
    Surface impoundments pose essentially inherent risks of groundwater 
    contamination due to the hydraulic pressure created by the contained 
    liquids. Chemical Waste Management v. EPA, 919 F. 2d 158, 166 (D.C. 
    Cir. 1992). There are many damage incidents which involve storage of 
    mineral processing wastes in piles and surface impoundments, some of 
    which involve mineral processing secondary materials stored in land-
    based units before eventual reclamation. These damage incidents confirm 
    that this potential harm is not hypothetical.
        It should be noted that there is Agency precedent for the 
    limitation on land based storage as part of within-industry recycling 
    practices. The Agency established the principle of encouraging 
    recycling without allowing land-based storage at 40 CFR 261.4(a)(10). 
    Any wastes from coke by-product production are not solid wastes if 
    recycled to coke ovens conditioned on there being no land disposal from 
    the point of generation to the point of recycling. The Agency also has 
    promulgated a rule where recovered oil generated by any facet of 
    petroleum exploration, production, and retailing is not a solid waste 
    conditioned on no management of these materials in land-based units 
    (see 59 FR 58936, July 28, 1994). The Agency has also proposed to 
    extend this principle to a wider range of oil-bearing secondary 
    materials (see 60 FR 57747, 57753, November 20, 1995). The condition 
    likewise appears in current rules at 40 CFR 261.2(e)(iii) where it 
    qualifies the exclusion for materials returned for reclamation in the 
    process from which they are generated. The application of a no land 
    placement condition in today's rule is, therefore, building on an 
    established policy of encouraging recycling conditioned on no land 
    placement.
        Putting this together, the Agency reads the statute as creating an 
    absolute jurisdictional bar in two situations: where mineral processing 
    or beneficiation is occurring, and where reclamation is continuous in 
    the sense that there is no interdiction in time--i.e. materials moving 
    from one step of a recovery process to another without a break in the 
    process, as for storage. As one moves back along the continuum, EPA has 
    discretion to interpret whether secondary materials may be considered 
    discarded. The Agency is exercising that discretion here by putting its 
    focus on whether the reclamation, or more precisely, the storage which 
    precedes reclamation, is part of the waste disposal problem because it 
    involves storage which can be and has been part of that problem.
        b. Are There Limits on Jurisdiction? (Response to Public Interest 
    Group Position). In contrast, representatives of public interest groups 
    argued that the Agency's authority was essentially unlimited. They 
    believe that the authority should be extended, at a minimum, to all 
    land-based units because such units are a type of disposal unit. With 
    respect to mineral processing secondary materials that are managed in 
    tanks, containers, or buildings (i.e. in other than land-based units), 
    EPA sees no principle that compels the materials to be designated as 
    solid wastes. As explained above, case law indicates that EPA has 
    discretion to interpret which materials are ``discarded'' consistent 
    with the overall statutory objective, API, 906 F.2d at 742. These 
    objectives include not only assuring safe management of hazardous 
    wastes, but also ``encouraging . . . materials recovery, [and] properly 
    conducted recycling and reuse . . . .'' RCRA section 1003(a)(6). EPA's 
    construction in today's rule, which rests largely on the distinction 
    between land-based storage and more environmentally protective storage 
    of secondary materials, is consistent with this object by encouraging 
    ``properly conducted recycling. . . .'' In addition, EPA reads the case 
    law as allowing the Agency to make reasonable distinctions among 
    secondary material handling practices in determining when a particular 
    recycling practice may be considered to be ``part of the waste disposal 
    problem.'' Finally, as EPA explained at proposal, there are potential 
    jurisdictional constraints given that the mineral processing industry 
    exists to recover mineral values from an initial raw material, and some 
    aspects of recovery of mineral values from secondary materials can be 
    like sequential processing of an initial raw material. 61 FR at 2342. 
    Where there is no obvious element of discard present, such as land-
    based storage, the Agency does not believe that it should exercise its 
    interpretive discretion to assert authority.
        With respect to intra-industry reclamation practices involving 
    land-based units, EPA largely is asserting authority. EPA proposed a 
    series of conditions that would have allowed land-based storage units 
    on the idea that there were certain unique necessities within this 
    industry compelling use of such units. 61 FR at 2341. However, as the 
    rulemaking progressed, it became
    
    [[Page 28582]]
    
    apparent that there are no such production-related necessities. Agency 
    reevaluation of mineral processing secondary material volumes indicated 
    that, in addition to volumes being lower than EPA initially believed, 
    comparison to volumes of other industrial hazardous wastes indicated 
    that these wastes were often higher in volume than mineral processing 
    secondary materials and were being stored off the land. Consequently, 
    the Agency is claiming authority over most land-based storage units.
        The Agency is not, however, asserting authority over piles resting 
    on pads determined by a state or EPA to be protective. The reasoning is 
    similar to that for not claiming authority over within-industry 
    secondary materials stored in tanks, containers or buildings. Such 
    materials need not be viewed as ``part of the waste disposal problem,'' 
    and so, given the intra-industry recycling, need not be considered 
    ``discarded.'' The practice also can be viewed as a type of ``properly 
    conducted recycling'' which should be encouraged. Again, EPA views this 
    determination to be within its interpretive discretion.
        EPA also disagrees that it is compelled to assert control over 
    land-based units that are actual production units, i.e. that actually 
    recover product. The Agency is aware of only two land-based units which 
    recover metals: gold heap leach piles and copper dump leach piles. 
    Under prior rulemakings (54 FR 36592 and 55 FR 2322), the Agency has 
    defined these land-based units as extraction/beneficiation activities. 
    The Agency is unaware of any other land based process units which 
    actually recover metals. The Agency believes that regulating such units 
    could pose the possibility of interdicting actual production steps 
    which was the particular focus of the AMC I court. EPA notes, however, 
    that storage units which also make secondary materials more suitable 
    for actual recovery, such as equalization basins, can remain within 
    Subtitle C jurisdiction. These units, in the Agency's view, are not the 
    part of the process which actually produces an end product (such as the 
    smelter at a smelting facility). At most, they facilitate eventual 
    recovery. The Agency does not read the case law to say that such 
    storage units are in all cases outside the authority of Subtitle C.
        EPA also is not asserting authority over mineral processing 
    secondary materials once they are removed from approved storage for 
    reclamation. Thus, should a mineral processing plant reclaim mineral 
    processing secondary materials after those materials are stored in 
    land-based units (i.e. the materials defined as hazardous wastes in 
    today's rule), they would no longer be solid and hazardous wastes. EPA 
    believes it would be counterproductive to retain the hazardous waste 
    status for mineral processing secondary materials entering reclamation. 
    If the materials remain hazardous wastes, for example, the smelting 
    process itself could be subject to Subtitle C regulation. EPA believes 
    that it retains discretion to classify the removed materials as no 
    longer being solid and hazardous wastes.
        The Agency believes it has discretion to adopt this classification 
    notwithstanding the court's decision in American Petroleum Institute. 
    v. EPA, 906 F.2d 726 (D.C. Cir. 1990). In that case, the Court held 
    that EPA had adopted the so-called indigenous principle, whereby 
    secondary materials stopped being wastes at the point they were 
    utilized as feedstock in a production process related to the one that 
    generated it, without sufficient justification. 906 F.2d at 741-42. 
    However, in that case, EPA had made no attempt to determine which 
    materials were part of the waste disposal problem, and which were not. 
    Here, the Agency is making clear that storage on the land of mineral 
    processing secondary materials is the environmental concern, and that 
    reclaiming mineral processing secondary materials within the industry 
    is ordinarily a form of proper recycling which may permissibly be 
    encouraged. RCRA section 1003(a)(6).
        EPA also notes that it is possible that no mineral processing 
    secondary materials will be placed in impoundments or in unapproved 
    piles. Under today's rule, if a facility wishes to use a pile for 
    storage (assuming the pile has not been adjudicated to be protective), 
    the wastes would first have to be treated to meet Land Disposal 
    Restrictions standards, probably rendering them unrecoverable. If an 
    impoundment is utilized, wastes need not be pretreated, but the 
    impoundment would have to meet minimum technology design standards and 
    be dredged annually (RCRA section 3005(j)(11) and 40 CFR section 268.5) 
    and, of course, ultimately obtain a RCRA permit. The Agency anticipates 
    that facilities will use a non land-based form of storage instead.
        c. Immediate Reuse.4 In the May 1997 proposal, EPA 
    suggested a different way of defining absolute jurisdictional limits, 
    namely to say that secondary minerals generated by and ``immediately 
    reused'' within the mineral processing industry, were not solid wastes. 
    The reference to ``immediate'' was suggested as a means of interpreting 
    the ``immediate reuse in another phase of the industry's ongoing 
    process'' standard articulated in the case law. AMC I, at 824 F. 2d at 
    1185. The Agency proposed that secondary materials that were 
    legitimately recycled within 48 hours would be outside RCRA 
    jurisdiction, regardless of whether they were stored between process 
    steps (including storage in land-based units). See 62 FR at 26051.
    ---------------------------------------------------------------------------
    
        \4\ It should be noted that EPA is not using ``reuse'' as a term 
    of art in this section of the preamble (i.e. is not using the term 
    as defined in 40 CFR 261.1(a)(5)), but rather is referring to 
    immediate reclamation of materials (i.e. material recovery) at a 
    mineral processing facility. The key concept here is actually 
    ``immediate,'' which EPA is using to interpret the phrase 
    ``continuous process'' used in the case law.
    ---------------------------------------------------------------------------
    
        Industry and public interest groups both opposed the use of the 48-
    hour time limit included in the January 1996 proposal to define 
    immediate reuse. Industry renewed its categorical objections based on 
    AMC I, and noted that many secondary materials are legitimately 
    reclaimed long after they are generated and the time period between 
    generation and reclamation in no way affected their value. For example, 
    commenters stated that the gold industry generates retort slags which 
    contain gold values. Comments stated that these slags are stored off 
    the ground for periods up to six months after which they are 
    reintroduced into their recovery process.5
    ---------------------------------------------------------------------------
    
        \5\ It should be noted that since no land-based storage is 
    involved, these gold slags are not solid wastes under the final rule 
    in any case (assuming that the recovery is legitimate and that the 
    other conditions in the rule are satisfied).
    ---------------------------------------------------------------------------
    
        Public interest groups objected to the 48-hour limit on the basis 
    that an absolute waiver of RCRA jurisdiction based on time does not 
    translate to any reduction of environmental risk. Public interest 
    groups also noted that the Court in AMC II granted jurisdiction to 
    units holding secondary materials with the propensity to leak, and that 
    the Court's opinion would extend to all land placement, since the 
    continuous placement of materials on piles or other land-based units 
    would result in the same ``discard'' underlying the Court's opinion.
        Although the Agency necessarily accepts that materials immediately 
    reused in another phase of the industry's ongoing production process 
    are beyond EPA's jurisdiction, AMC I, 824 F.2d at 1185, the Agency is 
    not adopting in today's rule the proposed 48-hour approach to define 
    immediate reuse. The Agency is defining ``immediate reuse'' as the 
    continuous recirculation of secondary materials
    
    [[Page 28583]]
    
    back into recovery processes without prior storage. The plain reading 
    of the words ``continuous,'' 824 F.2d at 1193, and ``immediate'' 
    preclude storage. Storage by its very nature means that processes are 
    not continuous; rather, storage means that materials are generated 
    which must be held apart for some period of time prior to reentry into 
    a process. Storage, therefore, breaks the continuous and immediate 
    nature of production and reentry. In addition, land-based storage units 
    have inherent elements of discard. AMC II, 907 F. 2d at 1186-87.
        The definition of ``immediate reuse'' in today's rule does not bar 
    storage prior to recycling. Mineral processing industries will be able 
    to store and recycle their mineral processing secondary materials 
    outside RCRA Subtitle C requirements if they do so while meeting the 
    conditions of the exclusion from the definition of solid waste 
    contained in today's rule.
        In the May 1997 proposal, the Agency discussed the possibility that 
    some molten metals that spill onto the ground could be classified as 
    materials undergoing immediate reuse (see 62 FR at 26051). The Agency 
    noted that copper reverts (refined copper material) can be spilled in 
    the process of being transferred from one part of the smelting process 
    to another. Such reverts are picked up as soon as they can be safely 
    handled and are placed directly back into the smelting process. The 
    Agency has reviewed smelting processes in other metal sectors and finds 
    that spillage from ladles is common and that these materials are 
    routinely picked up within a short time and placed back into the 
    process. The Agency thus concludes that molten metal spilled onto 
    smelter floors is not a solid waste if it is picked up as practical 
    (given heat and worker safety factors) and is then placed back into the 
    smelting process. Such a material is not a secondary material (i.e. 
    sludge, by-product, or spent material), but rather remains in process. 
    This interpretation parallels existing rules, which say that a spilled 
    commercial chemical product is not a solid waste if it is recycled 
    within a reasonable amount of time (see 40 CFR 261.33 and 55 FR at 
    22671).
        Industry commenters stated that spent smelter brick was similar to 
    reverts since they are often returned back into recovery processes. If 
    such spent bricks are stored before being recycled, they are not being 
    immediately reused (nor are they still in process, since they are spent 
    and physically removed). As noted in the Agency's May 1997 proposal, 
    copper flue dusts, also are stored sometimes and not immediately 
    recycled. Flue dusts not meeting the immediate reuse definition are 
    defined as mineral processing secondary materials (usually a sludge, 
    since these dusts are usually air pollution control residue) and would 
    be eligible for the conditional exclusion to the definition of solid 
    waste.
        d. Relation to the Current Regulatory Definition of Solid Waste. 
    (i) Distinctions among Sludges, By-products, and Spent Materials. The 
    existing regulatory definition of solid waste classifies metal recovery 
    operations as a type of reclamation activity, and then states that 
    certain secondary materials being reclaimed are, or are not, solid 
    wastes depending on the type of material being reclaimed. Spent 
    materials being reclaimed are solid wastes, while characteristic 
    sludges and by-products being reclaimed are not solid wastes. See, 
    generally, 40 CFR 261.2(c)(3) and 50 FR at 633-34, 639-41 (January 4, 
    1985).
        As EPA noted at proposal, these distinctions among types of 
    secondary materials being reclaimed are not needed because they are not 
    directly based on environmental distinctions. 61 FR at 2342. In this 
    industry, at least, the distinctions do not relate to which of these 
    materials may be part of the waste disposal problem.6 The 
    more environmentally meaningful distinction, and the one adopted here, 
    is between land-based storage and storage in tanks, containers, and 
    buildings.
    ---------------------------------------------------------------------------
    
        \6\ Put another way, the fact that a mineral processing 
    secondary material is a sludge, rather than a spent material or by-
    product, does not convey any meaningful information as to the types 
    of risks the material might pose if reclaimed.
    ---------------------------------------------------------------------------
    
        In this rule, the Agency is, therefore, eliminating the regulatory 
    distinctions between by-products, sludges and spent materials from 
    mineral processing when these materials are reclaimed. Thus, under the 
    amended rule, if any secondary material--sludge, by-product, or spent 
    material--is legitimately reclaimed within the mineral processing 
    industry, it is not a solid waste as long as all other conditions to 
    the exclusion to the definition of solid waste are satisfied. EPA 
    believes that this principle not only should encourage properly 
    conducted recycling within the industry, but also fulfills an Agency 
    objective of reducing some of the complexity in the existing regulatory 
    definition of solid waste.7
    ---------------------------------------------------------------------------
    
        \7\ EPA does note the potential anomaly that non-mineral 
    processing secondary materials, at least for the moment, will be 
    regulated in some cases stringently than those generated and 
    reclaimed within the mineral processing industry. This could come 
    about because non-mineral processing industry sludges and by-
    products would still not be solid wastes if reclaimed, and so could 
    be stored in land-based units before reclamation without being solid 
    wastes. EPA has chosen, however, to address the broader issues 
    regarding the regulatory definition of solid waste in a different 
    rulemaking effort, which is proceeding on a different schedule from 
    this rule. EPA believes that if may legitimately proceed one step at 
    a time on these issues, and so is not precluded from making needed 
    changes to the regulatory definition that affect only discrete 
    industry segments, in this case, the mineral processing industry.
    ---------------------------------------------------------------------------
    
        (ii) Other existing regulatory exclusions. The existing regulatory 
    definition of solid waste also contains a series of exclusions in 40 
    CFR 261.2(e), two of which could apply to the mineral processing 
    industry. Section 261.2(e)(1) (ii) excludes from the definition of 
    solid waste sludges, by-products and spent materials (i.e. secondary 
    materials) which are ``used or reused as effective substitutes for 
    commercial products.'' An example could be mineral processing acid 
    plant blowdown substituting for commercial acid in another process 
    (either mineral processing or a process in a different industrial 
    category).8 Commenters from industry questioned whether this 
    provision is affected by the amendments relating to mineral processing 
    secondary materials being reclaimed. The answer is that the provision 
    remains as an independent basis for excluding secondary materials from 
    Subtitle C. EPA did not propose to change it, and the issues involved, 
    in any case, would be broader than the present proceeding since the 
    basis for the exclusion does not rest on the notion of a continued 
    process within an industry, but on comparability of secondary and 
    virgin materials (see 50 FR at 619-20 and 637-41 (Jan. 4, 1985)).
    ---------------------------------------------------------------------------
    
        \8\ This example assumes that legitimate recycling is occurring.
    ---------------------------------------------------------------------------
    
        The second existing exclusion, found at 261.2(e)(1)(iii), does 
    overlap with the present rule. The exclusion is for secondary materials 
    ``returned [as a substitute for feedstock materials] to the original 
    process from which they are generated, without first being reclaimed or 
    land disposed.'' An example could be an emission control dust from 
    primary smelting which is returned directly to the smelter for metal 
    recovery without any interim land disposal.
        This provision is essentially consistent with, but also subsumed 
    by, today's final rule (with respect to the mineral processing 
    industry). It is subsumed because the activity involved, return as a 
    feedstock to a smelter, is a type of reclamation activity (see 50 FR at 
    639-40), the subject of this final rule.9 The existing rule 
    also contains a ``no
    
    [[Page 28584]]
    
    land disposal'' condition similar to the conditions in this final rule 
    (although today's rule excludes storage in piles in some circumstances, 
    and so is more flexible than the current 261.2(e)(1)(iii) in this 
    respect).
    ---------------------------------------------------------------------------
    
        \9\ The exclusion for return of secondary materials as feedstock 
    was in fact adopted largely in order to exclude certain direct 
    reclamation practices in the mineral processing industry. 50 FR at 
    639-40.
    ---------------------------------------------------------------------------
    
        In light of this overlap, EPA is adding language to 
    261.2(e)(1)(iii) to indicate that there are special provisions relating 
    to reclamation within the mineral processing industry (namely those 
    adopted in today's final rule), and that these provisions define the 
    scope of the exclusion for mineral processing secondary materials 
    generated and reclaimed within the industry, including those which are 
    returned to a mineral processing operation from which they are 
    generated without first being reclaimed.
        Today's rule also does not alter the regulatory status of 
    recyclable materials that are reclaimed to recover economically 
    significant amounts of gold, silver, platinum, iridium, osmium, 
    rhodium, ruthenium, or any combination of them. 40 CFR 266.70. This 
    rule was established to encourage recycling of precious metals. 
    Commenters from the gold industry questioned whether this provision is 
    affected by the amendments relating to mineral processing secondary 
    materials being reclaimed. The answer is that today's rule redefines 
    which secondary materials generated and reclaimed within the mineral 
    processing industry are wastes, and so could exclude certain materials 
    reclaimed within the precious metal industry which are now defined as 
    solid wastes. However, to the extent any precious metal recovery 
    operations remain subject to regulation after today's rule, the 
    tailored regulatory provisions in 266.70 continue to apply.
        e. Otherwise Excluded Mineral Processing Units Which Serve as 
    Disposal Units. As the Agency noted in the original proposal, land-
    based units in the mineral processing industry not only can be related 
    to a recovery process but also can serve as repositories of 
    conventional wastes. 61 FR at 2340, 2342, 2347. That is, unusable 
    solids settle in surface impoundments or are left in piles and in many 
    cases these units become the ultimate repositories for these wastes. 
    Id.
        Under current rules, when an operating product storage unit that is 
    a tank also contains a hazardous waste, the waste is not subject to 
    regulation until it exits the unit. 40 CFR section 261.4 (c). An 
    example would be a listed distillation column bottom remaining within 
    the distillation column.
        Section 261.4(c) does not apply to hazardous wastes which 
    accumulate in land-based units. Thus, if wastes accumulate in piles or 
    impoundments, if those wastes are hazardous (i.e. are listed or exhibit 
    a characteristic of hazardous waste), and the wastes are not 
    legitimately recycled, then the units are Subtitle C regulated units 
    because they are being used to store or dispose of hazardous waste. The 
    Agency is not altering this long-standing principle in the present rule 
    (particularly given the central statutory finding that land-based 
    units, and especially surface impoundments, ``should be the least 
    favored method for managing hazardous wastes'; RCRA section 
    1002(b)(7)). Consequently, any process impoundment that holds un-
    recycled hazardous accumulated solids, the impoundment is a regulated 
    unit (i.e. subject to Subtitle C) because it is disposing of a 
    hazardous waste. In addition, the same principle would apply to storage 
    or process piles, which likewise are ineligible for the 261.4(c) 
    exemption.
    2. Scope of This Rule
        This section of the preamble addresses the issue of which secondary 
    materials come from ``mineral processing'' operations, and so are 
    potentially within the scope of the conditional exclusion for mineral 
    processing wastes being reclaimed within the mineral processing 
    industry sector or in extraction/beneficiation operations. Newly 
    identified wastes from mineral processing also are subject to the LDR 
    prohibitions and treatment standards adopted today, and so this 
    preamble section also clarifies the applicability of these LDR 
    provisions.
        a. Mineral Processing Wastes Covered by This Rule. The Agency's 
    1989 rule (see 54 FR 36592) applied the high volume/low toxicity 
    criteria to determine which primary mineral processing wastes would 
    retain the Bevill exclusion. This rule also clarified the Bevill status 
    of beneficiation operations. Those mineral processing waste streams not 
    meeting the high volume/low toxicity criteria are no longer Bevill 
    exempt wastes and are subject to regulation under Subtitle C (except 20 
    mineral processing waste streams noted at 40 CFR 261.4). Non-exempt 
    Bevill mineral processing wastes are ``newly identified,'' and are now 
    subject to the Land Disposal Restrictions, when land disposed. 
    Therefore, only ``newly identified'' characteristic hazardous mineral 
    processing wastes are potentially eligible for the conditional 
    exclusion from the definition of solid waste.
        EPA established in the 1989 rulemaking the factors it would use to 
    determine whether a waste is generated from extraction/beneficiation 
    versus mineral processing (see 54 FR 36592, 36616-20). The Agency has 
    not and is not reopening this standard. However, EPA prepared and 
    noticed a report--Identification and Description of Mineral Processing 
    Sectors and Waste Streams--which tentatively applied this existing test 
    on a waste-by-waste basis to wastes from 41 mineral sectors (62 FR at 
    2354).
        There are two principal issues raised by this report: its legal 
    status and its accuracy. First, the Agency has decided that the 
    Identification and Description of Mineral Processing Sectors and Waste 
    Streams report should be a guidance document. Thus, the Report is not a 
    rule, and it, therefore, cannot be invoked as a definitive 
    determination as to whether or not a particular waste is to be 
    classified as being from mineral processing or from extraction/
    beneficiation. In addition, this report should not be viewed as an 
    exclusive list of mineral processing and associated waste streams: 
    other mineral processing waste streams may exist. Mineral processing 
    facilities are obligated to determine the Bevill status of their wastes 
    by utilizing applicable regulatory provisions, as clarified by the 
    criteria articulated in 1989 in the Federal Register preamble cited 
    above. Thus, because the document is guidance, no party could rely upon 
    that document as the definitive basis for a regulatory determination.
        The Agency has fully evaluated comments suggesting that the report 
    contains factual inaccuracies, and believes that the Report, as now 
    revised after review of public comments, is accurate and should 
    therefore, provide useful guidance to the public. EPA disagrees with 
    comments contenting that the Agency adopted new criteria in reaching 
    the tentative conclusions set out in the Report. This is not the case--
    the same general approach used in 1989 was applied in the Report, and 
    would have to be applied in making any actual regulatory determination.
        One commenter argued that considering these determinations to be 
    advisory would violate EPA's duty under section 3001(b)(3) of RCRA, as 
    construed by the Court in EDF V. EPA, 852 F.2d 1316, 1331 (D.C. CIR 
    1988) to have made final determinations as to which mining wastes are 
    subject to the Bevill exclusion. According to this commenter, reaching 
    one conclusion at headquarters and a potentially different conclusion 
    at EPA regions or States would undermine the intent of the Court's 
    order in EDF. This commenter also asserted that such an approach would 
    effectively allow States to
    
    [[Page 28585]]
    
    regulate less stringently than EPA, in violation of sections 3006 and 
    3009 of RCRA.
        EPA believes that these comments are erroneous. EPA fulfilled some 
    time ago its obligations under section 3001(b)(3) generally, and under 
    the EDF decision in particular, to define the scope of the Bevill 
    exclusion as it applied to mining wastes. See 51 Fed. Reg. 24496 (July 
    3, 1986); 54 Fed. Reg. 36592 (Sept. 1, 1989); 55 Fed. Reg. 2322 (Jan. 
    23, 1990); 56 Fed. Reg. 27300 (June 13, 1991). As discussed in those 
    notices and rules, EPA's regulatory determination did not obviate the 
    need to evaluate whether a particular waste was from mineral processing 
    which, unless one of the 20 identified special mineral processing 
    wastes, would not be exempt from Subtitle C under Bevill. Indeed, the 
    Agency has extensively discussed the distinctions between beneficiation 
    and mineral processing precisely to assist industry, EPA and the States 
    in making such case-specific determinations. See 54 Fed. Reg. 36618-
    36619 (Sept. 1, 1989). Issuance of the Identification document in the 
    record for this rulemaking is simply intended to aid the industry and 
    regulators in making these decisions.
        EPA acknowledges that the potential for inconsistent determinations 
    exist; for this reason, EPA headquarters has assisted regional offices 
    and States in making these determinations over the past decade. Section 
    3001(b)(3) does not, however, require the Agency to use rulemaking to 
    make each and every decision. Those decisions that are very fact-
    specific may need to be made on a case-by-case basis using general 
    criteria articulated nationally by EPA. It is precisely because of the 
    fact-specific nature of such inquiries that EPA believes adopting the 
    guidance document as ``binding'' would not be appropriate. Finally, 
    nothing in EPA's approach is inconsistent with the RCRA requirement 
    that authorized State programs be at least equivalent to and no less 
    stringent than the federal program (see RCRA 3006 (b)).
        b. Wastewater Treatment Surface Impoundments. EPA indicated at 
    proposal that wastes managed in wastewater treatment surface 
    impoundments would never be eligible for a conditional exclusion from 
    the definition of solid waste. 62 FR at 2348. (A wastewater treatment 
    surface impoundment is one whose ultimate discharge is regulated by the 
    Clean Water Act, and can include zero discharge facilities.) This 
    remains EPA's position, although the issue is no longer directly 
    relevant to the final rule because no impoundments are eligible for 
    exclusion. As the Agency noted at proposal, the essential purpose of 
    these units is waste management rather than production. 62 FR at 2348. 
    See also AMC II, where the D.C. Circuit held that wastewater treatment 
    surface impoundments can be classified as waste management units, 
    notwithstanding that all of the entrained solids in the unit were 
    eventually recycled as feedstock at the generating plant. 907 F. 2d at 
    1186-87.18 \10\
    ---------------------------------------------------------------------------
    
        \10\ Waters in these impoundments are often recycled back into 
    processes for their value as water. Recycling of wastewaters may be 
    currently allowed under the effective substitute clause in the 
    regulatory definition of solid waste (see 40 CFR 261.2(e)(1)(ii)), a 
    provision unaffected by today's amendments. However, EPA reads AMC 
    II and its regulations to state that impoundments where some 
    wastewaters are returned to a process as an effective substitute for 
    a commercial product, but which also function as wastewater 
    treatment impoundments, would be regulated units (assuming there are 
    hazardous wastes in the unit). This is because the unit would 
    necessarily be functioning at least partially as a disposal unit 
    (since wastewaters are ultimately discharged). In addition, the 
    product storage regulatory exemption at 40 CFR 261.4(c) does not 
    apply to surface impoundments. Notwithstanding industry comments 
    that recycling of wastewater should be encouraged, the Agency notes 
    the stronger policy in RCRA to assure that surface impoundments 
    managing hazardous waste are managed so as to operate protectively. 
    AMC II, 907 F.2d at 1187 and sources there cited.
    ---------------------------------------------------------------------------
    
        c. Materials Outside the Scope. This rule limits the use of the 
    conditional exclusion to the definition of solid waste to only those 
    secondary mineral processing materials generated within primary mineral 
    processing. The Agency identified over 40 mineral sectors which 
    potentially generate mineral processing secondary materials subject to 
    this rule. The scope of this rule is therefore quite broad. The Agency 
    did not receive comments opposed to the Agency including them in this 
    rule.
        This rule also restricts the use of the conditional exclusion from 
    the definition of solid waste to characteristically hazardous mineral 
    processing materials. Thus, no listed hazardous wastes can qualify for 
    the conditional exclusion.
        The National Mining Association (NMA) and the Metals Industry 
    Recycling Coalition submitted comments urging the Agency to broaden the 
    scope of the rule to include metal-bearing wastes generated outside of 
    primary mineral processing as well as allowing the reprocessing of 
    listed hazardous wastes. The Agency is not extending the exclusion 
    contained in this rule because the Agency did not propose addressing 
    wastes generated outside of primary mineral processing, since at the 
    time of proposal the Agency indicated that these wastes would be 
    addressed under a different rulemaking. While metal-bearing wastes 
    generated outside of primary mineral processing, and listed hazardous 
    wastes are not within the scope of this rule, the Agency will continue 
    to assess how best to encourage their legitimate recycling.
        Commenters indicated they were unsure how this rule would affect 
    the application of 40 CFR 261.2 to secondary materials generated from 
    outside the mineral processing industry sector. As discussed earlier in 
    the preamble, today's rule does not amend Sec. 261.2 for any secondary 
    materials other than those generated within the mineral processing 
    sector. Thus, when fully implemented, a mineral processing facility can 
    use the conditional exclusion to the definition of solid wastes and can 
    utilize Sec. 261.2 to recycle other wastes.
    3. Mineral Processing Secondary Material Volumes and Environmental 
    Damages
        a. Volume of Secondary Materials and Large Volume Exemption. In the 
    Agency's May 1997 proposal, land placement of secondary mineral 
    processing materials would be prohibited except for materials exceeding 
    the high volume criteria (45,000 tons per facility waste stream per 
    year for solid wastes and one million tons per facility per waste 
    stream per year for liquids). The May 1997 proposal would have allowed 
    high volume secondary materials to be placed in land-based units if 
    those units meet the integrity standards noted in the January proposal 
    and meet other proposed conditions. In today's rule, the Agency is 
    adopting a no land placement condition for mineral processing secondary 
    materials without any volume exemption.
        As noted in the May 1997 proposal (see 62 FR at 26049), the Agency 
    reevaluated the volumes of mineral processing secondary materials as a 
    result of comments submitted by public interest groups which asserted 
    that volumes of these materials were considerably less than EPA 
    originally believed (see Characterization of Mineral Processing Wastes 
    and Materials, U.S. EPA, 1998). Based on this reevaluation, the Agency 
    finds that mineral processing wastes are not generated in the high 
    volumes that we previously believed to be the case. EPA found that of 
    the 119 hazardous wastes streams it studied, 117 were generated in 
    volumes lower than the proposed high volume cutoff. Further, comments 
    from public interest groups on the Agency's May 1997 proposal indicate 
    that two remaining waste streams that
    
    [[Page 28586]]
    
    the Agency had classified as high volume may not in fact meet the high 
    volume cutoff. The Agency reassessed how it estimated the volumes of 
    these waste streams and acknowledges that it used very conservative 
    approaches to estimate these volumes. It is, therefore, possible that 
    none of the 119 waste streams studied meet the high volume cutoff. The 
    Agency proposed using the high volume cutoff as an indicator that land 
    storage may be an economic necessity because when volumes are high, 
    alternatives to land placement are costly and not practical. In fact, 
    the Agency now finds that mineral processing secondary materials are 
    generated at volumes where there is no reason that they cannot be 
    managed in non-land based units (except for solids placed on approved 
    pads).
        Industry comments maintained that it is impractical to place 
    mineral processing secondary materials in tanks, containers, and 
    buildings. Based on the storage of similar volumes and types of 
    hazardous wastes generated in other industries, the Agency does not 
    agree. The Agency presented its analyses of volumes in its report 
    entitled, Characterization of Mineral Processing Wastes and Materials, 
    1997. This report noted that listed hazardous wastes, such as spent 
    potliners, and electric arc furnace dusts, are generated at volumes 
    which generally exceed that of mineral processing secondary materials 
    yet are stored in tanks and buildings. Further, this report noted that 
    the volumes generated by other industries that use tanks, containers, 
    and buildings to store hazardous wastes are not substantially different 
    than volumes generated by the mineral processing industry.
        b. Reliability of Damage and Environmental Release Reports. 
    Industry commenters to the May 12, 1997 proposal sought to refute or 
    minimize the degree of contamination caused by the land storage of 
    mineral processing secondary materials. Despite these objections, the 
    Agency still finds that land-based storage and management practices of 
    mineral processing secondary materials and wastes can or may create or 
    exacerbate soil and ground water contamination.
        The Agency issued two separate reports in 1995 and 1997 (Office of 
    Solid Waste, U.S. EPA, Human Health and Environmental Damages from 
    Mining and Mineral Processing Wastes (1995), and Office of Solid Waste, 
    U.S. EPA, Damage Cases and Environmental Releases (1997)) which 
    presented information on damage cases and environmental releases of 
    mineral processing and mining wastes. The data tended to fall into two 
    general classes: (1) information that illustrates that environmental 
    damages have occurred, and (2) information that discusses the types and 
    magnitude of mineral processing materials that have been released into 
    the environment. In some cases, a combination of feedstock, in-process 
    materials, secondary materials, and wastes contribute to ground water, 
    surface water, or soil contamination. Also, in some cases, 
    contamination occurred through episodic or continuing mismanagement of 
    hazardous and other solid wastes (e.g., commercial chemical spills). 
    Industry commenters objected to the use of these damage cases 
    contending that they reflect historic practices and not current 
    operations.
        The Agency disagrees that storage of mineral processing wastes, and 
    in some cases secondary materials, on the ground, which was reflected 
    in these reports, no longer occurs. After careful reevaluation, the 
    Agency finds that the record and, in particular, these reports, clearly 
    indicate that the storage on the ground of mineral processing wastes 
    and secondary materials continues as a management practice and has 
    caused environmental damage or has the potential to do so. These 
    reports identify cases where mineral processing wastes and secondary 
    materials were eroded by rain, were carried by wind, or, in the case of 
    surface impoundments, migrated to contaminate ground water. The vast 
    majority of newly identified mineral processing wastes are liquids and 
    their placement in impoundments presents actual or potential threats to 
    the environment. The Agency concludes that placement of secondary 
    mineral processing materials in impoundments may contribute to the 
    waste management problem.11
    ---------------------------------------------------------------------------
    
        \11\ Of course, those mineral processing facilities that have in 
    fact improved their storage practices for mineral processing 
    secondary materials being reclaimed by using tanks, containers, or 
    buildings instead of impoundments to store secondary materials would 
    be essentially unaffected by this rule, since such units would be 
    excluded from regulations.
    ---------------------------------------------------------------------------
    
        EPA is also not impressed by comments stating that most of the 
    damage incidents involved wastes no longer utilized within a process, 
    not secondary materials awaiting reclamation, and therefore are 
    irrelevant to this rule. The damage incidents certainly show that when 
    hazardous mining and mineral processing wastes and mineral processing 
    secondary materials are stored in piles or in surface impoundments, 
    hazardous constituent releases and consequent damage has occurred in 
    this industry. Piles and impoundments do not automatically become safer 
    if the materials stored in them are secondary materials awaiting 
    recycling rather than wastes. Rather, the risk comes from the nature of 
    the storage unit.
        The Agency compared the toxic and hazardous properties of newly 
    identified mineral processing wastes with a limited number of RCRA 
    listed hazardous wastes in the 1997 technical background document, 
    Characterization of Mineral Processing Wastes and Materials. This 
    report was used to support the May 1997 proposal. In order to easily 
    compare the listed waste leachate concentrations with the leachate 
    concentrations of the newly identified mineral processing wastes, a 
    combined mean and maximum range of chromium, cadmium, and lead 
    concentrations for the seven listed wastes were calculated. The mean 
    leachate concentrations for chromium, cadmium, and lead range from 6.03 
    mg/l to 273.23 mg/l, <0.01 mg/l="" to="" 117.5="" mg/l,="" and="" 1.47="" mg/l="" to="" 259.83="" mg/l,="" respectively.="" likewise,="" the="" maximum="" leachate="" concentrations="" for="" chromium,="" cadmium,="" and="" lead="" range="" from="" 12="" mg/l="" to="" 4250="" mg/l,=""><0.01 mg/l="" to="" 268="" mg/l,="" and="" 2.10="" mg/l="" to="" 1550="" mg/l,="" respectively.="" the="" report="" then="" compared="" the="" ranges="" in="" constituent="" concentrations="" exhibited="" by="" the="" listed="" wastes="" and="" the="" newly="" identified="" mineral="" processing="" wastes.="" the="" report="" states="" that="" 15="" of="" the="" 23="" mineral="" processing="" wastes="" exhibit="" leachate="" concentrations="" of="" chromium,="" cadmium,="" and="" lead="" at="" levels="" that="" are="" equal="" to="" or="" greater="" than="" those="" levels="" exhibited="" by="" the="" seven="" listed="" wastes.="" therefore,="" the="" agency="" has="" concluded="" that="" some="" mineral="" processing="" secondary="" materials="" exhibit="" hazardous="" properties="" similar="" to="" listed="" hazardous="" wastes,="" and="" have="" the="" same="" or="" greater="" potential="" of="" leaching="" metals="" into="" the="" environment="" when="" they="" are="" improperly="" placed="" on="" the="" land.="" in="" addition,="" mineral="" processing="" secondary="" materials="" often="" contain="" metal="" compounds="" and="" other="" constituents="" which,="" due="" to="" processing="" steps,="" become="" more="" mobile="" in="" the="" environment="" (see="" 54="" fr="" 36614-36619,="" september="" 1,="" 1989).="" by="" the="" very="" nature="" of="" mineral="" processing,="" heavy="" metals="" are="" continuously="" concentrated="" and="" waste="" streams="" tend="" to="" contain="" higher="" metal="" loadings="" than="" those="" found="" in="" raw="" ore.="" since="" the="" resultant="" wastes="" have="" higher="" concentrations="" of="" metals,="" they="" likewise="" have="" a="" higher="" potential="" to="" leach="" higher="" concentrations="" of="" metals="" into="" the="" environment="" if="" they="" are="" not="" adequately="" stored.="" finally,="" the="" record="" also="" shows="" that="" a="" wide="" range="" of="" mineral="" processing="" secondary="" materials="" are="" released="" into="" the="" environment.="" such="" releases="" do="" not="" necessarily="" mean="" that="" environmental="" [[page="" 28587]]="" damage="" has="" occurred;="" however,="" the="" agency="" believes="" it="" must="" take="" appropriate="" steps="" to="" minimize="" such="" releases="" to="" reduce="" the="" potential="" for="" damage="" to="" occur,="" just="" as="" the="" agency="" does="" with="" other="" hazardous="" wastes.="" rcra="" is="" a="" preventive="" statute,="" designed="" to="" assure="" safe="" management="" of="" hazardous="" waste="" from="" cradle="" to="" grave="" to="" prevent="" the="" need="" for="" remediating="" releases.="" based="" on="" the="" information="" noted="" above,="" the="" agency="" therefore="" has="" finalized="" in="" today's="" rule="" a="" ``no="" land="" placement''="" condition="" for="" the="" storage="" of="" mineral="" processing="" secondary="" materials.="" comments="" from="" public="" interest="" groups="" pointed="" out="" that="" a="" considerable="" amount="" of="" information="" shows="" that="" releases="" result="" from="" fugitive="" dusts="" and="" that="" control="" of="" dusts="" was="" not="" adequately="" addressed="" in="" the="" proposals.="" the="" agency="" agrees="" that="" the="" release="" of="" fugitive="" dust="" should="" be="" addressed="" and="" believes="" that="" placement="" in="" tanks,="" containers="" or="" buildings="" will="" adequately="" address="" this="" concern.="" mineral="" processing="" secondary="" materials="" stored="" in="" tanks="" or="" containers="" must="" be="" stored="" in="" a="" manner="" which="" effectively="" manages="" fugitive="" emissions.="" moreover,="" as="" at="" proposal,="" if="" the="" site-specific="" pile="" approval="" process="" is="" utilized,="" the="" possibility="" of="" harm="" via="" an="" air="" exposure="" must="" be="" considered,="" and,="" if="" necessary,="" controlled.="" see="" 62="" fr="" at="" 2372="" (proposed="" 261.4(a)(15)(iv)(a)(3)).="" 4.="" conditions="" to="" the="" exclusion="" in="" the="" january="" 1996="" and="" may="" 1997="" proposals,="" the="" agency="" sought="" comment="" on="" how="" to="" establish="" a="" conditional="" exclusion="" to="" the="" definition="" of="" solid="" waste="" which="" would="" encourage="" recycling="" of="" mineral="" processing="" secondary="" materials="" and="" be="" protective.="" in="" today's="" rule="" the="" agency="" is="" establishing="" a="" conditional="" exclusion="" to="" the="" definition="" of="" solid="" waste.="" the="" conditions="" relate="" to="" legitimacy="" of="" recycling,="" land="" placement,="" speculative="" accumulation,="" and="" notification,="" and="" are="" discussed="" below.="" a.="" legitimacy.="" it="" goes="" virtually="" without="" saying="" that="" only="" mineral="" processing="" secondary="" materials="" which="" are="" reclaimed="" legitimately="" would="" be="" excluded="" under="" today's="" rule.="" this="" is="" because="" sham="" recycling="" is="" simply="" waste="" treatment="" or="" disposal="" conducted="" under="" the="" guise="" of="" recycling.="" see="" u.s.="" v.="" self,="" 2="" f.="" 3d="" 1071,="" 1079="" (10th="" cir.="" 1993).="" the="" agency="" currently="" uses="" a="" qualitative="" approach="" for="" determining="" whether="" a="" material="" is="" being="" legitimately="" recycled.="" factors="" the="" agency="" considers="" typically="" relevant="" in="" making="" such="" determinations="" are="" found="" at="" 50="" fr="" 638="" (jan.="" 4,="" 1985);="" 53="" fr="" 522(jan.="" 8,="" 1988);="" 56="" fr="" 7145,="" 7185="" (feb.="" 21.="" 1991).="" use="" of="" these="" factors="" to="" assess="" whether="" a="" particular="" activity="" is="" to="" be="" viewed="" as="" recycling="" rather="" than="" treatment="" or="" disposal="" was="" emphatically="" sustained="" by="" the="" court="" in="" marine="" shale="" processors="" v.="" epa,="" 81="" f.="" 3d="" 1371,="" 1381-83="" (5th="" cir.="" 1996)="" and="" united="" states="" v.="" marine="" shale="" processors,="" 81="" f.="" 3d="" 1361,="" 1366(5th="" cir.="" 1996).="" the="" main="" issue="" in="" this="" rulemaking="" was="" whether="" the="" agency="" should="" develop="" quantified="" criteria="" for="" use="" in="" assessing="" legitimacy="" of="" reclamation="" activities="" within="" the="" mineral="" processing="" industry.="" the="" agency="" proposed="" quantitative="" criteria="" including="" the="" potential="" use="" of="" an="" ore="" grade="" cut-off,="" normal="" operating="" range,="" efficiency="" standard,="" and="" an="" economic="" test.="" 62="" fr="" at="" 2342-44.="" in="" addition="" to="" metal="" values,="" the="" agency="" also="" solicited="" comment="" on="" legitimate="" recycling="" of="" acid,="" water,="" and="" other="" values.="" the="" mineral="" processing="" industry="" noted="" in="" their="" comments="" that="" their="" products="" must="" meet="" international="" quality="" standards="" and="" they="" would="" not="" risk="" affecting="" product="" quality="" by="" introducing="" materials="" which="" would="" adversely="" affect="" that="" quality,="" and="" therefore="" that="" legitimacy="" can="" be="" assumed="" in="" essentially="" all="" cases.="" they="" also="" opposed="" the="" proposed="" quantified="" criteria.="" while="" the="" agency="" agrees="" that="" market="" forces="" generally="" may="" limit="" the="" introduction="" of="" materials="" which="" could="" adversely="" affect="" product="" quality,="" mineral="" processing="" facilities="" by="" their="" nature="" process="" large="" volumes="" of="" materials,="" epa="" is="" concerned="" that="" small="" volumes="" of="" wastes="" could="" be="" placed="" into="" processes="" without="" contributing="" mineral="" values="" in="" order="" to="" treat="" or="" dispose="" of="" them.="" obviously,="" this="" is="" not="" recycling,="" as="" noted="" by="" the="" court="" in="" u.s.="" v.="" marine="" shale="" processors,="" 81="" f.="" 3d="" at="" 1366.="" the="" agency,="" therefore,="" does="" not="" agree="" that="" there="" is="" no="" need="" to="" apply="" some="" type="" of="" reasonable="" legitimacy="" criteria.="" industry="" commenters="" also="" noted="" that="" application="" of="" quantitative="" criteria="" would="" be="" burdensome,="" are="" not="" necessary,="" and="" could="" not="" be="" effectively="" implemented.="" the="" agency="" agrees="" that="" implementation="" of="" the="" proposed="" quantitative="" tests="" would="" have="" required="" significant="" testing="" of="" materials="" (and="" resultant="" costs)="" and="" that="" due="" to="" uncertainty="" in="" evaluating="" test="" results,="" companies="" may="" decide="" not="" to="" recycle="" any="" materials="" to="" protect="" the="" bevill="" status="" of="" their="" resultant="" wastes.="" application="" of="" an="" ore="" grade="" cutoff="" criteria="" could="" restrict="" the="" gold="" industry's="" ability="" to="" recover="" gold="" values="" from="" secondary="" materials="" that="" contain="" gold="" at="" levels="" below="" those="" found="" in="" ore.="" such="" recovery="" could="" nevertheless="" be="" cost="" effective.="" industry="" commenters="" stated="" that="" the="" application="" of="" a="" normal="" operating="" range="" test="" would="" be="" difficult="" to="" implement="" since="" operating="" parameters="" at="" large="" mineral="" processing="" facilities="" change="" often="" related="" to="" differences="" in="" feed.="" there="" also="" was="" little="" support="" from="" industry="" for="" the="" proposed="" efficiency="" test="" because="" such="" facilities="" may="" be="" recovering="" a="" specific="" metal="" at="" one="" recovery="" rate="" while="" they="" are="" recovering="" other="" metals="" at="" a="" different="" rates.="" industry="" commenters="" also="" rejected="" the="" proposed="" use="" of="" an="" economic="" test="" because="" recycling="" need="" not="" be="" profitable="" to="" be="" legitimate.="" they="" specifically="" pointed="" out="" the="" cases="" where="" recycling="" was="" economical="" only="" relative="" to="" disposal,="" and="" yet,="" the="" company="" was="" legitimately="" reusing="" the="" recycled="" materials.="" for="" these="" reasons="" the="" agency="" has="" declined="" to="" adopt="" any="" of="" the="" proposed="" quantitative="" tests.="" in="" today's="" rule,="" the="" agency="" is="" not="" adopting="" quantitative="" criteria="" and="" will="" continue="" to="" use="" the="" qualitative="" approach="" for="" evaluating="" whether="" an="" activity="" is="" legitimate="" recycling.="" in="" addition,="" the="" agency="" believes="" that="" legitimate="" recycling="" may="" occur="" for="" reasons="" other="" than="" to="" recover="" metal="" values--="" recovery="" of="" acids,="" cyanide,="" or="" water,="" for="" example.="" with="" no="" quantitative="" tests="" for="" such="" recycling,="" the="" agency="" believes="" the="" qualitative="" criteria="" best="" cover="" the="" broad="" array="" of="" situations="" being="" addressed.="" situations="" most="" likely="" to="" be="" deemed="" sham="" recycling="" would,="" thus,="" be="" those="" involving="" low="" amounts="" of="" recoverable="" material="" plus="" the="" presence="" of="" non-contributing="" hazardous="" constituents="" in="" the="" waste="" (particularly="" hazardous="" constituents="" not="" otherwise="" present="" in="" the="" normal="" feedstock="" of="" the="" process).="" see="" generally,="" 53="" fr="" at="" 522(january="" 8,="" 1988).="" b.="" design="" and="" construction="" standards.="" in="" the="" january="" 1996="" proposal,="" the="" agency="" assumed="" that="" land-based="" storage="" of="" mineral="" processing="" secondary="" materials="" was="" a="" necessity="" within="" the="" mineral="" processing="" sector,="" and="" proposed="" three="" different="" types="" of="" conditional="" mechanisms="" whereby="" these="" land-based="" units="" could="" be="" deemed="" ``process="" units''="" that="" would="" be="" excluded="" from="" subtitle="" c="" jurisdiction.="" 62="" fr="" at="" 2345-48.="" more="" specifically,="" these="" alternative="" conditions="" were="" an="" environmental="" performance="" standard,="" a="" design="" and="" operating="" standard,="" or="" an="" ad="" hoc,="" site-specific="" standard="" developed="" by="" an="" epa="" region="" or="" authorized="" state.="" the="" environmental="" performance="" standard="" would="" have="" used="" a="" ground="" water="" protection="" standard="" as="" a="" determinant="" of="" whether="" a="" land-based="" unit="" was="" involved="" in="" discard.="" if="" ground="" water="" monitoring="" determined="" that="" there="" was="" an="" exceedance="" of="" the="" mcl="" (background="" levels="" if="" background="" exceeded="" the="" mcl)="" at="" a="" designated="" point="" of="" compliance,="" [[page="" 28588]]="" then="" the="" unit="" would="" be="" required="" to="" implement="" unit-specific="" corrective="" action.="" 62="" fr="" at="" 2345-46.="" the="" agency="" also="" proposed,="" in="" lieu="" of="" compliance="" with="" the="" ground="" water="" standard,="" design="" and="" construction="" standards.="" epa="" proposed="" that="" surface="" impoundments="" be="" constructed="" with="" a="" transmissivity="" equivalent="" to="" a="" 40="" mil="" geomembrane="" liner="" placed="" on="" top="" of="" 12="" inches="" of="" a="" material="" with="" a="" 10-5="" hydraulic="" conductivity.="" piles="" could="" be="" constructed="" on="" concrete,="" asphalt,="" or="" soil="" any="" of="" which="" would="" have="" to="" have="" the="" equivalent="" transmissivity="" of="" three="" feet="" of="" clay="" with="" 10-7="" cm/sec="" hydraulic="" conductivity.="" id.="" at="" 2346.="" the="" final="" alternative="" allowed="" for="" an="" authorized="" state="" or="" epa="" region="" to="" make="" a="" site-specific="" determination="" that="" the="" unit="" can="" be="" operated="" in="" a="" manner="" that="" is="" protective.="" the="" agency="" proposed="" this="" option="" to="" allow="" for="" flexibility="" because="" there="" are="" a="" range="" of="" site-specific="" characteristics,="" such="" as="" depth="" to="" groundwater="" and="" rainfall,="" which="" can="" affect="" the="" design="" of="" a="" unit="" and="" affect="" the="" risks="" posed="" by="" such="" units.="" id.="" at="" 2347.="" epa="" finds="" now,="" however,="" that="" the="" premise="" of="" volumetric="" necessity="" was="" mistaken="" (see="" the="" earlier="" section="" of="" this="" preamble).="" as="" such,="" the="" agency="" is="" adopting="" its="" traditional="" jurisdictional="" demarcation="" point="" of="" not="" allowing="" exclusions="" for="" land-based="" storage="" units.="" as="" discussed="" earlier,="" land-based="" storage="" units="" are="" so="" fraught="" with="" indicia="" of="" discard--including="" elements="" of="" outright="" disposal="" via="" both="" air="" and="" groundwater="" exposure="" pathways="" (borne="" out="" by="" damage="" cases="" as="" well),="" plus="" no="" longer="" being="" part="" of="" the="" actual="" production="" operation--that="" epa="" views="" this="" demarcation="" as="" strongly="" justified="" once="" it="" is="" clear="" that="" there="" is="" no="" necessity="" to="" use="" such="" units.="" the="" sole="" exception="" in="" the="" final="" rule="" which="" allows="" for="" conditional="" exclusion="" for="" a="" land-based="" storage="" unit="" is="" for="" piles="" resting="" on="" pads="" which="" are="" approved="" by="" an="" authorized="" state="" or="" epa="" region,="" as="" discussed="" in="" the="" section="" below.="" c.="" units="" eligible="" for="" conditional="" exclusion="" and="" conditions="" attached="" to="" such="" units.="" (i)="" tanks,="" containers="" and="" buildings.="" today's="" rule="" states="" that="" mineral="" processing="" secondary="" materials="" reclaimed="" within="" the="" industry="" can="" be="" excluded="" if="" they="" are="" stored="" in="" any="" of="" the="" following:="" tanks,="" containers,="" buildings,="" or="" piles="" resting="" on="" pads="" when="" such="" piles="" are="" evaluated="" and="" approved="" on="" a="" site-specific="" basis="" by="" an="" authorized="" state="" or="" epa="" region.="" (as="" noted="" in="" the="" may="" 12,="" 1997="" proposal,="" this="" is="" conceptually="" the="" same="" as="" the="" rule="" epa="" proposed="" for="" the="" oil-bearing="" secondary="" materials="" generated="" by="" and="" recycled="" within="" the="" petroleum="" industry.="" see="" 62="" fr="" at="" 26048="" (may="" 12,="" 1997)="" and="" 60="" fr="" 57753="" (november="" 20,="" 1995)).="" tanks,="" containers,="" building,="" and="" approved="" pads="" do="" not="" have="" to="" meet="" the="" design="" and="" operating="" standards="" for="" units="" storing="" rcra="" subtitle="" c="" wastes.="" epa="" also="" is="" adopting="" certain="" minimal="" conditions="" on="" these="" units'="" design="" to="" assure="" basic="" unit="" integrity="" and="" so="" assure="" that="" tanks,="" containers,="" and="" buildings="" do="" not="" serve="" as="" conduits="" for="" massive="" material="" release="" (i.e.="" disposal="" units).="" an="" acceptable="" tank="" must="" be="" free="" standing="" and="" not="" be="" a="" surface="" impoundment,="" and="" be="" manufactured="" of="" a="" material="" suitable="" for="" containment="" of="" its="" contents.="" an="" acceptable="" container="" must="" be="" free="" standing="" and="" be="" manufactured="" of="" a="" material="" suitable="" for="" containment="" of="" its="" contents.="" an="" acceptable="" building="" must="" be="" a="" man-made="" structure="" and="" have="" floors="" constructed="" from="" non-earthen="" materials,="" have="" walls,="" and="" have="" a="" roof="" suitable="" for="" diverting="" rainwater="" away="" from="" the="" foundation.="" a="" building="" may="" also="" have="" doors="" or="" removable="" sections="" to="" enable="" trucks="" or="" machines="" access.="" the="" agency's="" technical="" report="" non-="" rcra="" tanks,="" containers,="" and="" buildings,="" u.s.="" epa,="" 1998,="" provides="" examples="" of="" acceptable="" units="" for="" the="" storage="" of="" mineral="" processing="" secondary="" materials.="" epa="" disagrees="" with="" comments="" from="" public="" interest="" groups="" stating="" that="" nothing="" short="" of="" rcra="" subtitle="" c="" standards="" could="" assure="" protectiveness="" and="" so="" demonstrate="" that="" these="" non-land-based="" storage="" units="" were="" not="" part="" of="" the="" waste="" management="" problem.="" the="" plenary="" conditions="" urged="" by="" the="" public="" interest="" group="" commenters="" are="" indeed="" those="" necessary="" for="" protective="" management="" of="" hazardous="" wastes,="" but="" the="" agency's="" task="" here="" is="" different.="" it="" is="" to="" delineate="" discard="" from="" non-="" discard="" (i.e.="" wastes="" from="" non-wastes),="" and,="" as="" noted="" at="" proposal,="" not="" only="" is="" this="" a="" different="" test="" than="" determining="" protective="" waste="" management="" conditions,="" but="" there="" are="" jurisdictional="" constraints="" on="" the="" types="" of="" conditions="" epa="" can="" impose="" when="" considering="" the="" situation="" presented="" here,="" i.e.,="" secondary="" materials="" generated="" and="" reclaimed="" within="" a="" single="" industry="" sector.="" 62="" fr="" at="" 2342.="" thus,="" the="" conditions="" epa="" is="" adopting="" are="" designed="" to="" assure="" that="" these="" units="" are="" not="" essentially="" sieves="" functioning="" as="" means="" of="" disposal.="" the="" agency="" discussed="" its="" definition="" of="" non-rcra="" tanks,="" containers="" and="" buildings="" in="" its="" technical="" background="" document="" (see="" 62="" fr="" at="" 26050,="" non-rcra="" tanks="" containers,="" and="" buildings,="" 1997).="" industry="" commenters="" requested="" clarification="" on="" whether="" their="" smelter="" or="" refiner="" buildings="" would="" meet="" the="" definition="" of="" ``building''="" if="" tanks,="" containers="" or="" buildings="" were="" required.="" as="" set="" out="" in="" the="" final="" rule,="" a="" building="" is="" a="" structure="" with="" four="" walls,="" a="" roof,="" and="" floor="" constructed="" of="" non-earthen="" materials.="" smelter="" and="" refinery="" buildings="" are="" quite="" large="" and="" include="" floor="" areas="" which,="" in="" part,="" use="" earthen="" materials.="" as="" long="" as="" mineral="" processing="" secondary="" materials="" (i.e.="" those="" sludges,="" by-products,="" and="" spent="" materials="" which="" would="" otherwise="" be="" identified="" as="" hazardous="" wastes)="" are="" stored="" in="" those="" sections="" of="" the="" smelter="" and="" refinery="" building="" that="" do="" have="" floors="" constructed="" of="" non-earthen="" materials,="" these="" structures="" would="" qualify="" for="" the="" exclusion="" included="" in="" today's="" rule="" as="" non-rcra="" buildings.="" industry="" commenters="" also="" noted="" that="" the="" agency="" made="" reference="" to="" tanks="" and="" containers="" having="" to="" meet="" applicable="" industry="" standards="" for="" their="" construction="" and="" operation,="" such="" as="" those="" established="" by="" the="" american="" society="" of="" testing="" materials="" (astm)="" or="" the="" american="" petroleum="" institute="" (api)(see="" 62="" fr="" at="" 26050).="" they="" pointed="" out="" that="" api="" standards="" deal="" specifically="" with="" tanks,="" while="" astm="" standards="" relate="" more="" specifically="" to="" testing="" procedures.="" the="" commenters="" argued="" that="" units="" storing="" mineral="" processing="" secondary="" materials="" do="" not="" need="" to="" comply="" with="" these="" standards="" to="" be="" safe.="" the="" agency="" agrees="" that="" the="" references="" to="" applicable="" industry="" standards="" such="" as="" astm="" and="" api="" were="" overly="" broad="" and="" has="" not="" included="" them="" in="" today's="" rule.="" industry="" commenters="" requested="" clarification="" on="" whether="" tanks="" and="" containers="" needed="" covers="" to="" meet="" the="" condition="" of="" ``no="" land="" placement.''="" the="" agency="" expects="" that="" the="" storage="" of="" mineral="" processing="" secondary="" materials="" will="" prevent="" uncontrolled="" fugitive="" emissions.="" tanks="" and="" containers="" do="" not="" need="" covers="" as="" long="" as="" the="" materials="" stored="" in="" them="" are="" managed="" to="" reduce="" fugitive="" emissions.="" the="" facility="" operator="" will="" therefore="" need="" to="" determine="" if="" covers="" are="" needed="" to="" effectively="" control="" fugitive="" emissions.="" for="" example,="" tanks="" and="" containers="" placed="" inside="" buildings="" may="" not="" need="" covers.="" the="" gold="" and="" copper="" industries="" stated="" that="" their="" secondary="" materials="" would="" meet="" legitimacy="" conditions="" and="" that="" they="" do="" not="" need="" to="" store="" these="" materials="" prior="" to="" placement="" back="" onto="" gold="" heap="" leaches="" or="" copper="" dump="" leaches.="" the="" final="" rule="" indicates="" that="" process="" units,="" as="" opposed="" to="" storage="" units,="" are="" excluded="" from="" rcra="" subtitle="" c.="" epa="" believes="" that="" the="" heap="" and="" dump="" leach="" units="" are="" process="" units,="" notwithstanding="" the="" fact="" that="" they="" are="" land-based.="" this="" is="" because="" dump="" and="" heap="" leach="" piles="" simultaneously="" produce="" products="" and="" waste.="" the="" issue="" is="" also="" academic="" with="" respect="" to="" these="" units.="" this="" is="" because="" [[page="" 28589]]="" the="" agency="" determined="" that="" these="" units="" are="" extraction/beneficiation="" activities="" in="" 1986="" and="" reiterated="" that="" position="" in="" 1989="" (see="" 51="" fr="" 24496="" and="" 54="" fr="" 36592),="" and="" their="" bevill="" regulatory="" status="" is="" unchanged="" by="" today's="" rule.="" thus,="" if="" the="" heap="" leach="" pile="" becomes="" a="" disposal="" unit="" because="" wastes="" remain="" there="" permanently,="" those="" wastes="" presently="" have="" bevill="" status.="" the="" agency="" continues="" to="" be="" concerned="" that="" there="" may="" be="" environmental="" risks="" related="" to="" dump="" and="" heap="" leaching,="" but="" has="" determined="" that="" this="" rule="" is="" not="" the="" appropriate="" means="" to="" address="" those="" concerns.="" industry="" commenters="" also="" raised="" concern="" that="" under="" the="" ``no="" land="" placement''="" option,="" described="" in="" the="" may="" 1997="" proposal,="" they="" would="" no="" longer="" be="" able="" to="" place="" slags="" on="" the="" ground.="" this="" is="" an="" incorrect="" reading="" of="" the="" regulations="" and="" the="" proposals="" since="" at="" 40="" cfr="" 261.4(b)(7),="" iron="" and="" steel,="" copper,="" lead,="" zinc,="" and="" elemental="" phosphorus="" slags="" are="" all="" classified="" as="" bevill="" exempt="" mineral="" processing="" wastes="" and="" would="" not="" be="" affected="" by="" this="" rule.="" the="" management="" of="" these="" slags="" on="" the="" ground="" can="" continue="" as="" long="" as="" they="" meet="" other="" applicable="" federal="" and="" state="" regulations.="" (ii)="" solid="" mineral="" processing="" secondary="" materials="" resting="" on="" pads.="" as="" noted,="" epa="" proposed="" at="" 61="" fr="" 2346="" to="" allow="" land-based="" units="" which="" had="" been="" approved="" as="" protective="" on="" a="" site-specific="" basis="" by="" an="" authorized="" state="" or="" epa="" region.="" the="" agency="" is="" retaining="" a="" portion="" of="" that="" proposal="" in="" the="" final="" rule="" in="" order="" to="" allow="" solid="" mineral="" processing="" secondary="" materials="" resting="" on="" pads="" to="" be="" used="" for="" storage="" of="" mineral="" processing="" secondary="" materials="" being="" reclaimed="" within="" the="" industry.="" the="" agency="" defines="" ``solid="" mineral="" processing="" secondary="" materials''="" as="" those="" mineral="" processing="" secondary="" materials="" containing="" no="" free="" liquids.="" the="" provision="" functions="" effectively="" as="" a="" variance="" to="" allow="" conditionally="" excluded="" storage="" using="" pads="" to="" occur.="" industry="" comments="" pointed="" out="" that="" there="" are="" materials="" which="" can="" be="" placed="" on="" concrete="" or="" asphalt="" pads="" in="" a="" manner="" that="" provides="" the="" equivalent="" protection="" of="" a="" tank,="" container,="" or="" building.="" the="" agency="" is="" aware="" that="" in="" the="" arid="" southwest,="" the="" copper="" industry="" places="" materials="" on="" pads="" to="" dry="" them="" prior="" to="" their="" reentry="" into="" processes.="" the="" agency="" agrees="" with="" industry="" comments="" that="" a="" degree="" of="" flexibility="" is="" needed="" regarding="" the="" storage="" of="" solid="" mineral="" processing="" secondary="" materials="" in="" this="" sector,="" particularly="" given="" the="" number="" of="" such="" storage="" units="" presently="" used="" in="" arid="" conditions,="" and="" (to="" a="" lesser="" degree="" of="" importance)="" given="" the="" number="" of="" existing="" piles="" used="" by="" this="" industry="" which="" conceivably="" could="" be="" upgraded="" to="" operate="" protectively="" and="" for="" which="" a="" more="" flexible="" approach="" could="" be="">12
    ---------------------------------------------------------------------------
    
        \12\ EPA has not provided for this type of site-specific 
    approval of land-based storage units in other rules providing for 
    conditioned exclusion from the regulatory definition of solid waste. 
    In some cases, this is because management of solids was not at issue 
    (proposed petroleum listing rule and rules on recovered oil), or the 
    industry sector did not use piles for solids management (steel 
    industry coke-byproducts listing rule). As noted in the text above, 
    EPA believes that there are certain factors peculiar to the mineral 
    processing industry that have persuaded EPA to allow for a site-
    specific authorization process, but this provision should not be 
    considered to be a precedent for any other industry sector.
    ---------------------------------------------------------------------------
    
        In today's rule EPA is adopting a provision whereby persons storing 
    only solid mineral processing secondary materials (those mineral 
    processing secondary materials containing no free liquids) on pads 
    prior to legitimate reclamation in a mineral processing process may 
    seek a determination from an authorized State or (if the pile is 
    located in an unauthorized State) EPA Region such that the unit is 
    approved as protective and materials stored in the unit are 
    conditionally excluded from the regulatory definition of solid waste 
    provided that the pad is not serving as a mode of discard.
        Minimum design criteria for pads are as follows; (1) Pads must be 
    designed of non-earthen materials which are compatible with the 
    chemical nature of the mineral processing secondary material being 
    stored, (2) Pads must be capable of withstanding physical stresses 
    associated with placement and removal, (3) Pads must have run on/runoff 
    controls, (4) Pads must be operated in a manner which controls fugitive 
    dust, and (5) Owner/operators must conduct inspections and maintenance 
    programs to ensure the integrity of the pads.
        The decision-maker would evaluate the application for storage on 
    pads against a general environmental performance standard: whether the 
    pad is located, designed, constructed and operated so as to be 
    protective of human health and the environment and is not used for 
    disposal. A broad benchmark of performance would be that the approved 
    pad must afford the same degree of protectiveness as non-RCRA tanks, 
    containers and buildings eligible for exclusion.
        The decision-maker would have to consider potential releases via 
    groundwater, surface water, and air exposure pathways. Factors to be 
    considered for assessing the groundwater, surface water, air exposure 
    pathways are:
    
    --The volume and physical and chemical properties of the secondary 
    material, including its potential for migration off the pad;
    --The potential for human or environmental exposure to hazardous 
    constituents migrating from the pad via each exposure pathway, and the 
    possibility and extent of harm to human and environmental receptors via 
    each exposure pathway.13
    
        \13\ As proposed, these general decision factors are drawn from 
    the environmental performance standard in the row-revoked 40 CFR 
    267.10.62 FR at 2347. Commenters noted correctly that Part 267 is no 
    longer codified, so that these requirements should not be placed in 
    regulatory language (or preamble) by means of a cross-reference to 
    the revoked provisions.
    ---------------------------------------------------------------------------
    
        Thus, under this regime, a State could approve placement of solid 
    mineral processing secondary materials (those materials containing no 
    free liquids) on a pad where, after consideration of relevant exposure 
    pathways, a determination is made that the mode of storage will not 
    adversely affect human health and the environment, and where the 
    operator has demonstrated compliance with the minimum design and 
    operating criteria. Approval would be more problematic if a pad was 
    located in an area which experiences flooding, or in an area where 
    ground water was close to the surface and used for drinking water 
    purposes.
        The Agency is confident that site-specific determinations can be 
    accomplished as part of existing State regulatory programs. The 
    situations eligible for this variance are considerably more 
    circumscribed than at proposal, and the decision criteria consequently 
    more focused, meeting some of the objections in comments from public 
    interest groups on the proposals. Today's rule only allows the 
    placement of mineral processing secondary materials that are physical 
    solids, and the rule also specifies certain minimum conditions such 
    pads must meet to be approved. Further, the rule identifies the factors 
    a State must consider prior to making such determinations. The Agency 
    will review a State's regulatory authorities it intends to use in 
    implementing this determination to assure that an authorized state can 
    effectively implement this element of the rule.
        As proposed, EPA is requiring that there be opportunity for public 
    participation in the evaluation and approval process of pads storing 
    solid mineral processing secondary materials. 62 FR at 2366. The Agency 
    believes it is important that those citizens who may be directly 
    affected by these determinations be notified of them and
    
    [[Page 28590]]
    
    participate in the process, and notes further that this requirement is 
    fully consistent with RCRA's strong preference for public 
    participation. See RCRA section 7004(b).
        On the other hand, EPA is not adopting any site-specific approval 
    process for storage of mineral processing secondary materials in 
    surface impoundments. The Agency has concluded that storage in 
    impoundments would likely lead to their contributing to the waste 
    management problem. Many damage incidents in this industry involve the 
    use of impoundments (see damage case on phosphorus impoundments in 
    Idaho). Furthermore, the Agency has determined that there are no 
    engineering or economic constraints on requiring liquid mineral 
    processing secondary materials to be placed in tanks.
        d. Speculative Accumulation. In this rule, the Agency is 
    establishing a condition that mineral processing secondary materials 
    cannot be accumulated speculatively as defined in 40 CFR 261.1(c)(8). 
    EPA proposed this condition, 61 FR at 2372, and indeed, this condition 
    already applies to every other secondary material being recycled which 
    is excluded from being a solid waste. See, e.g., 261.2 (e). Industry 
    comments noted that the 12-month limit on speculative accumulation was 
    overly restrictive and that many mineral processing secondary materials 
    need to be stored until economic conditions warrant their recycling. 
    The Agency rejects these comments because no data were presented that 
    would indicate that the volumes of materials being generated could not 
    be efficiently recycled within a 12-month period. In the 12 years the 
    speculative accumulation provision has been in effect, the Agency is 
    unaware of other industries suffering economic burdens by complying 
    with the limits placed on speculative accumulation. Nor is EPA aware of 
    any mineral processing facility which has applied, pursuant to the 
    variance provision in 40 CFR 260.30(a) and 260.31(a) (which allow an 
    extension of the 12-month speculative accumulation period), to extend 
    the existing 12-month requirement for currently excluded mineral 
    processing secondary materials (like unlisted sludges and by-products). 
    The Agency infers that the existing 12-month requirement is not 
    imposing any type of significant constraint on this industry.
        e. One Time Notification. EPA proposed that mineral processing 
    plants generating mineral processing secondary materials and utilizing 
    the conditional exclusion to the definition of solid waste provide EPA 
    (or an authorized State) with a one-time notification which describes 
    the mineral processing materials to be recycled and the recycling 
    processes being used. (See 61 FR at 2345). The Agency is finalizing 
    this provision in today's rule. It applies to any facility utilizing 
    the conditional exclusion.
        Today's rule requires that the one time notification must specify 
    the types and amounts of mineral processing secondary materials to be 
    recycled and the location and type of unit storing mineral processing 
    secondary material. The notice should be submitted to the appropriate 
    EPA regional office or authorized State. An amended notification would 
    not be required unless the facility has significant process changes 
    affecting the generation, location, or recovery of mineral processing 
    secondary materials.
        The reason the provision is needed is to assure that the 
    conditioned-exclusion approach in today's rule can be feasibly 
    implemented. To do so, EPA or States must know what secondary materials 
    are being stored, and where storage is occurring, in order to determine 
    whether the other conditions in the rule are being satisfied. As 
    described above, these other conditions are necessary to assure that 
    secondary material storage within the industry does not become part of 
    the waste management problem. In this very real sense, the notification 
    condition is likewise necessary to assure that the storage is not part 
    of the waste management problem, since notification is necessary to 
    successfully implement the other conditions.
        Industry comments opposed this condition, not so much on grounds of 
    unreasonable burden, but based on the argument that the Agency lacks 
    legal authority over non-waste activities. Since EPA finds that the 
    notification condition is an integral part of a group of conditions 
    necessary to assure that storage of these hazardous secondary materials 
    does not become part of the waste management problem, EPA has legal 
    authority to adopt it. In addition, the Agency notes that RCRA section 
    3007(a) provides authority to enter facilities and obtain information 
    needed to assist in the enforcing of provisions of Subtitle C. This 
    provision can reasonably be read to apply to gathering information to 
    determine whether or not a particular hazardous secondary material is a 
    waste. The notification condition obtains this same type of information 
    by regulatory condition. The Agency thus believes that section 3007(a) 
    (implemented here by rule, pursuant to the Agency's general rulemaking 
    authority under RCRA section 2002(a)) likewise provides authority to 
    adopt this condition.
        In the January 1996 proposal, the Agency solicited comment on 
    whether a Facility Operating Plan should be required for facilities 
    that generate, store, or process hazardous mineral processing secondary 
    materials. (See 61 FR at 2345) Under this approach, a Facility 
    Operating Plan would include: a spill prevention plan and procedures; 
    types, quantities, and analysis of recycled materials; product 
    specifications; speculative accumulation and storage requirements; 
    closure plan; and record keeping and reporting for off-site shipments. 
    In today's rule, the Agency is not requiring the preparation of such a 
    plan. This requirement is not necessary given the burden of proof under 
    existing 40 CFR section 261.2(f) that a facility must meet to comply 
    with the conditions of legitimacy, containment, and speculative 
    accumulation. The Agency does, however, strongly encourage facilities 
    to develop a plan or at least components of a plan as part of 
    responsible environmental management.
    5. Bevill Related Issues
        a. Uniquely Associated. Under the Agency's longstanding 
    interpretation of the Act, the Bevill amendment applies to special 
    wastes that are uniquely associated with extraction/beneficiation and 
    certain mineral processing activities. Because the decision whether a 
    particular waste is uniquely associated may determine whether a 
    particular waste is subject to Subtitle C controls, the Agency believed 
    that it was important and useful to receive public input regarding the 
    manner in which EPA and authorized States apply this principle and 
    solicited comment regarding the criterion for determining whether a 
    waste is uniquely associated with mineral operations. The Agency has 
    described non-uniquely associated wastes at 45 FR 76619, November 19, 
    1980 and 54 FR 36623, September 1, 1989. In the May 1997 proposal, the 
    Agency noted examples of non-uniquely associated wastes, which include 
    spent solvents, pesticide wastes, and discarded commercial chemicals. 
    As stated in the May 1997 proposal, in the Agency's view, these wastes 
    are logically viewed as not being ``from'' extraction, beneficiation, 
    or mineral processing, and, therefore, are not subject to the Bevill 
    exclusion. (See 62 FR 26054-56, May 12, 1997).
        In May 1997, the Agency proposed several alternative approaches to 
    determining whether a waste was uniquely associated. One option to 
    determine if a waste is uniquely
    
    [[Page 28591]]
    
    associated was the simple application of the high volume threshold used 
    in the Agency's 1989 rulemaking. Under this option, the volume 
    criterion would obviate the need to consider the uniquely associated 
    principle further.
        The Agency based this option on the fact that Congress and the 
    courts have established that only large volume special wastes should be 
    eligible for the Bevill exclusion (62 FR 26041, May 12, 1991; 
    Environmental Defense Fund v. EPA, 852 F.2d 1316 (D.C. Cir 1988), cert. 
    denied 489 U.S. 1011, Solite Corporation v. EPA, 952 F.2d 473, 494-495 
    (D.C. Cir 1991)). The Agency reasoned that a large volume criterion is 
    simple to apply and is consistent with the broad parameters of 
    Congressional intent. Further, this approach would help prevent 
    additional toxic constituents from being disposed with Bevill wastes, 
    potentially encouraging recycling, and may result in reduction of 
    cleanup costs.
        Industry commenters voiced strong opposition to the use of a volume 
    criterion to determine whether a waste was uniquely associated. 
    Commenters stated that the Bevill exclusion was intended to exempt all 
    mining wastes, regardless of their volume or toxicity. As the 
    regulatory history of EPA's implementation of the Bevill exemption 
    makes clear, however, this is not the case. (see 54 FR 36592, September 
    1, 1989).
        Nonetheless, while the Agency has used volume to make certain 
    Bevill determinations, it has not in the past used the high volume 
    criterion to make uniquely associated determinations. The Agency 
    assessed the impact of applying a high volume criteria in making 
    uniquely associated determinations and found that such an application 
    would make virtually all such wastes non-uniquely associated and 
    subject to Subtitle C controls, regardless of the extent to which the 
    waste was, in fact, associated with mining and mineral processing. EPA 
    does not believe that it would be appropriate to ignore altogether the 
    extent to which a particular waste is associated with mining and 
    mineral processing activities that are subject to the Bevill exclusion, 
    since that exclusion on its face applies to wastes from those 
    processes. In addition, the Agency believes that a certain degree of 
    flexibility is needed for making uniquely associated determinations due 
    to the complex and varied mineral operations and site-specific factors 
    that must be considered in making these decisions. In today's rule, the 
    Agency is, therefore, not adopting the use of a volume criterion to 
    determine whether a waste is uniquely associated.
        The Agency also proposed an option where a waste would be uniquely 
    associated if it came into direct contact with an ore or mineral or 
    wastes from the extraction, beneficiation, or processing of ores and 
    minerals. Several commenters expressed the view that, while contact can 
    be one useful indicator of whether a waste is uniquely associated with 
    mining, such contact should not be required in all cases. These 
    commenters believed that the test should be whether the conduct of 
    mining and mineral processing necessitates the generation of a 
    particular waste; if so, then the waste should be considered uniquely 
    associated. Other commenters believed that the ``contact'' principle 
    was potentially overly broad, since it would have the potential to 
    sweep into Bevill wastes that typically would not be considered 
    uniquely associated. As proposed, however, the contact option would 
    consider only contact that occurred as part of a processing operation.
        After consideration of public comments, the Agency has concluded 
    that a strict application of the ``contact'' principle, while appealing 
    because of its simplicity, would not provide the best means of 
    determining whether a waste is uniquely associated with mining or 
    mineral processing. The Agency is concerned that, while contact may be 
    one indicator of when a waste is associated with the mineral recovery 
    process where, for example, the contact with the process imparts 
    chemical characteristics to the waste, EPA agrees with commenters that 
    simple application of the contact principle has the potential to be 
    over-inclusive of wastes that are properly viewed as ``uniquely 
    associated.'' The Agency has not, therefore, adopted that criterion as 
    being determinative of whether a waste is uniquely associated.
        The other option in the May 1997 proposal would modify the contact 
    principle to exclude, as non-uniquely associated, wastes that only 
    exhibit the same hazardous characteristic both before and after contact 
    with the Bevill waste, feedstock, or product. This ``modified contact'' 
    approach may reduce the potential for Bevill wastes to be dumping 
    grounds for non-Bevill hazardous wastes. Under this approach, wastes 
    that are inherently hazardous prior to contact with a Bevill waste, and 
    which retain the same hazardous characteristic after contact, would be 
    subject to Subtitle C regulation when discarded.
        Commenters pointed out that the Agency had never before proposed to 
    use the hazardous characteristic to determine whether a waste was 
    uniquely associated, nor had the Agency used this criterion in making 
    uniquely associated determinations since 1980. They also pointed out 
    that the Agency had already studied the hazardous characteristics of 
    uniquely associated wastes but nevertheless stated that these wastes 
    should not be subject to RCRA Subtitle C (51 FR 24496).
        Some commenters also contended that the real issue is whether the 
    waste is indigenous to the mining and mineral recovery process--i.e., 
    whether it is necessary to generate the waste in order to conduct the 
    process--and that the hazardousness of a material prior to its use in 
    the process is, therefore, irrelevant.
        EPA agrees, in part, with these commenters that the characteristics 
    of a material (i.e., whether it is hazardous) prior to use in mineral 
    recovery processes should not be solely determinative of whether the 
    wastes are ``uniquely associated.'' As a general matter, the closer the 
    nexus between a particular waste and the mineral recovery process, the 
    more likely it is ``uniquely associated'' within the meaning of Bevill. 
    The Agency recognizes, however, that one fact that might help evaluate 
    the relationship between a particular waste and the mineral recovery 
    process is the extent to which the properties of a particular waste can 
    be attributed to the process itself. Thus, while the Agency does not 
    believe that hazardousness of a material prior to use in the mineral 
    recovery process should be determinative of its Bevill status after 
    use, the extent to which the material has acquired attributes through 
    its involvement in that process is relevant.
        Based on consideration of all the public comments, the Agency 
    believes that it is appropriate to evaluate whether a particular waste 
    is uniquely associated with mining and mineral processing as follows. 
    First, any waste from ancillary operations are not ``uniquely 
    associated'' because they are not properly viewed as being ``from'' 
    mining or mineral processing. In evaluating wastes from non-ancillary 
    operations, one must consider the extent to which the waste originates 
    or derives from processes that serve to remove mineral values from the 
    ground, concentrate or otherwise enhance their characteristics or 
    remove impurities, and the extent to which the mineral recovery process 
    imparts its chemical characteristics to the waste. Under this test, the 
    greater the extent to which the
    
    [[Page 28592]]
    
    waste results from the mineral recovery process itself, and the more 
    the process imparts to the waste its chemical characteristics, the more 
    likely the waste is ``uniquely associated.''
        The Agency believes that this approach provides a reasonable basis 
    to determine whether a waste is ``uniquely associated.'' The Agency 
    believes that these factors touch on the full range of facts that are 
    likely to be relevant in any particular case. As is evident from the 
    criteria summarized above, judgment must be exercised where the 
    question is whether a waste from a non-ancillary operation is uniquely 
    associated. EPA believes that this is appropriate because of the fact-
    specific nature of this determination and the myriad circumstances that 
    can arise. However, as noted above, the Agency believes that wastes 
    generated from ancillary operations (such as truck maintenance shops at 
    a mine and not from the mining or mineral recovery process itself), are 
    not uniquely associated. Such circumstances would likely present the 
    most readily identifiable cases of non-uniquely associated wastes.
        The approach noted above reflects the longstanding principle, based 
    on the clear language in Section 3001 of RCRA, that uniquely associated 
    wastes must result from mining and mineral processes themselves. This 
    approach also is generally consistent with industry's underlying 
    contention that the uniquely associated concept should exempt wastes 
    that are ``indigenous'' to mining. EPA disagrees, however, with 
    industry's contention that uniquely associated wastes are any wastes 
    that are unavoidably generated by mining operations. For example, 
    arguably, it is unavoidably necessary to conduct maintenance on 
    machinery that supports mining at a site (e.g., used to transport ores 
    and minerals among processes); however, such maintenance is not 
    necessarily part of the mining or mineral recovery process itself. EPA 
    believes that the proper focus should be the extent to which a waste is 
    generated as part of the mining and mineral recovery process, not the 
    extent to which a facility must conduct an activity as part of its 
    operation.
        The elements of the ``contact'' options discussed in the preamble 
    to the proposal, as well as regulatory language contained in the May 
    1997 proposed rule (see proposed 40 CFR 261.4(b)(7) (stating that 
    exempt extraction and beneficiation wastes must ``originate from the 
    extracted ore or mineral'')) may affect uniquely associated 
    determinations. While, as discussed above, the Agency believes that 
    sole reliance on a contact principle would be unjustifiably rigid, 
    consideration of the extent to which the mineral recovery imparts to 
    the waste its chemical characteristics provides a useful means of 
    evaluating whether a waste is uniquely associated. The greater the 
    extent to which the waste acquires its chemical characteristics from 
    the process from the processing of an ore or mineral, the more likely 
    that waste would be uniquely associated with the Bevill process. 
    Conversely, the less a particular waste originated from or acquired its 
    characteristics from such processes, the less likely it is uniquely 
    associated.
        Some commenters asserted that the Agency's proposal represented a 
    sharp departure from past Agency practice under the uniquely associated 
    principle and would constitute, in effect, a revision of prior Bevill 
    regulatory determinations. Neither contention is correct. While the 
    Agency has articulated here its approach to the uniquely associated 
    principle in more detail than previously, the Agency believes that the 
    approach is fundamentally the same as how the Agency has applied the 
    uniquely associated principle in the past. Second, the Agency is not, 
    through the uniquely associated principle, seeking to revise past 
    regulatory determinations that exempted extraction and beneficiation 
    wastes and certain mineral processing wastes from Subtitle C 
    regulation. The list of exempt extraction/beneficiation processes and 
    mineral processing wastes in section 261.4(b)(7) is not altered by this 
    approach. Even under these existing regulatory provisions, it was 
    necessary to determine in certain cases whether a particular waste 
    stream was, in fact, ``from'' (i.e., ``uniquely associated'' with) one 
    of the enumerated Bevill processes. EPA's past regulatory 
    determinations did not, therefore, obviate the need for determining the 
    applicability of Bevill to particular waste streams. In this rule, EPA 
    is simply ensuring that the uniquely associated criteria have the 
    benefit of full public notice and comment; we have not, however, 
    altered the scope of prior regulatory determinations through this 
    process.
        Industry commenters nonetheless had concerns about certain 
    applications of the uniquely associated principle articulated in the 
    mineral processing identification document contained in the docket at 
    proposal. In particular, commenters expressed concerns that the 
    document concluded that spent kerosene in copper solvent extraction, 
    crud from electrowinning, crucibles and cupels, and acid cleaning 
    solutions from gold heap leaches are not uniquely associated. All of 
    the wastes just noted are generated as a result of beneficiation. It 
    should be noted that all wastes generated after the commencement of 
    mineral processing are mineral processing wastes. As a result of the 
    Agency's 1989 rule (54 FR 2322), all mineral processing wastes, except 
    those noted in 40 CFR 261.4(b)(7), are subject to RCRA Subtitle C, if 
    they exhibit a hazardous characteristic. Therefore, the effect of the 
    uniquely associated principle is of less import than at beneficiation 
    facilities.
        The Agency received numerous comments challenging the Agency's 
    position that these wastes were not uniquely associated. Comments from 
    the copper industry noted that slimes/muds, crud, and spent kerosene 
    generated from copper solvent extraction and electrowinning were 
    uniquely associated because these wastes had been determined by the 
    Agency in 1989 (see 54 FR 36592) to be wastes from extraction and 
    beneficiation. Based on these comments, the Agency has reassessed its 
    prior conclusions regarding these wastes and agrees with the copper 
    industry that slimes/muds, crud, and spent kerosene generated from 
    copper solvent extraction and electrowinning are uniquely associated. 
    40 CFR 261.4 states that wastes from solvent extraction and 
    electrowinning are extraction/beneficiation wastes and are not subject 
    to regulation under Subtitle C. Applying the approach described above, 
    it is clear that solvent extraction and electrowinning are clearly not 
    ancillary activities since their sole purpose is to concentrate copper 
    values out of pregnant leach solution. The ``uniquely associated'' 
    nature of these wastes is also supported by the degree to which the 
    wastes originate and derive from the mineral recovery process. Thus, 
    the Agency's view is that these wastes are ``uniquely associated'' with 
    beneficiation.
        Comments received from the gold industry noted that acid wash 
    solutions are generated solely from processes used to concentrate gold 
    values from cyanide leach solutions. Again, the Agency has reassessed 
    its earlier interpretation and now believes that acid wash solutions 
    from gold heap leaching are uniquely associated. The Agency came to 
    this conclusion in light of the non-ancillary nature of the process 
    generating these wastes (carbon columns must be kept ``clean'' for the 
    gold to be effectively recovered), the extent to which the wastes 
    originate and derive from this mineral recovery process, as well as the 
    fact that the process imparts some
    
    [[Page 28593]]
    
    chemical characteristics to the waste (i.e., the ore material that is 
    cleaned from the carbon).
        Based on the approach articulated above, the Agency now believes 
    that other wastes are best viewed as non-uniquely associated. For 
    example, the Agency believes that lead anodes used in the 
    electrowinning process are not non-uniquely associated wastes. While 
    lead anodes are used in the mineral recovery process and thus could be 
    viewed as uniquely associated based on this consideration in isolation, 
    a countervailing consideration is that the mineral recovery process 
    imparts virtually no characteristics to these materials. Lead anodes 
    are virtually identical both before and after being used in the 
    process. On balance, the Agency concludes that lead anodes are not 
    uniquely associated with mining and mineral processing.
        The Agency also reassessed the status of cupels and crucibles and 
    finds that they remain non-uniquely associated wastes. These wastes are 
    the result of laboratory testing. Cupels and crucibles are also used in 
    other industries (e.g., jewelry companies test the precious metal 
    content of metals using cupels). These wastes are from an ancillary 
    operation, laboratory analyses, and are not generated due to the direct 
    recovery of gold and, therefore, fail to meet the Agency's uniquely 
    associated criteria. It should also be noted that the Agency has 
    consistently found that laboratory wastes are generally non-uniquely 
    associated.
        As stated previously, the applications of the ``uniquely 
    associated'' principle articulated here reflect the Agency's 
    interpretation of the criteria as applied to those particular wastes 
    based on the best current information available to EPA. Like the 
    positions articulated in the Identification Document, these calls 
    represent the Agency's current best evaluation of whether these wastes 
    are ``uniquely associated,'' based on available information. However, 
    the discussion above and in the Identification Document simply provides 
    guidance on these issues, and therefore, the determinations are not 
    legally binding on decisionmakers, the public, or the courts.
        Finally, one commenter argued that the uniquely associated 
    principle as discussed by EPA is an impermissible reading of the Act to 
    the extent it would authorize EPA to consider factors other than high 
    volume/low toxicity in making Bevill determinations. The Agency 
    disagrees with this position. The Court in EDF II directed the Agency 
    to apply a high volume/low toxicity criteria to determine if a mineral 
    processing waste would retain the Bevill exclusion. The uniquely 
    associated inquiry is somewhat different. The question here is the 
    threshold issue whether a particular waste is ``from'' extraction, 
    beneficiation or mineral processing in the first place. The Agency does 
    not believe that the decision in EDF II spoke to that inquiry. Rather, 
    EDF II was concerned solely with the circumstances under which a waste 
    that is ``from'' these processes qualifies for the Bevill exclusion. 
    Stated another way, a waste is only subject to the Bevill exclusion if 
    it is, in fact, ``uniquely associated'' with extraction/ beneficiation 
    or one of the 20 exempt mineral processing wastes. Thus, the uniquely 
    associated principle does not expand the scope of the Bevill exemption, 
    and the Agency's approach is, therefore, entirely consistent with the 
    decision in EDF II.
        b. Addition of Mineral Processing Secondary Materials to Units 
    Processing Bevill Raw Materials. The question addressed in this section 
    is: if a Bevill extraction/beneficiation process uses as feedstock a 
    mineral processing secondary material which otherwise would be a 
    hazardous waste, would the resulting wastes still be considered to be 
    from extraction/beneficiation and hence Bevill exempt?
        There are two bases for potential environmental concern prompting 
    this question. The narrower issue is that if otherwise-hazardous wastes 
    are used as partial feedstocks, could they change the resulting wastes' 
    character in a manner such that the existing exclusion should no longer 
    apply, or, put another way, is the Bevill exemption being used to 
    shield disposal of non-exempt hazardous wastes? The broader issue is 
    whether the Bevill amendment, which creates an exemption from rules 
    designed to protect the public and the environment from unsafe 
    hazardous waste disposal practices, should be interpreted any more 
    broadly than necessary given that the effect is to exempt more waste 
    from protective controls.
        EPA proposed two different answers to these questions. In the 
    January 1996 proposal, the Agency proposed to apply the same 
    ``significantly affected'' test used in the partially analogous context 
    of a Bevill device which co-processes hazardous waste along with normal 
    raw material feedstock. 61 FR at 2351 and 40 CFR section 266.112. So 
    long as resulting wastes from the extraction/beneficiation process were 
    not ``significantly affected'' by the addition of hazardous secondary 
    materials, resulting wastes would remain exempt. Id. Significantly 
    affected meant either that the resulting wastes reflecting co-
    processing were statistically different over the non-waste baseline, or 
    that there was an environmentally significant increase in hazardous 
    constituents over the non-waste baseline. Id.
        The May 1997 proposal would have gone further and interpreted the 
    Bevill amendment narrowly (a common rule of construction when 
    construing exceptions to plenary protective regulatory schemes to apply 
    only to situations when extraction/beneficiation raw material 
    feedstocks are utilized) to apply only to situations when extraction/
    beneficiation raw material feedstocks are utilized (see 62 FR at 
    26052).
        After reviewing the public comments, the Agency has decided not to 
    adopt either of these alternatives. As explained below, EPA ultimately 
    has decided that the likely result of either proposal would be 
    unwarranted disruption to legitimate (and desirable) recovery practices 
    within the industry. Nonetheless, as discussed in the final subsection 
    of this part of the preamble, the Agency retains concerns that the 
    Bevill amendment not be used as a means of shielding disposal of non-
    Bevill hazardous wastes, and therefore cautions that the Agency intends 
    to scrutinize especially carefully claims of legitimate recycling when 
    hazardous secondary materials are co-processed in extraction/
    beneficiation operations.
        (i) Should the Bevill amendment apply only when virgin materials 
    are processed in extraction/beneficiation operations? In the Agency's 
    May 1997 proposal, EPA sought comment on whether a narrow reading of 
    the Bevill exclusion should be implemented which would limit the 
    availability of the Bevill exemption to wastes generated exclusively 
    from the use of Bevill raw materials, namely ores and minerals. Under 
    this approach only 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 any alternative materials were used as feedstocks, 
    the resulting waste would not be eligible for the Bevill exclusion. 62 
    FR at 26052.
        In today's rule, the Agency is declining to pursue this option. 
    Industry comments were uniformly opposed. Industry noted that since 
    1989, the Agency has established a clear use of the 50 percent rule and 
    was well aware that the co-processing of a range of materials was 
    occurring at both extraction/beneficiation and mineral processing 
    facilities when it finalized its
    
    [[Page 28594]]
    
    1989 rulemaking (see 54 FR 33620, September 1, 1989). Industry further 
    pointed out that in the 1989 rulemaking the Agency found that 20 
    mineral processing wastes (see 40 CFR 261.4(b)(7)) would retain their 
    Bevill exempt status even though co-processing was occurring. Industry 
    also noted that the Agency had not presented any data to confirm that 
    the co-processing of virgin and non-virgin materials would actually 
    increase risks to the environment. Public interest groups on the other 
    hand indicated that the proposed option more closely follows the intent 
    of Congress to limit the Bevill exemption to high volume, low toxicity 
    wastes.
        The Agency has reviewed the data on co-processing of non-virgin and 
    virgin material and finds that it did evaluate co-processing issues in 
    its 1990 Report to Congress on Wastes from Mineral Processing (EPA 
    Office of Solid Waste, July 31, 1990). This review, as it relates to 
    the 20 mineral processing waste streams that are still exempt, found 
    that co-processing had not significantly changed the hazardous 
    properties of the resultant wastes.
        The Agency noted in its proposal that it was unaware of the extent 
    of co-processing at extraction/beneficiation facilities, particularly 
    after 1985. Industry comments noted that background reports to the 
    Agency's 1985 ``Report to Congress on Extraction and Beneficiation 
    Wastes'' (EPA Office of Solid Waste, December 31, 1985) discussed this 
    co-processing issue. Agency review of these documents indicates that 
    while some references to feedstocks are discussed, the Agency was not 
    aware of the extent of this practice until it began to restudy mining 
    and mineral waste management practices in 1989 and initiated a series 
    of visits to mines and mineral processing facilities in 1991-92.
        Industry also submitted comments indicating that implementing this 
    option would have significant adverse impacts on the mining and mineral 
    processing industries. The Agency assessed industry comments and 
    conducted its own economic analysis. The Agency found that 
    implementation of this option may reduce current recycling in the 
    copper and lead sectors, and could cause potentially serious economic 
    disruption to industry. (See EPA's Regulatory Risk Impact Analyses.) 
    Both the gold and copper sectors pointed out that they routinely 
    reintroduce mineral-bearing streams from their processing activities 
    into their beneficiation plants to further recover metal values. Such 
    practices would diminish if this option were implemented, since 
    affected extraction/beneficiation operations would not recycle 
    secondary materials if the result is to lose Bevill status of the 
    resulting wastes. It makes little sense for the Agency to implement a 
    program which may reduce recycling where its knowledge of the 
    environmental benefit of the approach is limited.
        (ii) Significantly Affected. Under the Agency's January 1996 
    proposal, mineral processing secondary materials could be introduced 
    into beneficiation units generating Bevill-exempt wastes (without 
    affecting the wastes' Bevill status) if they were legitimately 
    recycled, secondary materials comprised less than 50% of the total feed 
    to the unit, and the resulting wastes were not ``significantly 
    affected'' by the recycling practice.
        EPA has decided to adopt the proposed approach except the Agency 
    has decided not to adopt the proposed ``significantly affected'' test 
    in today's final rule. It should be pointed out that small volumes of 
    mineral processing secondary materials likely to be recycled at 
    beneficiation facilities would be processed along with enormous 
    quantities of raw ore. Therefore, the probability that the introduction 
    of such materials would affect the characteristic of the resultant 
    wastes is very low.
        Given the likelihood of minimal environmental effect, the Agency 
    must therefore judge whether the benefits of encouraging recycling 
    these materials outweigh the potential additive risks that, however 
    unlikely, could potentially occur in unusual cases. The Agency has 
    decided that, from both an implementation and an overall environmental 
    perspective, not requiring a ``significantly affected'' evaluation 
    makes sense. While it is possible that adoption of a ``significantly 
    affected'' test might catch the unusual circumstance where addition of 
    secondary materials substantially changes the characteristics of the 
    resultant wastes, imposing such a requirement could potentially have a 
    chilling effect on the amount of secondary material that the industry 
    recycles. This is because industry would not risk imperilling Bevill 
    status, since a consequence could be RCRA permitting and facility-wide 
    corrective action potentially affecting areas of historic 
    contamination. From an environmental perspective, EPA believes that the 
    benefits of recycling such materials are substantial, and far outweigh 
    the largely marginal benefits that could be associated with requiring a 
    ``significantly affected'' analysis on a waste stream by waste stream 
    basis.
        EPA originally viewed the situation presented here as analogous to 
    when hazardous wastes are co-processed in Bevill units, and so proposed 
    the identical test for resulting residues. 61 FR at 2351. On 
    reflection, there are important distinctions between the two fact 
    patterns. EPA applies the ``significantly affected'' tests when what 
    are admittedly hazardous wastes are co-processed. The usual case is 
    when a hazardous waste fuel is burned in a Bevill unit (like a cement 
    kiln) which also processes normal raw materials. The hazardous wastes 
    can contribute more and different hazardous constituents not normally 
    found in the raw materials. In the extraction/beneficiation example, 
    however, the mineral processing secondary materials are being used as 
    feedstock precisely because those materials share attributes found in 
    raw materials (i.e., recoverable amounts of metals). Because the rule 
    limits co-processing to mineral processing secondary materials, such 
    materials would typically be similar in nature to the raw materials 
    being processed, making it far less likely that co-processing would 
    significantly alter the attributes of resulting wastes. In addition, 
    unlike the burning in furnaces example noted above, the mineral 
    processing secondary materials being recycled are not hazardous wastes. 
    Although they are secondary materials, the Agency has decided to 
    exclude them from the regulatory definition of solid waste (assuming 
    legitimate recycling) because the activity resembles normal reclamation 
    practices within the industry. Put another way, since the mineral 
    processing secondary materials are from the same industry sector and 
    are being reclaimed within the same industry, they can be viewed as 
    secondary materials which are not wastes. It is, thus, less appropriate 
    to apply a significantly affected test to these non-waste feedstocks.
        EPA also was unable to apply the ``significantly affected'' test in 
    a manner that would focus on those secondary materials that actually 
    could cause significantly increased environmental risks. The proposed 
    test was the Burning in Furnaces (BIF) 2-part test, which would 
    function in a different manner in this rule. Under the BIF rule, the 
    concern was with the use of hazardous wastes from outside industries, 
    and residuals rarely fail the second part of the test, exceeding the 
    hazardous characteristic. Here, we are dealing with materials from 
    within the industry, metal values are reclaimed, and wastes typically 
    exhibit a hazardous characteristic. Since mineral processing
    
    [[Page 28595]]
    
    secondary materials often contain other metals in them, the resultant 
    wastes from co-processing may show statistical increases or decreases 
    in the metals content of the resultant wastes. The increases or 
    decreases in metal constituents, however, does not necessarily mean 
    that risk has increased. An increase in one constituent may be offset 
    by a decrease in another constituent or by additional volumes of raw 
    material feedstocks that would be needed to replace the mineral 
    processing secondary materials. The application of the proposed test 
    therefore could not be effectively used to determine if risks would 
    increase if secondary materials are co-processed at beneficiation 
    facilities.
        (iii) Conclusion. For these reasons, the Agency has decided to 
    retain as a condition for retaining Bevill status the standard 
    requirement that an extraction/beneficiation unit processes at least 50 
    percent raw material. 54 FR at 33620 (Sept. 1, 1989); 50 FR at 49190 
    (Nov. 25, 1985); and 56 FR at 7198 (Feb. 21, 1991) (previous instances 
    where EPA has used this test); 61 FR at 2351 (proposal of that test 
    here). If the 50 percent criterion is met, the resulting waste would 
    still be from extraction/beneficiation and hence exempt. Raw materials 
    can be mineral processing secondary materials and be placed into units 
    generating Bevill-exempt wastes provided that the facility legitimately 
    recycles these materials.
        The proviso is important. EPA repeats that the Bevill amendment is 
    not to serve as a means of disposing of non-Bevill hazardous wastes. As 
    explained later in the preamble, if a hazardous waste is mixed with a 
    Bevill waste, the mixing is regulated under RCRA Subtitle C, and the 
    mixed wastes may be Subtitle C hazardous wastes. While the mixture rule 
    does not apply when materials are placed in a beneficiation unit for 
    legitimate recycling, it would apply if a hazardous secondary material 
    is not being recycled legitimately. See U.S. v. Self, 2 F.3d at 1071, 
    1079 (10th Cir. 1993)(sham recycling is simply hazardous waste disposal 
    or treatment).
        It should also be pointed out that today's rule prohibits the 
    storage on the ground of any characteristically hazardous mineral 
    processing secondary material. Should a beneficiation facility wish to 
    legitimately reclaim such materials, it should be aware that placement 
    of these materials in raw material piles may change the RCRA status of 
    the pile.
        c. Bevill Mixture Rule and Disposal. Disposal of waste mixtures is 
    the focus of this section. The Agency promulgated the Bevill mixture 
    rule in 1989 (see 54 FR 36592). That rule was remanded to the Agency in 
    Solite Corp v. EPA, 952 F.2d 473, 493-94 (D.C. Cir. 1991). EPA 
    reinstated the mixture rule in 1992; however, this reinstatement was 
    found to be procedurally defective in Mobil Oil v. EPA, 35 F. 3d 579 
    (D.C. Cir. 1994).
        In the January 1996 proposal, the Agency proposed that if any 
    mineral processing hazardous waste, or indeed any hazardous waste, is 
    mixed with and disposed with a Bevill waste, the resulting waste is, 
    under certain circumstances, regulated under RCRA Subtitle C. The 
    Agency further stated that the mixture of Bevill wastes and hazardous 
    wastes would normally be regulated as a form of treatment subject to 
    regulation under Subtitle C. The Agency stated its concern about the 
    potential human health and environmental risks due to increased 
    hazardous constituents resulting from the disposal of mixtures of 
    hazardous waste with Bevill-exempt wastes. The Agency based the 
    proposal on the policy that Bevill wastes not be allowed to serve as an 
    unregulated dumping ground for hazardous wastes. Cf. Horsehead Resource 
    Development Co. v. Browner, 16 F. 3d at 1258.
        The rule being adopted today is a reinstatement of the mixture rule 
    promulgated in 1989. The Agency continues to believe that the approach 
    adopted in 1989 is sound, and properly balances the objectives of the 
    Bevill amendment with those of RCRA as a whole. While commenters 
    criticized EPA on the grounds that the prior mixture rule has twice 
    been struck down by the courts, those decisions did not address the 
    merits of the Bevill mixture rule.
        One clarification of statements in the 1996 proposal is in order. 
    The Agency stated that the proposed rule differed from the 1989 Bevill 
    mixture rule in that the earlier rule had exempted mixtures of Bevill 
    wastes and characteristic hazardous wastes from requirements pertaining 
    to treatment. See 61 Fed. Reg. 2352. This statement was, however, in 
    error. The Agency stated in the 1989 rulemaking that such mixing would, 
    in fact, constitute treatment of a hazardous waste, and would be 
    subject to the appropriate regulation for treatment storage and 
    disposal of hazardous wastes, including obtaining a permit. 54 Fed. 
    Reg. 36622. Thus, the Agency is not taking a more stringent approach to 
    regulating mixtures than was taken in 1989. As in 1989, moreover, the 
    Agency is not amending in any way the definition of treatment, storage, 
    or disposal of hazardous wastes; nor is the Agency promulgating any 
    specific provisions related to how those definitions apply to mineral 
    processing wastes. The Agency is simply stating that mixtures of Bevill 
    and non-Bevill wastes can, depending upon the particular facts, 
    constitute treatment, storage or disposal under the existing regulatory 
    program.
        Industry commenters generally opposed the proposed mixture rule. 
    Several commenters argued that the proposed rule was contrary to the 
    Act because it undermined the protection that the Bevill amendment was 
    intended to provide the industry. These commenters argued that the 
    legislative history indicates Congress intended the Bevill amendment to 
    be read broadly, to incorporate waste products generated in the ``real 
    world,'' and that Congress recognized co-management of wastes practiced 
    by the industry occurred in the ``real world.'' According to these 
    commenters, integrated facilities conducting extraction, beneficiation 
    and processing operations at a single location have historically co-
    managed wastes from these operations, including certain newly 
    identified mineral processing wastes, and the proposed rule would 
    effectively undermine the protections of the Bevill amendment for these 
    operations. One commenter contended that the mixture rule would subject 
    ``high volume/low hazard'' waste mixtures from the mining and mineral 
    processing industry to Subtitle C regulation without having conducted 
    the special study and regulatory determination process set forth in 
    section 3001 of RCRA. Since such mixtures of wastes are ``high volume/
    low hazard,'' these commenters argued that section 3001, as construed 
    by the Court in EDF v. EPA, 852 F.2d 1316 (D.C. Cir. 1988), mandates 
    exclusion of those wastes from regulation under Subtitle C.
        After careful consideration of these comments, EPA has concluded 
    that they misconstrue the scope of the Bevill amendment, and that the 
    proposed approach to Bevill mixtures is a reasonable one. First, the 
    Agency disagrees with these commenters' interpretation of the Bevill 
    amendment as applying to not only to ``special wastes'' themselves, but 
    also to any other hazardous waste that may be co-managed with them. 
    Congress simply provided that ``solid waste from extraction, 
    beneficiation and processing of ores and minerals'' are not subject to 
    Subtitle C. RCRA Sec. 3001(b)(3)(A). Congress did not, as these 
    commenters suggested, apply this exclusion to such wastes ``and other 
    hazardous wastes that may be co-managed'' with them. Rather, Congress 
    endorsed EPA's conclusion that high volume/low toxicity ``special 
    wastes'' deserved special treatment
    
    [[Page 28596]]
    
    under the Act by virtue of the difficulties that would be associated 
    with managing these wastes under the Subtitle C program. Moreover, 
    EPA's decade-long effort to demarcate the line between special wastes 
    and non-excluded wastes was premised on the notion that the line 
    between them is of some significance. If any hazardous waste can come 
    within the scope of the Bevill amendment simply by being mixed with 
    Bevill waste, that line becomes blurred, potentially creating a 
    universe of excluded wastes far beyond that envisioned by Congress when 
    it enacted the Bevill amendment.
        The Court in EDF II indicated that those mineral processing wastes 
    which did not meet the high volume/low toxicity criteria should be 
    fully subject to Subtitle C. The Agency, in today's rule, has taken 
    prudent steps to encourage the legitimate recycling of hazardous 
    secondary materials. If hazardous mineral processing wastes can not be 
    recycled and must be disposed, the Agency finds nothing in EDF II which 
    precludes the Agency from treating these hazardous wastes like any 
    other hazardous wastes. It should also be pointed out that today's rule 
    does not affect the disposal of extraction/beneficiation wastes as long 
    as there is no mixing of non-exempt hazardous wastes with them. EPA 
    believes that this rule is consistent with the scope of the Bevill 
    amendment because it maintains the Bevill exclusion for mixtures that 
    are hazardous due solely to any hazardous constituents of the Bevill 
    waste. The fact that these resulting wastes retain their Bevill status 
    does not mean, however, that the act of storing, treating, or disposing 
    of hazardous wastes with Bevill wastes should be exempted from normal 
    Subtitle C controls.
        EPA also disagrees with the notion advanced by some commenters that 
    EPA is required by section 3001 to conduct a study to determine whether 
    mixtures of Bevill and other wastes meet the high volume/low toxicity 
    test and thereby merit being covered by the Bevill amendment. EPA reads 
    section 3001 as mandating that EPA study wastes generated by the mining 
    and mineral processing industry for purposes of determining whether 
    particular waste streams are subject to the Bevill amendment. EPA has 
    done so and determined that mineral processing wastes that do not meet 
    the high volume/low toxicity threshold are not subject to Bevill. EPA's 
    orderly decision-making (see 54 FR 36592 and 55 FR 2322), would be 
    undermined if the Agency were then required to revisit these 
    determinations based upon how facilities happen to manage their wastes.
        Stated another way, EPA reasonably based its Bevill regulatory 
    determinations on the volumes of each type of mineral processing waste 
    generated within the industry; the Agency does not believe it is 
    reasonable to interpret section 3001 as mandating that EPA disregard 
    the volumes in which wastes are generated and instead base its 
    determinations on the vagaries of how those waste streams may be 
    aggregated through industry's disposal practices. Such a result would 
    be counter to EPA's special waste concept, and ignore the fact that 
    mineral processing wastes streams that are not generated above Bevill's 
    high volume/low toxicity threshold would, in fact, be amenable to 
    management under Subtitle C. Thus, the commenter's interpretation would 
    effectively allow the mining and mineral processing industry to 
    ``bootstrap'' smaller volume wastes into Bevill simply by co-disposing 
    them with Bevill wastes. The Agency and the courts have never 
    interpreted Bevill in such an awkward fashion, and the Agency declines 
    to follow such an approach here.
        The Agency does not agree with comments that any change to the 
    Bevill mixture rule would effectively eliminate Bevill for integrated 
    facilities. Today's rule does not change the Bevill status of 
    extraction/beneficiation wastes nor does it alter the Bevill status of 
    20 mineral processing wastes (see 40 CFR 261.4). Since a large number 
    of ``newly identified'' mineral processing waste streams become subject 
    to the LDR, the Agency took steps to clarify the status of non-exempt 
    ``Bevill'' wastes (i.e. mineral processing wastes not within the scope 
    of the Bevill amendment) in this rulemaking. The Identification report, 
    placed in the docket in January 1996, was developed by the Agency to 
    assist companies in determining if wastes were or were not exempt. The 
    Agency sought comment on the draft Identification document and has 
    finalized this report. This report is, however, guidance. Mineral 
    processing companies now have the ability to identify the status of 
    each waste stream and to cease mixing non-exempt hazardous wastes with 
    exempt waste streams.
        Regarding commenters' critique of the concerns expressed by EPA in 
    the proposal justifying the proposed mixture rule, the Agency continues 
    to be concerned about the mixture of hazardous wastes with Bevill 
    exempt wastes for treatment, storage or disposal. The Agency has noted 
    earlier that it is not imposing the significantly affected option 
    because the mixture of hazardous secondary materials with feedstocks 
    does not appear to adversely affect risk. This is so because the 
    mixtures are destined for legitimate recovery of metal, acid, water or 
    cyanide, or other values. Mixtures destined for disposal will not have 
    any of their hazardous constituents removed or other values utilized 
    and may contribute to the waste disposal problem. Nor is there the 
    slightest indication in law that normal Subtitle C rules should not 
    apply to disposal of normal Subtitle C hazardous wastes.
        Commenters did point out several errors made by EPA in the proposed 
    rule language. Many commenters noted that there was an inconsistency 
    between the preamble of the January proposal and its proposed 
    regulatory language. The proposed regulatory language inadvertently 
    omitted language in the general mixture rule stating that mixture of a 
    solid waste with a hazardous wasted listed solely because it exhibits a 
    characteristic identified in Part 261 subpart C is a hazardous waste 
    ``unless the resultant mixture no longer exhibits any characteristic of 
    hazardous waste. . . `` 40 C.F.R. 261.3(a)(2)(iii). It was not EPA's 
    intent to propose deleting this language, and it therefore is included 
    in the final rule.
        In addition, as pointed out by commenters, the proposed language 
    failed to track the preamble discussion of mixtures of Bevill wastes 
    and characteristic hazardous wastes (as well as wastes that are listed 
    because they exhibit a hazardous characteristic). Under the proposed 
    rule language, mixtures of Bevill wastes and hazardous wastes would be 
    a hazardous waste whenever it exhibited a hazardous waste 
    characteristic, even where that characteristic was imparted to it 
    solely from the Bevill waste. (See proposed section 261.3(i).) As shown 
    by the preamble, this was clearly not EPA's intent, which was to 
    preserve the Bevill exclusion for mixtures that are hazardous solely 
    because of the Bevill component of the mixture. See 61 FR 2352-53.
        Conversely, the preamble, although ambiguous in spots on this 
    issue, did say at one point that mixtures of characteristic hazardous 
    waste and Bevill wastes would be considered hazardous waste only if the 
    mixture continued to be hazardous due to characteristics imparted to it 
    by the non-Bevill waste. 61 FR at 2352. If the mixture exhibited a 
    hazardous characteristic due solely to the Bevill waste, the Agency did 
    not intend to designate the mixture as a hazardous waste.
    
    [[Page 28597]]
    
        Consistent with that discussion, under today's rule, the Agency has 
    decided that if Subtitle C hazardous waste exhibiting a characteristic 
    is mixed with Bevill-exempt waste exhibiting the same characteristic 
    and the mixture continues to exhibit that common characteristic, then 
    the entire mixture should be considered to be non-exempt hazardous 
    waste. This result is consistent with normal rules on when wastes are 
    hazardous, which state that if a waste exhibits a hazardous waste 
    characteristic, it remains a hazardous waste unless and until it no 
    longer exhibits a characteristic. 40 CFR 261.3(d)(1). In addition, such 
    a principle will make this rule easier to administer (should this 
    situation actually occur), since enforcement officials will not have to 
    parse out which portion of the waste mixture is imparting the 
    characteristic property. Finally, the result is consistent with the 
    overall object of today's rule: not to let Bevill wastes be used as a 
    means of allowing unregulated management of normal Subtitle C hazardous 
    wastes.
        Several commenters noted concern that existing exemptions to the 
    Agency's mixture rule, such as that given to totally enclosed treatment 
    facilities and elementary neutralization units, would be eliminated 
    under this rule. The Agency reiterates that this rule does not alter in 
    any way the current Agency mixture rule. The purpose of this rulemaking 
    is to place the mixing of hazardous wastes that may occur at mineral 
    processing plants on the same status as all other hazardous waste 
    management.
        (i) Illustrations of how today's rule operates. Although the 
    regulatory parlance for today's rule has always been the ``Bevill 
    mixture rule'', the greatest practical consequence of the rule is 
    probably on the units where mixing occurs. This is because units (i.e. 
    tanks, impoundments, piles, landfills, etc.) where hazardous wastes are 
    placed will (absent some exemption or exclusion other than that 
    provided by the Bevill amendment) be regulated units, i.e. units 
    subject to Subtitle C standards for treatment, storage, and/or 
    disposal. This point is illustrated by the following examples, which 
    also illustrate the effect of the rule on the resulting mixtures:
    
        Example 1. Facility A generates F 001 listed spent solvents 
    which it mixes with a solid waste that has Bevill exempt-status. The 
    mixing occurs in a landfill.
        The landfill is a regulated unit because hazardous waste--F 
    001--is being disposed in it. (Among other things, this means that 
    the F 001 wastes could not be placed in the landfill until the LDR 
    treatment standard is satisfied.) In addition, all of the wastes 
    with which the F 001 wastes are mixed are hazardous wastes carrying 
    the F 001 waste code by application of the mixture rule.
        Example 1a. Same facts as in example 1, except that the waste 
    being mixed is F 003 spent solvent, a waste listed only because it 
    exhibits a characteristic of hazardous waste.
        The landfill becomes a regulated unit for the same reason as in 
    example 1. (See Chemical Waste Management v. EPA, 976 F.2d at 20 n.4 
    and 24 n. 10 (placement of waste which is hazardous for any amount 
    of time in a unit subject that unit to Subtitle C regulation); 61 FR 
    at 2352 (same). However, the status of the resulting waste mixture 
    is determined by the principles for characteristic hazardous wastes, 
    illustrated below.
        Example 2. Facility B generates a characteristic ignitable 
    solvent which it adds to a surface impoundment containing a Bevill-
    exempt waste that would exhibit the TC for lead. The resulting 
    mixture exhibits TC for lead but is no longer ignitable.
        The surface impoundment is a regulated unit, since it is engaged 
    in treatment (elimination of the ignitability characteristic) and 
    disposal (the placement of the ignitable waste). The remaining 
    wastes in the unit retain their Bevill-exempt status because they do 
    not exhibit the characteristic property of the non-Bevill hazardous 
    waste. Thus, if the waste were to be removed from the impoundment 
    and disposed elsewhere, disposal need not occur in a regulated unit.
        Example 3. Facility C generates a characteristic hazardous waste 
    exhibiting TC for lead which it mixes in a tank with Bevill-exempt 
    wastes which also would exhibit the TC for lead. The resulting 
    mixture continues to be TC for lead.
        The tank is engaged at least in storage of hazardous waste, and 
    possibly treatment (depending on how the D008 hazardous waste is 
    affected by the mixing). If waste is removed from the tank, it 
    remains subject to Subtitle C because it continues to exhibit the 
    characteristic of the non-exempt hazardous waste.
    
        d. Remining. The Agency clarified in its January 1996 proposal that 
    the removal of historically land placed mineral processing wastes for 
    the purposes of mineral recovery would not constitute disposal for 
    purposes of triggering Subtitle C. Moreover, removal of wastes would 
    not render the historic disposal unit subject to RCRA hazardous waste 
    requirements (see 53 FR at 51444, December 21, 1988). The Agency is 
    today again clarifying that removal of waste from a unit does not 
    constitute disposal for the purposes of triggering Subtitle C 
    regulation.
        Commenters noted that the proposed mixture rule would in effect 
    eliminate opportunities for remining. The Agency disagrees. As noted 
    previously, the mixture restrictions in today's rule deals primarily 
    with disposal of mixtures. The mixture rule therefore, will not affect 
    the co-processing of historically disposed mineral processing secondary 
    materials with other feedstocks.
    6. Responses to Court Remands
        a. Applicability of the Toxicity Characteristic Leaching Procedure 
    (TCLP) to Mineral Processing Wastes. In the January 1996 proposal, the 
    Agency proposed to continue using the TCLP (SW-846 Test Method 1311) as 
    the basis for determining whether mineral processing wastes and 
    manufactured gas plant wastes exhibit the toxicity characteristic (TC) 
    of hazardous wastes, and developed a record supporting this position. 
    When the Agency promulgated the TCLP method for testing whether wastes 
    exhibit the toxicity characteristic, the applicability of the TCLP test 
    to mineral processing wastes was challenged in Edison Electric 
    Institute v. EPA, 2 F.3d 438 (D.C. Cir. 1993) (``Edison''). The Court 
    held that the information in the record at the time was insufficient to 
    show a rational relationship between the TCLP and a likely 
    mismanagement scenario for mineral processing wastes.
        Under the Court's holding, the Agency must at least provide some 
    factual support that such a mismanagement scenario is plausible (2 F.3d 
    at 446-47). The Agency is addressing this remand in today's final rule 
    because any applicable land disposal restrictions would have little 
    meaning unless the Agency has a basis for determining whether these 
    mineral processing wastes are hazardous, and, therefore, subject to the 
    restrictions.
        Under the Court's ruling in Edison, the application of the TCLP 
    test to mineral processing wastes is appropriate if the evidence 
    available to EPA shows that disposal of such wastes in municipal solid 
    waste landfills (MSWLF) is a ``plausible'' mismanagement scenario (not 
    necessarily requiring that it be typical or common) 2 F.3d at 446. 
    Moreover, it is sufficient if there is ``evidence or explanation on the 
    record to justify a conclusion that mineral wastes ever come into 
    contact with any form of acidic leaching medium.'' Id. at 447.
        In considering the plausibility of this mismanagement scenario, the 
    Agency has first carefully evaluated those circumstances that industry 
    has argued make such mismanagement implausible. Industry has argued 
    that co-disposal with municipal solid waste is not plausible because 
    the huge volumes in which the wastes are generated could simply not be 
    handled by an MSWLF. EPA has, however, conducted a comprehensive review 
    of such wastes and concluded that many wastestreams are generated at 
    low volumes. (See
    
    [[Page 28598]]
    
    Characterization of Mining and Mineral Processing Wastestreams, USEPA, 
    1998.) Thus, the volumes in which mineral processing wastes are 
    generated do not render disposal in an MSWLF implausible.
        Industry comments also indicated that the location of its 
    facilities were remote and not close to municipal landfills. Based on 
    physical location alone, industry suggested that disposal of their 
    wastes in municipal landfills was very unlikely. This contention is 
    not, however, supported by the facts. The Agency evaluated the location 
    of mineral processing facilities and found that a considerable number 
    of them are located east of the Mississippi River and some are located 
    in or near urban areas. (see Population Studies of Mines and Mineral 
    Processing Sites, 1998, U.S. EPA.) This report indicates that there is 
    factual information which rebuts the industry's position that the 
    location of mineral processing facilities is routinely so remote so as 
    to make co-disposal with municipal solid waste implausible. Thus, based 
    on the Agency's population study noted above, the Agency concludes that 
    some mineral processing facilities are in fact located in or near urban 
    areas and their location in such urban areas means that it is plausible 
    that their wastes could be disposed of in urban landfills.
        Factual information collected by the Agency (made available for 
    public comment) supports the conclusion that mineral processing wastes 
    may plausibly be disposed of with municipal solid wastes. Industry 
    comments contested EPA's factual basis for the landfill disposal cases 
    found in Applicability of the Toxicity Characteristic Leaching 
    Procedure to Mineral Processing Waste, U.S. EPA, 1998. Industry 
    commenters contended that the cases presented by the Agency do not 
    reflect current waste management practices (which primarily involve on-
    site disposal). Industry commenters also argued that the facts of 
    particular cases did not, in fact, support the conclusion that co-
    disposal had occurred. EPA has reviewed the information and concluded 
    some of these comments had merit, and EPA has deleted from the final 
    document those cases for which there was not sufficient information to 
    be relied upon by the Agency. However, even after a careful sifting of 
    the case studies, there continues to be evidence to support the 
    conclusion that co-disposal of mineral processing wastes with municipal 
    solid waste is plausible. While most mineral processing wastes are 
    generated in large volumes and disposed on-site as industry contends, 
    the Agency has found that some mineral processing wastes are placed in 
    dumpsters, or similar containers, and shipped off-site for commercial 
    disposal.
        These cases include, but are not limited to, co-disposal of mineral 
    processing wastes from the refining of alumina, copper, gold, ferrous 
    metals, lead, silver, and zinc. Such wastes have been disposed in 
    MSWLFs in various states throughout the United States. The Agency also 
    found several cases where manufactured gas plant wastes were disposed 
    in MSWLFs. (See Applicability of the Toxicity Characteristic Leaching 
    Procedure to Mineral Processing Waste, U.S. EPA, 1998.)
        EPA acknowledges that the information obtained by the Agency does 
    not show that the mismanagement scenario is either typical or common, 
    but such a level of proof is not required. Edison, 2 F.3d at 446. It 
    is, moreover, not surprising that the practice does not appear to be 
    widespread because, since 1989, disposal of any non-Bevill hazardous 
    mineral processing wastes in a municipal solid waste landfill has been 
    illegal. Nonetheless, since some mineral processing facilities are 
    located near urban areas and generate low volume wastes, and some of 
    these facilities appear to have, in fact, co-disposed of these wastes 
    in this manner, EPA believes it is reasonable to conclude that 
    application of its mismanagement scenario to mineral processing wastes 
    is reasonable; that is, if these wastes were no longer identified as 
    hazardous by means of the TCLP, then the type of improper disposal 
    which occurred in the past could resume.
        Industry commenters further contend that an alternative test, the 
    Synthetic Precipitation Leaching Procedure (SPLP), is more appropriate 
    for mineral processing wastes. The National Mining Association (NMA) 
    noted in its comments that the leach solution used in the SPLP test 
    protocol would more accurately reflect the environmental exposure of 
    mineral processing wastes. The SPLP test uses a leach solution which 
    mimics acid rain, while the TCLP uses a leach solution which mimics 
    acids formed in municipal landfills. The TCLP test therefore uses a 
    leach solution which is more acidic that the SPLP test. However, 
    ``[n]othing in [RCRA] requires EPA to tailor the TCLP to the conditions 
    to which mineral wastes are typically exposed.'' Edison, 2 F.3d at 443. 
    If that were the case, it would not have been appropriate for EPA to 
    even have adopted a generic mismanagement scenario as the basis for 
    establishing its approach for testing for the hazardous characteristic. 
    This approach has, however, been upheld as a reasonable exercise of the 
    Agency's discretion. Id.
        Industry commenters supplied data indicating that the TCLP is more 
    aggressive than the SPLP for most metals and especially lead. Certain 
    states supported use of the test under all or limited circumstances. 
    EPA received very limited data comparing the leach tests. Because these 
    data were extremely limited, the Agency still does not have data 
    broadly comparing TCLP results to SPLP results for a range of mineral 
    processing waste streams. Industry-supplied data appear to indicate 
    that the SPLP test generates results which show lower levels of lead 
    than comparable results using the TCLP. Thus, due to the limited amount 
    of data, the Agency is unable to determine if the SPLP would routinely 
    show lower levels of lead, or how the two tests compare when analyzing 
    other metals or whether such lower levels would, in fact, better 
    reflect actual field conditions than would the TCLP. At bottom, the 
    fundamental issue is not whether one test is more conservative than the 
    other. Rather, the issue is whether it is plausible that mineral 
    processing wastes may be disposed of in environments reflected by the 
    conditions mimicked in the TCLP.
        Aside from the plausibility of the Agency's mismanagement scenario, 
    application of the TCLP to mineral processing wastes is supported by 
    comments from industry submitted during the rulemaking regarding 
    disposal practices that are taking place or advantageous at integrated 
    mineral processing/beneficiation facilities in the industry. The 
    proposed (and now final) rule regarding mixtures of Bevill wastes with 
    non-Bevill hazardous wastes (including mineral processing hazardous 
    wastes) effectively prohibits such mixing. Some commenters opposed the 
    proposed mixture rule on the grounds that integrated facilities 
    typically co-dispose of hazardous mineral processing wastes (including 
    those exhibiting the TC) with extraction and beneficiation wastes, and 
    desired to continue this practice or to have mixing available as a 
    management option for these mineral processing hazardous wastes. It is 
    well-documented that extraction and beneficiation wastes can often 
    generate highly acidic environments. (See Acid Rock Drainage 
    Prediction, U.S. EPA, 1994) Disposal of mineral processing wastes with 
    such wastes means that the mineral processing wastes would be subject 
    to acidic conditions that, in some cases, may be comparable to the 
    acidic leacheate medium utilized in the TCLP (if not somewhat more 
    aggressive). This
    
    [[Page 28599]]
    
    is because water contacting the acidic waste would thereupon become 
    acidic itself (an example being acid mine drainage). EPA's concern is 
    that if the mineral processing wastes are no longer identified as 
    hazardous because a test other than the TCLP is used, then these wastes 
    could be disposed with the acidic extraction/beneficiation wastes and 
    be exposed to metal-mobilizing acidic leaching conditions as water 
    percolates through the mixture. Given the evident economies noted in 
    the public comments in disposing of mineral processing wastes along 
    with extraction/beneficiation wastes, such a scenario is at least 
    plausible. Such a disposal scenario, which industry states is not only 
    plausible, but is typical of some facilities, provides an additional 
    justification for the application of the acidic leachate approach 
    reflected in the TCLP.
        EPA recognizes that the TCLP utilizes organic acids, while the 
    disposal scenario discussed above would involve exposure to mineral 
    acids. In part because of this difference, EPA utilized the SPLP in 
    screening low hazard wastes as part of its 1989 Bevill determination. 
    See 54 FR 36592 (Sept 1, 1989). Commenters have pointed to this 
    statement as undercutting any application of TCLP to mineral processing 
    wastes.
        EPA made clear in 1989, however, that the TCLP was still the 
    appropriate test for determining whether a particular mineral 
    processing waste is a hazardous waste subject to Subtitle C. Morever, 
    EPA believes that the general statement contained in the 1989 preamble 
    arguably swept too broadly in its conclusions. Notwithstanding that 
    statement, standard chemistry texts establish that certain metals are 
    highly soluble in acidic environments, including inorganic acids. 
    Numerous factors can affect the precise solubility of a particular 
    metal, and it is generally not possible to generalize whether organic 
    or inorganic acids would cause more or less of a particular metal 
    compound to solubilize. Based on generally accepted chemistry 
    principles, however, a highly acidic environment, whether organic or 
    mineral in nature, can be aggressive towards certain metals typically 
    found in mineral processing wastes. Given that acidic leaching media 
    can result when mineral processing wastes are co-disposed with 
    extraction/beneficiation wastes, EPA believes that the acidic leachate 
    procedure utilized in the TCLP can be appropriate for characterizing 
    mineral processing wastes.
        EPA also notes a further policy justification in its choice of the 
    TCLP. The final rule seeks to encourage properly conducted recycling of 
    mineral processing secondary materials, and the scheme in the final 
    rule (whereby recovery can occur provided facilities do not utilize 
    land-based storage units) can be implemented at reasonable cost. (See 
    the Regulatory Impact Analysis for the final rule, summarized later in 
    this preamble.) However, the Agency is concerned that if integrated 
    facilities have a lower cost option of simply disposing these mineral 
    processing secondary materials with extraction/beneficiation wastes, 
    facilities will choose this alternative. Thus, not only will the 
    mineral processing wastes be potentially exposed to acidic leaching 
    conditions, but properly conducted metal recovery will be foregone. 
    (See RCRA section 1003 (a) (6) noting the statutory goal to encourage 
    properly conducted recycling of hazardous wastes.)
        In addition to questioning the choice of a leaching medium, 
    commenters questioned certain other features of the test, notably a 
    particle size feature which mirrors freeze/thaw cycles, and a dilution/
    attenuation factor which is premised on human receptors potentially 
    living relatively proximate to the disposal site. These issues are 
    addressed in greater detail in responses to comments and technical 
    background documents. However, the Agency has documented in the record 
    that many mineral processing facilities are located in parts of the 
    country where freeze/thaw cycles which reduce particle size occur, and 
    are also located near populations reflecting the degree of dilution and 
    attenuation used in the model. (See Population Studies of Mines and 
    Mineral Processing Sites, 1998, U.S. EPA)
        Finally, EPA notes that nothing in the recent decision Columbia 
    Falls Aluminum Co. v. EPA (no. 96-1234) (April 3, 1998) is contrary to 
    this determination. Columbia Falls does not stand for the proposition 
    that EPA must customize a test for particular wastes to reflect 
    individual or even typical disposal circumstances, a proposition 
    expressly rejected in Edison, 2 F. 3d at 445. Rather, Columbia Falls 
    approvingly cites Edison for the proposition that ``the TCLP must bear 
    some rational relationship to mineral wastes in order for the Agency to 
    justify the application of the toxicity test to those wastes.' '' 
    Columbia Falls, slip op. at 18; see also Huls America Inc. v. Browner, 
    83 F. 3d 445, 454 (Edison involved an instance ``where the record was 
    barren of any rational relationship between the methodology used by the 
    EPA to set regulatory levels and the known behavior of the substance to 
    which this methodology was applied''). EPA has rectified the record 
    deficiencies noted in Edison, showing how the TCLP ``bears a rational 
    relationship to the reality it purports to represent.'' Columbia Falls, 
    slip op. at 18. Today's action is thus consistent with both Edison and 
    Columbia Falls.
        EPA is making the decision to retain the TCLP as the test for 
    identifying mineral processing wastes effective within 90 days, co-
    extensive with the LDR prohibition effective date. This effective date 
    can be complied with feasibly within 90 days since the TCLP is already 
    the applicable test for mineral processing wastes (since it was 
    remanded, not vacated, by the Edison ruling). Thus, the regulated 
    community does not need six months to come into compliance. See RCRA 
    section 3010(b)(1).
        b. Remanded Mineral Processing Wastes. In the January 1996 
    proposal, the Agency proposed to revoke the current hazardous waste 
    listings for five court-remanded smelting wastes. The Agency also 
    proposed not to re-list them as hazardous stating that these wastes 
    would be regulated as hazardous wastes if they exhibit a characteristic 
    of a hazardous waste.
        In 1980, the Agency listed as hazardous eight wastes generated by 
    primary metal smelters (45 FR 33066, 33124, 47832-34, (1980)). The 
    Agency listed the wastes pursuant to 40 CFR 261.11(a)(3) because they 
    contained one or more of the hazardous constituents listed in 40 CFR 
    261, Appendix VIII. The eight wastes are described as follows:
    
    K064--Acid plant blowdown slurry/sludge resulting from the 
    thickening of blowdown slurry from primary copper production.
    K065--Surface impoundment solids contained in and dredged from 
    surface impoundments at primary lead smelting facilities.
    K066--Sludge from treatment of process wastewater and/or acid plant 
    blowdown from primary zinc production.
    K067--Electrolytic anode slimes/sludges from primary zinc 
    production.
    K068--Cadmium plant leach residue (from oxide) from primary zinc 
    production.
    K088--Spent potliners from primary aluminum reduction.
    K090--Emission control dust or sludge from ferrochromium-silicon 
    production.
    K091--Emission control dust or sludge from ferrochromium production.
    
        In October of 1980, in response to Congressional enactment of the 
    Bevill Exclusion, the Agency suspended its listing of the eight wastes 
    (46 FR 4614-15, 27473 October, 1980). In 1985, EPA proposed a new rule 
    that would relist
    
    [[Page 28600]]
    
    six of the eight wastes (50 FR 40292, 40295, October 2, 1985). (The 
    Agency chose not to propose to re-list two of the original eight waste 
    streams (electrolytic anode slimes/sludges, K067, and cadmium plant 
    leach residue, K068, from primary zinc production) because it found 
    that industry was routinely recycling these secondary materials in an 
    environmentally sound manner.) However, the Agency withdrew its 1985 
    proposal on October 9, 1986 (51 FR 36233).
        In Environmental Defense Fund v. EPA, 852 F.2d 1316 (D.C. Cir. 
    1988) EPA was ordered to make a final decision regarding whether to re-
    list the six metal smelting wastes that it had proposed to list in 
    1985, and to reduce the scope of the Bevill exemption as it applies to 
    mineral processing wastes. The Agency complied with this order when it 
    re-listed the six wastes.
        The American Mining Congress (AMC) challenged these listings. In 
    American Mining Congress v. EPA, 907 F.2d 1179 (D.C. Cir., 1990) the 
    Court upheld the Agency's decision to re-list waste K088, spent 
    potliners from primary aluminum reduction, but found that the Agency's 
    record for the five remaining waste streams did not adequately address 
    certain issues raised in comments during the rulemaking. Since the 
    Court did not vacate the listings, they technically remain in effect.
        In today's rule, the Agency is revoking the five remanded waste 
    listings. The Agency has found that several of these wastes are still 
    generated and in some cases land disposed, but there is a lack of 
    information demonstrating threats to human health or the environment 
    that would justify a listing at this time. The Agency believe that some 
    wastes, specifically copper acid plant blowdown (K064) and surface 
    impoundment solids at primary lead smelters (K065), are inherently 
    hazardous due to the presence of arsenic and lead, respectively. These 
    wastes can be effectively regulated under RCRA Subtitle C if they 
    exhibit a hazardous characteristic.
        The Agency received no comments opposing the proposed rule. To 
    summarize, the Agency is revoking the listing for, and is not re-
    listing: copper acid plant blowdown (K064); surface impoundment solids 
    at primary lead smelters (K065); acid plant blowdown from primary zinc 
    production (K066); emission control dust and sludge from ferrochromium-
    silicon production (K090); and emission control dust or sludge from 
    ferrochromium production (K091). However, as explained previously, 
    should these wastes exhibit a characteristic of a hazardous waste, they 
    will be subject to hazardous waste regulations, including the hazardous 
    waste mixture rule.
        c. Lightweight Aggregate Mineral Processing Wastes. In the January 
    1996 proposal, the Agency proposed that air pollution control dust and 
    sludge from the production of lightweight aggregate be classified as a 
    mineral processing waste that is no longer eligible for the Bevill 
    exemption. Lightweight aggregate air pollution control (APC) dust and 
    sludge were among the many mineral processing wastes made conditionally 
    exempt from RCRA Subtitle C requirements under the 1980 Bevill 
    Amendment to RCRA. In 1990, following more detailed study of the 
    generation rates for this waste, the Agency determined that it did not 
    qualify for the Bevill exemption (55 FR 2322, 2340, January 23, 1990). 
    In 1991, the D.C. Circuit directed the Agency to reconsider, after 
    providing notice and soliciting comments, whether these wastes qualify 
    for the Bevill exemption. (Solite Corporation v. EPA, 952 F.2d at 500 
    (D.C. Cir. 1991)).
        In the January 1996 proposal, the Agency stated that the wastes 
    from lightweight aggregate production do not meet the high volume 
    criterion for excluded mineral processing wastes. For purposes of EPA's 
    1989 and 1990 rules concerning Bevill eligibility for mineral 
    processing wastes, high volume is defined as greater than 45,000 metric 
    tons per year per facility, for a solid waste, or 1,000,000 metric tons 
    per year per facility, for a liquid waste, averaged across all 
    facilities generating a particular waste.
        To determine whether APC dust and sludge from lightweight aggregate 
    production satisfied the high volume criterion, the Agency analyzed 
    data from its 1989 National Survey of Solid Wastes from Mineral 
    Processing Facilities (SWMPF Survey) and data from public comments 
    submitted by affected companies. The Agency finds that the lightweight 
    aggregate wastes do not meet the high volume criterion.
        None of the methods used resulted in a volume estimate that is 
    greater than 45,000 metric tons per year per facility, the high volume 
    criterion for mineral processing wastes. SWMPF survey data, which 
    includes Confidential Business Information (CBI) from two facilities 
    have been included in a separate analysis. The results, which remain 
    confidential, are not substantially different from the results 
    presented previously.
        Solite acknowledged in comments that data do not support a 
    determination that lightweight aggregate air pollution control (APC) 
    dust and sludge is generated in volumes that meet the high volume 
    cutoff. However, Solite requested that the Agency delay making a final 
    determination on the Bevill status of its wastes due to other Agency 
    rulemaking activities dealing with cement kiln dusts, which Solite 
    contends would be addressing similar issues to those posed by 
    lightweight aggregate air pollution control (APC) dust and sludge.
        The Agency is aware that both cement kiln and aggregate kilns may 
    both burn hazardous wastes fuels and that the dusts from air pollution 
    control devices are often blended into final products. Under existing 
    regulations, if these dusts resulting from burning listed hazardous 
    waste fuels are blended into products that are used on the land, the 
    product would be subject to RCRA's ``derived from'' rules which would 
    render the product a hazardous waste. Since both cement and light 
    weight aggregate products are usually placed on the land, the potential 
    impacts on their use could be significant. The Agency noted in its 1993 
    Report to Congress on Cement Kiln Dust (CKD) that it did not have 
    evidence that CKD was materially different when generated from kilns 
    burning hazardous wastes as fuel and those which did not. The Agency 
    does not have similar comparable analysis of light weight aggregate 
    dusts and sludges, and can not at this point in time conclude that 
    there is no difference between dusts and sludges from units burning 
    hazardous waste fuels and those that do not. The Agency wants to 
    encourage the sound recycling of these dusts and requires additional 
    time to assess how to ensure that aggregate and cement kiln dusts are 
    managed to ensure protection of human health and the environment. The 
    Agency is currently developing a regulatory program for the safe 
    management of cement kiln dusts and anticipates issuing a proposed rule 
    in 1998. The Agency further anticipates that it will seek comment on 
    how to best manage both wastes in this proposal and will seek 
    information it needs to make a final determination on the status of 
    lightweight aggregate wastes. The Agency is not finalizing its 
    technical background document, Lightweight Aggregate Production and Air 
    Pollution Control Wastes (1995), at this time.
        d. Mineral Processing Wastes From the Production of Titanium 
    Tetrachloride. (i) Summary. In 1989, following a study of this waste's 
    circumstances of generation, the Agency determined that titanium 
    tetrachloride waste acid did not qualify for the Bevill exemption 
    because it was a mineral
    
    [[Page 28601]]
    
    processing waste, not an extraction/beneficiation waste, and did not 
    meet the high volume/low hazard criteria for determining eligibility 
    for the Bevill exemption. (See 54 FR 36592, September 1, 1989.) One 
    producer of titanium tetrachloride, DuPont, requested a determination 
    that waste from its production process be categorized as beneficiation 
    waste on the ground that, unlike processes used by other manufacturers, 
    their process included a beneficiation step which generated the wastes 
    at issue. However, EPA determined that DuPont's waste acids were 
    mineral processing wastes. DuPont challenged this decision, and the 
    Court remanded EPA's decision for further consideration on the grounds 
    that the Agency's explanation for its decision was unclear. Solite 
    Corporation v. EPA, 952 F.2d 473,494-95 (D.C. Cir. 1991).
        DuPont submitted comments on the January 1996 proposal that contend 
    its processes do not destroy the structure of the mineral as it is 
    placed into its processes. The Agency does not accept this contention, 
    and, as described below, finds that the waste iron chloride acid is a 
    mineral processing wastes.
        There are four sequential steps in DuPont's chloride-ilmenite 
    process, the first two of which occur within the same vessel: (1) 
    chlorine gas reacts with iron from the ilmenite ore to form iron 
    chloride gas; (2) chlorine gas reacts with titanium in the ilmenite ore 
    to form titanium tetrachloride gas; (3) the iron chloride is condensed 
    and separated to form a waste iron chloride acid; and finally (4) the 
    titanium tetrachloride is condensed and processed to form titanium 
    oxide pigment, the saleable product. The issue remanded in Solite is 
    whether the iron chloride acid waste, which is produced in gaseous form 
    at step (1) but removed from the vessel as a liquid at step (3), is a 
    mineral processing waste that does not qualify for the Bevill 
    exemption, or is a beneficiation waste covered by the Bevill exclusion 
    under 40 CFR 261.4(b)(7).
        (ii) Proposal. In the January 1996 proposal, the Agency proposed 
    that iron chloride waste acid from the production of titanium 
    tetrachloride be classified as a mineral processing waste that is not 
    eligible for the Bevill exemption. In the chloride-ilmenite production 
    of titanium tetrachloride, the Agency found that mineral processing 
    began with the chlorination of the iron in the ilmenite ore and the 
    resulting acid is a waste from mineral processing. Specifically, the 
    Agency found that the acid wastes from this process are not physically 
    or chemically similar to the feedstocks entering the operation, which 
    is indicative that mineral processing has occurred.
        (iii) Response to Comments. One commenter agreed with EPA's 
    proposed conclusion that Du Pont's process is properly classified as 
    mineral processing because the reaction of ilmenite ore with chlorine 
    gas forms new chemical compounds, namely titanium tetrachloride and 
    ferric or ferrous chloride. The commenter remarked that such a reaction 
    is a chemical processing step that fundamentally alters the make-up of 
    the feedstock ore. The commenter said that EPA correctly drew the 
    analogy between the mineral processing that occurs in the chloride-
    ilmenite operation and the mineral processing that occurs in other 
    metallurgical operations.
        One commenter noted that no beneficiation occurs in the chloride-
    ilmenite process at all and that the iron chloride waste stream is not 
    eligible for the Bevill exemption. The commenter said that it too 
    produces a waste iron chloride acid in the production of titanium 
    tetrachloride but its waste acid is neutralized in a waste treatment 
    unit. The commenter provided data showing that its treatment of waste 
    iron chloride acid meets all proposed Land Disposal Restrictions (LDR) 
    treatment standards for underlying hazardous characteristics.
        DuPont objected to the Agency's proposed classification. DuPont 
    claims that the removal of iron from the ilmenite ore is more 
    appropriately classified as beneficiation. DuPont remarked that the 
    separation of the iron chloride from the titanium ore grains results in 
    a beneficiated ore, similar in nature to commercially available 
    beneficiated ores that EPA has determined are Bevill exempt. The Agency 
    disagrees with this characterization, and concludes that since the ore 
    is chlorinated, that chlorination step changes the physical and 
    chemical structure of ore. The Agency's rationale for this decision is 
    discussed below.
        The Agency reiterates its broad standard for making mineral 
    processing determinations described in 54 Fed. Reg. 36592, 36616, 
    September 1, 1989. Specifically, beneficiation operations typically 
    serve to separate and concentrate the mineral values from waste 
    material, remove impurities, or prepare the ore for further refinement. 
    Beneficiation activities do not, however, change the chemical structure 
    of the ore. Mineral processing operations, in contrast, generally 
    follow beneficiation and serve to change the concentrated mineral value 
    into a more useful chemical form and change the chemical composition of 
    the waste. In contrast to beneficiation operations, processing 
    activities often destroy the physical structure of the incoming ore or 
    mineral feedstock such that the materials leaving the operation do not 
    closely resemble those that entered the operation. Typically, 
    beneficiation wastes are earthen in character, whereas mineral 
    processing wastes are derived from melting or other chemical changes.
        Today, the Agency again finds that DuPont's chloride-ilmenite 
    operation is mineral processing. In DuPont's process, chlorine gas is 
    reacted with the iron in the ore in the first step to produce a new and 
    significantly different chemical compound than the feedstock ore, 
    namely liquid waste iron chloride acid. The iron is more than simply 
    removed; the solid iron in the ore undergoes a chemical reaction with 
    the chlorine gas to form a new compound that is highly reactive and 
    non-earthen in character, namely iron chloride gas. This reaction is 
    the beginning of a significant change to the physical and chemical 
    structure of the ore. This change is similar to the reaction of 
    chlorine gas with solid titanium to form titanium tetrachloride gas. 
    The Agency finds that the net result of the reaction of chlorine gas 
    with both iron and titanium, which occur in the same vessel, destroys 
    the physical and chemical nature of the ore.
        DuPont contends that the formation of iron chloride gas is simply a 
    process to remove an impurity from the ore. DuPont noted in its 
    comments that activities which remove impurities from ores and minerals 
    are classified as beneficiation and all wastes from beneficiation are 
    exempt from regulation under RCRA Subtitle C (see 40 CFR 261.4). DuPont 
    therefore contends that their processes are in fact beneficiation and 
    should not be classified as mineral processing.
        As noted earlier, the Agency clarified the definition of 
    beneficiation and mineral processing in its 1989 rulemaking. That rule 
    clearly indicated that beneficiation serves to remove impurities as 
    long as the resultant materials remained earthen in nature and had not 
    undergone a physical/chemical change. The Agency studied the DuPont 
    process numerous times and met with the company several times to assure 
    that the Agency fully understood DuPont process. The Agency concludes 
    that chlorination of the ore causes a significant physical/chemical 
    change to the ore, and therefore the process is more indicative of 
    mineral processing than beneficiation. Further, in the DuPont case, the 
    removal of impurities is taking place simultaneously with
    
    [[Page 28602]]
    
    other reactions generating titanium gases. This reaction alone would 
    classify the process as mineral processing since the ore and titanium 
    gas are clearly physically and chemically dissimilar from that point on 
    in the process. The Agency stated in 1989 that once mineral processing 
    began, all wastes generated after that point would be classified as 
    mineral processing wastes, even those wastes which are similar to those 
    generated in beneficiation.
        Thus, all wastes associated with the chloride-ilmenite production 
    of titanium tetrachloride are mineral processing wastes. They are 
    neither high volume nor low toxicity and therefore are not eligible for 
    the Bevill exemption.
    
    VII. LDR Treatment Standards for Soil
    
        This section discusses final regulations establishing land disposal 
    treatment standards specific to contaminated soil. Contaminated soil is 
    subject to the land disposal restrictions, generally, when it contains 
    a listed hazardous waste or when it exhibits a characteristic of 
    hazardous waste. (Throughout this discussion, the specific term 
    ``hazardous contaminated soil'' refers to soil which contains a listed 
    hazardous waste or exhibits a characteristic of hazardous waste; the 
    more general term ``contaminated soil'' refers to both hazardous 
    contaminated soil and other soils--such as decharacterized soil--which 
    may be subject to the land disposal restrictions.) Prior to today's 
    rule, contaminated soil subject to LDRs was subject to the same land 
    disposal restriction treatment standards that apply to industrial 
    hazardous waste: soil contaminated by listed hazardous waste was 
    subject to the standards that apply to those listed wastes and soil 
    that exhibited a characteristic of hazardous waste was subject to the 
    same standards that apply to the characteristic waste. Today's final 
    rule establishes a new treatability group--contaminated soils--and 
    establishes land disposal restriction treatment standards specifically 
    tailored to that treatability group. Although EPA believes generators 
    of contaminated soil will typically choose to comply with the new soil 
    treatment standards promulgated today, under today's final rule, they 
    have the option of complying either with the existing treatment 
    standards for industrial hazardous waste (i.e., the universal treatment 
    standards) or the soil treatment standards. This is consistent with the 
    approach the Agency took in promulgating LDR treatment standards for 
    hazardous contaminated debris. 57 FR 37221, August 18, 1992.
        EPA first proposed tailored land disposal restriction treatment 
    standards for contaminated soil in September 1993. 59 FR 48122--48131 
    (September 14, 1993). In the September 1993 proposal, EPA requested 
    comment on three soil treatment standard options. These three options 
    involved various combinations of percent reduction requirements for 
    hazardous constituents (typically ninety percent--90%) and multipliers 
    of the universal treatment standards (typically ten times the UTS--10 x 
    UTS). In response to comment on the September 1993 proposal, EPA 
    deferred a final decision on soil treatment standards to the Agency's 
    broader evaluation of application of RCRA requirements to remediation 
    wastes, the Hazardous Waste Identification Rule for Contaminated Media, 
    or HWIR-Media.
        On April 29, 1996, as part of the HWIR-Media proposal, EPA again 
    proposed tailored land disposal restriction treatment standards for 
    contaminated soils. 61 FR at 11804 (April 29, 1996). In the April 29, 
    1996 proposal, soil-specific treatment standards would have required 
    reduction in concentrations of hazardous constituents by 90% with 
    treatment for any given constituent capped at ten times the universal 
    treatment standard. Id. This is commonly referred to as ``90% capped at 
    10 times UTS.''
        In 1995, 1996 and 1997, EPA proposed new land disposal restriction 
    treatment standards for waste identified as hazardous because of metal 
    content and for mineral processing wastes. 60 FR 43654 (August 22, 
    1995) for metal wastes; 61 FR 2338 (January 25, 1996) for mineral 
    processing wastes; and, 62 FR 26041 (May 12, 1997) supplemental 
    proposal for both types of waste. In these proposals, soil contaminated 
    with metal or mineral processing waste would have been subject to the 
    new treatment standards for those wastes. This was consistent with the 
    way EPA had historically addressed contaminated soil and, at the time, 
    considered proper given that the proposals to establish soil-specific 
    treatment standards were not yet resolved.
        EPA did not reopen the issue of whether LDRs apply to contaminated 
    soil or whether it is appropriate to require that contaminated soil 
    achieve the same LDR treatment standards as the contaminating waste 
    (soil contaminated by listed waste) or the characteristic property 
    (soil that exhibits a characteristic of hazardous waste) in the August 
    22, 1995, January 25, 1996, or May 12, 1997 proposals. Commenters, 
    nonetheless, strongly opposed application of the new LDR treatment 
    standards for metal and mineral processing wastes to soil contaminated 
    with those materials. At about the same time, EPA decided to go forward 
    with the soil-specific LDR treatment standards proposed in April 1996. 
    Therefore, the Agency is promulgating the land disposal restriction 
    treatment standards tailored to contaminated soils proposed on April 
    29, 1996 (i.e., 90% capped at 10xUTS) today, with the new LDR treatment 
    standards for metal and mineral processing wastes. The soil-specific 
    treatment standards promulgated today may be applied to any 
    contaminated soil that is restricted from land disposal, including but 
    not limited to soil contaminated by metal and mineral processing 
    wastes.
        The land disposal restriction treatment standards for contaminated 
    soil promulgated today differ from the standards proposed on April 29, 
    1996 in three major ways. First, the Agency proposed that the soil 
    treatment standards would be available only for contaminated soil that 
    was managed under an approved cleanup plan (termed a remediation waste 
    management plan, or RMP). In today's final rule, the Agency is making 
    the soil treatment standards available for all contaminated soil that 
    is restricted from land disposal. Second, the Agency proposed that, for 
    soil contaminated by listed hazardous waste, treatment would be 
    required only for the hazardous constituents that originated from the 
    contaminating listed hazardous waste. When the soil treatment standards 
    are used, today's final rule requires all hazardous contaminated soil, 
    including soil contaminated by listed hazardous waste, to be treated 
    for each underlying hazardous constituent reasonably expected to be 
    present when such constituents are initially found at concentrations 
    greater than ten times the universal treatment standard. Third, in 
    response to comments asserting that the proposed regulations governing 
    the applicability of LDRs to contaminated soils were difficult to 
    understand, the Agency has reformatted these regulations into an 
    easier-to-read table. These changes, as well as other significant 
    issues associated with the soil treatment standards and responses to 
    comments, are discussed below.
        Today's promulgation of land disposal restriction treatment 
    standards specific to contaminated soil is largely based on the April 
    29, 1996 proposal (62 FR at 18804-18818). It also relies on the 
    Agency's first effort to establish soil-specific treatment standards, 
    the LDR Phase II proposal (58 FR 48092, September 14, 1993). Today's 
    action
    
    [[Page 28603]]
    
    resolves the portions of the April 29, 1996 and September 14, 1993 
    proposals that address land disposal restriction treatment standards 
    for contaminated soil. However, other elements of the April 29, 1996 
    proposal remain open and will be acted on in a future rulemaking. 
    Responses to comments submitted on the soil treatment standards 
    proposals are included in the Soil Treatment Standards Response to 
    Comments Background Document, available in the docket for today's 
    action.
    
    A. Application of Land Disposal Restriction Treatment Standards to 
    Contaminated Soil and Justification for Soil Specific LDRs
    
        Prior to today's rule, soil that contained listed hazardous waste 
    or exhibited a characteristic of hazardous waste were prohibited from 
    land disposal unless they had been treated to meet the treatment 
    standards promulgated for pure industrial hazardous waste. This means 
    the same treatment standards which apply to a pure, industrial 
    hazardous waste were also applied to contaminated soil. 61 FR at 18804 
    (April 29, 1996) and other sources cited therein. In most cases then, 
    contaminated soils were subject to the treatment standards listed in 40 
    CFR 268.40, and the associated treatment standards in 40 CFR 268.48(a) 
    table Universal Treatment Standards (UTS).14
    ---------------------------------------------------------------------------
    
        \14\ The exception is when waste contaminating soil is subject 
    to a specified treatment method; in that case, the contaminated soil 
    would also be subject to the specified treatment method.
    ---------------------------------------------------------------------------
    
        As EPA has discussed many times, the treatment standards developed 
    for pure, industrial hazardous waste may be unachievable in 
    contaminated soil or may be inappropriate for contaminated soil due to 
    particularities associated with the soil matrix and the remediation 
    context under which most contaminated soil is managed, as discussed 
    below. For that reason, EPA is promulgating today's LDR treatment 
    standards specifically tailored to contaminated soil and to the 
    remedial context.
        With respect to the soil matrix, the treatment standards developed 
    for pure hazardous waste (i.e., the universal treatment standards) are 
    generally either technically unachievable or technically or 
    environmentally inappropriate. For metal constituents, the UTS may not 
    be achievable in contaminated soil even using model technologies such 
    as stabilization or high temperature metal recovery. Stabilization 
    technologies are sensitive to soil characteristics such as the presence 
    of oxidizing agents and hydrated salts, the distribution of soil 
    particle size and the concentrations of sulfate and chloride compounds. 
    Various combinations of soil characteristics can impair the 
    effectiveness or rate of reaction in stabilization technologies. For 
    example, insoluble materials, such as materials that will pass through 
    a number 200 mesh sieve, can delay setting and curing during 
    stabilization, or small soil particles can coat larger soil particles 
    weakening bonds between particles and cement or other reagents. High 
    temperature metal recovery technologies may not be appropriate for some 
    contaminated soil given the low concentrations of metals that might be 
    present in the soil. In addition, clay and silt content in some soil 
    matrices may add undesired impurities to the metal concentrates or 
    alloys that are formed during high temperature metal recovery.
        Although EPA has data showing that some soils can be treated to the 
    existing universal treatment standards for metals using stabilization 
    15 and high temperature metals recovery, the Agency 
    continues to believe that tailored soil treatment standards are 
    appropriate for metal contaminated soil to ensure that the wide variety 
    of soils can be effectively treated to meet the treatment standards. In 
    addition, the soil treatment standards will have the added 
    environmental benefit of encouraging greater use of innovative soil 
    treatment technologies such as soil or enhanced soil (acid) washing. 
    See, Proposed BDAT Background Document for Hazardous Soils, August 
    1993; Technical Resource Document: Solidification/Stabilization and its 
    Application to Waste Materials, EPA/530/R-93/012, June 1993; and, 
    Technology Screening Guide for Treatment of CERCLA Soils and Sludges, 
    EPA 540/2-88/004, September 1988.
    ---------------------------------------------------------------------------
    
        \15\ These soil treatment data have been claimed as confidential 
    business information.
    ---------------------------------------------------------------------------
    
        For soil contaminated with organic constituents, EPA has noted many 
    times that, notwithstanding the fact that such soils can be treated by 
    combustion to meet the universal treatment standards, it is generally 
    unsuitable or impractical from a technical standpoint to combust large 
    volumes of mildly contaminated soil. See, for example, 55 FR at 8760 
    and 8761 (March 8, 1990) and 61 FR 18806-18808 (April 29, 1996). In 
    addition, the Agency has documented potential difficulties that may 
    arise from the combustion of soil due to soil/contaminant 
    characteristics that affect incineration performance such as the 
    concentrations of volatile metals, the presence of alkali salts, fine 
    particles of soils such as clays and silts, and the ash fusion point of 
    the contaminating waste. For example, operation of an incinerator at or 
    near the waste ash fusion temperature can cause melting and 
    agglomeration of inorganic salts; the loading of clays and silts in 
    some soils may also result in high loadings of particulate matter in 
    flue gases. Proposed BDAT Background Document for Hazardous Soils, 
    August 1993 and Technology Screening Guide for Treatment of CERCLA 
    Soils and Sludges, EPA 540/2-88/004, September 1988.
        With respect to the remedial context, EPA, the states, and the 
    regulated and environmental communities have long recognized that 
    application of the LDR treatment standards developed for pure, 
    industrial hazardous waste to contaminated soil can be 
    counterproductive. See, for example, ``Hazardous Waste: Remediation 
    Waste Requirements Can Increase the Time and Cost of Cleanups' U.S. 
    General Accounting Office, GAO/RCED-98-4, October 1997. Application of 
    LDRs developed for pure, industrial hazardous waste to contaminated 
    soil often presents remediation project managers with only two choices: 
    pursue a legal option of capping or treating hazardous contaminated 
    soil in place thereby avoiding a duty to comply with LDRs, or excavate 
    the soil and treat it to the full extent of best demonstrated available 
    technology, usually, for organic constituents, incineration. EPA has 
    found that this situation often creates an incentive to select remedies 
    that minimize application of LDRs (e.g., remedies that involve capping 
    or leaving untreated soil in place) a result obviously not contemplated 
    by Congress in enacting the LDR program.16 62 FR at pages 
    64505-64506 (Dec. 5, 1997) and 61 FR at 18808 (April 29, 1996) and 
    other sources cited therein.
    ---------------------------------------------------------------------------
    
        \16\ As discussed in the April 29, 1996 proposal, EPA has, in 
    the past, justified the existing treatment standards, in part, 
    because they create an incentive to generate less of the affected 
    waste in the first instance. See, Steel Manufactures Association v. 
    EPA, 27 F.3d 642, 649 (D.C. Cir. 1994). In the remedial context, the 
    waste is already in existence; therefore waste minimization is not 
    an issue. Thus, application of the current LDR treatment standards 
    to remediation waste can have the perverse effect of creating an 
    incentive to avoid ``generating'' waste by leaving it in the ground. 
    The Agency believes that the goals of remediation are better served 
    by more aggresive remedial approaches, such as excavation and 
    management (including some degree of treatment) of remediation 
    wastes, that generally result in more permanent remedies. Such 
    approaches should, therefore, be encouraged.
    ---------------------------------------------------------------------------
    
        Because of the differences between the remedial context (responding 
    to wastes which have already been released to the environment) and
    
    [[Page 28604]]
    
    regulation of wastes generated by on-going industrial process 
    (preventing wastes from being released into the environment in the 
    first instance), EPA has rejected the conclusion that treatment 
    standards for soil must be based upon the performance of the ``best'' 
    demonstrated available treatment technology in the way the Agency has 
    historically interpreted these terms. Instead, the Agency has chosen to 
    develop soil treatment standards that can be achieved using a variety 
    of treatment technologies which achieve substantial reductions in 
    concentration or mobility of hazardous constituents and, because they 
    are generally used to treat contaminated soils in remedial settings, do 
    not present site managers with the type of dilemma described above. As 
    EPA has long maintained, the strong policy considerations that argue 
    for using the traditional BDAT analysis as the basis for LDR treatment 
    standards for hazardous wastes generated by on-going industrial 
    operations do not apply when evaluating BDAT in the remedial context. 
    In the remedial context, for example, waste minimization is not an 
    issue and the additional increment of treatment necessary to achieve 
    traditional BDAT may yield little if any environmental benefit over 
    other treatment options that adequately protect human health and the 
    environment. 54 FR 41568 (October 19, 1989). Indeed there is a 
    legitimate question as to whether a technology whose use results in 
    foregoing other substantial environmental benefits (such as more 
    aggressive, permanent remedies) can be considered a ``best'' 
    technology. Portland Cement Association v. Ruckelshaus, 486 F. 2d 375, 
    385-86 at n. 42 (D.C. Cir. 1973); Essex Chemical Corp. v. Ruckelshaus, 
    486 F. 2d 427, 439 (D.C. Cir. 1973). This issue was discussed fully in 
    the April 29, 1996 proposal and in a number of other EPA documents, 
    see, for example, 54 FR 41568 (October 19, 1989) and 61 FR at 18808 
    (April 29, 1996) and other sources cited therein.
        The soil treatment standards promulgated today will significantly 
    improve management of contaminated soil and remediations that involve 
    contaminated soil. However, the Agency emphasizes that today's rule 
    does not resolve the larger, more fundamental issues associated with 
    application of RCRA Subtitle C to remediation generally. The Agency 
    maintains that additional reform is needed to address, more 
    fundamentally, the application of certain RCRA subtitle C requirements 
    to all remediation wastes, including contaminated soil. The Agency will 
    continue to participate in discussions of potential legislation to 
    promote this additional needed reform. If legislation is not 
    forthcoming, the Agency may reexamine its approach to remediation waste 
    management, including the soil treatment standards.
    
    B. Detailed Analysis of Soil Treatment Standards
    
        All land disposal restriction treatment standards must satisfy the 
    requirements of RCRA section 3004(m) by specifying levels or methods of 
    treatment that ``substantially diminish the toxicity of the waste or 
    substantially reduce the likelihood of migration of hazardous 
    constituents from that waste so that short-term and long-term threats 
    to human health and the environment are minimized.'' As EPA has 
    discussed many times, the RCRA Section 3004(m) requirements may be 
    satisfied by technology-based standards or risk-based standards. This 
    conclusion was upheld in Hazardous Waste Treatment Council v. EPA, 886 
    F.2d 355, 362-64 (D.C. Cir. 1989), where technology-based LDR treatment 
    standards were upheld as a permissible means of implementing RCRA 
    Section 3004(m) provided they did not require treatment beyond the 
    point at which threats to human health and the environment are 
    minimized. Today's treatment standards for contaminated soils are 
    primarily technology-based; however, a variance from the technology-
    based standards is allowed when EPA or an authorized state makes a 
    site-specific determination that threats posed by land disposal of any 
    given volume of contaminated soil are minimized at higher 
    concentrations.
    1. Technology Basis for Soil Treatment Standards
        The land disposal restriction treatment standards for soil require 
    that concentrations of hazardous constituents subject to treatment be 
    reduced by ninety percent (90%) with treatment for any given 
    constituent capped at ten times the universal treatment standard (10 X 
    UTS). In other words, if treatment of a given constituent to meet the 
    90% reduction standard would reduce constituent concentrations to less 
    than 10 X UTS, treatment to concentrations less than 10 X UTS is not 
    required. This is commonly referred to as ``90% capped by 10xUTS.''
        As first discussed in the September 14, 1993 proposal, the Agency 
    has not used the statistical methods historically used in the land 
    disposal restriction program to establish the soil treatment standards. 
    In the past, the Agency has typically evaluated treatability data to 
    identify the ``most difficult to treat'' waste and established 
    treatment standards based on a statistical analysis of data from the 
    best demonstrated available treatment technology for that waste. See, 
    for example, 55 FR 26594 and 26605, June 23, 1989. While the existing 
    regulations allow treatment using any technology that will satisfy the 
    treatment standards, the practical impact of that approach is that 
    treatment using the most aggressive treatment technology available 
    (i.e., for organic constituents, destruction of organic constituents 
    based upon the performance of incineration) is often necessary to 
    achieve the treatment standards.
        For contaminated soil, the Agency has chosen to establish 
    technology-based soil treatment standards at levels that are achievable 
    using a variety of common remedial technologies which destroy, remove 
    or immobilize substantial amounts of hazardous constituents. 58 FR 
    48129 (September 14, 1993). The levels chosen--90% reduction capped at 
    10 X UTS--are within the zone of reasonable levels the Agency could 
    have selected as treatment standards for contaminated soil.
        Soil treatability data from EPA's Soil Treatment Database indicate 
    that the soil treatment standards are achievable and that the Agency 
    has selected a reasonable level of performance for the standard. After 
    screening the Database to eliminate data from tests reflecting poorly 
    designed or operated treatment, tests where EPA believes inappropriate 
    technologies were applied (for example, data from ``immobilization'' of 
    organic constituents), and other inappropriate data, the Agency was 
    left with 2,541 data pairs representing treatment of eighty hazardous 
    constituents including nine BDAT list metals.17 EPA then 
    analyzed these data to determine if the soil treatment standards could 
    be reliably achieved using demonstrated soil treatment technologies. 
    Based on this analysis, the Agency concluded that the soil treatment 
    standards can be reliably achieved using a variety of available soil 
    treatment technologies. The Agency concluded that the soil treatment 
    standards can be reliably achieved using: biological treatment, 
    chemical extraction, dechlorination, soil washing, stabilization and 
    thermal desorption. Of course, since soil treatment is generally matrix 
    dependent, the exact treatment technology which
    
    [[Page 28605]]
    
    might be applied to any given contaminated soil will depend on the 
    specific properties of the soil and the hazardous constituents of 
    concern. Choices about which soil treatment technology to apply should 
    be informed by appropriate use of bench and pilot scale studies and 
    good engineering judgement. EPA acknowledges that the treatment 
    efficiency necessary to achieve the soil treatment standards will 
    depend on, among other things, the initial concentrations of hazardous 
    constituents in any given volume of contaminated soil. Thus, not all 
    soil treatment technologies will be capable of treating every 
    contaminated soil to meet the standards adopted in this rule. However, 
    the Agency finds that the soil treatment standards typically can be 
    achieved by at least one of the demonstrated technologies, even in the 
    case of hard-to-treat hazardous constituents such as dioxins and 
    furans, polychlorinated biphenyls, and polynuclear aromatics.
    ---------------------------------------------------------------------------
    
        \17\ A complete discussion of the Agency's method for screening 
    the Soil Treatment Database can be found in the LDR Phase II 
    proposal (58 FR 48129--48131, September 14, 1993) and the Best 
    Demonstrated Available Technology Background Document for Hazardous 
    Soil (August 1993).
    ---------------------------------------------------------------------------
    
        Furthermore, the Agency has concluded that it is appropriate to 
    express the soil treatment standards as a treatment performance goal 
    capped by specific treatment levels. More specific standards, for 
    example, a single numerical standard for all soil, could be 
    counterproductive--less often achievable--given the varying 
    combinations of hazardous constituents and soil properties that might 
    be encountered in the field. 58 FR 48130 (September 14, 1993). An 
    express objective of this rule is to increase the range of appropriate 
    treatment alternatives available to achieve the LDR treatment standards 
    in soil to increase the likelihood that more remediations will include 
    treatment as a component of the remedy. This objective could be impeded 
    by adopting single numeric values as treatment standards, since that 
    approach would reduce needed flexibility. The resulting soil treatment 
    standards, while still technology-based, thus depart from EPA's past 
    methodology developed for process wastes in that they are not based 
    exclusively on the application of the most aggressive technology to the 
    most difficult to treat waste and are not expressed as a single numeric 
    value.
        Like any land disposal restriction treatment standard, the soil 
    treatment standards may be achieved using any treatment method except 
    treatment methods which involve impermissible dilution (e.g., addition 
    of volume without destroying, removing or immobilizing hazardous 
    constituents or transfer of hazardous constituents from soil to another 
    medium such as air). For organic constituents, the soil treatment 
    standards for volatile organic constituents are based on the 
    performance of biotreatment, chemical extraction, dechlorination, 
    thermal desorption or soil vapor extraction. The standards for 
    semivolatile organic constituents are based on the performance of 
    biotreatment, chemical extraction, dechlorination, soil washing, 
    thermal desorption, or soil vapor extraction. The standards for 
    organochlorine pesticides are based on the performance of biotreatment, 
    dechlorination, hydrolysis, or thermal desorption. The standards for 
    phenoxyacetic acid pesticides are based on the performance of 
    dechlorination. The standards for polychlorinated biphenyls are based 
    on the performance of chemical extraction, dechlorination, or thermal 
    desorption. The standards for dioxins and furans are based on the 
    performance of dechlorination or thermal desorption. EPA does not have 
    specific data in the record on treatment of organophosphorous 
    insecticides. Because they are based on a similar chemical structure, 
    these contaminants, however, are likely as difficult to treat as other 
    polar nonhalogenated organic compounds and are expected to respond to 
    treatment in a manner similar to other polar nonhalogenated phenols, 
    phenyl ethers, and cresols. Therefore, EPA believes that 
    organophosphorous insecticides can be treated using the same 
    technologies as would otherwise be used to treat polar nonhalogenated 
    organics, i.e., biotreatment, chemical extraction, or thermal 
    desorption. For all organic constituents the soil treatment standards 
    are also achievable using combustion. EPA notes also that a number of 
    judicial opinions have upheld EPA's extrapolation of achievability 
    results for technology-based treatment standards based on chemical 
    structure and activity similarity, as has been used here. See, e.g., 
    Chemical Manufacturers Ass'n v. EPA, 870 F. 2d 177, 248 (5th Cir. 1989) 
    and National Ass'n of Metal Finishers v. EPA, 719 F. 2d 624, 659 (3d 
    Cir. 1983). For metals, the soil treatment standards are based on the 
    performance of stabilization, and for mercury, chemical extraction. 
    Achievability of the soil treatment standards is discussed, in detail, 
    in section VII.B.8 of today's preamble.
        a. Measuring Compliance With the Soil Treatment Standards For 
    hazardous constituents which have a treatment standard measured by 
    total waste analysis (i.e. standards for organic constituents and for 
    cyanide), compliance with the 90% reduction standard should generally 
    be measured using total constituent concentrations. For hazardous 
    constituents which have a treatment standard measured based on 
    concentrations in a TCLP extract (i.e., standards for metals and for 
    carbon disulfide, cyclohexanone and methanol), compliance with the 90% 
    reduction standard should generally be measured in leachate using the 
    toxicity characteristic leaching procedure. The exceptions to these 
    rules would be, for example, if soils contaminated with metal 
    constituents were treated using a technology which removed or 
    destroyed, rather than stabilized, metals. In an example like this, 
    compliance with the 90% reduction standards should generally be 
    measured using total constituent concentrations.
        EPA takes this opportunity to clarify that when establishing the 
    concentrations of hazardous constituents in any given volume of 
    contaminated soil from which the 90% reduction will be measured, normal 
    soil characterization techniques and procedures for representative 
    sampling should be used. For example, it is not necessary to measure 
    the 90% reduction from the soil sample with the lowest concentrations 
    of hazardous constituents. EPA will publish additional guidance on 
    establishing and validating 90% reduction levels for contaminated soil 
    in the near future.
        Today's rule does not change existing policies or guidance on soil 
    sampling or site characterization. Although soil is often characterized 
    using composite sampling, EPA notes that, consistent with the way the 
    Agency measures compliance with other LDR treatment standards, 
    compliance with the soil treatment standards will be measured and 
    enforced using grab samples. This is appropriate because well-designed 
    and well-operated treatment systems should ensure that soil is 
    uniformly treated.
        b. Major Comments A number of commenters expressed concern about 
    the achievability of the soil treatment standards and/or the 
    methodology EPA used to develop the soil treatment standards. These 
    concerns are discussed in Section VII.B.8 of today's preamble and in 
    the response to comments document, available in the docket for today's 
    rulemaking.
    2. The Soil Treatment Standards Satisfy RCRA Section 3004(m) 
    Requirements
        The technology-based ``90% capped by 10 X UTS'' treatment standard 
    for contaminated soil is sufficiently stringent to satisfy the core 
    requirement of RCRA Section 3004(m) that short-term and long-term 
    threats to human health and the environment posed by
    
    [[Page 28606]]
    
    land disposal are minimized. Technology-based standards provide an 
    objective measure of assurance that hazardous wastes are substantially 
    treated before they are land disposed, thus eliminating the ``long-term 
    uncertainties associated with land disposal.'' Eliminating these 
    uncertainties was a chief Congressional objective in prohibiting land 
    disposal of untreated hazardous wastes. Hazardous Waste Treatment 
    Council v. EPA, 886 F.2d at 361-64. In addition, the extent of 
    treatment required, 90 % reduction capped at treatment to 
    concentrations within an order of magnitude of the UTS, 
    ``substantially'' reduces mobility or total concentrations of hazardous 
    constituents within the meaning of RCRA Section 3004(m)(1).
        EPA has made two changes from proposal which strengthen the soil 
    treatment standards to assure that they minimize threats to human 
    health and the environment. First, the Agency has modified its approach 
    to which hazardous constituents will be subject to treatment. In 
    today's rule, when the soil treatment standards are used, EPA requires 
    treatment for all hazardous constituents reasonably expected to be 
    present in contaminated soil when such constituents are initially found 
    at concentrations greater than ten times the universal treatment 
    standard. This treatment is required both for soil contaminated by 
    listed hazardous waste and soil that exhibits (or exhibited) a 
    characteristic of hazardous waste. Constituents subject to treatment 
    are discussed further in Section VII.B.4 of today's preamble.
        To further ensure that contaminated soil treated to comply with the 
    soil treatment standards is safely managed, EPA has included additional 
    restrictions on the use of treated contaminated soil in hazardous 
    waste-derived products that are used in a manner constituting disposal 
    (i.e., when such products will be placed on the land). The restrictions 
    on use of treated contaminated soil in hazardous waste-derived products 
    that are used in a manner constituting disposal are discussed in 
    Section VII.B.5 of today's preamble.
        Finally, the Agency reiterates that, in the remediation context, in 
    assessing whether threats posed by land disposal have been minimized, 
    one should appropriately consider the risks posed by leaving previously 
    land disposed waste in place as well as the risks posed by land 
    disposal of waste after it is removed and treated. 62 FR at 64506 
    (December 5, 1997). For example, if a treatment standard for organic 
    constituents based on performance of incineration typically results in 
    already land disposed materials such as contaminated soils being capped 
    in place rather than more aggressively remediated, threats posed by 
    land disposal of the waste ordinarily would not be minimized. 
    Conversely, a treatment standard that results in substantial treatment 
    followed by secure land disposal can be said to minimize threats, 
    taking into account the totality of threats posed (i.e. including those 
    posed if the soil were left in place untreated). Id. The soil treatment 
    standards will ordinarily ensure that contaminated soil is 
    appropriately treated within the meaning of RCRA Section 3004(m), 
    considering both the threats posed by new land disposal of treated soil 
    and the threats posed by on-going land disposal of existing 
    contaminated soil (e.g., if the soil were left in place untreated).
        EPA recognizes that some people may be concerned that a situation 
    may arise where the soil treatment standards are at levels that are 
    higher than those that EPA or an authorized state believes should be 
    required for soil cleanup under a cleanup program. The Agency 
    acknowledges that this may occur. The soil treatment standards, like 
    other land disposal restriction treatment standards, are based on the 
    performance of specific treatment technologies. As discussed earlier in 
    today's preamble, technology-based standards have been upheld as a 
    permissible means of implementing RCRA Section 3004(m). Most soil 
    cleanup levels are based not on the performance of specific treatment 
    technologies but on an analysis of risk. For this reason, technology-
    based treatment standards will sometimes over-and sometimes under-
    estimate the amount of treatment necessary to achieve site-specific, 
    risk-based goals.
        The purpose of the land disposal restriction treatment standards is 
    to ensure that prohibited hazardous wastes are properly pre-treated 
    before disposal (i.e., treated so that short- and long-term threats to 
    human health and the environment posed by land disposal are minimized). 
    As discussed above, the Agency believes the soil treatment standards 
    promulgated today fulfill that mandate for soil that contains 
    prohibited listed hazardous waste or exhibits a characteristic of 
    prohibited hazardous waste. However, technology-based treatment 
    standards are not necessarily appropriate surrogates for site-specific 
    risk-based cleanup levels. In a circumstance where the soil treatment 
    standards result in constituent concentrations that are higher than 
    those determined, on a site-specific basis, to be required for soil 
    cleanup, existing remedial programs such as RCRA Corrective Action, 
    CERCLA and state cleanup programs could be applied to ensure that 
    remedies are adequately protective. These programs already ensure 
    protection of human health and the environment when managing most 
    contaminated soils--i.e., soils that are not subject to the LDRs--and 
    other remediation wastes. Furthermore, as discussed later in today's 
    rule, treated contaminated soil would remain subject to regulation 
    under RCRA Subtitle C unless and until EPA or an authorized state made 
    an affirmative decision that the soil did not contain hazardous waste 
    or, in the case of characteristic soil, no longer exhibited a hazardous 
    characteristic.
    3. Variance From the Soil Treatment Standards at Risk-Based Levels
        EPA has long indicated that its preference would be to establish a 
    complete set of risk-based land disposal treatment standards at levels 
    that minimize short- and long-term threats to human health and the 
    environment. See, for example, 55 FR at 6641 (Feb. 26, 1990). However, 
    the difficulties involved in establishing risk-based standards on a 
    nationwide basis are formidable due in large part to the wide variety 
    of site-specific physical and chemical compositions encountered in the 
    field and the uncertainties involved in evaluating long-term threats 
    posed by land disposal. Id.; 60 FR 66380--66081 (Dec. 21, 1995). For 
    these reasons the Agency has chosen to establish land disposal 
    restriction treatment standards based on the performance of specific 
    treatment technologies. Although technology-based treatment standards 
    are permissible, they may not be established at levels more stringent 
    than those necessary to minimize short and long-term threats to human 
    health and the environment. Hazardous Waste Treatment Council, 886 F. 
    2d at 362 (land disposal restriction treatment standards may not be 
    established, ``beyond the point at which there is not a ``threat'' to 
    human health or the environment'').
        While using risk-based approaches to determine when threats are 
    minimized on a national basis has proven extremely difficult, these 
    difficulties will diminish when evaluating risks posed by a specific 
    contaminated soil in a particular remediation setting since, during 
    remediation, one typically has detailed site-specific information on 
    constituents of concern, potential human and environmental receptors, 
    and potential routes of exposure. For this reason, EPA is establishing 
    a site-specific variance from the technology-based soil treatment 
    standards, which
    
    [[Page 28607]]
    
    can be used when treatment to concentrations of hazardous constituents 
    greater (i.e., higher) than those specified in the soil treatment 
    standards minimizes short- and long-term threats to human health and 
    the environment. In this way, on a case-by-case basis, risk-based LDR 
    treatment standards approved through a variance process could supersede 
    the technology-based soil treatment standards. This approach was first 
    discussed in the September 14, 1993 proposal, where EPA proposed that 
    determinations that contaminated soil did not or no longer contained 
    hazardous waste could supersede LDR treatment standards, if the 
    ``contained-in'' level also constituted a ``minimized threat'' level. 
    It was repeated in the April 29, 1996 proposal where the Agency 
    proposed that, in certain circumstances, variances from land disposal 
    restriction treatment standards could be approved in situations where 
    concentrations higher than the treatment standards minimized 
    threats.\18\ 58 FR at 48128 (September 14, 1993) and 61 FR at 18811 and 
    18812 (April 29, 1996).
    ---------------------------------------------------------------------------
    
        \18\ In the April 29, 1996 proposal, the Agency proposed to 
    limit variances based on a site-specific minimize threat 
    determination to contaminated soils where all concentrations of 
    hazardous constituents were below a ``bright line,'' that is, below 
    a certain risk level. The Agency also requested comment on extending 
    site-specific minimize threat variances to other contaminated soils. 
    Based on further consideration and consideration of comments, the 
    Agency is persuaded that a site-specific minimize threat variance 
    should be available to all contaminated soils. The Agency believes 
    this is proper because the outcome of a site-specific, risk-based 
    minimize threat variance--alternative, site-specific LDR treatment 
    standards based on risk--will be the same regardless of the initial 
    concentrations of hazardous constituents. In any case, the Agency is 
    not, at this time, taking action on the portion of the April 29, 
    1996 proposal that would have established a ``bright line'' to 
    distinguish between higher- and lower-risk media. If, in the future, 
    the Agency takes action to establish a bright line, it will address 
    the relationship of a bright line to site-specific minimize threat 
    variances.
    ---------------------------------------------------------------------------
    
        At this time, EPA is allowing the risk-based variances only for 
    contaminated soils. The Agency believes this limitation is appropriate 
    for a number of reasons. First, contaminated soils are most often 
    generated during agency overseen cleanups, such as CERCLA cleanups, 
    RCRA corrective actions or state overseen cleanups. This type of 
    involvement in cleanups positions EPA and authorized states to 
    appropriately consider site-specific, risk-based issues. Second, during 
    remediation, experts and field personnel typically gather detailed 
    site-specific information on risks posed by specific hazardous 
    constituents or combinations of hazardous constituents, potential 
    direct and indirect exposure routes, risk pathways and human and 
    environmental receptors. Through application of this information, 
    overseeing agencies can eliminate many of the long-term uncertainties 
    associated with land disposal and, therefore, make appropriate risk-
    based decisions regarding the extent of treatment needed to minimize 
    short- and long-term threats to human health and the environment from 
    any given hazardous constituent or combination of hazardous 
    constituents. EPA and state officials already routinely make these 
    types of decisions when developing site-specific, risk-based cleanup 
    levels and when making decisions about whether any given contaminated 
    medium contains hazardous waste.19 After experience 
    implementing the site-specific minimize threat variance for 
    contaminated soil, the Agency may consider extending it to other 
    environmental media and remediation wastes.
    ---------------------------------------------------------------------------
    
        \19\ While not forbidden, the Agency believes that site-
    specific, risk-based minimize threat determinations will rarely be 
    made in the context of an independent or voluntary cleanup action, 
    since, in these types of actions, an overseeing Agency will not, 
    typically, have been involved in the identification exposure 
    pathways and receptors of concern or the calculation of site-
    specific, risk-based cleanup levels. Of course, generators could 
    apply for a site-specific, risk-based minimize threat variance 
    during an independent or voluntary cleanup and, provided EPA or an 
    authorized state agreed that the proposed alternative treatment 
    standards minimized threats considering appropriate exposure 
    pathways and receptors, a variance could be approved.
    ---------------------------------------------------------------------------
    
        Some commenters expressed concern that allowing site-specific, 
    risk-based minimize threat determinations would abrogate the Agency's 
    responsibilities under RCRA Section 3004(m). The Agency strongly 
    disagrees. RCRA Section 3004(m) requires EPA to establish ``levels or 
    methods of treatment, if any. * * *.'' In the case of contaminated 
    soil, EPA is establishing those levels today based on the performance 
    of available, appropriate soil treatment technologies. Providing a 
    variance process to modify a level or method of treatment on a case-by-
    case basis reduces the likelihood that in any particular situation 
    technology-based treatment standards will result in treatment beyond 
    the point at which threats are minimized. The Agency is requiring that 
    minimize threat variance determinations for contaminated soils be 
    evaluated using the existing site-specific variance process set out in 
    40 CFR 268.44(h). EPA recently added language to this provision to 
    clarify that variances cannot be approved without opportunity for 
    public participation, including notice by appropriate means, 
    opportunity for public comment and adequate explanation of an ultimate 
    determination. 62 FR at 64507 (Dec. 5, 1997).
        While not required, EPA anticipates that decisions about site-
    specific minimize threat decisions variances will often be combined 
    with decisions that soil no longer contains hazardous waste. As 
    discussed later in today's preamble, Agency guidance on ``contained-
    in'' determinations is essentially the same as the requirements for 
    site-specific, risk-based minimize threat determinations promulgated 
    today. For that reason, EPA believes it will always be appropriate to 
    combine a contained-in determination with a site-specific, risk-based 
    minimize threat variance. In these cases, EPA encourages program 
    implementors and facility owners/operators to include information about 
    the ``contained-in'' decision in the public notice of the site-specific 
    minimize threat variance. In cases where a site-specific minimize 
    threat variance is combined with a decision that a soil no longer 
    contains hazardous waste, once treated to comply with the treatment 
    standard imposed by the variance, the soil would no longer have any 
    obligations under RCRA Subtitle C and could be managed--including land 
    disposed--without further control under RCRA Subtitle C. The contained-
    in policy is discussed in more detail in Section VII.B.8 and Section 
    VII.E of today's preamble.
        EPA reminds program implementors that, consistent with the rest of 
    the land disposal restriction program, site-specific determinations 
    that threats are minimized cannot be based on the potential safety of 
    land disposal units, or engineered structures such as liners, caps, 
    slurry walls or any other practice occurring after land disposal. 
    American Petroleum Inst. v. EPA, 906 F.2d 729, 735-36 (D.C. Cir. 1990) 
    (land treatment cannot be considered in determining whether threats 
    posed by land disposal have been minimized because land treatment is a 
    type of land disposal and section 3004(m) requires that threats be 
    minimized before land disposal occurs); see also S. Rep. No. 284, 98th 
    Cong. 1st sess. at 15, stating that engineered barriers cannot be 
    considered in assessing no-migration variances because ``[a]rtificial 
    barriers do not provide the assurances necessary to meet the 
    standard.'' This means that site-specific minimize threat 
    determinations must be based on the inherent threats any given 
    contaminated soil would pose. The Agency recognizes that this will have 
    the effect of precluding site-specific minimize threat variances for 
    remedies that rely, even in part, on capping, containment or other 
    physical or institutional controls. In
    
    [[Page 28608]]
    
    addition to being compelled by the statute, the Agency believes this 
    approach is proper, in that it may encourage remedy choices that rely 
    more predominantly on treatment to permanently and significantly reduce 
    the concentrations (or mobility) of hazardous constituents in 
    contaminated soil. The Agency has a strong and longstanding preference 
    for these types of more permanent remedial approaches.
        In addition, at a minimum, alternative land disposal restriction 
    treatment standards established through site specific, risk-based 
    minimize threat variances should be within the range of values the 
    Agency generally finds acceptable for risk-based cleanup levels. That 
    is, for carcinogens, alternative treatment standards should ensure 
    constituent concentrations that result in the total excess risk from 
    any medium to an individual exposed over a lifetime generally falling 
    within a range from 10-4 to 10-6, using 
    10-6 as a point of departure and with a preference, all 
    things being equal, for achieving the more protective end of the risk 
    range. For non-carcinogenic effects, alternative treatment standards 
    should ensure constituent concentrations that an individual could be 
    exposed to on a daily basis without appreciable risk of deleterious 
    effect during a lifetime; in general, the hazard index should not 
    exceed one (1). Constituent concentrations that achieve these levels 
    should be calculated based on a reasonable maximum exposure scenario--
    that is, based on an analysis of both the current and reasonably 
    expected future land uses, with exposure parameters chosen based on a 
    reasonable assessment of the maximum exposure that might occur. The 
    Agency believes these represent an appropriate range of minimum values 
    for site-specific, risk-based minimize threat determinations because 
    sites cleaned up to these levels are typically released from regulatory 
    control under the Federal CERCLA program and the RCRA corrective action 
    program. See, for example, the National Contingency Plan (55 FR 8666, 
    March 8, 1990) the 1990 RCRA Corrective Action Subpart S Proposal (55 
    FR 30798, July 27, 1990), and the 1996 RCRA Corrective Action Subpart S 
    ANPR (61 FR 19432, May 1, 1996). In addition to achieving protection of 
    human health, alternative treatment standards must ensure that 
    environmental receptors are protected and must also ensure that no 
    unacceptable transfer of contamination from one medium to another, for 
    example, from soil to ground water, will occur.\20\ Protection of 
    environmental receptors and against cross-media contamination may, in 
    some cases, require more stringent (i.e., lower) alternative treatment 
    standards than would be necessary to protect human health alone. The 
    Agency recognizes that this approach is different from the approach 
    used in developing national risk-based minimize threat levels proposed 
    in the Hazardous Waste Identification Rule (HWIR-Waste). 60 FR 66344 
    (December 21, 1995). This difference is proper, in that the HWIR-Waste 
    proposal contemplated nationally-applicable risk-based LDR treatment 
    standards and, therefore, had to consider the myriad of potential 
    exposure pathways and receptors which might occur at any given site, 
    nation wide. A site-specific minimize threat determination is informed 
    by actual and reasonable potential exposure pathways and receptors at a 
    specific land disposal location.
    ---------------------------------------------------------------------------
    
        \20\ Unacceptable cross-media transfer would include, for 
    example, transfer of contaminants from soil to air in excess of 
    applicable air emission standards.
    ---------------------------------------------------------------------------
    
        Although not expressly limited to land disposal of contaminated 
    soil on-site, EPA anticipates that site-specific minimize threat 
    variances will, most often, be applied to these activities. The basis 
    for developing an alternative land disposal restriction treatment 
    standard during the site-specific minimize threat variance is 
    application of risk information about specific exposure pathways and 
    receptors of concern. To apply such a variance to off-site land 
    disposal, the treatment standard would have to be informed by the 
    exposure pathways and receptors present at the off-site land disposal 
    areas (assuming no physical or engineered structures or other post-
    land-disposal controls). While such an analysis is allowed, this 
    information is not, to the Agency's knowledge, routinely gathered 
    during site remediation.
        Most commenters supported the concept of using a treatment variance 
    to reduce the likelihood that, in any particular case, technology-based 
    soil treatment standards might prompt treatment beyond the point at 
    which threats to human health and the environment are minimized.
        One commenter was concerned that establishing a risk-based minimize 
    threat variance without adequate minimum standards would be contrary to 
    law and impossible to oversee. EPA was, in part, persuaded by these 
    comments and has added a requirement that, at a minimum, alternative 
    LDR treatment standards approved through a site-specific minimize 
    threat variance be within the range of acceptable values the Agency 
    typically uses for cleanup decisions, as discussed above. In addition, 
    as discussed above, the Agency has clarified that, unlike some CERCLA 
    or RCRA corrective action remedies, site-specific minimize threat 
    variances may not rely on post-land disposal controls.
    4. Constituents Subject to Treatment
        For soil contaminated by listed hazardous waste, EPA proposed that 
    treatment would be required for each hazardous constituent originating 
    from the contaminating waste. For soil which exhibits (or exhibited) a 
    characteristic of hazardous waste, EPA proposed that treatment would be 
    required: (1) in the case of TC soil, for the characteristic 
    contaminant; (2) in the case of ignitable, reactive or corrosive soil, 
    for the characteristic property; and, (3) in both cases, for all 
    underlying hazardous constituents. 61 FR at 18809 (April 29, 1996). 
    Under the 1996 proposal, treatment would have been required only when 
    those constituents were initially present at concentrations greater 
    than ten times the universal treatment standard. EPA also requested 
    comment on, among other things, whether, for soil contaminated by 
    listed hazardous waste, treatment should be required for all underlying 
    hazardous constituents present at concentrations above ten times the 
    UTS. Underlying hazardous constituent is defined in 40 CFR 268.2(i) as, 
    ``any constituent listed in 40 CFR 268.48 table UTS, except fluoride, 
    sulfides, vanadium, selenium, and zinc, which can reasonably be 
    expected to be present at the point of generation of the hazardous 
    waste, at a concentration above the constituent-specific UTS treatment 
    standards.''
        Many commenters supported the proposed approach. Some commenters, 
    however, expressed concern that, because contaminated soil often 
    contains numerous hazardous constituents from a variety of sources, 
    limiting treatment of soil contaminated by listed hazardous waste to 
    constituents originating from the contaminating waste might result in 
    soil contaminated with listed waste undergoing less treatment than soil 
    which exhibits (or exhibited) a characteristic of hazardous waste. One 
    commenter also asserted that the proposed approach to constituents 
    subject to treatment was, in the case of soil contaminated by listed 
    hazardous waste, inconsistent with the Chemical Waste opinion. On 
    further consideration, EPA was persuaded that it is prudent to apply 
    the logic of the
    
    [[Page 28609]]
    
    Chemical Waste opinion both to soil contaminated by listed hazardous 
    waste and to soils which exhibit a characteristic of hazardous waste.
        As the Agency explained in the 1996 proposal, contaminated soils 
    are potentially contaminated with a wider range of hazardous 
    constituents than most pure hazardous wastes generated by on-going 
    industrial processes--in no small part because contaminated soils 
    generally reflect uncontrolled disposal settings. 58 FR at 48124 
    (September 14, 1993). Since the Chemical Waste opinion addressed a 
    similar situation (certain characteristic hazardous wastes that might 
    contain a variety of hazardous constituents), the Agency is persuaded 
    that it is prudent to apply the logic of the Chemical Waste opinion to 
    contaminated soil and require treatment of all underlying hazardous 
    constituents. See Chemical Waste Management v. US EPA, 976 F.2d at 16-
    18 (D.C. Cir 1992). Therefore, when the soil treatment standards are 
    used, today's final rule requires that all contaminated soil subject to 
    the LDRs be treated to achieve the soil treatment standards for each 
    underlying hazardous constituent reasonably expected to be present in 
    the soil when such constituents are initially found at concentrations 
    greater than ten times the universal treatment standard. In addition to 
    treatment of all underlying hazardous constituents as discussed above, 
    as proposed, characteristic soil must also be treated, in the case of 
    TC soil, for the TC constituent and, in the case of ignitable, 
    corrosive, or reactive soil, for the characteristic property.
        Although, when the soil treatment standards are used, treatment is 
    now required for each underlying hazardous constituent when such 
    constituents are initially found at concentrations greater than ten 
    times the universal treatment standard, it will not be necessary to 
    monitor soil for the entire list of underlying hazardous constituents. 
    Generators of contaminated soil can reasonably apply knowledge of the 
    likely contaminants present and use that knowledge to select 
    appropriate underlying hazardous constituents, or classes of 
    constituents, for monitoring. This is consistent with the approaches 
    EPA typically takes in remedial programs, where it emphasizes that 
    remediation managers should focus investigations on constituents of 
    concern and with regulations that allow generators to rely on knowledge 
    to determine whether any given solid waste is hazardous. Cf. 61 FR at 
    19444 where EPA encouraged remediation managers to ``tailor [facility 
    investigations] to the specific conditions and circumstances at the 
    facility and focus on the units, releases, and exposure pathways of 
    concern.''
        For nonanalyzable constituents, EPA is promulgating the approach 
    discussed in both the September 14, 1993 and the April 29, 1996 
    proposals. In situations where contaminated soil contains both 
    analyzable and nonanalyzable organic constituents, treating the 
    analyzable constituents to meet the soil treatment standards is also 
    reasonably expected to provide adequate treatment of the nonanalyzable 
    constituents. In situations where contaminated soil contains only 
    nonanalyzable constituents (i.e., soil contaminated only by 
    nonanalyzable U or P listed wastes), treatment using the specified 
    method for the appropriate U or P listed waste is required. 61 FR at 
    18810, April 29, 1996. Most commenters supported this approach.
    5. Relationship of Soil Treatment Standards to Naturally Occurring 
    Constituents
        In the April 29, 1996 proposal EPA requested comment on whether 
    concentrations of naturally occurring constituents should be evaluated 
    when identifying constituents subject to treatment. Commenters who 
    addressed this issue overwhelmingly recommended that, for naturally 
    occurring constituents, EPA cap LDR treatment requirements for soil at 
    natural background concentrations. After considering these comments, 
    EPA was persuaded that treatment to comply with LDRs should not be 
    required if constituent concentrations fall below naturally occurring 
    background concentrations, provided the soil will continue to be 
    managed on site or in an area with similar natural background 
    concentrations. If soil will be sent for land disposal off-site, 
    compliance with LDRs is required, since the Agency believes that 
    natural background concentrations on-site will not automatically 
    correspond to natural background concentrations at a remote land 
    disposal facility.
        The Agency notes that, for purposes of this discussion, natural 
    background concentrations are constituent concentrations that are 
    present in soil which has not been influenced by human activities or 
    releases. Since these constituent concentrations are present absent 
    human influence and EPA has determined that soil (like other 
    environmental media) is not, of itself, a waste but may be regulated as 
    hazardous waste under RCRA only when it contains (or contained) waste, 
    EPA is not convinced the Agency would have the authority to require 
    compliance with LDRs when constituent concentrations fall below 
    background concentrations even if it felt compelled to do so. (Of 
    course, such constituents could be regulated as hazardous constituents 
    under state and Federal cleanup authorities, including RCRA corrective 
    action and other authorities.)
        Since natural background concentrations may vary across geographic 
    areas, and to ensure that LDRs will only be capped at background where 
    appropriate, EPA will require that individuals who wish to cap LDR 
    treatment at natural background concentrations apply for and receive a 
    treatment variance. EPA will presume that when LDRs would require 
    treatment to concentrations that are less than natural background, such 
    a variance will be appropriate, based on the finding that it is 
    inappropriate, for contaminated soil, to require treatment to 
    concentrations less than natural background concentrations. This issue 
    has been clarified in today's final regulations, see 40 CFR 
    268.44(h)(4).
    6. Restrictions on Use of Treated Hazardous Contaminated Soil in 
    Products Used in a Manner Constituting Disposal
        Although, as discussed earlier in today's preamble, EPA believes 
    the soil treatment standards satisfy the requirements of RCRA Section 
    3004(m), EPA has determined that additional restrictions are necessary 
    for hazardous contaminated soils that are used to produce products 
    which are, subsequently, used in a manner constituting disposal (i.e., 
    used to produce products which are placed in or on the land). Under 
    current regulations, hazardous waste-derived products that are used in 
    a manner constituting disposal must, among other things, comply with 
    the applicable land disposal restriction treatment standards in 40 CFR 
    part 268.40, that is, the Universal Treatment Standards. See 40 CFR 
    266.23(a). EPA has concluded that hazardous contaminated soil used to 
    produce products which are, subsequently, used in a manner constituting 
    disposal must continue to meet the universal treatment standards. Such 
    products, then, are not eligible for the soil treatment standards 
    promulgated today. EPA has made this decision for several reasons. 
    First, EPA has chosen technology-based treatment standards (such as 
    today's soil treatment standards) as a means of implementing the LDR 
    statutory requirements in order to eliminate as many of the 
    uncertainties associated with land disposal of hazardous waste as 
    possible.
    
    [[Page 28610]]
    
    55 FR at 6642 (Feb. 26, 1990). These uncertainties increase sharply 
    when one considers possible dispositions of hazardous waste-derived 
    products used in a manner constituting disposal. These products can be 
    placed virtually anywhere, compounding potential release mechanisms, 
    exposure pathways, and human and environmental receptors. 62 FR at 
    64506 (Dec. 5, 1997) and 53 FR at 31197-98 (August 17, 1988). For these 
    reasons, the Agency in 1988 determined that these wastes should be 
    treated to reflect the best treatment available, 53 FR at 31197-98, and 
    the Agency believes this reasoning continues to hold with respect to 
    contaminated soils. Second, EPA has determined that the soil treatment 
    standards adopted in today's rule are justified, in many instances, in 
    order to encourage remediation involving treatment over remedies that 
    involve leaving un-treated contaminated soils in place. The Agency is 
    less sure that this is a desirable incentive if the contaminated soils 
    are to be used in a manner constituting disposal, again because of the 
    uncertainties posed by this method of land disposal.
        Note that EPA has explained, however, that remediation activities 
    involving replacement of treated soils onto the land is not a type of 
    use constituting disposal, in part, because it is a supervised 
    remediation instead of an unsupervised recycling activity. 62 FR 26063 
    (May 12, 1997). This interpretation is not affected by today's 
    rulemaking.
    7. Availability of Soil Treatment Standards
        EPA proposed that soil-specific land disposal restriction treatment 
    standards would be available only for contaminated soils managed under 
    an agency approved, site-specific cleanup plan termed a Remediation 
    Management Plan or ``RMP.'' The Agency also specifically requested 
    comment on whether soil-specific treatment standards should be made 
    available to all contaminated soil. 61 FR at 18813 (April 29, 1996). 
    The majority of commenters who addressed this issue strongly supported 
    extending the soil treatment standards to all contaminated soil. These 
    commenters argued that extending soil-specific LDRs to all contaminated 
    soil would encourage voluntary and independent cleanups, especially at 
    low and medium priority sites where a regulatory agency might not have 
    the resources to provide real-time oversight through a ``RMP.'' After 
    considering these comments, EPA is persuaded that the soil treatment 
    standards should be available for all contaminated soil and has revised 
    the regulations accordingly.
        EPA's thinking in proposing to require a site-specific remediation 
    management plan to take advantage of the soil treatment standards was 
    that site-specific oversight, and potentially modification of the 
    treatment standards, would be necessary to ensure that all contaminated 
    soils were appropriately treated. 61 FR at 18807 (April 29, 1996). 
    However, EPA now concludes that the soil treatment standards will 
    ensure adequate treatment of all contaminated soils for two reasons.
        First and primarily, the residuals from treatment of hazardous 
    contaminated soil will typically continue to be regulated as hazardous 
    waste and will remain subject to applicable RCRA Subtitle C 
    requirements. 61 FR at 18810 (April 29, 1996). Non-soil residuals, such 
    as wastes generated during application of separation technologies, will 
    be regulated as hazardous wastes if they exhibit a characteristic of 
    hazardous waste or if they derive from treating a soil which contains 
    listed hazardous waste. Therefore, these types of non-soil residuals 
    will typically be subject to the universal treatment standards in 40 
    CFR 268.40. See 57 FR at 37240 (Aug. 18, 1992) where EPA took the same 
    approach for residues from treating contaminated debris. Soil residuals 
    will also be regulated as hazardous waste unless it is determined that 
    the soil does not contain hazardous waste.21 For example, 
    application of a thermal desorption technology would likely generate 
    two types of residuals: treated soil (soil residual) and concentrated 
    contaminants removed from the soil and captured in an air pollution 
    control device (non-soil residual). If the contaminated soil contained 
    a listed hazardous waste or exhibited a characteristic of hazardous 
    waste at the time of treatment, both residuals would continue to be 
    subject to RCRA Subtitle C regulations. The non-soil residual would be 
    required to comply with applicable universal treatment standards prior 
    to land disposal; the soil residual would generally require land 
    disposal in a Subtitle C unit unless a ``contained-in'' determination 
    was made. Therefore, although a remediation management plan is no 
    longer required to take advantage of the soil treatment standards, a 
    site-specific decision is still required before treated contaminated 
    soil can exit the system of RCRA regulations.
    ---------------------------------------------------------------------------
    
        \21\ The exception would be soil residuals from treatment of 
    soils which were determined no longer to contain a listed hazardous 
    waste or were decharacterized and yet remained subject to LDRs. In 
    this case, since the treatment would be performed on non-hazardous 
    soil, the soil residuals would also be considered non-hazardous.
    ---------------------------------------------------------------------------
    
        Second, as noted earlier, EPA has extended the treatment 
    requirement to all underlying hazardous constituents reasonably 
    expected to be present in contaminated soils when such constituents are 
    found at initial concentrations greater than ten times the universal 
    treatment standard and retained current treatment requirements for 
    hazardous contaminated soils used to produce products that are 
    subsequently used in a manner constituting disposal.
    8. Achievability of Contaminated Soil Treatment Standards
        The soil treatment standards promulgated today are based primarily 
    on the data for soil treatability found in EPA's Soil Treatment 
    Database (SDB). See, Best Demonstrated Available Treatment Background 
    Document for Hazardous Soils, August 1993 and LDR Phase 2 proposal at 
    58 FR 48122, Sept. 14, 1993. Data from the soil treatment database are 
    corroborated by more recent performance data for non-combustion 
    treatment of remediation wastes. See Soil Treatability Analysis: 
    Analysis of Treatability Data for Contaminated Soil Treatment 
    Technologies (April 1998, USEPA) and references cited in note 5 below.
        The soil treatment data base contains 6,394 pairs of data points 
    (for the same sample, one datum for untreated soil and one datum for 
    treated soil) describing the treatment of hazardous constituents in 
    contaminated soils managed under the RCRA and the Superfund programs. 
    After screening the database to eliminate data from tests reflecting 
    poorly designed or operated treatment, tests where EPA believes 
    inappropriate technologies were applied (for example, data from 
    immobilization of organic constituents) and other inappropriate data, 
    the Agency was left with 2,541 pairs of data points. These data pairs 
    depict treatment of ninety-four hazardous constituents, including 
    eighty-five organic constituents and nine BDAT list metals. The 
    retained 2,541 pairs of data points from the soil treatment database 
    represent the treatment of organic and metal constituents by various 
    technologies including: combustion, biological treatment, chemical/
    solvent extraction, dechlorination, thermal desorption, air/steam 
    extraction, photolysis, soil washing, stabilization, and vitrification. 
    The soil treatment database includes performance data from bench, 
    pilot, and full scale technologies. A complete discussion of the 
    Agency's method for
    
    [[Page 28611]]
    
    screening the Soil Treatment Database can be found in the LDR Phase II 
    proposal (58 FR 48129-31, September 14, 1993) and the Best Demonstrated 
    Available Technology Background Document for Hazardous Soil (August 
    1993).
        A number of commenters were concerned that aggregated data, i.e., 
    the 2,541 pairs of data points representing the combined performance of 
    combustion and non-combustion technologies, may mask the performance of 
    non-combustion technologies alone. Commenters urged EPA to disaggregate 
    these performance data to allow for more accurate analysis of non-
    combustion technology performance. As a result, EPA has disaggregated 
    the combustion and non-combustion treatment data for purposes of 
    analyzing the achievability of today's soil treatment standards. See 
    generally, Soil Data Analysis: Soil Treatability Analysis of 
    Treatability Data for Contaminated Soil Treatment Technologies (April 
    1998, USEPA) and Additional Information on Treatability of Contaminated 
    Soils as Discussed in Section VII.B.8. of Phase IV Final Rule Preamble 
    (April 1998, USEPA).
        After separating out combustion data, the remaining non-combustion 
    soil treatment data base is reduced from 2,541 to 2,143 paired data 
    points. These 2,143 22 data pairs depict the treatment of 72 
    organics 23 and nine metals in contaminated by biological 
    treatment, chemical and solvent extraction, dechlorination, thermal 
    desorption, air and steam stripping, hydrolysis, photolysis, soil 
    washing, and stabilization.
    ---------------------------------------------------------------------------
    
        \22\ One single datum from the vitrification of p,p'DDT was not 
    included since it appears to have resulted from treatment that was 
    not optimally designed or conducted.
        \23\ Out of 85 organic constituents, only 13 were treated 
    exclusively by combustion. See, however, the discussion later in 
    this preamble with regard to presence of data from incineration and 
    extrapolation of data among organic constituents.
    ---------------------------------------------------------------------------
    
        As discussed earlier in today's preamble, EPA did not use the 
    traditional BDAT approach to develop the soil treatment standards. 
    Instead, the Agency evaluated data from the 2,143 non-combustion data 
    pairs in the soil treatment database to identify, generally, the level 
    of performance non-combustion soil treatment technologies achieve. In 
    light of our multi-faceted objectives regarding remediation of 
    contaminated soils (discussed earlier in this preamble), this approach 
    and methodology are appropriate. As noted earlier in today's preamble, 
    the numerical values chosen for soil treatment standards--90% reduction 
    capped at ten times the UTS--are within the zone of reasonable values 
    from which the Agency can properly select.
        For soil contaminated with organic constituents, the retained 2,143 
    data pairs from the soil treatment database show generally that soils 
    with moderate levels of contamination are more amenable to treatment by 
    non-combustion technologies than soils with high levels of 
    contamination. However, the data also show that the soil treatment 
    standards promulgated today can be achieved by non-combustion 
    technologies even in cases when soils contain elevated levels of 
    harder-to-treat organic hazardous constituents, such as dioxins and 
    furans, polychlorinated biphenyls (PCBs), and polynuclear aromatics 
    (PNAs). The available data on the performance of non-combustion 
    technologies suggest that some technologies are more effective with 
    certain organics within specific families or chemical functional 
    groups. For example, while many organic treatment technologies were 
    effective in removing volatile organics from the soils, dechlorination 
    is more effective than other non-combustion treatment technologies for 
    treating chlorinated organics. For soil contaminated by metals, the 
    retained 2,143 data points from the soil treatment database show that 
    metals can typically be treated via stabilization to meet the soil 
    treatment standards.
        Although, for the reasons discussed earlier in today's preamble, 
    EPA has elected to base the soil treatment standards on the performance 
    of non-combustion technologies, combustion of soil is not prohibited. 
    This is consistent with all other numerical treatment standards, which 
    can likewise be achieved through use of any technology (other than 
    impermissible dilution). It may be that combustion is, in fact, chosen 
    as the remedial treatment technology at certain sites, most likely 
    because of economic considerations (such as in the case of low soil 
    volumes where on-site treatment units are not economically viable). 
    Selection of the best treatment technology for the specific soil type 
    and range of contaminants present at any given remediation site is a 
    site-specific decision assuming, for soils subject to the LDRs, that 
    the selected technology does not involve impermissible dilution and 
    that today's soil treatment standards are met. Further details about 
    the results of EPA's examination of treatment technologies for 
    different groups of contaminants are discussed in the succeeding 
    sections.
        a. Comments. Many commenters expressed concern that the retained 
    2,541 data points from the soil treatment database might not adequately 
    address the many types of soils and contaminated site scenarios that 
    may arise in the field. Among other things, these commenters asserted 
    that: (1) the list of chemical organic constituents for which EPA has 
    data may be too small to extrapolate to other organics in the list of 
    underlying hazardous constituents that must meet treatment standards; 
    (2) for organic constituents, many of the treatment test results 
    examined by EPA involved mostly combustion rather than non-combustion 
    technologies; (3) for soils with multiple hazardous constituents and 
    other complex soil matrices, the soil treatment standards could only be 
    met via incineration; and, (4) EPA should not pool data from bench, 
    pilot, and full scale treatment applications. For the most part, these 
    commenters suggested that EPA either exempt hazardous contaminated soil 
    entirely from a duty to comply with land disposal restriction treatment 
    standards or, if hazardous contaminated soil were to remain subject to 
    LDRs, allow risk-based treatment standards to be developed entirely on 
    a site-by-site basis pursuant to state oversight.
        EPA closely considered these comments and carefully re-evaluated 
    the data from the soil treatment database as well as other data from 
    more recent sources. These evaluations are summarized in the background 
    documents for today's final rule. EPA is not, at this time, taking 
    action to categorically exempt large volumes of hazardous remediation 
    waste (including contaminated soil) from RCRA hazardous waste 
    management requirements and, therefore, the issue of achievability of 
    today's soil treatment standards is germane.
        Notwithstanding the treatment results described in this section 
    below, which support the achievability of today's soil treatment 
    standards, EPA realizes that national, technology-based treatment 
    standards are sometimes not achievable because of site- and waste-
    specific characteristics. Thus, EPA has long provided for treatment 
    variances under these circumstances (see 40 CFR 268.44). In addition, 
    because EPA and authorized states are in a position during remediation 
    to make site-specific risk-based minimize threat determinations, the 
    Agency is also adopting in today's rule a new type of variance for 
    contaminated soils. This variance can be granted if, on a case-by-case 
    basis, it is determined that the technology-based treatment standard
    
    [[Page 28612]]
    
    would prompt treatment beyond the point at which threats are minimized.
        Fundamentally, EPA agrees with many commenters that today's land 
    disposal treatment standards for contaminated soil may not remove all 
    of the barriers RCRA can impose on efficient and aggressive site 
    remediation. As discussed earlier in today's preamble, the Agency hopes 
    the application of RCRA Subtitle C requirements to remediation of 
    contaminated soils and other wastes will be addressed through 
    legislation. If there is no legislative action, EPA may choose to take 
    additional regulatory action, which may include either a re-examination 
    of the application of LDRs to contaminated soil or other remediation 
    wastes or a re-evaluation of today's soil treatment standards, or both. 
    In the meantime, today's rule represents a significant improvement over 
    the current practice of applying the treatment standards developed for 
    pure industrial hazardous waste to contaminated soil.
        b. Analysis of Data from the Soil Treatment Database. The soil 
    treatment standards promulgated today are based EPA's Soil Treatment 
    Database (SDB). See, Best Demonstrated Available Treatment Background 
    Document for Hazardous Soils (August 1993); LDR Phase 2 proposal (58 FR 
    48122, Sept. 14, 1993); and Soil Treatability Analysis: Analysis of 
    Treatability Data for Contaminated Soil Treatment Technologies (April 
    1998, USEPA) (hereinafter, this document is referred to as the ``Soil 
    Treatability Analysis Report''). General concerns about the soil 
    treatment database (and in particular, concerns about achieving the 10 
    times UTS or 90% reduction standard) are addressed here. Results of our 
    analysis of the soil treatment database data on treatment performance 
    for various technologies are shown in Table 1 below. Results of 
    additional analysis for various organic and metal contaminant groups 
    are shown in Tables 2-5 below. Further details of the analysis and 
    additional findings are contained in the technical background documents 
    in this docket.
    
    
                                          Table 1.--Summary of Treatment Results per Technology in Soil Data Base \24\                                      
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                        Untreated                                     Treated                               
                                                                   -----------------------------------------------------------------------------------------
                                                    Total paired                         Data points       Data points       Data points       Data Points  
                Treatment technology               data points in      Data points    meeting 10 times     meeting 90%     meeting both 10   failing both 10
                                                    the soil data   meeting 10 times   UTS but not 90%    reduction but     times UTS and     times UTS and 
                                                        base          UTS standard        reduction     not 10 times UTS    90% reduction     90% reduction 
                                                                                          standard          standard          standards         standards   
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    Biological Treatment........................               250                86               176               168               109                15
    Chemical Treatment..........................               242                58               226               206               200                10
    Dechlorination..............................               154                53               134               100                84                 4
    Stabilization...............................               269               140               250               239               232                12
    Stripping...................................               236                88               206               103               103                30
    Washing.....................................                35                10                21                14                11                11
    Thermal Desorption..........................               957               338               833               759               692                57
                                                 -----------------------------------------------------------------------------------------------------------
        Total...................................         2143 \25\               773              1846              1589              1431               139
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    
    
    
        In aggregate, the results on Table 1 indicate that the Agency's 
    selection of standards are within the range of reasonable values for 
    non-combustion technologies to achieve. These data show that 139 (or 
    6%) paired data points out of 2143 would fail to meet the 10 times UTS 
    or 90% reduction standard. Among possible reasons for these treatment 
    performance deviations are that some soil samples represent cases in 
    which the selected technology was not appropriate for the range of 
    hazardous constituents in an organic chemical admixture. A better 
    selection of treatment technology may include either a more aggressive 
    non-combustion technology or may involve use of two or more technology 
    trains in order to meet the soil treatment standards. It is common 
    practice to employ multiple treatment trains at facilities that have 
    complex chemical mixtures or soil textures at a site. As further 
    explained in succeeding sections of this preamble and in various 
    background documents, EPA believes that the hazardous soil treatment 
    standards promulgated today are within a regime of reasonable treatment 
    levels normally achieved by non-combustion technologies. See, e.g., 
    Soil Treatability Analysis Report and Extrapolation of Treatment 
    Performance Data in the Soil Data Base Among Hazardous Constituents in 
    Contaminated Soils (April 1998, USEPA).
    ---------------------------------------------------------------------------
    
        \24\ For discussion of these treatment data, see Soil 
    Treatability Analysis Report, and Extrapolation of Treatment 
    Performance Data in the Soil Data Base Among Hazardous Constituents 
    in Contaminated Soils (April 1998, USEPA).
        \25\ As noted earlier, EPA examined in detail up to 2,541 pairs 
    of data points in total, and the number of non-combustion data pairs 
    examined is 2,143.
    ---------------------------------------------------------------------------
    
        (1) Concerns About Presence of Data from Incineration and 
    Extrapolation of Data to Other Constituents. As mentioned earlier, EPA 
    has segregated the available treatment data (2,541 paired data points) 
    so that we can better examine the 2,143 paired data points describing 
    the treatment of hazardous soils by non-combustion technologies. 
    Although 50 organic constituents in the original 2,541 paired data 
    points were treated by combustion (i.e., incineration), only 13 of 
    these 50 organics were treated exclusively by combustion. These 13 
    hazardous constituents are: 1,2,4-trichloro-benzene; p,p'-DDD; p,p'DDE; 
    2,4-dichlorophenol; methoxychlor; 2,4,6-trichlorophenol; 2,4,5-
    trichlorophenol; carbon tetrachloride; chloroform; hexachloroethane; 
    1,2-dibromo-3-chloro-propane; isodrin; and gamma-BHC. None of the data 
    describing combustion of these 13 constituents or the other 37 organics 
    (for which there are some combustion results) were relied upon in 
    assessing achievability of today's hazardous soil treatment limits.
        With respect to commenters' concerns about extrapolating the SDB 
    data to organic and inorganic constituents that will need to be 
    treated, EPA analyzed the various non-combustion technologies and their 
    average treatment efficiencies against various chemical clusters and 
    chemical functional groups of hazardous constituents. See: (1) 
    Extrapolation of Treatment Performance Data in the Soil Data Base Among 
    Hazardous Constituents in Contaminated Soils (April 1998, USEPA); (2) 
    Derivation of Treatment Achievability Results of Organic Functional 
    Groups and Types of Compounds (April 1998, USEPA); (3) Soil 
    Treatability Analysis Report (USEPA, 1998); and (4) Additional
    
    [[Page 28613]]
    
    Information on Treatability of Contaminated Soils as Discussed in 
    Section VII.B.8. of the Final Rule Preamble (April 1998, USEPA).
        The results are summarized in Tables 2-5 below. These results show 
    that non-combustion technologies can achieve today's soil treatment 
    standards. 93.5% (2,004 of the 2,143 data pairs ) of the treatment test 
    results meet the 10 times UTS or 90% reduction standard. Furthermore, 
    non-combustion technologies can meet the soil treatment standards even 
    in cases when soils contain elevated levels of harder-to-treat organic 
    hazardous constituents, such as dioxins and furans, polychlorinated 
    biphenyls (PCBs), and polynuclear aromatics (PNAs). See Appendix D in 
    Soil Treatability Analysis Report.
        As noted earlier, available data on the performance of non-
    combustion technologies treating organics also show that some 
    technologies are more effective with certain organics within specific 
    families or chemical functional groups, e.g., organic treatment 
    technologies removing volatile organics from the soils and 
    dechlorination removing halogenated organics. Treatability tests at 
    certain complex sites corroborate these findings of achievability from 
    the SDB.
        Regarding organics, at the Ninth Avenue Dump Site in Indiana, 
    hazardous soils were contaminated with low to moderate concentrations 
    of PNAs, aromatics, chlorinated aliphatics, and phthalates. Untreated 
    constituents showed concentrations that were about the same or up to 
    two orders of magnitude higher than today's soil treatment 
    standards.26 Among the volatiles were toluene (1,100 ppm), 
    total xylene (2,100 ppm), ethylbenzene ( 420 ppm), 1,1,1-
    trichloroethane (120 ppm), trichloroethene (93 ppm), tetrachloroethene 
    (380 ppm), 1,1-dichloroethane (81 ppm), and methylene chloride (800 
    ppm). The following semivolatile organics-PNAs (and their highest 
    concentration) were phenanthrene (92 ppm) and naphthalene (84 ppm). 
    Bis(2-ethylhexyl) phthalate, a semivolatile phthalate, was reported at 
    110 ppm. The soil particle distribution of the contaminated soil was 
    not quantified, but the soil was reported as comprised primarily of 
    sand and silt. Biotreatment achieved the following average treatment 
    reduction efficiencies:
    ---------------------------------------------------------------------------
    
        \26\ The following constituents were present at levels below the 
    soil treatment standards; fluorene, fluoranthene, pyrene, 
    acenaphthalene, benzo(a)anthracene, chrysene, di-n-butyl phthalate, 
    and diphenylnitrosamine.
    ---------------------------------------------------------------------------
    
         Volatile chlorinated aliphatics--99.9%;
         Ethylbenzene--100%;
         Volatile aromatics--99.9%;
         Semivolatile PNAs--97.4%;
         Bis(2-ethylhexyl)phthalate--93.2%.
        Regarding complex metal remediations, the full-scale stabilization 
    study conducted at the Portable Equipment Salvage Company, a 
    transformer and metal salvage operation in Oregon, involved untreated 
    levels of lead up to 880 mg/l (TCLP) and zinc up to 71 mg/l (TCLP). 
    Organics were also present--the highest sample showing 610 mg/l lead 
    (TCLP), 14,000 ppm oil and grease, 41,000 ppm total organic carbon, and 
    7.1 pH. The facility conducted treatability studies on three soil 
    textures found at the site: (1) sandy loam, (2) loamy sand, and (3) 
    loam. The stabilized sandy loam sample showed a concentration of 0.5 
    ppm lead, a 99.72% reduction efficiency. The facility also treated two 
    samples of loamy sand, one to 47 mg/l lead (TCLP) (a 93.65% reduction 
    efficiency ) and the other to 2.5 mg/l lead (TCLP) (a 99.72% reduction 
    efficiency ). The treated loam sample showed 0.10 mg/l lead, a 99.97% 
    reduction.
        More information underlying EPA's rationale for extrapolating the 
    available treatment performance data to other organic and inorganic 
    hazardous constituents regulated under the land disposal restrictions 
    can be found in the RCRA Docket for this rule (see Appendix D in Soil 
    Treatability Analysis Report) and memorandum to docket on extrapolation 
    of treatment performance data among different hazardous constituents.
        Finally, we note that even though there were treatment data on 
    soils containing cyanide in the larger data base (6,394 paired data 
    points), none of the retained 2,541 or 2,143 paired data points 
    included treatment data on cyanide. However, the current UTS for 
    cyanide is based on the performance of alkaline dechlorination, a non-
    combustion technology. Cyanides can form complexes with metals and 
    organics and, therefore, technologies capable of removing both organic 
    and metals are also able to remove cyanide from contaminated soils. As 
    a result, it is reasonable to expect that the average treatment 
    performance attained by treating organics in soils will also be 
    achieved for cyanide-bearing contaminated soils. We note that, for 
    example, 90% reduction can be achieved based on the performance 
    efficiency that thermal desorption attained in removing PNA's (with 
    more than five rings) and chlorinated organics from contaminated soil. 
    These constituents are among the hardest chemical species to remove via 
    thermal desorption. For these reasons, the Agency has concluded that 
    today's soil treatment standard for cyanide can be achieved by a non-
    combustion technology as well.
        (2) Technology Scale and Soil Variability Issues. As noted earlier, 
    several commenters objected to EPA's pooling of treatment data from 
    pilot, bench, and full scale processes, and urged EPA to consider only 
    performance data from full-scale field studies characterizing the 
    treatment of soil volumes. EPA prefers, generally, to rely on full 
    scale studies for the purpose of developing and promulgating treatment 
    standards, and this is true with respect to the soil treatment 
    standards as well. However, in this case as well as in many prior LDR 
    treatment standard efforts, EPA's data base includes more than just 
    full scale data upon which EPA can properly rely. Bench and pilot scale 
    technologies can be appropriately considered by EPA (and EPA has 
    historically done so) in setting treatment limits as long as full scale 
    operations of the treatment system under consideration exist or have 
    been demonstrated on wastes/soils. Except for hydrolysis,27 
    the technologies in the SDB are demonstrated full scale, and the 
    administrative docket contains bench, pilot, and full scale studies 
    that reflect the Agency's field experiences at contaminated sites.
    ---------------------------------------------------------------------------
    
        \27\ Hydrolysis can be of normal occurrence or intentionally 
    induced at hazardous waste sites. EPA does not have full-scale ex-
    situ demonstration studies on this technology but considers the data 
    in the SDB to be indicative of what levels can be achieved.
    ---------------------------------------------------------------------------
    
        Furthermore, in this rulemaking, given the variability of hazardous 
    soils (in terms of types, concentrations and numbers of hazardous 
    constituents and soil matrices), plus the special policy considerations 
    associated with remediations, the Agency is adopting treatment 
    standards from the zone of reasonable values that could be permissibly 
    selected based upon the treatment performance data. Thus, the data are 
    not being used so much to establish a precise performance level as to 
    confirm the typical achievability of the promulgated standards, i.e., 
    ten times UTS or 90% reduction.
        With respect to the SDB and commenters' concerns about the impact 
    of soil variability on achievability of the soil treatment standards by 
    non-combustion technologies, EPA collected 6,394 pairs of data point 
    describing the treatment of various hazardous soils.
    
    [[Page 28614]]
    
    The retained 2,143 non-combustion paired data points are reasonably 
    sufficient to adequately describe the treatment of metal, organics, and 
    multiple metal and organic contaminants that are frequently found at 
    different type of sites, including both Superfund and RCRA sites. For 
    instance, the SDB has treatment data on soils with varying textures 
    including top soils, silty/loam soils, and clay soils. For the 14 
    different soil type groupings analyzed, only 139 out of 2,143 data 
    pairs (about 6.5%) would not meet today's soil treatment standards (see 
    Appendices C and D in Soil Treatability Analysis Report).
        With respect to these 6.5% data pairs, several potential reasons 
    exist to explain why 90 % reduction or 10 times UTS level might not 
    have been achieved. First, the treatment study objectives may not 
    primarily have been to test whether these standards could be met. For 
    example, the treatment study may have been designed either to assess 
    the feasibility of using a particular (but not necessarily optimum) 
    technology on a particular contaminated soil, or to meet a prescribed 
    risk-based level under a RCRA or CERCLA site remediation plan.
        Second, a treatment technology may have been applied to soils 
    contaminated with multiple hazardous constituents where the technology 
    may have been inappropriate for a subset of those contaminants (and for 
    which data were reported anyway). For example, air stripping is a 
    technology that operates best on volatile organics within a given range 
    of Henry constant values. In contrast, air stripping of semivolatile 
    organics and metals is expected to be much poorer. (In this type of 
    situation, a technology amendment or treatment train may be 
    appropriate, i.e., air stripping may be improved if steam stripping is 
    applied first to enhance the pool of semivolatiles that can respond to 
    the physical separation treatment process.)
        Third, these treatment data likely include instances when a 
    treatment technology encountered soil heterogeneities that resulted in 
    undertreatment of portions of the soil. For instance, during the clean 
    up of contaminated debris and soils, detailed sampling protocols are 
    typically developed to ensure that desired treatment constituent 
    concentrations are met because of the deleterious impact of 
    heterogeneous soil strata and the presence of debris on treatment 
    technology performance. Re-processing can often be required to comply 
    with the applicable treatment standards. Another alternative is to 
    optimize specific technology operating parameters that can enhance the 
    ability of the technology to meet the prescribed treatment limits. 
    Optimization can involve: (1) feeding the correct soil/debris particle 
    size fractions to the treatment system, (2) creating more turbulence 
    between soil and gaseous/liquid treatment fluids, (3) using a greater-
    than-normal amount of chemical agents, (4) operating at the higher end 
    of an operating temperature range, (5) adjusting the pH of the soil, 
    (6) adding adequate pre-/post-treatment steps that address specific 
    contaminants that may be expected to receive sub-optimal treatment, or 
    (7) allowing longer residence time in the treatment unit.
        It is not possible to determine precisely how many of these 
    techniques were used in the 139 instances that failed the 90% reduction 
    or 10 times UTS levels. However, EPA expects that not all optimization 
    measures were used since the operators of the treatment technologies 
    did not have as their primary objective the attainment of these 
    particular levels, which are being adopted today as the soil treatment 
    standard. On balance, the weight of evidence and analysis from the SDB 
    are believed to reasonably indicate that today's standards are 
    achievable for soils that may exhibit variability, particularly if 
    optimization techniques or treatment technology trains are fully 
    considered. Of course, should an unusual situation present itself in 
    which these measures are not successful, a treatment variance can be 
    sought under 40 CFR 268.44(h) or under the risk-based variance 
    provisions being adopted in today's rule.
        Furthermore, EPA has a number of bench and pilot studies on the 
    treatment of contaminated soils from wood preserving, petroleum 
    refining, and electroplating sites, which contain a wide range of 
    constituents such as polynuclear aromatic, phenolic, chlorinated 
    organics, spent solvents, creosote, and metals. It is reasonable to 
    expect that these treatment results, showing achievability, also lend 
    support to the conclusion that treatment at other RCRA and Superfund 
    sites, containing these types of complex contaminant and soil 
    variability scenarios, can be expected to achieve today's soil 
    treatment standards.28 See also Chapter 4 in Soil 
    Treatability Analysis Report.
    ---------------------------------------------------------------------------
    
        \28\ See (1) Remediation Case Studies: Bioremediation and 
    Vitrification, July 1997, EPA 542-R-97-008 or PB97-177554; (2) 
    Remediation Case Studies: Soil Vapor Extraction and Other In Situ 
    Technologies, July 1997, EPA 542-R-97-009 or NTIS PB97-177562; (3) 
    Analysis of Selected Enhancements for Soil Vapor Extraction, 
    September 1997, EPA-542-R-97-007; (4) Remedial Case Studies: Thermal 
    Desorption, Soil Washing, and In Situ Vitrification, March 1995, EPA 
    542-R-95-005 or NITS PB95-182945; (5) Remediation Case Studies: Soil 
    Vapor Extraction, March 1995, EPA 542-4-95-004 or NTIS PB95-182937; 
    and (6) Remediation case Studies: Bioremediation, March 1995, EPA 
    542-R-95-002 or NTIS PB95-182911.
    ---------------------------------------------------------------------------
    
        Pooled bench, pilot, and full scale data in the SDB are expected to 
    depict what the various treatment technologies can achieve for other 
    hazardous soils managed under CERCLA and RCRA. As noted earlier, non-
    combustion technologies will behave better on a given range or class of 
    organic and metal constituents. A given range of soil characteristics 
    that may inhibit treatment performance can be amended to facilitate the 
    treatment of hazardous soils. Available information on other full scale 
    operations of the tested technologies demonstrate that optimization 
    techniques can be used to overcome potential soil interferences and 
    thus attain, generally, treatment design objectives. Hence, it is 
    important to carefully evaluate the characteristics of each site 
    against the expected capabilities of various non-combustion 
    technologies, which are summarized below.
        (3) Performance Data for Organic Constituents. EPA's conclusions 
    with respect to achievability of soil treatment standards for organics 
    in hazardous soils are based on the performance of biological 
    treatment, chemical extraction, dechlorination, soil washing, thermal 
    desorption, and soil vapor extraction. Other treatment technologies 
    capable of achieving the treatment limits (such as combustion) are not 
    prohibited except for those that may constitute impermissible dilution. 
    Tables 2 and 3 below provide an overview of the number of data points 
    and the average treatment efficiency ranges that each of the technology 
    categories achieved. Also, each Table below reports the range of test 
    scales as well as the available treatment performance data per major 
    chemical family category/cluster assigned to chemical constituents in 
    the BDAT List. (For the whole list of BDAT constituents and their 
    classification, see Appendix B in the BDAT Background Document for 
    Hazardous Soils, August 1993.) Further details and discussion on the 
    results for major chemical family categories/clusters is contained in 
    the docket.
    
    [[Page 28615]]
    
    
    
                                               Table 2.--Summary of Nonthermal Treatment Performance Data on Groups of Organic Hazardous Constituents \29\                                          
    ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                         Biotreatment scale:  0.01 kg     Chemical extraction scale:     Dechlorination scale:  0.1 kg  Soil washing scale:  0.08-204   Hydrolysis scale:  0.1 kg to
                                                to 1,250,000 kg             0.0075 kg to 37,000 kg               to 127,913 kg                        kg                          2.75 kg           
           BDAT organic cluster        -------------------------------------------------------------------------------------------------------------------------------------------------------------
                                         Data       Average removal      Data       Average removal      Data       Average removal      Data      Average removal      Data      Average removal   
                                        points        efficiency        points        efficiency        points        efficiency        points        efficiency       points        efficiency     
    ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
    Volatiles.........................      48  >99%..................       9  >99%..................      13  96.3 to 99.3%.........    None  None.................    None  None                 
    Semivolatiles.....................     185  55-98.2% \30\.........     163  62-98.8%..............       2  99.8%.................      13  81.8-97.2%...........    None  None                 
    Organochlorine....................      12  16.7--70.2%...........    None  None..................      13  >95.2%................    None  None.................       2  67.9-91.7%           
    Phenoxyacetic Acid Pesticides.....    None  None..................    None  None..................       9  98.6-99.0%............    None  None.................    None  None                 
    Organo Phosphorous insecticides       None  None..................    None  None..................    None  None..................    None  None.................    None  None                 
     \31\.                                                                                                                                                                                          
    Polychlorinated Biphenyls.........    None  None..................      52  71.5%-99.9%...........      69  68.8-97.1%............       1  88.5% \32\...........    None  None                 
    Dioxins and Furans................    None  None..................      12  40->97%...............      48  73.7->99.8%...........       7  84.8%................    None  None                 
                                       --------                        --------                        --------                        --------                       --------                      
        Total Number of Data Points...     245  ......................     236  ......................     154  ......................      21  .....................       2                       
    ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
    
    
              Table 3.--Summary of Thermal Performance Data on Groups of Organic Hazardous Constituents 33          
    ----------------------------------------------------------------------------------------------------------------
                                    Thermal desorption 34 scale: 21.6 kg to 3,823,000   Soil vapor extraction scale:
                                                           kg                               4.5 kg to >1,000 kg     
                                  ----------------------------------------------------------------------------------
         BDAT organic cluster                                                                             Average   
                                     Data points       Average removal efficiency        Data points      removal   
                                                                                                         efficiency 
    ----------------------------------------------------------------------------------------------------------------
    Volatiles....................             293  79.2-99.9%........................             189  44-99.2%     
    Semivolatiles 35.............             614  50-99.4%..........................              47  0-57.2%      
    Organochlorines..............              12  88.5-98.8%........................            None  None         
    Phenoxyacetic Acid Pesticides            None  None..............................            None  None         
    Organo Phosphorous                       None  None..............................            None  None         
     insecticides 36.                                                                                               
    Polychlorinated Biphenyls....               1  87.5%.............................            None  None         
    Dioxins and Furans...........              37  85.6-97.6%........................            None  None         
                                  ----------------                                    ----------------              
        Total Number of Data                  957  ..................................             236               
         Points.                                                                                                    
    ----------------------------------------------------------------------------------------------------------------
    
        As shown on Tables 2 and 3, EPA lacks performance data for the 
    thermal or non-thermal treatment of four organic constituents 
    classified in the BDAT list as organophosphorous insecticides. These 
    four constituents are disulfoton, famphur, methyl parathion, and 
    phorate. However, we can determine achievability for these four organic 
    constituents based upon the transfer of treatment data for other, 
    similarly difficult to treat organics. Because of structural and 
    chemical similarities, these four organophosphorous compounds are 
    expected to behave similarly during treatment to other polar 
    nonhalogenated phenols, phenyl ethers, and cresols. Thus, EPA believes 
    that these four organophosphorus compounds can be treated by the same 
    technologies as other polar nonhalogenated organic compounds, for which 
    EPA has data. Therefore, based on the available data for polar 
    nonhalogenated compounds, EPA concludes that the treatment standards 
    for soils contaminated with these four organophosphorous compounds can 
    be achieved by biodegradation, chemical extraction, and thermal 
    desorption (semivolatiles).
    ---------------------------------------------------------------------------
    
        \29\ For a discussion of these treatment data, see the Soil 
    Treatment Achievability Report; Extrapolation of Treatment 
    Performance Data in the Soil Data Base Among Hazardous Constituents 
    in Contaminated Soils (April 1998, USEPA); and the Additional 
    Information on Treatability of Contaminated Soils as Discussed in 
    Section VII.B.8. of Phase IV Final Rule Preamble, (April 1998, 
    USEPA). These documents indicate the numbers and types of data pairs 
    that meet the 10 times UTS level, both prior to treatment and after 
    the treatment described in the table.
        \30\ Cyclical hydrocarbons with more than five rings undergo 
    lower reduction efficiencies.
        \31\ EPA is transferring the available performance data from the 
    chemical extraction and the biological treatment of (semivolatile) 
    polar nonhalogenated organics in the hazardous solid treatment data 
    base. Thus, the columns are intentionally left blank.
        \32\ Only one test was performed.
        \33\ For a discussion of these treatment data, see the Soil 
    Treatment Achievability Report; Extrapolation of Treatment 
    Performance Data in the Soil Data Base Among Hazardous Constituents 
    in Contaminated Soils (April 1998, USEPA) and the Additional 
    Information on Treatability of Contaminated Soils as Discussed in 
    Section VII.B.8. of Phase IV Final Rule Preamble, (April 1998, 
    USEPA). These documents indicate the numbers and types of data pairs 
    that meet the 10 times UTS level, both prior to treatment and after 
    the treatment described in the table.
        \34\ The term thermal desorption, as used in this table, is a 
    general description of various thermal techniques. No conclusion may 
    be drawn about the regulatory status or classification of a 
    particular thermal desorber from the inclusion of treatment data 
    from that device in this column.
        \35\ The performance of combustion and soil vapor extraction is 
    less effective in treating semivolatile organics that contain 
    aromatic and heterocyclical structures. The same is true for and 
    nonvolatile chlorinated organics.
        \36\ EPA is transferring the available performance data from the 
    chemical extraction and the biological treatment of (semivolatile) 
    polar nonhalogenated organics in the hazardous soil treatment data 
    base.
    ---------------------------------------------------------------------------
    
    (4) Other Indicia of Achievability for Organic Constituents
        EPA also re-analyzed certain portions of the SDB with regard to 
    ability of various technologies to meet today's soil treatment 
    standards by looking more closely at organic treatability groups based 
    on the structural features of the hazardous constituents of concern. 
    The results of this analysis, presented in Table 4 below, corroborate 
    those in Tables 1-3 and EPA's conclusion that the soil treatment 
    standards--ten times UTS or 90% reduction--are within the zone of 
    reasonable values that could have been selected. For further 
    information on the derivation of Table 4, see the background document 
    entitled ``Derivation of Treatment Achievability Results for Organic 
    Functional Groups and Types of Compounds.''
    
    [[Page 28616]]
    
    
    
                             Table 4.--Treatment Efficiency--Percent Reduction Ranges by Technology for Various Functional Groupings                        
                                   [Average percent reduction in brackets; number of data points analyzed in parentheses] \37\                              
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Biological       Chemical                         Thermal                           Other     
                      Treatability group                       treatment      extraction    Dechlorination    desorption     Soil washing     technologies  
    -------------------------------------------------------------------------------------------------------------\38\-----------------------------\39\------
    Halogenated Nonpolar Aromatics........................     52.05-99.97                                                                                  
                                                                   [76.01]                                                                                  
                                                                       (2)           80.42                                                                  
                                                                                   [80.42]                                                                  
                                                                                       (1)       99.05-100                                                  
                                                                                                   [99.53]                                                  
                                                                                                       (2)       29.19-100                                  
                                                                                                                   [95.31]                                  
                                                                                                                      (29)      66.21-95.6                  
                                                                                                                                   [85.41]                  
                                                                                                                                       (4)     30.13--49.68 
                                                                                                                                                    [42.41] 
                                                                                                                                                        (3) 
    Dioxins, Furans, PCBs, and Precursors.................            none     14.88-99.97                                                                  
                                                                                   [90.13]                                                                  
                                                                                      (40)     91.66-99.88                                                  
                                                                                                   [97.94]                                                  
                                                                                                      (20)        98.9-100                                  
                                                                                                                   [99.57]                                  
                                                                                                                      (17)            none             none 
    Halogenated Phenols, Cresols, and Other Polar                                                                                                           
     Aromatics............................................      45.1-95.14                                                                                  
                                                                   [81.05]                                                                                  
                                                                       (5)     63.83-93.18                                                                  
                                                                                   [79.46]                                                                  
                                                                                       (3)            none      2.71-99.93                                  
                                                                                                                   [56.21]                                  
                                                                                                                      (15)      6.25-99.06                  
                                                                                                                                   [73.71]                  
                                                                                                                                       (6)            96.21 
                                                                                                                                                    [96.21] 
                                                                                                                                                        (1) 
    Halogenated Aliphatics................................     99.87-99.99                                                                                  
                                                                   [99.91]                                                                                  
                                                                       (3)     86.62-94.81                                                                  
                                                                                   [91.09]                                                                  
                                                                                       (3)       89.06-100                                                  
                                                                                                   [97.54]                                                  
                                                                                                       (7)       36.88-100                                  
                                                                                                                   [96.49]                                  
                                                                                                                      (80)      58.68-99.4                  
                                                                                                                                   [90.58]                  
                                                                                                                                       (9)         72-99.68 
                                                                                                                                                    [95.66] 
                                                                                                                                                        (6) 
    Halogenated Cyclic Aliphatics, Ethers, Esters, and                                                                                                      
     Ketones..............................................      9.76-99.77                                                                                  
                                                                   [60.99]                                                                                  
                                                                       (8)            none            none            none            none             none 
    Nitrated Aromatics and Aliphatics.....................            none            none            none            none            none             none 
    Simple Nonpolar Aromatics and Heterocyclics...........       99.97-100                                                                                  
                                                                     [100]                                                                                  
                                                                      (10)     77.41-99.92                                                                  
                                                                                   [90.77]                                                                  
                                                                                       (6)       96.39-100                                                  
                                                                                                   [98.61]                                                  
                                                                                                      (10)       22.68-100                                  
                                                                                                                    [94.3]                                  
                                                                                                                     (158)     47.74-99.91                  
                                                                                                                                   [82.39]                  
                                                                                                                                      (14)             97.7 
                                                                                                                                                     [97.7] 
                                                                                                                                                        (1) 
    Polynuclear Aromatic Hydrocarbons.....................      5.13-99.85                                                                                  
                                                                   [67.15]                                                                                  
                                                                      (75)     51.55-99.98                                                                  
                                                                                   [95.72]                                                                  
                                                                                     (125)     10.92-97.42                                                  
                                                                                                   [67.47]                                                  
                                                                                                       (3)       10.14-100                                  
                                                                                                                   [94.19]                                  
                                                                                                                     (301)     81.83-92.19                  
                                                                                                                                   [85.74]                  
                                                                                                                                       (3)       95.9-99.55 
                                                                                                                                                    [97.73] 
                                                                                                                                                        (2) 
    Other Nonhalogenated Polar Organics...................            none     75.96-99.82                                                                  
                                                                                   [98.35]                                                                  
                                                                                      (28)     90.81-99.89                                                  
                                                                                                   [95.13]                                                  
                                                                                                      (10)       2.6-99.98                                  
                                                                                                                   [82.04]                                  
                                                                                                                      (36)     51.07-99.97                  
                                                                                                                                   [88.67]                  
                                                                                                                                      (10)      94.59-99.89 
                                                                                                                                                    [97.24] 
                                                                                                                                                        (2) 
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    
    (5) Performance Data for Metal Contaminants
        Performance data for metals contaminants are based on the 
    performance of stabilization and chemical extraction (mercury) of soils 
    contaminated with metals. Other metal treatment technologies are not 
    prohibited (except if impermissible dilution were to occur). The 
    results of EPA's analysis of the data on treatment of metals in soils 
    are summarized in Table 5 below.
    
                                                              Table 5.--Summary of Performance Data for Hazardous Metals Constituents \40\                                                          
    ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                           Stabilization scale: bench, pilot, and full scale           Chemical extraction  scale: pilot                  Soil washing  scale: bench & pilot        
             BDAT metals cluster         -----------------------------------------------------------------------------------------------------------------------------------------------------------
                                           Data  Points       Average removal efficiency       Data  points       Average removal efficiency       Data  points       Average removal efficiency    
    ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
    Metals..............................             269  91.1-99.8%........................               4  97.7% \41\........................              14  17.9-97.2%                        
                                         ----------------                                    ----------------                                    ----------------                                   
        Total...........................             269  ..................................               4  ..................................              14                                    
    ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
    
        The results in Table 5 corroborate EPA's conclusion that the soil 
    treatment standards--ten times UTS or 90% reduction--are within the 
    zone of reasonable values that could have been selected. For further 
    information on the derivation of Table 5, see Soil Treatability 
    Analysis Report.
    ---------------------------------------------------------------------------
    
        \37\ Table based on data from ``Delivery of Graphs and Data 
    Tables Showing Corrected Treated Concentrations vs. Data Point 
    Number Index for Selected Constituents,'' February 19, 1992 
    (Administrative Record of the proposed LDR Phase 2 rules as F-93-
    CS2P-S0597). See also (1) Derivation of Treatment Achievability 
    Results for Organic Functional Groups and Types of Compounds, April 
    1998 (USEPA); (2) Additional Information on Treatability of 
    Contaminated Soils as Discussed in Section VII.B.8. of Phase IV 
    Final Rule Preamble, (April 1998, USEPA); (3) Extrapolation of 
    Treatment Performance Data in the Soil Data Base Among Hazardous 
    Constituents in Contaminated Soils (April 1998, USEPA); and (3) Soil 
    Treatability Analysis Report (April 1998, USEPA). These documents 
    indicate the numbers and types of data pairs that meet the 10 times 
    UTS level, both prior to treatment and after the treatment described 
    in the table.
        \38\ The term thermal desorption, as used in this table, is a 
    general description of various thermal techniques. No conclusion may 
    be drawn about the regulatory status or classification of a 
    particular thermal desorber from the inclusion of treatment data 
    from that device in this column.
        \39\ These include air stripping, photolysis, and treatment 
    trains.
        \40\ For a discussion of these treatment data, see the Soil 
    Treatment Achievability Report; Extrapolation of Treatment 
    Performance Data in the Soil Data Base Among Hazardous Constituents 
    in Contaminated Soils (April 1998, USEPA); and the Additional 
    Information on Treatability of Contaminated Soils as Discussed in 
    Section VII.B.8 of Phase IV Final Rule Preamble, (April 1998, 
    USEPA). These documents indicate the numbers and types of data pairs 
    that meet the 10 times UTS level, both prior to treatment and after 
    the treatment described in the table.
        \41\ Available data are exclusively for the treatment of mercury 
    on soils.
    ---------------------------------------------------------------------------
    
        With respect to multiple metal constituents or organometallic 
    constituents in a contaminated soil, we
    
    [[Page 28617]]
    
    recognize that a situation may call for two or more treatment 
    technology trains to achieve the treatment standards promulgated today 
    (e.g., one treatment for organics and another for metals). This must 
    include proper consideration of the order in which various treatment 
    processes should be applied to the contaminated soil so that treatment 
    effectiveness is optimized. However, if these considerations have been 
    properly made and the required treatment standards are not being met 
    because, for example, of unique soil matrices or difficult to treat 
    sites, then we expect that entities may elect to seek a treatment 
    variance pursuant to 40 CFR 268.44(h) or a risk-based soil treatment 
    variance, which is being adopted in today's rule.
        c. Data Submitted by Commenters
        At least four commenters submitted treatment data from studies 
    describing the performance of innovative and conventional treatment 
    technologies on hazardous soils. DuPont submitted bench, pilot, and 
    full scale treatment data from various vendors describing the operation 
    of soil washing. DuPont asserts these data supports the viability of 
    soil washing as an innovative technology for hazardous soils.
        The Environmental Technology Council (formerly the Hazardous Waste 
    Treatment Council) submitted full, pilot, and bench scale treatment 
    data from various vendors of innovative treatment technologies and 
    provided an extensive review of EPA's soil treatment data base. See 
    document entitled, Evaluation of Proposed BDAT Soil and Process 
    Treatment Technologies--Report to the Hazardous Waste Treatment 
    Council, November 1993 (filed as document number CS2P00060.E in Docket 
    No. F-92-CS2P-FFFFF). Based on the ETC's technical report and the 
    subsequent comments of the ETC to the HWIR-Media rule (see comments 
    from the Environmental Technology Council, filed as comment number MHWP 
    00088 in Docket No. F-92-CS2P-FFFFF), the ETC believes that today's 
    treatment standards for hazardous soils are achievable using thermal 
    treatment. Although the ETC report stated that EPA may lack full-scale 
    treatment data for several innovative or alternative technologies, the 
    ETC data support EPA's view that the many full scale operations of non-
    combustion technologies demonstrated in the field were sufficient to 
    support a view that the soil treatment standards were achievable. 
    Further, the ETC pointed to various examples of how various non-
    combustion treatment technologies can be better optimized. EPA concurs 
    with many of those observations on how non-combustion technologies can 
    be optimized.
        Two other commenters submitted data in the Phase 2 rule regarding 
    the performance of non-combustion technologies--USPCI and Sierra 
    Environmental Services. USPCI's performance data describe the treatment 
    of polynuclear organics in soils via chemical oxidation followed by 
    stabilization. These data were determined to be insufficient to support 
    a broad national determination that stabilization of organics can be 
    considered BDAT for organics. However, use of organic stabilization 
    may, in some situations, be a permissible treatment option since the 
    LDRs do not specifically prohibit the use of stabilization or 
    solidification to treat nonwastewaters containing hazardous organic 
    constituents. See Response to Comment Document, Comment from Chemical 
    Waste Management, Inc. (No. PH4P-00048). There are, however, specific 
    circumstances in which stabilization or solidification would be 
    considered impermissible dilution. We expect that, for these types of 
    situations to be properly evaluated, it will be necessary to petition 
    for a treatment variance under 40 CFR 268.44(h) or under the provisions 
    for a risk-based soil treatment variance being adopted in today's rule. 
    The Agency also is currently considering whether, in the near future, 
    to issue guidance on when stabilization or solidification of organic-
    bearing waste is appropriate and when it may constitute impermissible 
    dilution.
        Sierra Environmental Services submitted performance data regarding 
    the treatment of carcinogenic polyaromatic hydrocarbons (cPAH) via 
    bioremediation. These data are based on in-situ treatment of a 7.5 acre 
    lagoon which was divided into two cells. Although the facility 
    remediated 35 volatile, 65 semivolatile organics, PCBs, and pesticides, 
    the facility only submitted data describing the treatment of major 
    PAHs. Based on the performance of the biotreatment process applied to 
    this site, the commenter argued the proposed treatment standards, if 
    promulgated as proposed, would eliminate biotreatment as an alternative 
    at this facility. EPA disagrees. Remediation processes that are applied 
    in-situ do not trigger land disposal restrictions. If the facility were 
    biotreating the lagoon sludges ex-situ, EPA concurs that the facility 
    may be unable to land dispose the treated lagoon sludges. We also note 
    that, under the existing regulations and regulations being adopted 
    today, the commenter may be able to avail itself of a treatment 
    variance, depending on the site-specific circumstances involved.
    9. Applicability of Soil Treatment Standards and Readability of Final 
    Regulations
        Many commenters asserted that the proposed regulations governing 
    applicability of LDRs to contaminated soil were difficult to understand 
    and apply. EPA was persuaded by these comments and has reformatted the 
    applicability regulations into an easier-to-read table. The Agency 
    recognizes that determining whether or not LDRs apply to any given 
    volume of contaminated soil can be complicated. To further assist 
    program implementors and facility owners/operators, we will review and 
    discuss the principles that govern LDR applicability for contaminated 
    soil in this section of today's preamble.
        The following principles informed EPA's decisions concerning 
    application of LDRs to contaminated soils.
        First principle: land disposal restrictions only attach to 
    prohibited hazardous waste (or hazardous contaminated soil) when it is 
    (1) generated and (2) placed in a land disposal unit.42 
    Therefore, if contaminated soil is not removed from the land (i.e., 
    generated), LDRs cannot apply. Similarly, if contaminated soil is 
    removed from the land (i.e., generated) yet never placed in a land 
    disposal unit, LDRs cannot apply.43 In other words, LDRs do 
    not apply to contaminated soil in situ or force excavation of 
    contaminated soil. If soils are excavated, however, LDRs may apply, as 
    discussed below.
    ---------------------------------------------------------------------------
    
        \42\ As discussed earlier in today's final rule, all hazardous 
    wastes that were listed or identified at the time of the 1984 
    Hazardous and Solid Waste Amendments to RCRA have been prohibited 
    from land disposal. EPA is required to prohibit hazardous wastes 
    listed or identified after 1984 within six months of the wastes' 
    listing or identification. RCRA Section 3004(g)(4). A table in 40 
    CFR Part 268 Appendix VII. outlines the dates of LDR applicablity 
    for hazardous wastes.
        \43\ Note that, as discussed later in today's preamble, nothing 
    in today's final rule affects implementation of the existing ``area 
    of contamination'' policy. Therefore, soil managed within areas of 
    contamination, even if it is ``removed from the land'' within such 
    an area, would not be considered to be ``generated.'' See the 
    discussion of the area of contamination policy later in today's 
    preamble.
    ---------------------------------------------------------------------------
    
        Second principle: once a decision has been made to generate and re-
    land-dispose contaminated soils, LDRs generally only apply to 
    contaminated soils that contain hazardous waste. The Agency considers 
    soil to contain hazardous waste: (1) when it exhibits a
    
    [[Page 28618]]
    
    characteristic of hazardous waste; and, (2) when it is contaminated by 
    certain concentrations of constituents from listed hazardous waste. The 
    contained-in policy is discussed in Section VII.E of today's preamble.
        Third principle: once LDRs attach (generally, at the point of 
    generation, see principle (1)) to any given hazardous waste or volume 
    of hazardous contaminated soil, the LDR treatment standards continue to 
    apply until they are met. This principle comes from application of the 
    logic of the Chemical Waste opinion. In that opinion, the D.C. Circuit 
    held that land disposal prohibitions attach at the point that a 
    hazardous waste is generated and continue to apply until threats posed 
    by land disposal of the waste are minimized. Chemical Waste Management 
    v. EPA, 976 F.2d at 13, 14 and 24. In illustration of this principle, 
    the court held that (in the case of characteristic hazardous waste) 
    elimination of the property that caused EPA to identify a waste as 
    hazardous in the first instance does not automatically eliminate the 
    duty to achieve compliance with LDRs. As discussed later in this 
    section of today's preamble, EPA has determined that, although the 
    Chemical Waste opinion did not address contaminated soils per se, it is 
    prudent to apply the logic of the Chemical Waste opinion to 
    contaminated soils.
        Using these principles, EPA created the regulations and table that 
    govern application of LDRs to contaminated soils, as discussed below.
        The regulations that address application of LDRs to soil that 
    exhibits a characteristic of hazardous waste are relatively 
    straightforward. Soil that exhibits a characteristic of hazardous waste 
    when it is generated is subject to LDRs and must be treated to meet LDR 
    treatment standards prior to land disposal. EPA's conclusion that soil 
    that exhibits a characteristic of hazardous waste must be treated to 
    meet LDRs prior to land disposal derives from a simple application of 
    the principles above. First, LDRs have the opportunity to attach to 
    contaminated soil at the point of generation (principle (1)) and, 
    second, under the contained-in policy, soil that exhibits a 
    characteristic of hazardous waste must be managed as hazardous waste 
    (principle (2)) and, therefore, must comply with LDRs. Note that, once 
    LDRs have attached to soil that exhibits a characteristic of hazardous 
    waste, LDR treatment standards must be met prior to land disposal of 
    the soil, even if the characteristic is subsequently eliminated 
    (principle (3)).
        The remainder of today's regulations on application of LDRs to 
    contaminated soil, which are in table form, apply to soil contaminated 
    with listed hazardous wastes. The table lists four scenarios.
        In the first scenario, soil is contaminated with untreated listed 
    hazardous waste that was prohibited from land disposal when first land 
    disposed (e.g., prohibited hazardous waste that was illegally placed or 
    prohibited hazardous waste that was spilled). In this case, LDRs have 
    already attached to the hazardous waste. Therefore, since LDRs have 
    attached to the waste and threats have not yet been minimized (i.e., 
    treatment standards have not been met), under principle (3) LDRs 
    continue to apply to the waste and, automatically, to any contaminated 
    soil.44 The Agency has concluded that LDRs apply to soils 
    contaminated in this way regardless of whether the soil is determined 
    not to (or no longer to) ``contain'' hazardous waste either when first 
    generated or at any time in the future. This conclusion comes from 
    application of principle (3): once something is prohibited from land 
    disposal, LDRs continue to apply until threats to human health and the 
    environment posed by land disposal are minimized regardless of whether 
    the material is at some point determined no longer to be ``hazardous.''
    ---------------------------------------------------------------------------
    
        \44\ EPA is assuming that the waste did not meet a treatment 
    standard when it was placed on the soil. Wastes which meet a 
    treatment standard are no longer prohibited from land disposal and, 
    unless it is determined to ``contain'' hazardous waste at its point 
    of generation and are subsequently land disposed, soils contaminated 
    by these wastes are, likewise, not prohibited from land disposal. 
    See, RCA section 3004(m)(2) (hazardous wastes meeting treatment 
    standards are no longer prohibited from land disposal).
    ---------------------------------------------------------------------------
    
        In the next two scenarios, soil is contaminated with hazardous 
    wastes that were not prohibited from land disposal when first land 
    disposed, but, sometime after land disposal, LDRs have gone into 
    effect. In these cases, whether or not LDRs apply to contaminated soil 
    is governed by a determination of whether or not any given volume of 
    contaminated soil ``contains'' hazardous waste at its point of 
    generation. If any given volume of soil is determined to contain 
    hazardous waste at its point of generation, LDRs attach (principles (1) 
    and (2)) and, therefore, the LDR treatment standards must be met prior 
    to placement of such soil in a land disposal unit (principle (3)). If 
    any given volume of soil is determined not to contain hazardous waste 
    at its point of generation, there is no hazardous waste to which a land 
    disposal prohibition could attach and the soil, thus, would not be 
    prohibited from land disposal (principles (1) and (2)). (It would be 
    the same if a hazardous waste land disposed before the effective date 
    of an applicable land disposal prohibition were delisted when first re-
    generated. In that case too, there would be no hazardous waste to which 
    a land disposal prohibition could attach and the delisted waste, thus, 
    would not be prohibited from land disposal.) Note that, under principle 
    (3), once LDRs attach to contaminated soil, the treatment standards 
    must be met prior to land disposal even if the soil is, subsequently, 
    determined no longer to contain hazardous waste.
        The final scenario requires no elaboration; it simply makes clear 
    that if soil is contaminated by hazardous waste that was never 
    prohibited from land disposal, LDRs do not apply. This is through 
    application, primarily, of principle (2)--LDRs attach only to hazardous 
    wastes or soil that contains hazardous waste.
        Note that, because LDRs apply to the waste ``contained-in'' soil, 
    and not the soil itself (see principle (2)), LDRs do not apply to soil 
    that is at any time completely separated from its contaminating waste ( 
    i.e., the soil contains no solid or hazardous waste, it's ``just 
    soil''). One might determine that soil contained no solid or hazardous 
    waste, for example, if concentrations of hazardous constituents fall 
    below natural background levels or are at non-detectable levels. Such a 
    determination would terminate all RCRA Subtitle C requirements, 
    including LDRs, since waste would not longer be ``contained-in'' the 
    soil. See September 15, 1996 letter from Michael Shapiro (EPA) to Peter 
    Wright (Monsanto Company), making this finding; see also, 61 FR 18806 
    (April 29, 1996) and other sources cited therein.
        The following examples illustrate application of LDRs to 
    contaminated soil:
        1. Generator A is excavating soil mildly contaminated with 
    wastewater treatment sludge (listed waste F006). The sludge was land 
    disposed before 1980. The soil does not exhibit a characteristic of 
    hazardous waste and has been determined by an authorized state not to 
    contain listed hazardous waste. The soil is not prohibited from land 
    disposal. This is because, for LDR purposes, the point of generation is 
    when the soil is first excavated from the land (principle (1)). Since 
    no prohibited hazardous waste existed before that time (i.e., the 
    contaminating waste was not prohibited) and the soil does not contain 
    listed hazardous waste or exhibit a characteristic of hazardous waste 
    at its point of generation, there is
    
    [[Page 28619]]
    
    no hazardous waste to which a land disposal prohibition could attach 
    (principle (2)).
        2. Generator B is excavating soil contaminated by leaks from a 
    closing hazardous waste surface impoundment. The surface impoundment 
    received listed hazardous wastes K062 (spent pickle liquor) and 
    characteristic hazardous waste D018 (wastes that fail the TCLP test for 
    benzene). The surface impoundment stopped receiving K062 waste in 1987 
    and D018 waste in 1993. The soil does not exhibit a characteristic of 
    hazardous waste and has been determined by an authorized state not to 
    contain listed hazardous waste. The soil is not prohibited from land 
    disposal. This is because, for LDR purposes, the point of generation is 
    when the soil is first excavated from the land (principle (1)). Since 
    no prohibited hazardous waste existed before that time (i.e., the 
    contaminating wastes were not prohibited) and the soil does not contain 
    listed hazardous waste or exhibit a characteristic of hazardous waste 
    at its point of generation, there is no hazardous waste to which a land 
    disposal prohibition could attach (principle (2)).
        3. Generator C is excavating soil contaminated with listed 
    hazardous waste F024. The F024 waste was land disposed after 1991, 
    after it was prohibited from land disposal, and was not first treated 
    to meet applicable land disposal treatment standards (i.e., it was 
    illegally land disposed or accidentally spilled). Since the 
    contaminating waste was prohibited from land disposal and treatment 
    standards were not achieved prior to land disposal, the LDR prohibition 
    continues to apply to any soil contaminated by the waste (principle 
    (3)) regardless of whether the soil ``contains'' hazardous waste when 
    generated. The soil is prohibited from land disposal and, before land 
    disposal, must be treated to meet applicable technology-based treatment 
    standards or until a site-specific, risk-based minimize threat 
    determination is made through the variance process.
        4. Generator D is excavating soil contaminated by an accidental 
    spill of benzyl chloride, which, when discarded, is listed hazardous 
    waste P028 and is prohibited from land disposal. The accidental spill 
    occurred yesterday. The contaminating waste was prohibited from land 
    disposal and, since the treatment standards were not achieved prior to 
    the accidental spill, the prohibition continues to apply to any soil 
    contaminated by the waste (principle (3)). Thus, the soil is prohibited 
    from land disposal and, before land disposal, must be treated to meet 
    applicable technology-based treatment standards or until a site-
    specific, risk-based minimize threat determination is made through the 
    variance process.
        5. Generator E is excavating soil contaminated by listed hazardous 
    waste F004 (generally, spent non-halogenated solvents). The F004 waste 
    was land disposed in 1984, prior to the effective date of an applicable 
    land disposal prohibition; however, on generation the soil contains 
    high concentrations of cresols constituents, so that an authorized 
    state determines it ``contains'' hazardous waste. The soil is 
    prohibited from land disposal. Although the contaminating waste was not 
    prohibited from land disposal, since the soil contained hazardous waste 
    at the point of generation (and the waste had since become prohibited 
    from land disposal), the land disposal prohibition attaches to the 
    contaminated soil and, before land disposal, the soil must be treated 
    to meet applicable technology-based treatment standards or until a 
    site-specific, risk-based minimize threat determination is made through 
    the variance process (principles (1), (2), and (3)).
        EPA acknowledges that the reading of LDR applicability to 
    contaminated soil discussed above creates potential administrative 
    difficulties, since, in many cases, a factual determination will be 
    required as to when hazardous wastes were land disposed in order to 
    determine whether they were prohibited at that time and whether, 
    therefore, the prohibition continues to apply to contaminated soil. The 
    Agency expects that these difficulties will be minimal because, in most 
    cases, contamination will be caused by hazardous wastes placed before 
    the effective date of applicable land disposal prohibitions since land 
    disposal after prohibition would be illegal. The exception is 
    accidental spills of hazardous waste, which the Agency believes are (1) 
    rare, and (2) known, so determining dates of land disposal should not 
    be problematic. This issue was discussed in detail in the HWIR-Media 
    proposal. 61 FR 18805 (April 26, 1996).
        As discussed in the April 29, 1996 proposal, the Agency continues 
    to believe that, if information is not available or inconclusive, it is 
    generally reasonable to assume that contaminated soils do not contain 
    untreated hazardous wastes placed after the effective dates of 
    applicable land disposal prohibitions. This is because placement of 
    untreated hazardous waste after applicable LDR effective dates would be 
    a violation of RCRA, subject to significant fines and penalties 
    including criminal sanctions. 61 FR at 18805 (April 29, 1996). Of 
    course, program implementors and facility owners/operators cannot make 
    the determination that information on the types of waste contamination 
    or dates of waste placement is unavailable or inconclusive without 
    first making a good faith effort to uncover such information. By using 
    available site- and waste-specific information such as manifests, LDR 
    records required under 40 CFR 268.7, vouchers, bills of lading, sales 
    and inventory records, storage records, sampling and analysis reports, 
    accident reports, site investigation reports, spill reports, inspection 
    reports and logs, EPA believes that program implementors and facility 
    owners/operators will typically be able to make informed decisions 
    about the types of waste contamination and dates of waste placement. 
    Most commenters supported this approach.
        EPA notes that it is not critical for a decision about whether 
    contaminated soil contains listed hazardous waste or exhibits a 
    characteristic of hazardous waste to be made without removing any of 
    the soil (other than the sample volume) from the land. In an area of 
    generally dispersed soil contamination, soil may be consolidated or 
    managed within the area of contamination to facilitate sampling, for 
    example, to ensure that soil samples are representative or to separate 
    soil from non-soil materials. However, care should be taken not to 
    remove hazardous contaminated soils from separate areas of 
    contamination at a facility and place such hazardous contaminated soil 
    into a land disposal unit unless, of course, the soil meets applicable 
    LDR treatment standards. The area of contamination policy is discussed 
    later in this section of today's preamble.
        A few commenters expressed concern or confusion over the 
    application of LDRs to soil contaminated by accidental spills of 
    hazardous wastes. The Agency clarifies that accidental spills of 
    hazardous wastes (or products or raw materials) are not considered 
    placement of hazardous waste into a land disposal unit since, in the 
    case of a spill, prohibited waste is not being placed in one of the 
    identified units named in RCRA Section 3004(m).45 See, 45 FR 
    76626 (Nov. 19, 1980), issuing clarifying regulations at 40 CFR 
    264.10(g) to provide that hazardous waste treatment
    
    [[Page 28620]]
    
    and storage activities undertaken in immediate response to an 
    accidental spill are exempt from the 40 CFR Part 264 and 265 
    regulations governing treatment and storage and do not require permits 
    and Sept. 29, 1986 memo from J. Winston Porter (EPA Assistant 
    Administrator) to Fred Hansen interpreting the 40 CFR 264.10(g) 
    regulations; also see, 55 FR at 30808-30809 (July 27, 1990) (``a one-
    time spill of hazardous waste would not be considered a solid waste 
    management unit.'') However, contaminated soils generated through 
    remediation of spills of untreated listed prohibited hazardous wastes 
    are, as discussed above, subject to land disposal prohibitions since 
    the LDR prohibition that had attached to the contaminating hazardous 
    waste continues to apply until threats are minimized, and, therefore, 
    any contaminated soil remains subject to LDRs (see principle (3)).
    ---------------------------------------------------------------------------
    
        \45\ Although, if such a spill were not cleaned up in a timely 
    way, EPA or an authorized state could determine that the 
    contaminated area should be considered a land disposal unit for 
    purposes of requiring cleanup under RCRA Subtitle C. 55 FR at 20809 
    (July 27, 1990).
    ---------------------------------------------------------------------------
    
        A number of commenters expressed concern that EPA's interpretation 
    of LDR applicability to contaminated soil might preclude application of 
    the existing area of contamination policy. In the area of contamination 
    policy, EPA interprets RCRA to allow certain discrete areas of 
    generally dispersed contamination to be considered a RCRA unit (usually 
    a landfill). 55 FR 8758-8760 (March 8, 1999). This interpretation 
    allows hazardous wastes (and hazardous contaminated soils) to be 
    consolidated, treated in situ or left in place within an area of 
    contamination without triggering the RCRA land disposal restrictions or 
    minimum technology requirements--since such activities would not 
    involve ``placement into a land disposal unit,'' which is the statutory 
    trigger for LDR. EPA clarifies that its interpretation of LDR 
    applicability for contaminated soil does not, in any way, affect 
    implementation of the area of contamination policy.
        Finally, many commenters expressed concern over EPA's application 
    of the LDR treatment standards to soil that is determined no longer to 
    contain hazardous waste or exhibit a characteristic of hazardous waste. 
    As discussed in detail in the 1996 proposal, at this time EPA has 
    concluded that although the Chemical Waste opinion did not speak to 
    contaminated soil specifically, it is prudent to apply the Chemical 
    Waste logic--that a duty to comply with LDRs attaches to hazardous 
    waste when it is first generated and elimination of the indicia of 
    ``hazardousness'' does not, necessarily, fulfil the statutory land 
    disposal restriction treatment standard--to contaminated soil. See 
    Chemical Waste Management v. EPA, 976 F.2d at 13-16. Although, as 
    discussed later in today's preamble, EPA believes that contained-in 
    determinations will rarely, if ever, be made at constituent 
    concentrations which do not minimize threats, without codifying the 
    contained-in policy, the Agency cannot make the generic finding that 
    this will be the case at every site. For this reason, EPA is requiring 
    that the standards and procedures promulgated today for site-specific, 
    risk-based minimize threat variances alone be used to make minimize 
    threat determinations. This issue is discussed in section VII.E of 
    today's preamble.
    
    C. Conforming and Supporting Changes
    
        To support the land disposal restriction treatment standards for 
    contaminated soil, the Agency is today promulgating a number of 
    conforming and supporting regulations, as follows.
    1. Recordkeeping Requirements
        A number of commenters expressed confusion over the recordkeeping 
    and reporting requirements that would apply to contaminated soil. The 
    Agency is today clarifying that contaminated soil subject to the land 
    disposal restrictions must comply with the same recordkeeping and 
    reporting requirements as other wastes subject to the land disposal 
    restrictions. That is, the recordkeeping and reporting requirements of 
    40 CFR 268.7 will apply.
        EPA has clarified this in the final regulations by adding 
    appropriate recordkeeping requirements for contaminated soils to the 
    tables in 40 CFR 268.7(a) and 40 CFR 268.7(b). These rules specify 
    that, for contaminated soil, generators and/or treaters must include 
    the following information with their land disposal restriction 
    paperwork: the constituents subject to treatment as described in 40 CFR 
    268.49(d) and this statement, ``this contaminated soil [does/does not] 
    contain listed hazardous waste and [does/does not] exhibit a 
    characteristic of hazardous waste and [is subject to/complies with] the 
    soil treatment standards as provided by 268.49(c) or the universal 
    treatment standards.'' Note that because in some cases contaminated 
    soil will continue to be subject to LDRs even after it has been 
    determined not to or no longer to contain listed hazardous waste (or 
    de-characterized), the statement includes a notification of whether the 
    soil is still considered hazardous. This is consistent with the 
    approach the Agency used when establishing land disposal restriction 
    treatment standards for hazardous contaminated debris.
    2. Definition of Soil
        The Agency is promulgating the definition of soil from the April 
    29, 1996 proposal with one change made in response to comments. Soil is 
    defined as, ``unconsolidated earth material composing the superficial 
    geologic strata (material overlying bedrock), consisting of clay, silt, 
    sand, or gravel size particles as classified by the U.S. Soil 
    Conservation Service, or a mixture of such materials with liquids, 
    sludges or solids which is inseparable by simple mechanical removal 
    processes and is made up primarily of soil by volume, based on visual 
    inspection.'' The Agency has added the phrase ``by volume, based on 
    visual inspection'' in response to comments recommending that EPA 
    explicitly conform the definition of soil with the definition of 
    debris. See 57 FR 37222 (August 18, 1992). This clarification is 
    consistent with the Agency's intent, as discussed in the 1996 proposal, 
    that determinations of whether any material was ``soil,'' ``debris,'' 
    or ``waste'' to be made in the field. 61 FR 18794 (April 26, 1996).
        The definition of soil includes the concept that mixtures of soil 
    and other materials are to be considered soil provided the mixture is 
    made up predominantly of soil and that the other materials are 
    inseparable using simple physical or mechanical means. This approach 
    allows program implementors and facility owners/operators to determine 
    whether any given material is soil, waste, or debris based on the 
    results of simple mechanical removal processes commonly used to 
    separate materials, such as pumping, dredging, or excavation by 
    backhoe, forklift or other device. It avoids requiring chemical 
    analysis for soil properties in order to differentiate precisely 
    between wastes, soil and debris. As discussed in the April 29, 1996 and 
    September 14, 1993 proposals, the Agency believes that attempting to 
    distinguish more precisely between waste, soil or debris using chemical 
    analysis or other tests would be prohibitively difficult to develop and 
    support and cumbersome to administer. Cf. 57 FR at 37224, August 18, 
    1992, where the Agency adopted a similar classification system for 
    hazardous debris. Most commenters supported this approach. Note that 
    any non-soil that is separated from contaminated soil that contains 
    listed hazardous waste or is found to exhibit a characteristic of 
    hazardous waste should be considered hazardous waste and is subject to 
    the applicable universal treatment standard.
    
    [[Page 28621]]
    
        EPA also emphasizes that any dilution of a prohibited contaminated 
    soil (or of a prohibited hazardous waste with soil) as a substitute for 
    adequate treatment to achieve compliance with LDR treatment standards 
    or to circumvent the effective date of an LDR prohibition is considered 
    a type of impermissible dilution and is illegal. Therefore, any 
    deliberate mixing of prohibited hazardous waste with soil in order to 
    change its treatment classification (i.e., from waste to contaminated 
    soil) is illegal. Existing regulations concerning impermissible 
    dilution already make this point. See 40 CFR 268.3(a) and (b); see also 
    57 FR at 37243 (Aug. 18, 1992) (adopting the same principle for 
    contaminated debris). The Agency expects that deliberate mixing of 
    hazardous waste with soil (and vice versa) will be rare because such 
    actions are clearly illegal and would subject generators to substantial 
    fines and penalties, including criminal sanctions. In addition, the 
    resulting mixture (hazardous waste impermissible diluted by soil) would 
    continue to be subject to the LDRs for the original hazardous waste 
    (i.e., generally, the universal treatment standards), so no benefit in 
    terms of reduced treatment requirements would occur. The Agency took a 
    similar approach when promulgating treatment standards specific to 
    hazardous debris. See 57 FR at 37224 (August 18, 1992).
        The Agency notes that the normal mixing of contaminated soil from 
    various portions of a site that typically occurs during the course of 
    remedial activities or in the course of normal earthmoving and grading 
    activities is not considered intentional mixing of soil with non-media 
    or prohibited soil with non-prohibited soil and, therefore, is not a 
    type of impermissible dilution.
    
    D. Seeking Treatment Variances Because the National Treatment Standard 
    is Unachievable or Inappropriate
    
        Under existing regulations at 40 CFR 268.44, people may obtain a 
    variance from a land disposal restriction treatment standard when a 
    waste cannot be treated to the specified level or when a treatment 
    standard may be inappropriate for the waste. With respect to 
    contaminated soils, EPA has to this point presumed that a treatment 
    variance would generally be needed because the LDR treatment standards 
    developed for process wastes were either unachievable (generally 
    applied to soil contaminated by metals) or inappropriate (generally 
    applied to soil contaminated by organic constituents). See, for 
    example, 55 FR 8760 (March 8, 1990); 58 FR 48092, 48125 (September 14, 
    1993); 61 FR 18805-18808, 18810-18812 (April 29, 1996); and, 61 FR 
    55717 (October 28, 1996). This presumption will no longer apply once 
    today's soil treatment standards take effect. This is because today's 
    standards were developed specifically for contaminated soils and are 
    intended to specifically address the past difficulties associated with 
    applying the treatment standards developed for process waste to 
    contaminated soil.
        This is not to say that treatment variances based on the 
    ``unachievable'' or ``inappropriate'' prongs of the test are now 
    unavailable for contaminated soils. For example, in some cases it may 
    prove that even though an appropriate technology, suited to the soil 
    matrix and constituents of concern was used, a particular soil cannot 
    be treated to meet the soil treatment standards using a well-designed 
    well-operated application of one of the technologies EPA considered in 
    establishing the soil standards. In these types of cases, under 
    existing regulations, the soil treatment standard would be considered 
    ``unachievable'' and a treatment variance could be approved. In other 
    cases, under existing regulations, application of the soil treatment 
    standards might be ``inappropriate'' in that, for example, it would 
    present unacceptable risks to on-site workers.
        As noted earlier in today's preamble, alternative LDR treatment 
    standards established through treatment variances must, according to 40 
    CFR 268.44(m), ``minimize threats to human health and the environment 
    posed by land disposal of the waste.'' In cases where an alternative 
    treatment standard does not meet this requirement, a treatment variance 
    will not be approved even though application of a technology more 
    aggressive than the technologies on which the soil treatment standards 
    are based might then be necessary. For example, in cases where the soil 
    treatment standards cannot be achieved through application of a well-
    designed, well-operated application of one of the model soil treatment 
    technologies and application of the model technology or other non-
    combustion technologies will not result in constituent concentrations 
    that minimize threats, a variance would not be approved and combustion 
    would be necessary. This is proper given that the soil treatment 
    standards were not developed using the methodology typically used in 
    the land disposal restriction program (i.e., application of the most 
    aggressive treatment technology to the most difficult to treat waste), 
    but, instead are designed to accommodate a variety of soil treatment 
    technologies that are typically used during remediation. Variances for 
    treatment of contaminated soil will be applied during the remedial 
    context, where, as discussed in Section VII.B.3 of today's preamble, 
    EPA and authorized states will typically have detailed information 
    about the risks posed by specific hazardous constituents, direct and 
    indirect exposure routes, risk pathways and human and environmental 
    receptors. This information can be used to inform decisions about 
    whether threats are minimized.
    
    E. The Contained-In Policy
    
        The contained-in principle is the basis for EPA's longstanding 
    interpretation regarding application of RCRA Subtitle C requirements to 
    mixtures of contaminated media and hazardous wastes. Under the 
    ``contained-in'' policy, EPA requires that soil (and other 
    environmental media), although not wastes themselves, be managed as if 
    they were hazardous waste if they contain hazardous waste or exhibit a 
    characteristic of hazardous waste. See, for example, 53 FR 31138, 31148 
    (August 17, 1988) and 57 FR 21450, 21453 (May 20, 1992) (inadvertently 
    citing 40 CFR 261(c)(2) instead of 40 CFR 261.3(d)(2)); see also 
    Chemical Waste Management v. EPA, 869 F.2d 1526, 1539-40 (D.C. Cir. 
    1989) (upholding the contained-in principle as a reasonable 
    interpretation of EPA regulations). In practice, EPA has applied the 
    contained-in principle to refer to a process where a site-specific 
    determination is made that concentrations of hazardous constituents in 
    any given volume of environmental media are low enough to determine 
    that the media does not ``contain'' hazardous waste. Typically, these 
    so called ``contained-in'' determinations do not mean that no hazardous 
    constituents are present in environmental media but simply that the 
    concentrations of hazardous constituents present do not warrant 
    management of the media as hazardous waste.46 For 
    contaminated soil, the result of ``contained-in determinations'' is 
    that soil no longer ``contains'' a
    
    [[Page 28622]]
    
    hazardous waste; however, as discussed above, the result is not 
    automatically that soil no longer must comply with LDRs.
    ---------------------------------------------------------------------------
    
        \46\ Of course, as noted earlier, EPA or an authorized state 
    could determine, at any time, that any given volume of environmental 
    media did not contain (or no longer contained) any solid or 
    hazardous waste (i.e., it's just media). These types of 
    determinations might be made, for example, if concentrations of 
    hazardous constituents fall below background levels, or are at non-
    detectable levels. Such a determination would terminate all RCRA 
    Subtitle C requirements, including LDRs. See, September 15, 1995 
    letter from Michael Shapiro (EPA) to Peter Wright (Monsanto 
    Company), making this finding, and 61 FR 18806 (April 29, 1996).
    ---------------------------------------------------------------------------
    
        In order to preserve flexibility and because EPA believes 
    legislative action is needed, the Agency has chosen, at this time, not 
    to go forward with the portions of the September 14, 1993 or April 29, 
    1996 proposals that would have codified the contained-in policy for 
    contaminated soils. The Agency continues to believe that legislation is 
    needed to address application of certain RCRA subtitle C requirements 
    to hazardous remediation waste, including contaminated soil. If 
    legislation is not forthcoming, the Agency may, in the future, re-
    examine its position on the relationship of the contained-in policy to 
    site-specific minimize threat determinations based on implementation 
    experience and/or may choose to codify the contained-in policy for 
    contaminated soil in a manner similar to that used to codify the 
    contained-in policy for contaminated debris.
    1. Current Guidance on Implementation of the Contained-in Policy
        EPA has not, to date, issued definitive guidance to establish the 
    concentrations at which contained-in determinations may be made. As 
    noted above, decisions that media do not or no longer contain hazardous 
    waste are typically made on a case-by-case basis considering the risks 
    posed by the contaminated media. The Agency has advised that contained-
    in determinations be made using conservative, health-based levels 
    derived assuming direct exposure pathways. 61 FR at 18795 (April 29, 
    1996) and other sources cited therein. A compilation of many of the 
    Agency's statements on the contained-in policy has been placed in the 
    docket for today's rulemaking.
        The land disposal restriction treatment standards for contaminated 
    soil promulgated today do not affect implementation of the contained-in 
    policy. They are not considered, and should not be used, as de facto 
    ``contained-out'' concentrations although, in some cases, it may be 
    appropriate to determine that soil treated to the soil treatment 
    standards no longer contains hazardous waste. Remediation project 
    managers should continue to make contained-in decisions based on site-
    specific conditions and by considering the risks posed by any given 
    contaminated media.
    2. Relationship of the Contained-In Policy to Site-Specific, Risk-Based 
    Minimize Threat Determinations
        As discussed above, the D.C. Circuit held in the Chemical Waste 
    opinion that the RCRA Section 3004(m) obligation to minimize threats 
    can continue even after a waste would no longer be identified as 
    ``hazardous.'' Chemical Waste Management v. EPA, 976 F.2d at 13-16. The 
    Agency believes that it is prudent to apply the logic of the Chemical 
    Waste opinion to contaminated soil. Therefore, when the contained-in 
    policy is applied to soil that is already subject to a land disposal 
    prohibition, the Agency is compelled to decide if a determination that 
    soil does not or no longer ``contains'' hazardous waste is sufficient 
    to determine that threats posed by subsequent land disposal of those 
    soils have been minimized. As discussed earlier in today's preamble, 
    EPA is not, at this time, able to make a generic finding that all 
    contained-in determinations will automatically satisfy this standard. 
    This is largely because, for reasons of needed administrative 
    flexibility and because we believe legislation is needed, EPA has not 
    codified standards for approving contained-in determinations and has 
    not codified procedures for making such determinations. Absent such 
    standards and procedures, the Agency cannot, at this time, make a 
    generic finding that all contained-in determinations will result in 
    constituent concentrations that also minimize threats within the 
    meaning of RCRA Section 3004(m). These decisions, of course, could be 
    made on a site-specific basis, by applying the standards and procedures 
    for site-specific, risk-based minimize threat variances, promulgated 
    today.
        The regulations governing site-specific, risk-based minimize threat 
    determinations promulgated today are, essentially, the same as the 
    Agency's guidance for making contained-in determinations. See, for 
    example, 61 FR 18795 (April 29, 1996) and other sources cited therein. 
    That is, decisions should be made by considering the inherent risks 
    posed by any given soil, assuming direct exposure (i.e., no post-land 
    disposal controls) and applying conservative information to calculate 
    risk. Therefore, the Agency expects that, in most cases, a 
    determination that soils do not (or no longer) contain hazardous waste 
    will equate with minimize threat levels and, therefore, encourages 
    program implementors to combine contained-in determinations, as 
    appropriate, with site-specific, risk-based minimize threat variances.
    
    F. Relationship of Soil Treatment Standards to the Final HWIR-Media 
    Rule
    
        In the April 29, 1996 HWIR-Media proposal, EPA proposed to 
    establish a comprehensive alternative management regime for hazardous 
    contaminated media, of which the treatment standards for contaminated 
    soil would have been a small part. The HWIR-Media proposal discussed a 
    number of options for comprehensive management standards for hazardous 
    contaminated media.
        Today's action resolves and finalizes the portion of the HWIR-Media 
    proposal that addressed land disposal restriction treatment standards 
    for contaminated soil. See 61 FR 18805-18814, April 29, 1996. Other 
    portions of the proposal are not resolved by this action and will be 
    addressed by EPA in future actions. EPA continues to emphasize that, 
    while the soil-specific LDR treatment standards will improve 
    contaminated soil management and expedite cleanups, the Agency also 
    recognizes that additional reform is needed, especially for management 
    of non-media remediation wastes like remedial sludges. The Agency will 
    continue to participate in discussions on potential legislation to 
    promote this additional needed reform.
    
    VIII. Improvements and Corrections to LDR Regulations
    
        Summary: The regulated community has pointed out several examples 
    of the LDR regulations that were unclear or had typographical errors. 
    These sections are clarified and corrected below.
    
    A. Typographical Error in Section 261.1(c)(10)
    
        A typographical error was found in the cross reference in the note 
    in Sec. 261.1(c)(10). The first Phase IV final rule (``Minirule,'' 62 
    FR 25998) said ``They are covered under the exclusion from the 
    definition of solid waste for shredded circuit boards being recycled 
    (261.4(a)(13)).'' The correct cross reference is to ``(261.4(a)(14).'' 
    This typographical error is corrected in this final rule.
    
    B. Typographical Error in Section 268.4(a)(2)(ii) and (a)(2)(iii)
    
        These paragraphs have referred to Sec. 268.8 for some time. Section 
    268.8 was where the so called ``soft hammer'' provisions were once 
    found in the regulations. These provisions expired in 1990, and the 
    provisions have been removed from the regulations; thus there is no 
    need to continue to include references to Sec. 268.8.
    
    [[Page 28623]]
    
    C. Clarifying Language Added to Section 268.7
    
        The first item in the paperwork tables requires that the EPA 
    Hazardous Waste and Manifest numbers be placed on the notification 
    forms. Today's changes clarify that the manifest number required to be 
    placed on the notification form is that of the first shipment of waste 
    to the treatment or disposal facility.
        The tables of paperwork requirements found at Sec. 268.7(a)(4) and 
    (b)(3) have entries that describe what waste constituents have to be 
    identified on the one-time LDR notification (see item 3 in the 
    generator table at Sec. 268.7(a)(4), and item 2 in the treatment and 
    storage facility table at Sec. 268.7(b)(3)). The language of these 
    items has been changed to avoid confusion about whether wastes managed 
    at facilities subject to the Clean Water Act (CWA), CWA-equivalent 
    facilities, or wastes injected into deepwells subject to the Safe 
    Drinking Water Act (SDWA) are subject to a paperwork requirement (and 
    if so, what requirements). Wastes managed in these facilities are 
    subject to a one-time notification requirement. This notification must 
    be placed in the facility's on site files and must contain the 
    information described in the paperwork tables. Therefore, the 
    parenthetical language that appeared to exclude such facilities from 
    the paperwork requirements has been removed from item 2 in the 
    ``Generator'' table, and item 3 in the ``Treatment Facility'' table.
        In addition, these items have been further clarified by adding the 
    language ``in characteristic wastes'' after the clause ``and underlying 
    hazardous constituents,'' to indicate exactly what type of wastes must 
    be considered when determining whether underlying hazardous 
    constituents are present. The title of the paperwork table at 
    Sec. 268.7(b)(3) has been changed to clarify that the requirements 
    apply to storage facilities as well as treatment facilities. A number 
    of certifications were inadvertantly removed from Sec. 268.7(b) through 
    Office of Federal Register drafting errors. Those certifications are 
    reinstated because it was never the intention of the Agency that they 
    were removed.
    
    D. Correction to Section 268.40--Treatment Standards for Hazardous 
    Waste
    
        In the Phase III Final Rule (61 FR 15566), the Agency promulgated a 
    UTS of 12.0 mg/L for 1,4-dioxane wastewaters based on the performance 
    of distillation. At that time, 1,4-dioxane was the only UTS constituent 
    for which EPA had promulgated a nonwastewater standard but not a 
    wastewater standard. However, as part of that rule, the Agency failed 
    to extend the treatment standard to wastewater forms of U108 wastes. 
    Today, the Agency is correcting this oversight in Section 268.40--
    Treatment Standards for Hazardous Wastes, by replacing the ``NA'' 
    designation under AU108 -1,4-Dioxane [email protected] with ``12.0 mg/L.'' 
    As such the 1,4-Dioxane alternate treatment standard now applies to 
    both wastewater and nonwastewaters forms of U108 waste.
    
    E. Removal of California List Requirements and de minimis Provision 
    From Section 268.42
    
        In the Phase IV rule promulgated on May 12, 1997, EPA removed the 
    California List requirements because they have all been superseded by 
    more specific treatment standards. The California List included liquid 
    wastes containing certain metals, cyanide, polychlorinated biphenyls 
    (PCBs) above specified levels, and liquid and nonliquid halogenated 
    organic compounds (HOCs) above specified levels. These wastes were 
    removed from the Table of Treatment Standards in Sec. 268.40; however, 
    the requirements in Sec. 268.42(a)(1) and (a)(2) were overlooked. These 
    paragraphs are removed by today's rule. And because these paragraphs 
    are being removed, it is necessary to revise the language of 
    Sec. 268.42(a) to remove references to these paragraphs.
        The de minimis provision of paragraph Sec. 268.42(a)(3) is also 
    being removed by today's rule. The de minimis provision applied to 
    wastewaters regulated under the Clean Water Act (CWA) mixed with high 
    total organic carbon (TOC) ignitable wastes. In the Phase III final 
    rule, however, wastes discharged under the CWA, or in a facility that 
    is CWA-equivalent, are not subject to the LDRs (61 FR 15660, April 8, 
    1996). Therefore the de minimis provision was redundant and has been 
    removed by today's rule.
    
    F. Typographical Errors and Outdated Cross-References in Section 268.45
    
        There is a typographical error in Sec. 268.45(a). The language has 
    referred to Sec. 261.3(c)(2), a section removed from the regulations on 
    September 30, 1992 (57 FR 49278). It should refer to Sec. 261.3(f)(2). 
    The correction is being made in this final rule.
        In paragraphs (3) and (4) in Sec. 268.45(d) there are outdated 
    cross references to treatment standards that were once found at 
    Sec. 268.42 and Sec. 268.43 (the treatment standards once found in 
    these sections have been consolidated into the ``Table of Treatment 
    Standards'' at Sec. 268.40). These cross references have been removed 
    from Sec. 268.45(d)(3) and (d)(4).
        G. Correction to Sec. 268.48 to Explain That Sulfides are not 
    Regulated as Underlying Hazardous Constituents in Characteristic Wastes
        In response to a comment received on the original Phase IV 
    proposal, EPA reviewed the basis for the universal treatment standard 
    for sulfides in the Universal Treatment Standard Table at 40 CFR 
    268.48. EPA is correcting the table in this rule. Sulfides are 
    regulated only in Waste Code F039 (multi-source leachate), and not as 
    underlying hazardous constituents in characteristic wastes.
    
    H. Cross References in Section 268.50(e)
    
        Erroneous references appeared in this section to Secs. 268.41, 
    268.42, 268.43, and 268.32. They are eliminated in this final rule.
    
    I. Mistakes in Appendices VII and VIII
    
        Table 1 includes entries for F033. There is no hazardous waste with 
    the EPA waste code F033. Therefore, these entries are being removed. 
    The second entry for waste codes F032, the second entry for F034, and 
    the first entry for K088 contained typographical errors that are being 
    revised in today's final rule. In addition, two entries for waste code 
    F035 are being added to the table. Table 2 is amended by revising entry 
    number 9 to change the prohibition date for soil and debris 
    contaminated with K088 wastes.
        The title of appendix VIII is revised to clarify that it provides 
    the effective dates for wastes injected into deep wells.
    
    J. Clarification Regarding Point of Generation of Boiler Cleanout 
    Rinses
    
        In the May 12, 1997 final Phase IV rule, EPA included in the 
    preamble an interpretive discussion regarding at what point the Agency 
    considers a waste to be generated when power plant boilers are cleaned 
    out using multiple rinses. 62 FR at 26006. The question is relevant to 
    the issue of whether subtitle C rules apply to such waste, and also, if 
    the waste is to be land disposed, whether LDR prohibitions apply. In 
    essence, the interpretation is that the cleanout of the boiler is to be 
    viewed as a single process, so that if the boiler cleanout liquids are 
    commingled in a single tank system, the hazardousness of the resulting 
    cleanout liquids is to be determined at the end of the cleaning 
    process. Id.
    
    [[Page 28624]]
    
        Some confusion has arisen regarding whether this interpretation 
    applies to permanent storage tanks, or only to temporary tanks brought 
    on-site to manage the boiler cleanout rinses. The Agency's view is that 
    the interpretation applies to temporary tanks, and also to permanent 
    tanks when such units are used exclusively for the management of boiler 
    cleanout during the boiler cleanout process. (Such tanks could, of 
    course, be engaged in other activities when they are not dedicated to 
    management of boiler cleanout waste during the cleanout process.)
        EPA did state in the May 12 notice that ``[t]he interpretation * * 
    * does not apply where there are permanent storage units involved.'' 62 
    FR at 26007. What the Agency had in mind was a tank already engaged in 
    the permanent storage of hazardous waste. However, so long as a tank is 
    dedicated solely to storage of boiler cleanout rinses during the boiler 
    cleanout process, there is no environmental distinction between whether 
    or not a temporary or permanent tank is used for the purpose. 
    Consequently, the point of generation interpretive principle announced 
    in the May 12 notice applies to both permanent and temporary tanks 
    systems.
    
    IX. Capacity Determination for Phase IV Land Disposal Restrictions
    
    A. Introduction
    
        This section summarizes the results of the capacity analysis for 
    the wastes covered by today's rule. For a detailed discussion of 
    capacity analysis-related data sources, methodology, and response to 
    comments for each group of wastes covered in this rule, see the 
    background document for the capacity analysis and the background 
    document for the comment summary and response for capacity-related 
    issues (i.e., collectively referred to as the Capacity Background 
    Documents).
        In general, EPA's capacity analysis focuses on the amount of waste 
    to be restricted from land disposal that is currently managed in land-
    based units and that will require alternative treatment as a result of 
    the LDRs. The quantity of wastes that are not managed in land-based 
    units (e.g., wastewater managed only in RCRA exempt tanks, with direct 
    discharge to a Publicly Owned Treatment Works (POTW)) is not included 
    in the quantities requiring alternative treatment as a result of the 
    LDRs. Also, wastes that do not require alternative treatment (e.g., 
    those that are currently treated using an appropriate treatment 
    technology) are not included in these quantity estimates.
        EPA's decisions on when to establish the effective date of the 
    treatment standards (e.g., by granting a national capacity variance) 
    are based on the availability of alternative treatment or recovery 
    technologies. Consequently, the methodology focuses on deriving 
    estimates of the quantities of waste that will require either 
    commercial treatment or the construction of new on-site treatment as a 
    result of the LDRs. EPA also estimates the quantities of waste that 
    will be treated adequately either on site in existing systems or off 
    site by facilities owned by the same company as the generator (i.e., 
    captive facilities), and attempts to subtract that amount from the 
    overall amount of required capacity.
    
    B. Available Capacity for Surface Disposed Wastes
    
        Available capacity was estimated for four treatment technology 
    categories that are expected to be used for the majority of wastes in 
    today's rule: stabilization (including chemical fixation), 
    vitrification, metal recovery, and thermal treatment. (Numerous other 
    types of treatment also can meet the treatment standards for much of 
    these wastes, although the Agency did not find it necessary to present 
    the estimates of available capacity of these treatments. See the 
    Capacity Background Documents for further information.)
    1. Stabilization
        EPA estimates that there are at least several million mt/yr of 
    available stabilization capacity, with most of it able to meet the 
    treatment requirements for the TC metal wastes and newly identified 
    mineral processing wastes. Furthermore, the Agency found that currently 
    utilized stabilization capacity can be quickly modified (i.e., in less 
    than 90 days) to meet the new treatment standards by implementing 
    relatively simple changes to formulations. For additional details, see 
    the Capacity Background Documents.
    2. Vitrification
        EPA has determined that vitrification technology is commercially 
    available for treating limited quantities of Phase IV wastes, such as 
    some arsenic wastes, that are difficult to treat using stabilization 
    and other techniques. EPA estimates that there are approximately 15,000 
    mt/yr of available vitrification capacity.
    3. Metal Recovery
        High temperature and other types of metal recovery appears to be 
    the most applicable treatment for certain wastes containing high 
    concentrations of metal constituents. EPA identified and reviewed 
    several metal recovery technologies that are commercially available, 
    and has determined that at least 800,000 mt/yr of metal recovery 
    capacity exists.
        EPA recognizes, however, that not all of this capacity will be 
    available for Phase IV wastes. For example, there are technical 
    constraints on the metal recovery systems stemming from metal content 
    limitations of the waste. Nevertheless, the Agency believes that a 
    significant portion of this capacity is amenable to Phase IV wastes. 
    For additional details, see the Capacity Background Documents.
    4. Thermal Treatment
        EPA estimates that there are approximately 231,000 mt/yr of 
    commercial sludge/solid/soil combustion capacity and 651,000 mt/yr of 
    commercial liquid combustion capacity available for wastes covered by 
    today's rule. Other types of thermal treatment, such as thermal 
    desorption, also are available. For additional details, see the 
    Capacity Background Documents.
    
    C. Required Capacity and Variance Determination for Surface Disposed TC 
    Metal Wastes
    
        EPA estimates that at most, 1.2 million mt/yr of TC metal wastes 
    could require alternative treatment as a result of promulgation of 
    today's rule. This estimate includes both wastes that are newly-
    identified TC wastes (i.e., wastes that do not fail the EP test, and, 
    consequently, were not part of the Third Third LDR rule) and wastes 
    that fail the EP test (i.e., those wastes that were regulated in the 
    Third Third LDR rule). Although only the newly identified TC wastes are 
    eligible for a national capacity variance, the capacity analysis 
    includes all wastes affected by the rule because estimates for each 
    category are not available, and, furthermore, because all of these 
    wastes need to be assessed to determine the full impact of this rule on 
    the need for a capacity variance. Additionally, the 1.2 million 
    estimated quantity is likely to be an overestimate because most of 
    these wastes are already meeting the new treatment standards. Also, 
    most of these wastes are likely to fail the EP test and, therefore, are 
    no longer eligible for a capacity variance.
        The wastes that will require alternative treatment are expected to 
    primarily only require optimization of existing stabilization 
    formulations and systems. Also, sufficient vitrification capacity 
    exists to treat the otherwise difficult-to-treat TC metal wastes, high 
    temperature metal recovery capacity
    
    [[Page 28625]]
    
    exists for some of the TC metal wastes, and sufficient and other 
    combustion capacity exists to pre-treat TC metal wastes that contain 
    organic underlying hazardous constituents (UHCs). The Agency has 
    determined that these conclusions also apply to TC metal contaminated 
    debris. In addition, the other debris treatment technologies set out in 
    268.45 are widely available.
        For TC metal contaminated soils, the Agency believes that the 
    treatment standards, ten times UTS or 90% reduction, will not result in 
    any capacity problems for treating metals since most soils are already 
    meeting these standards and, furthermore, there is an excess of 
    stabilization treatment capacity. Additionally, for treating organics 
    to the alternative treatment standards, sufficient treatment capacity 
    exists from use of other technologies (e.g., thermal desorption, soil 
    washing, biotreatment).
        To allow facilities time to determine whether their wastes are 
    affected by this rule and identify and locate alternative treatment 
    capacity if necessary, EPA is providing 90 days between the publication 
    of today's rule and the effective date of the treatment standards for 
    the TC metal wastes, including soil and debris, covered by today's 
    rule. For a detailed discussion on data sources, methodology, and 
    comments and responses for these wastes, see the Capacity Background 
    Documents.
    
    D. Required Capacity and Variance Determination for Surface Disposed 
    Mineral Processing Wastes
    
        EPA estimates that the maximum quantity of newly identified mineral 
    processing wastes potentially requiring alternative treatment is 
    approximately 1.9 million mt/yr. Most of these wastes (approximately 
    1.8 million mt/yr) are already being treated to nonhazardous levels 
    and, therefore, are not expected to require much, if any, additional 
    treatment. The remaining wastes, approximately 71,000 mt/yr, will 
    require treatment to meet the treatment standards. However, adequate 
    on-site and off-site treatment capacity is available for these wastes. 
    The Agency has determined that these conclusions also apply to debris 
    contaminated with mineral processing wastes. In addition, the other 
    debris treatment technologies set out in 268.45 are widely available. 
    For soils contaminated with mineral processing wastes, the Agency 
    believes that the treatment standards, ten times UTS or 90 percent 
    reduction, will not result in any capacity problems. Nevertheless, to 
    allow time for activities such as treatment system modifications or to 
    identify and locate alternative treatment capacity for process wastes, 
    soil, and debris, EPA is providing 90 days between the publication of 
    today's rule and the effective date of the treatment standards for the 
    mineral processing wastes, contaminated soil (including MGP soil; see 
    discussion below), and debris covered by today's rule (one exception is 
    the elemental phosphorus wastes; see discussion below). For a detailed 
    discussion on data sources, methodology, and comments and responses for 
    these wastes, see the Capacity Background Documents.
        EPA estimates that up to 1.2 million mt/yr of soil contaminated 
    with ``de-Bevilled'' wastes may be remediated from historic 
    manufactured gas plant (MGP) sites. In response to the first 
    supplemental proposal, several commenters stated that more than 50 
    percent of the MGP remediation sites are currently co-burning the 
    wastes in on-site coal-fired utility boilers and requested the Agency 
    to allow co-burning of MGP soils in coal-fired utility boilers and 
    exclude them from RCRA requirements. In today's rulemaking, the Agency 
    is confirming its existing (and not reopened) interpretation that 
    residues from co-burning hazardous MGP soils along with coal are 
    covered by the Bevill amendment (assuming the residues are not 
    significantly affected by such burning, as provided in section 
    266.112). In addition, as discussed elsewhere in this notice, the 
    Agency is promulgating treatment standards (ten times UTS or 90 percent 
    reduction) for contaminated soils. On-site treatment and existing 
    commercially available treatment technologies can readily achieve--and 
    to a large extent are already achieving--the treatment standards for 
    contaminated MGP soil. Therefore, the Agency does not anticipate any 
    capacity problems. To allow facilities time to determine whether their 
    wastes are affected by this rule, to identify alternative treatment 
    capacity if necessary, and to make contractual arrangements for 
    transportation and other logistics, EPA is providing 90 days between 
    the publication of today's rule and the effective date of the treatment 
    standards for MGP soils.
        In the first supplemental proposed rule, the Agency identified the 
    following three waste streams generated from elemental phosphorus 
    production as lacking sufficient commercial treatment capacity: Medusa 
    scrubber blowdown, Anderson filter media rinsate, and furnace building 
    washdown. A major generator of these waste streams, the FMC 
    Corporation's Pocatello, Idaho facility, provided a substantial amount 
    of data to show that these waste streams pose unique treatability 
    problems (e.g., due the presence of naturally occurring radioactive 
    materials (NORM)) and that a two-year national capacity variance is 
    needed to develop and construct treatment capacity. After careful 
    review of the data, EPA discussed in the May 10, 1996 Notice of Data 
    Availability, the possibility of a two-year national capacity variance 
    for these three large volume wastewater streams. In May 1997, EPA 
    proposed the second supplemental Phase IV rule (62 FR 26041) and, in 
    response to this proposal, FMC submitted a comment to EPA with new 
    information identifying three other waste streams (NOSAP slurry, 
    precipitator slurry, and phossy water) at its Pocatello, Idaho facility 
    that FMC believes would be subject to Phase IV LDR requirements. FMC 
    requested that a two-year national capacity variance also be granted 
    for these three new waste streams. Like the original waste streams, the 
    three newly identified streams are generated in the elemental 
    phosphorous production process and contain varying amounts of both NORM 
    and elemental phosphorous. FMC also noted that the AFM Rinsate waste 
    stream, for which FMC originally requested a national capacity 
    variance, has been completely eliminated, and that therefore a national 
    capacity variance would no longer be needed for this waste stream. The 
    Agency made these additional data available for public comment in a 
    November 10, 1997 NODA (62 FR 60465). No adverse comments were 
    received. The Agency has decided to grant a two-year capacity variance 
    for all five FMC wastestreams.
        Details of the methodology and estimates of affected facilities and 
    waste quantities for the newly identified mineral processing wastes are 
    provided in the Capacity Background Documents.
    
    E. Phase IV Mineral Processing and TC Metal Wastes Injected Into 
    Underground Injection Control (UIC) Class I Wells
    
        Summary: EPA is granting a two-year capacity variance for UIC wells 
    that inject newly identified mineral processing wastes from titanium 
    dioxide production.
        There are approximately 272 Class I injection well facilities 
    nationwide. The Agency identified approximately 46 of those facilities 
    as potentially injecting Phase IV wastes. These injected Phase IV 
    wastes account for less than 15 percent of the total injectate being 
    managed by Class I wells annually. Most of these facilities potentially 
    identified already have approved no-migration
    
    [[Page 28626]]
    
    petitions. In assessing the impact of the Phase IV rule to operators of 
    UIC facilities, the Agency found that the only potentially affected 
    wells are those injecting newly identified characteristic mineral 
    processing wastes, since other characteristic wastewaters were already 
    prohibited in 1990 and the period for possible capacity extensions for 
    these wastes has run out. (See UIC background document explaining in 
    detail why the other wastes are unaffected.)
        For a facility with an existing approved no-migration 
    determination, the facility operator may have already incorporated the 
    subject waste in the original petitions. Any facility with an approved 
    no-migration determination without the waste already incorporated may 
    submit a modified petition (40 CFR Part 148.20 (f)). However, if an 
    injection well has received a no-migration determination, it can inject 
    a newly prohibited waste only if the waste is similar to wastes 
    included in the initial no-migration petition. The new wastes must 
    behave hydraulically and chemically in a similar manner to those 
    already included in the initial petition demonstration such that they 
    will not interfere with the containment capability of the injection 
    zone and the location of the waste plume will not significantly differ 
    from the initial demonstration (See 40 CFR 148.20 (f) & UIC Program 
    Guidance # 74)). Based on this information, promulgation of the Phase 
    IV LDRs should have little impact on any facilities with approved 
    petitions.
        EPA estimates that approximately five million tons of mineral 
    processing wastes are being disposed annually in UIC wells. Of these, 
    approximately three million tons are attributable to titanium dioxide 
    production from two DuPont facilities. This volume is a conservative 
    estimate based on highly complex, non-segregable waste stream mixtures. 
    This total volume would be subject to the LDR treatment standards. 
    Titanium dioxide (TiO2) production wastes are either generated onsite 
    at facilities with injection wells, or at facilities without injection. 
    For these DuPont facilities, this waste is generated and disposed 
    onsite by injection wells. In order for these facilities to continue 
    injection of this restricted waste, a no-migration petition must be 
    approved to meet the conditions of 40 CFR Part 148.20 of the UIC 
    regulations.
        For those facilities disposing restricted Phase IV TiO2 mineral 
    processing waste, their options may be limited to meeting treatment 
    standards (onsite or offsite), submitting a no-migration petition, 
    transporting their waste to a commercial Class I hazardous disposal 
    well facility, or deactivating (diluting) the waste to make it 
    nonhazardous before injection (see RCRA section 3004 (g) (9), a recent 
    amendment which allows such dilution). All of these options are 
    resource intensive and owners/operators of these facilities will be 
    faced with critical economic and business decisions. These TiO2 
    facilities do not have immediate capability to treat their waste 
    onsite. If they were to opt for treatment onsite, it would require 
    substantial time and resources to build a treatment facility or to 
    substantially modify their existing facility. It would take at least 
    two years (and possibly longer) to construct such a treatment system. 
    In evaluating various disposal alternatives, one DuPont facility is 
    currently constructing a treatment works that will integrate a 
    neutralization project based on current production. As an alternative 
    to deep well injection disposal, the long term construction at this 
    facility has been costly and operational start-up will require 
    additional time to work out issues. See DuPont letter of Feb. 5, 1998.
        With respect to the options of managing the waste water offsite, 
    severe practical constraints limit the availability of capacity to 
    these DuPont Ti02 facilities. A typical volume of Ti02 wastewater is 
    900,000 Gallons (3,750 tons) per day; and peak production volumes are 1 
    million Gallons (4,167 tons) per day. DuPont letters of Feb. 5 & 20, 
    1998. At peak production, this would take 200 tanker trucks per day for 
    each affected facility to ship the volume of waste that is currently 
    injected. Additionally, these trucks must be constructed with 
    fiberglass or titanium tanks to be compatible to the low pH-highly 
    corrosive acid waste (Note from ICF to R. E. Smith to RCRA Docket (Feb. 
    17, 1998)). Indeed, it is not even certain that existing 10, 000 gallon 
    tanker trucks are compatible with this wastestream, due to its weight 
    (the TDS content is so high that a 10, 000 gallon tanker could only be 
    half full) and corrosivity. Dupont letter of Feb. 20, 1998.
        Commercial waste management facilities normally cannot feasibly 
    accommodate this daily volume. There are at least ten operating 
    commercial Class I hazardous waste injection facilities nationwide, it 
    is uncertain whether they have the capacity to accept 3 million tons of 
    TiO2 mineral processing waste annually for disposal because of 
    permitting limitations. These commercial wells also have finite 
    capacity limitations. The Agency studied the operational permit 
    parameters of these commercial facilities and found that individual 
    injection and flow capacity rates (UICWELLS Database) may restrict 
    injection of additional high volumes of waste. Rates are scientifically 
    and mathematically determined to avoid damage to the well and the 
    injection zone. Further study of compatibility requirements for these 
    wells suggest that they have acceptable construction for most wastes 
    disposed but not necessarily for the TiO2 production waste in its 
    present concentration. Without pretreatment, these waste 
    characteristics would require a more exotic well construction that is 
    composed of fiberglass injection tubing, titanium casing and packer, 
    epoxy and acid resistance compatible cement.
        EPA has also looked at commercial wastewater treatment capacity in 
    the vicinity of the two DuPont facilities. For one facility, there are 
    no available commercial waste water treatment plants within 200 miles. 
    For the other facility, there are two treatment plants within 75 miles 
    but neither has the capacity to accept the high volumes of waste 
    generated by either DuPont facility (based on BSR data). Commercial 
    waste water treatment facilities generally handle corrosive toxic metal 
    waste waters by stabilization and neutralization techniques. Treatment 
    plants managing the Ti02 production waste waters would have to be 
    specially constructed and equipped not only to be amenable to a high 
    volume of acidic waste but also have the capacity to manage the huge 
    amount of solids that will yield from treatment. Thus, wastewater 
    treatment requires having pre-storage and processing units, adequate 
    chemicals to neutralize the corrosive characteristic of the waste and 
    stabilization technology to immobilize the metals before they are 
    either stored onsite, marketed, or landfilled. While the Agency is 
    satisfied that this treatment technology is applicable to Ti02 waste 
    water, there is much reservation whether DuPont's facilities could 
    realistically mobilize 200 tanker trucks per day per facility to safely 
    ship this waste to these treatment facilities even if treatment 
    capacity were readily available at them.
        The statute also allows injection of waste waters which no longer 
    exhibit a characteristic into Class I wells without meeting any other 
    LDR treatment standard, and dilution may be used as a means of 
    decharacterizing the waste. RCRA section 3004 (g) (9). However, 
    deactivation of certain characteristic wastes through dilution is not 
    always practical or even feasible. The whole waste stream process may 
    not be amenable to dilution prior to injection
    
    [[Page 28627]]
    
    at the wellhead, and the geologic reservoirs into which the wells 
    inject have a finite capacity. Sometimes filling up reservoirs with 
    huge volumes of additional water shortens the life of the well 
    operation because reservoir pressures build up much more quickly and 
    the injection zone becomes ``overpressurized.'' EPA finds that this is 
    the case for the TiO2 wastewater at issue here. Thus, the dilution 
    option cannot be utilized here to find that there is adequate available 
    treatment capacity for these TiO2 wastes.
        Capacity analyses usually focus on the demand for alternative 
    capacity once existing on-site capacity and captive off-site capacity 
    have been accounted for. However, capacity also may be unavailable if 
    there is no practical means of utilizing it due to logistical problems. 
    For example, in the Third Third rule, EPA relied on such logistical 
    factors to determine when capacity was realistically available (see 55 
    FR 22645-22646, June 1, 1990). The Agency noted that injection wells at 
    on-site facilities are directly connected to the plant operations and 
    that in order to realistically arrange for off-site disposition of the 
    waste, the plant managers will need time to make considerable 
    logistical adjustments such as, repiping, retooling, and development of 
    transportation networks at the plant operations. Similarly, for TiO2 
    waste facilities, the Agency doesn't believe that treatment capacity is 
    available since there is no feasible way for generators to transport 
    their wastes to the treatment facilities at this time, plus all of the 
    other repiping that would be entailed. The Agency believes that it 
    would take at least two years for the TiO2 facilities to alter their 
    operations to ship wastewater to offsite facilities and for off-site 
    facilities to make corresponding changes to their operations to 
    accommodate the large influx of highly corrosive, high volume, dense 
    wastewater (even if off-site facilities were to be willing to accept 
    the waste, which is quite unclear).
        Under these circumstances, the Agency finds that there is 
    inadequate treatment, recovery, or disposal capacity presently 
    available for TiO2 injected waste waters currently being injected into 
    Class I hazardous wells, and therefore is granting a two-year national 
    capacity variance for these wastes. The Agency expects that affected 
    generators will utilize this period for applying for no-migration 
    petitions for their existing wells, or to construct on-site wastewater 
    treatment systems.
        EPA estimates that there is approximately 2 million tons of other 
    injected Phase IV mineral processing wastes (i.e. from processes other 
    than TiO2 production). One facility with the largest volume of that 
    injected waste has applied for and received an approved no-migration 
    petition thus meeting the conditions of 40 CFR Part 148.20. The rest of 
    these facilities are either applying dilution as a means of 
    decharacterizing their waste (as allowed under Section 3004(g)(9)), or 
    are treating their waste before disposal. Their waste volumes are much 
    less than the TiO2 production waste being injected. Since the volume of 
    wastes is so much less than TiO2, and the wastes are more amenable to 
    conventional management, EPA does not see the same types of 
    difficulties arising, and is therefore not delaying the effective date 
    of the prohibition for these facilities. (See UIC background document).
    
    F. Mixed Radioactive Wastes
    
        Significant uncertainty exists about quantities of mixed 
    radioactive wastes containing wastes that will require treatment as a 
    result of today's rule. Despite this uncertainty, any new commercial 
    capacity that becomes available will be needed for mixed radioactive 
    wastes that were regulated in previous LDR rulemakings and whose 
    variances have already expired. Thus, EPA has determined that 
    sufficient alternative treatment capacity is not available, and 
    therefore is granting a two-year national capacity variance for mixed 
    RCRA/radioactive TC metal wastes that are newly identified (i.e., 
    wastes, soil, or debris identified as hazardous by the TCLP but not the 
    EP), and newly identified characteristic mineral processing wastes 
    including soil and debris.
    
    G. Summary
    
        Table 1 summarizes the capacity variance determination for each 
    category of Phase IV RCRA wastes for which EPA is promulgating LDR 
    treatment standards.
    
                                     Table of Capacity Variances for Phase IV Wastes                                
                               [Note: Capacity variances begin from the publication date]                           
    ----------------------------------------------------------------------------------------------------------------
                   Waste description                    Surface-disposed wastes         Deep well-injected wastes   
    ----------------------------------------------------------------------------------------------------------------
    Newly identified wastes from elemental          Two years......................  Not applicable.                
     phosphorus processing.                                                                                         
    Newly identified mineral processing wastes      90 days........................  Two years.                     
     from titanium dioxide production.                                                                              
    Newly identified TC metal wastes (i.e., wastes  90 days........................  90 days.                       
     identified as hazardous by the TCLP but not                                                                    
     the EP), and newly identified characterisitc                                                                   
     mineral processing wastes including soil and                                                                   
     debris.                                                                                                        
    Radioactive wastes mixed with newly identified  Two years......................  Two years.                     
     TC metal wastes (i.e., wastes identified as                                                                    
     hazardous by the TCLP but not the EP), and                                                                     
     mixed with newly identified characteristic                                                                     
     mineral processing wastes, including soil and                                                                  
     debris.                                                                                                        
    ----------------------------------------------------------------------------------------------------------------
    
    X. Change to Definition of Solid Waste To Exclude Wood Preserving 
    Wastewaters and Spent Wood Preserving Solutions From RCRA 
    Jurisdiction
    
        Summary: As proposed on May 12, 1997 (FR 62 26055), EPA is today 
    amending the definition of solid waste to exclude wood preserving 
    wastewaters and spent wood preserving solutions from RCRA jurisdiction 
    provided that certain conditions are met, as specified below.
    
    A. Summary of the Proposal
    
        On May 12, 1997 in the Phase IV LDR second supplemental rulemaking, 
    EPA proposed to amend the RCRA regulations to provide an exclusion from 
    the definition of solid waste for certain materials generated and 
    recycled by the wood preserving industry. Specifically, the proposal 
    would exclude certain wood preserving wastewaters and spent wood 
    preserving solutions from classification as solid waste under RCRA. Any 
    wood preserving plant claiming the exclusion for these wastes would 
    need to manage them according to the following criteria: (1) the 
    materials must be recycled and reused on-site in the production process 
    for their original intended purpose; (2) the materials must be managed 
    to prevent release; (3) the plant must assure that the units managing 
    these materials can be visually or otherwise determined to
    
    [[Page 28628]]
    
    prevent releases; and (4) drip pads managing these materials must 
    comply with Subpart W drip pad standards regardless of whether the 
    plant has been classified as a conditionally exempt small quantity 
    generator (CESQG) (see 40 CFR 261.5). For a more detailed discussion of 
    these conditions, please consult the relevant sections in the May 12, 
    1997 proposed rule.
        As noted above, the exclusion was to be limited to wood preserving 
    wastewaters and spent wood preserving solutions that are recycled and 
    reused on-site at wood preserving plants in the production process for 
    their original intended purpose. As EPA explained in the proposal, any 
    listed wastewater or spent solution that is not recycled on-site 
    according to the conditions of the exclusion is not excluded from the 
    definition of solid waste. Moreover, the F032, F034 and F035 listings 
    cover wastestreams other than wastewaters and spent solutions. These 
    other listed wastestreams would not be eligible for exclusion even if 
    recycled. This could include materials associated with wastewaters and 
    spent solutions, such as residues that accumulate in a drip pad sump. 
    EPA affirms this scope of the exclusion for the final rule.
        It was neither the Agency's intent nor belief that the proposed 
    exclusion would in any way reduce the obligations that wood preserving 
    plants have under 40 CFR Part 264, Subpart W and Part 265, Subpart W, 
    including the requirements for drip pads and the Sec. 264.570(c) and 
    Sec. 265.440(c) requirements under for response to infrequent and 
    incidental drippage in storage yards. The Agency specifically requested 
    comment on whether the proposed exclusion would reduce these 
    requirements. The Agency also sought comment on whether a plant 
    claiming the proposed exclusion should be required to place a 
    notification form to that effect in its files on-site and/or to submit 
    it to either the EPA Regional Administrator or State Director to allow 
    review. Finally, EPA asked for comment concerning the conditions under 
    which the proposed exclusion, once claimed, would no longer apply.
        Of course, this exclusion from the definition of solid waste under 
    the federal RCRA statute does not modify any regulatory requirements 
    that are independently imposed under other environmental statutes.
    
    B. Modifications to the Proposal
    
        The Agency received four sets of comments on the proposed exclusion 
    for wood preserving wastewaters and spent wood preserving solutions. 
    While some comments were supportive of the proposal, others were 
    critical of the Agency for, among other things, relinquishing some 
    regulatory oversight of the wood preserving industry. The comments EPA 
    received on the scope of the proposed exclusion and the Agency's 
    response can be found in the docket for this rulemaking. All comments 
    were carefully considered. This section addresses those changes that 
    EPA made to the proposed rule based on comments the Agency received. 
    The next section (``Other Comments'') addresses those aspects of the 
    proposal that, though they remain unchanged by today's rule, require 
    further clarification based on the comments received.
    1. Notification
        EPA received two responses to its request for comment on whether it 
    was necessary for a plant claiming the proposed exclusion to provide 
    notice to the appropriate regulatory agency and, if so, what type of 
    notice that should be. One commenter suggested that the publication of 
    the exclusion and its effective date by EPA in this final rule would 
    serve as sufficient notice, and that notification on a plant specific 
    basis is unnecessary. EPA does not consider publication of the final 
    rule to provide adequate notice on the names and locations of wood 
    preserving plants planning to operate under the conditional exclusion. 
    Moreover, EPA is concerned that this commenter may have assumed that 
    the exclusion would take effect nationwide upon publication. As 
    explained below in the section titled ``state authorization,'' this is 
    not correct. The exclusion will not take effect in any authorized state 
    unless and until the state adopts it.
        The other commenter suggested that it is appropriate for wood 
    preserving plants claiming an exclusion for their recycled wastewaters 
    and spent solutions to notify the appropriate state agency. EPA 
    considers notification to the appropriate regulatory agency to be 
    essential to the proper implementation of this provision. To allow EPA 
    and authorized states to verify that the conditions placed upon today's 
    exclusion are properly met, it is important that wood preserving plants 
    inform the appropriate Regional Administrator or State Director that 
    they are claiming the exclusion and will therefore be reporting 
    significantly lower waste generation totals. EPA is therefore revising 
    the proposed exclusion to require a plant owner or operator (prior to 
    operating pursuant to this exclusion) to submit to the appropriate 
    Regional Administrator or State Director a one-time notification 
    stating that the plant intends to claim the exclusion, giving the date 
    on which the plant intends to begin operating under the exclusion, and 
    containing the following language: ``I have read the applicable 
    regulation establishing an exclusion for wood preserving wastewaters 
    and spent wood preserving solutions and understand it requires me to 
    comply at all times with the conditions set out in the regulation.'' 
    The plant must maintain a copy of that document in its on-site records 
    for a period of no less than 3 years from the date specified in the 
    notice.
    2. Conditions Under Which the Exclusion Would No Longer Apply
        EPA requested comment on conditions that void the exclusion. 
    Specifically, EPA asked whether a spill should result in the loss of 
    the exclusion just for the spilled material, or also for the 
    wastewaters and spent solutions generated after the spill occurred. EPA 
    received two comments on conditions under which the exclusion, once 
    claimed, would no longer apply. One commenter stated that RCRA 
    regulation should be required for all materials that are spilled or 
    otherwise exit the recycling loop. The other commenter suggested that 
    ``a simple spill . . . is obviously not related to the normal operation 
    of the drip pad . . .'' and should therefore not void the exclusion for 
    wastewaters and spent solutions that are collected and not spilled or 
    released.
        EPA agrees with the commenter who took the position that the 
    spilled material itself should be ineligible for the exclusion. The 
    spilled material inherently fails to meet the condition requiring plant 
    operators to manage wastewaters and solutions so as to prevent 
    releases. Although there could potentially be conditions under which a 
    spilled material could still be eligible for the existing exclusions 
    under Sec. 261.4(a)(9)(i) and (ii) following reclamation, such 
    materials are in all cases ineligible for today's new exclusion under 
    Sec. 261.4(a)(9)(iii).
        To respond to the second comment, EPA has decided to clarify the 
    effect of a violation of any condition, including the condition 
    prohibiting spills, on wastewaters and spent solutions generated after 
    a violation occurs. EPA has decided that the exclusion should not be 
    available until the plant owner or operator notifies the appropriate 
    regulatory agency, and the agency determines that the problem has been 
    adequately addressed. It is appropriate to impose this requirement even 
    for spills, because the significance of a spill may vary greatly from 
    plant to plant and from incident to incident. EPA hopes
    
    [[Page 28629]]
    
    that a reviewing agency would quickly reinstate the exemption after a 
    one-time spill, particularly if small, and would not require specific 
    actions to correct the problem. In contrast, EPA would expect the 
    reviewing agency to require specific actions (such as creation and 
    implementation of a spill prevention plan) for a plant that experienced 
    repeated spills. EPA believes the severity of any violation and the 
    precise actions needed to return the plant to compliance can best be 
    assessed on a case-by-case basis. EPA has added language to the 
    regulation to clarify this issue. It applies to all of the conditions 
    of the exclusion.
    
    C. Other Comments
    
        A number of comments indicated a need for EPA to clarify other 
    aspects of the proposal that the Agency is finalizing today.
    1. Oil Borne Facilities
        One commenter suggested that the exclusion that EPA is finalizing 
    today applies not only to water borne wood treating plants but also to 
    oil borne wood treating plants. At the time of proposal, EPA intended 
    to create an exclusion only for plants using water borne preservatives. 
    See, for example, the discussion at 63 FR 26057, col. 1. EPA did not 
    evaluate oil borne plants at the time. It is EPA's general 
    understanding that plants which use oil borne preservatives do not 
    recycle wastewaters and spent solutions by using them in the work tank 
    to treat wood. Rather, they reuse these wastewaters in cooling systems, 
    vacuum seals, and other devices. EPA wants to limit today's exclusion 
    to materials that are reused for their original intended purpose--the 
    treatment of wood. EPA has not had time to investigate the 
    jurisdictional and factual issues posed by the use of wastewaters for 
    other, more ancillary purposes. Consequently, EPA is not expanding the 
    exclusion beyond the proposal. It applies only to water borne 
    processes.
    2. Application of the Conditions to Units Other Than the Drip Pad
        One commenter expressed opposition to ``any language that would 
    extend the EPA's RCRA authority to devices that have previously not 
    been regulated under RCRA.'' In view of this comment, the Agency is 
    prompted to clarify that the conditions for claiming the exclusion must 
    be met with regard to any unit that comes into contact with the 
    recycled wastewaters and spent wood preserving solutions excluded in 
    today's rule.
        Thus, sumps or other units that are arguably part of an exempt 
    wastewater treatment unit and that manage wastewaters and spent 
    solutions are subject to these conditions. EPA has already stated that 
    ``management to prevent releases would include, but not necessarily be 
    limited to, compliance with [Subpart W] and maintenance of the sumps 
    receiving the wastewaters and spent solutions from the drip pad and 
    retort to prevent leaching into land and groundwater.'' (62 FR 26057). 
    The Agency must be able to verify that the excluded materials are being 
    managed to prevent release at every step of the recycling process 
    through reclamation to ensure that the basic technical and policy 
    conditions underlying the exclusion are properly met.
    3. Relationship of Today's Exclusion to Previous Industry Exclusions
        One commenter wanted to assure that today's exclusion would not now 
    regulate units that transmit or store materials that have been excluded 
    according to other, currently existing regulations. EPA does not intend 
    to use today's exclusion to rescind either of the exclusions that the 
    Agency has previously granted the wood preserving industry under 
    Secs. 261.4(a)(9)(i) and (ii).
    4. Units That May Be Visually or Otherwise Determined to Prevent 
    Release
        One commenter expressed concern that the term ``units'' is an 
    overly broad way to refer to those portions of the system subject to 
    RCRA inspection. EPA will now clarify which ``units'' are subject to 
    inspection under the conditions of this exclusion. As mentioned above, 
    all units that come into contact with the excluded materials prior to 
    reclamation must necessarily be subject to verification that they are 
    able to contain these materials in a manner that prevents their release 
    to the environment. This includes, but is not necessarily limited to, 
    any drip pad, sump, retort or conduit that comes into contact with the 
    wastewaters and spent solutions prior to reclamation. This also 
    includes any unit that is arguably part of a plant's wastewater 
    treatment system but that comes into contact with the wastewaters or 
    spent solutions prior to reclamation. An inspector must be able to 
    determine (by visual or other means) whether these units are managing 
    the wastewaters and spent solutions in a manner that prevents release. 
    When relying on a visual inspection (as opposed to a leak detection 
    system or other means), it may be necessary for an inspector to require 
    these units be drained or cleaned for the inspector to make an informed 
    determination as to whether the unit is cracked or leaking.
    5. CESQG Status
        One commenter also requested EPA to prevent wood preserving plants 
    from becoming conditionally exempt small quantity generators (CESQGs) 
    after claiming the exemption. The commenter was concerned that other, 
    non-excluded wastestreams generated at these plants that are covered by 
    the listings would no longer be subject to any hazardous waste 
    regulation. As explained in more detail in the response to comment 
    document, EPA lacks sufficient information about the volumes of these 
    other wastes and the risks they pose to promulgate a rule creating an 
    exception to the long-established CESQG exemption for them.
    
    D. State Authorization
    
        Upon promulgation, this exclusion will immediately go into effect 
    only for plants in those states and territories that are not currently 
    authorized to implement the RCRA program (i.e., Alaska, Iowa, Hawaii, 
    American Samoa, Northern Mariana Islands, Puerto Rico and Virgin 
    Islands). Plants in these states are subject to the provisions of the 
    federal program. Conversely, any plant located in a RCRA authorized 
    state will be unable to claim the exclusion we are finalizing today 
    unless and until that state amends its regulations to include the 
    exclusion. Because EPA allows state programs to be more stringent than 
    the federal program, it is not necessarily guaranteed that all 
    authorized states will elect to adopt this exclusion.
    
    XI. Clarification of the RCRA Exclusion of Shredded Circuit Boards
    
        In the May 12, 1997 final rule on Land Disposal Restrictions, the 
    Environmental Protection Agency (EPA) excluded shredded circuit boards 
    from the definition of solid waste conditioned on containerized storage 
    prior to recovery. To be covered by this exclusion shredded circuit 
    boards must be free of mercury switches, mercury relays, nickel-cadmium 
    batteries or lithium batteries. On a related issue, current Agency 
    policy states that whole circuit boards may meet the definition of 
    scrap metal and therefore be exempt from hazardous waste regulation. In 
    a parenthetical statement in the May 12, 1997 rule, the Agency asserted 
    that whole used circuit boards which contain mercury switches, mercury 
    relays, nickel-cadmium batteries, or lithium batteries also do not meet 
    the definition of scrap metal because mercury (being a liquid metal) 
    and batteries are not within the scope of the
    
    [[Page 28630]]
    
    definition of scrap metal. The preamble cited 50 FR 614, 624 (1985).
        Members of the electronics industry expressed concern to the Agency 
    about the preamble statement regarding the regulatory status of whole 
    used circuit boards which contain mercury switches, mercury relays, 
    nickel-cadmium batteries, or lithium batteries. The electronics 
    industry indicated that its member have developed a sophisticated 
    asset/materials recovery system to collect and transport whole used 
    circuit boards to processing facilities. The industry explained that 
    the boards are sent to processing facilities for evaluation (continued 
    use, reuse or reclamation) where the switches and the types of 
    batteries are generally removed by persons with the appropriate 
    knowledge and tools for removing these materials. Once these materials 
    are removed from the boards, they become a newly generated waste 
    subject to a hazardous waste determination. If they fail a hazardous 
    waste characteristic, they are handled as hazardous waste, otherwise 
    they are managed as a solid waste. Information was also provided 
    regarding the quantity of mercury on these switches and on the physical 
    state in which they are found on the boards. The information indicates 
    that the mercury switches and relays on circuit boards from some 
    typical applications contain between 0.02-0.08 grams of mercury and are 
    encased in metal which is then coated in epoxy prior to attachment to 
    the boards.
        In today's final rule, the Agency recognizes that the preamble 
    statement in the May 12, 1997 final rule is overly broad in that it 
    suggested that the scrap metal exemption would not apply to whole used 
    circuit boards containing the kind of minor battery or mercury switch 
    components and that are being sent for continued use, reuse, or 
    recovery. It is not the Agency's current intent to regulate under RCRA 
    circuit boards containing minimal quantities of mercury and batteries 
    that are protectively packaged to minimize dispersion of metal 
    constituents. Once these materials are removed from the boards, they 
    become a newly generated waste subject to a hazardous waste 
    determination. If they meet the criteria to be classified as a 
    hazardous waste, they must be handled as hazardous waste, otherwise 
    they must be managed as a solid waste.
    
    XII. Regulatory Requirements
    
    A. Regulatory Impact Analysis Pursuant to Executive Order 12866
    
        Executive Order No. 12866 requires agencies to determine whether a 
    regulatory action is ``significant.'' The Order defines a 
    ``significant'' regulatory action as one that ``is likely to result in 
    a rule that may: (1) have an annual effect on the economy of $100 
    million or more or adversely affect, in a material way, the economy, a 
    sector of the economy, productivity, competition, jobs, the 
    environment, public health or safety, or State, local, or tribal 
    governments or communities; (2) create serious inconsistency or 
    otherwise interfere with an action taken or planned by another agency; 
    (3) materially alter the budgetary impact of entitlements, grants, user 
    fees, or loan programs or the rights and obligations of recipients; or 
    (4) raise novel legal or policy issues arising out of legal mandates, 
    the President's priorities, or the principles set forth in the 
    Executive Order.''
        The Agency estimated the costs of today's final rule to determine 
    if it is a significant regulation as defined by the Executive Order. 
    The analysis considered compliance costs and economic impacts for newly 
    identified wastes affected by this rule, as well as media contaminated 
    with these wastes. In addition, the analysis addresses the cost savings 
    associated with the new soil treatment standards being promulgated in 
    today's rule. Newly identified mineral processing wastes covered under 
    this rule include 118 mineral processing wastes identified as 
    potentially characteristically hazardous. Also covered under this rule 
    are TC metal wastes. Today's final rule also covers treatment standards 
    for contaminated media (i.e., soil and sediment). EPA estimates the 
    total cost of the rule to be a savings of $6 million annually, and 
    concludes that this rule is not economically significant according to 
    the definition in E.O. 12866. However, the Agency does consider this 
    rule to be significant for novel policy reasons. The Office of 
    Management and Budget has reviewed this rule.
        Detailed discussions of the methodology used for estimating the 
    costs, economic impacts and the benefits attributable to today's 
    proposed rule for newly identified mineral processing wastes, followed 
    by a presentation of the cost, economic impact and benefit results, may 
    be found in the background documents: (1) ``Regulatory Impact Analysis 
    of the Phase IV Land Disposal Restrictions Final Rule for Newly 
    Identified Mineral Processing Wastes,'' (2)''Regulatory Impact Analysis 
    of the Phase IV Land Disposal Restrictions Final Rule for TC Metal 
    Wastes,'' and (3) ``Regulatory Impact Analysis of the Phase IV Land 
    Disposal Restrictions Final Rule for Contaminated Media,'' which were 
    placed in the docket for today's final rule.
    1. Methodology Section
        The Agency estimated the volumes of waste and contaminated media 
    affected by today's rule to determine the national level incremental 
    costs (for both the baseline and post-regulatory scenarios), economic 
    impacts (including first-order measures such as the estimated 
    percentage of compliance cost to industry or firm revenues), and 
    benefits or risk-screens used to document the inherent hazard of 
    materials being evaluated.
    2. Results
        a. Volume Results. EPA estimates that there are 29 mineral 
    commodity sectors potentially affected by today's rule, including an 
    estimated 136 facilities that generate 118 streams of newly identified 
    mineral processing secondary materials. The estimated volume for these 
    potentially affected newly identified mineral processing secondary 
    materials is 22 million tons. Also, approximately 1.3 million tons of 
    contaminated soil containing coal tar and other wastes from 
    manufactured gas plants are potentially affected by this rule. As 
    discussed below, EPA does not believe that any TC metal process wastes 
    are potentially affected by today's final rule. EPA estimates that 
    approximately 165,000 tons per year of soil and sediment contaminated 
    with TC metals and approximately 90,000 tons per year of previously 
    regulated contaminated soils is impacted by today's rule.
        b. Cost Results For the part of today's final rule that prohibits 
    land storage of mineral processing residues (below the high volume 
    threshold) prior to being recycled, EPA estimates these expected case 
    annualized compliance costs to be $10 million. The cost results for 
    this part of today's final rule are a function of two factors: (1) the 
    expense associated with purchasing new storage units or upgrading 
    existing storage units, and (2) the transfer of some mineral processing 
    residues either from recycling to disposal resulting in increased costs 
    or from disposal to recycling resulting in a cost savings.
        For TC metal wastes the Agency believes that there will be no 
    incremental costs associated with stabilization of these wastes from 
    the promulgation of these treatment standards.\47\ In addition, EPA 
    believes
    
    [[Page 28631]]
    
    that there will be no incremental treatment costs for the treatment of 
    TC metal wastes that contain organic underlying hazardous constituents. 
    Based on public comment and data collected from commercial hazardous 
    waste treaters and generators, EPA believes that TC metal wastes are 
    often already treated to these universal treatment standard levels when 
    waste handlers treat to the current treatment standards using bona fide 
    treatment reagents (e.g., portland cement).\48\ Therefore, no 
    additional treatment reagent or capital equipment associated with 
    stabilization is required with these wastes.
    ---------------------------------------------------------------------------
    
        \47\ One possible exception to this are producers of hazardous 
    waste-derived fertilizers. This is discussed below under the 
    Regulatory Flexibility section.
        \48\ December 19, 1996 letter to Anita Cummings, USEPA Office of 
    Solid Waste from Michael G. Fusco, Director of Regulatory Analysis, 
    Rollins Environmental Inc., p.4 of edited draft EPA trip report 
    letter to Rollins Highway 36 facility in Colorado.
    ---------------------------------------------------------------------------
    
        Previously, EPA had estimated costs to the nonferrous foundry 
    industry associated with complying with today's treatment standards. 
    This estimate was modeled on trisodium phosphate with a ph buffer. When 
    this type of treatment reagent is used, incremental quantities are 
    required to achieve the universal treatment standards for cadmium 
    promulgated in today's rule. However, based on contacts with trade 
    associations and vendors of stabilization equipment, EPA believes that 
    portland cement is equal to or less than the cost of trisodium 
    phosphate and is therefore a more appropriate choice for modeling a 
    compliance baseline from which to estimate the costs of the rule. 
    Unlike trisodium phosphate, portland cement currently being used to 
    meet existing treatment standards has been shown to meet the universal 
    treatment standards without additional reagent. Accordingly, EPA 
    believes that no incremental costs (or benefits) for stabilization are 
    attributable to the promulgation of the universal treatment standards 
    for TC metal wastes.
        Although according to the American Foundrymen's Society iron 
    filings are used by many nonferrous foundries as a treatment reagent, 
    for the reasons discussed above under Section III (f), EPA does not 
    believe that iron filings are a legitimate and effective form of 
    treatment. Therefore, the costs of switching from iron filings to 
    another form of treatment reagent such as portland cement is more 
    appropriately characterized as a cost of coming into compliance with 
    already existing treatment standards rather than an incremental cost 
    attributable to today's rule. Although EPA does not believe the cost of 
    switching from iron filings to another treatment reagent is 
    attributable to today's final rule, the Agency has estimated these 
    compliance costs and included this information in the background 
    document ``Regulatory Impact Analysis of the Phase IV Land Disposal 
    Restrictions Final Rule for TC Metal Wastes,'' which was placed in the 
    docket for today's final rule. EPA estimates that the annual cost to 
    nonferrous foundries to switch from iron to portland cement to 
    stabilize hazardous foundry sands is $11.7 million. Results from the 
    risk screen for nonferrous foundry sands are discussed below.
        For TC metal hazardous wastes that contain organic underlying 
    hazardous constituents, one commenter has suggested that the Phase IV 
    final rule would result in costs resulting from changing from 
    stabilization of these wastes to incineration. EPA has evaluated data 
    from the National Hazardous Waste Constituent Survey to assess both the 
    prevalence and level of organic underlying hazardous constituents in TC 
    metal wastes (solid and sludges). The results indicate that organic 
    underlying hazardous constituents are rarely present in these wastes. 
    Only seven of 181 TC metal hazardous wastes examined contained organic 
    underlying hazardous constituents. Of these seven, only three contained 
    organics above the Univeral Treatment Standard. None of the three waste 
    steams that contained organics above the Univeral Treatment Standard 
    was present in concentrations high enough to warrant incineration. In 
    short, it is unlikely that organic underlying hazardous constituents 
    will be present in TC metal wastes. And if present, incineration is 
    unlikely to be used to treat these wastes. For reasons, EPA believes 
    that the Phase IV final rule will not result in incremental costs for 
    TC metal wastes containing organic underlying hazardous constituents.
        The Agency is also promulgating new soil treatment standards in 
    today's final rule. As these standards are less stringent than those 
    currently required for previously regulated soils, an estimate of the 
    cost savings associated with these standards has been prepared. The 
    total incremental savings estimated for the new soil treatment 
    standards is $25 million per year.
        For contaminated soils which exhibit a characteristic for TC metals 
    (including soils containing newly identified mineral processing wastes) 
    but do not contain organic underlying hazardous constituents, there is 
    no incremental cost expected from today's rule. These soils are subject 
    to the new treatment standards which are less stringent than current 
    LDR treatment standards for contaminated soils. The one category of TC 
    hazardous metal contaminated soil that is potentially impacted by 
    today's rule is TC hazardous metal contaminated soil which contains 
    organic underlying hazardous constituents. These soils require 
    additional treatment over that received in the baseline to effectively 
    treat the organic constituents of concern. The Agency estimates that 
    this additional requirement will result in a $3 million per year cost 
    for these wastes, occurring mainly at voluntary cleanups and Superfund 
    sites.
        Manufactured gas plant contaminated soils (MGP) are a class of 
    contaminated media that has heretofore not been subject to LDR 
    treatment standards. EPA believes that some incremental costs may 
    result from today's final rule to MGP clean ups involving the use of 
    MGP soils in land applied recycling such as hot or cold mix asphalt, 
    brick and concrete. It is possible that some of these soils will not 
    meet the conditional exemption for waste-derived products that are used 
    in a manner constituting disposal. 40 CFR Sec. 266.20(b). For this 
    reason, it is also possible that owner/operators of these sites may 
    select an alternative remedy such as in-situ treatment or co-burning 
    which are not affected by today's rule. On balance, EPA still believes 
    that the promulgation of new treatment standards will encourage 
    remediation of hazardous soils. The estimated annual costs to owner/
    operators of MGP sites for selecting remedies that are alternatives to 
    asphalt, brick or concrete recycling are $6.2 million.
        c. Economic Impact Results. To estimate potential economic impacts 
    resulting from today's final rule, EPA has used first order economic 
    impacts measures such as the estimated compliance cost of the rule as a 
    percentage of sales/revenues, value added (sales less and material 
    cost) and profit or return on capital. EPA has applied these measures 
    to newly identified mineral processing hazardous wastes.
        For recycled mineral processing secondary materials, EPA has 
    evaluated the estimated compliance costs as a percentage of value (i.e. 
    sales), value added and profits of the mineral commodities produced in 
    each sector. In addition EPA has compared estimated compliance costs as 
    a percentage of revenues to specific mineral processing firms to 
    provide additional information on potential impacts.
    
    [[Page 28632]]
    
        Economic impacts from today's rule for mineral processing 
    facilities may or may not be substantial for selected mineral 
    processing sectors depending on the actual storage and management of 
    mineral processing residues prior to being recycled. In the expected 
    case scenario up to 5 of the 29 commodity sectors are expected to incur 
    compliance costs equal to or greater than 1 percent of the economic 
    value of the mineral commodities produced under the Agency's proposed 
    option in today's rule. These sectors include: cadmium, fluorspar and 
    hydrofluoric acid, mercury, selenium and tungsten. The range of 
    percentages in these sectors is between 2 percent (cadmium) and 36 
    percent (mercury). Because many of these sectors are actually co-
    processed with other mineral commodity sectors, these impacts may be 
    distributed over the economic value of the other minerals, rather than 
    concentrated solely on the mineral commodity associated with generating 
    the secondary materials. For example, EPA has estimated that today's 
    final rule may affect the cadmium and selenium sectors by imposing 
    incremental costs equal to 18 percent of the value added of those 
    minerals. The value added is equal to the market value of the minerals 
    less the cost of the raw materials (i.e., ore concentrate). Cadmium is 
    a co-product of zinc production and selenium is co-product of copper 
    production; hence, these economic impacts are expected primarily to 
    affect the production of these co-products and the reclamation of their 
    residuals rather than the mineral processing operation as a whole. 
    Because recovery for these co-product residuals is generally less 
    expensive than treatment and disposal, EPA believes that the costs for 
    these residuals will not significantly decrease their recovery although 
    the storage costs could add to the expense.
        As stated above, the Agency believes that there are no incremental 
    costs associated with today's final rule for stabilization for handlers 
    of TC metal hazardous wastes. Moreover, the Agency believes that there 
    are no incremental costs associated with TC metal wastes containing 
    organic underlying hazardous constituents may incur costs as described 
    above and corresponding impacts. Accordingly, there is no economic 
    impact for waste handlers managing TC metal wastes.
        For TC hazardous foundry sands, EPA also believes that there is no 
    economic impact attributable to today's final rule. As stated above, 
    EPA views the cost associated from switching from iron filings to 
    cement or other treatment reagent are not properly considered 
    attributable to this rulemaking but rather a cost of coming into 
    compliance with existing regulations. Moreover, even if these costs 
    were attributable to this rulemaking, EPA estimates that incremental 
    costs attributable to this switching from iron filings to portland 
    cement are less than one percent of industry revenues and six percent 
    of industry profits and therefore would not create a significant impact 
    to these facilities. More detailed information on this estimate can be 
    found in the regulatory impact analysis placed into today's docket.
        As previously stated, EPA does not believe there are incremental 
    costs associated with today's rule for TC hazardous metal contaminated 
    soils except for TC hazardous metal contaminated soils that contain 
    organic underlying hazardous constituents. EPA has evaluated the 
    industries generating these TC metal organometallic soils and has 
    determined that incremental costs from today's final rule do not impose 
    a significant impact.
        Similarly, EPA has determined for MGP site clean ups that the 
    economic impact of today's rule is not a significant impact. The 
    estimated percentage of compliance costs to firm sales is less than 1 
    percent.
        d. Individual Risk Estimate Results. The Agency has performed an 
    individual risk analysis to estimate the quantifiable central tendency 
    and high-end hypothetical individual risk for mineral processing 
    secondary materials associated with today's final rule to be above 
    levels of concern for cancer and noncancer risks for specific mineral 
    processing streams in both groundwater and nongroundwater pathways. 
    Results suggest that central tendency and high-end hypothetical 
    individual cancer and non-cancer risks may be decreased below 
    1 x 10-5 and below a reference dose ratio of 1 in a number 
    of mineral processing facilities. These results are linked primarily 
    with mineral processing liquid secondary materials stored in surface 
    impoundments prior to reuse. The data used to calculate these results 
    are based on the groundwater pathway as well as other potential routes 
    of exposure such as air or surface water. The risk results indicate 
    that the highest individual risks are associated with exposure through 
    groundwater and surface water pathways. These results are also limited 
    to a subset of the mineral processing universe being regulated today 
    where the Agency has collected data from individual mineral processing 
    facilities. EPA also notes that in completing these individual risk 
    results that the entire mass of hazardous constituents available for 
    release in the waste management unit was available for release through 
    each pathway. This could result in overestimation in risks due to 
    double counting of constituent mass. To address this factor, EPA 
    conducted mass balance calculations for all non-groundwater release 
    pathways. These calculations indicate that this potential overestimate 
    would result in negligible bias because only a very small percentage of 
    hazardous constituents in the waste mass is available for release. In 
    addition, EPA did not conduct these mass balance calculations for the 
    groundwater pathway because of limitations in the methodology for which 
    individual groundwater risks were calculated. The Agency believes that 
    the potential bias in risk results for both surface impoundments and 
    waste piles is low.
        As stated above the Agency's efforts to evaluate benefits for 
    mineral processing secondary materials were limited to calculations for 
    central tendency and high-end individual risk. However, due to data 
    limitations, the Agency has been unable to evaluate additional more 
    explicit risk-reduction benefits, including populations benefits. In 
    general, the Agency's experience has been that it is unusual to predict 
    high population risks, unless there is an unusually large water well 
    supply impacted by the facility, because ground water contamination 
    generally moves slowly and locally.
        Although the regulatory impact analysis completed for today's rule 
    does not address benefits associated with ecological risk reduction and 
    a decrease in natural resource damages, based on a review of available 
    information on damage incidents associated with mining and mineral 
    processing operations \49\, the Agency's experience is that, while 
    these types of benefits are extremely difficult to quantify, this rule 
    may produce benefits in the area of ecological risk reduction and 
    reduced natural resource damage.
    ---------------------------------------------------------------------------
    
        \49\ See Human Health and Environmental Damages from Mining and 
    Mineral Processing Wastes, Technical Background Document Supporting 
    the Supplemental Proposed Rule Applying Phase IV Land disposal 
    Restrictions to Newly Identified Mineral Processing Wastes, U.S. 
    Office of Solid Waste, U.S. Environmental Protection Agency, 
    December 1995; Ecological Risk Assessment Southshore Wetlands for 
    the Kennecott Utah Copper Salt Lake City, Utah. Working Draft March 
    4, 1996; May 7, 1996 letter from Max H. Dodson, Assistant Regional 
    Administrator for Ecosytem Protection and Remediation, U.S.E.P.A, 
    Region VIII to Michael Sahpiro, Director, Office of Solid Waste, 
    U.S.E.P.A.
    ---------------------------------------------------------------------------
    
        For TC metals, because the analysis shows that many handlers of TC 
    metal wastes are already meeting the universal treatment standards 
    being promulgated
    
    [[Page 28633]]
    
    in today's rule, EPA does not believe that there are either incremental 
    costs or benefits associated with stabilization of these wastes. 
    However, for TC hazardous nonferrous foundry sands, the Agency has 
    completed a risk screening for groundwater releases of lead and cadmium 
    resulting from the disposal of untreated or poorly treated sands in 
    municipal solid waste landfills. The results of the screen indicate 
    that the probability the lead and cadmium would exceed the action level 
    for lead of 0.015 mg/l or the drinking water standard for cadmium of 
    0.005 mg/l for untreated foundry sands was approximately 9 percent for 
    lead and 14 percent for cadmium. The risk results also showed that the 
    probability for hazardous foundry sands treated to the universal 
    treatment standard to exceed these standards were approximately 2 
    percent for lead and 7 percent for cadmium. Because of data 
    limitations, EPA is not able to demonstrate population benefits 
    associated with effective treatment of foundry sands. These risk 
    results do, however, document the intrinsic hazard of the sands and the 
    need for effective treatment of these sands. However, as indicated 
    above, EPA would attribute any public health benefits associated with 
    decreasing lead and cadmium concentrations from foundry sands leachate 
    to coming into compliance with existing regulations rather than 
    promulgation of today's universal treatment standards.
    
    B. Regulatory Flexibility
    
        The Regulatory Flexibility Act (RFA) generally requires an agency 
    to conduct a regulatory flexibility analysis of any rule subject to 
    notice and comment rulemaking requirements unless the agency certifies 
    that the rule will not have a significant economic impact on a 
    substantial number of small entities. Small entities include small 
    businesses, small not-for-profit enterprises, and small governmental 
    jurisdictions. Based on the following discussion, this final rule will 
    not have a significant impact on a substantial number of small 
    entities.
        With respect to mineral processing facilities that are small 
    entities, EPA believes that today's final rule will not pose a 
    significant impact to a substantial number of these facilities. EPA 
    identified 22 firms owning 24 mineral processing facilities that are 
    small businesses based on the number of employees in each firm. Under 
    the Agency's proposed option, zero firms out of the 24 identified 
    incurred estimated compliance costs that exceed 1 percent of reported 
    firm revenues.
        As discussed above in the cost and economic impact section on TC 
    metal wastes, EPA has determined that treating TC metal wastes will not 
    result in incremental costs to the regulated community. As stated 
    above, data from commercial treaters and generators of TC metal wastes 
    indicate that the wastes are already treated to below UTS levels. 
    Moreover, today's rule will not result in increased costs from 
    incinerating TC metal wastes with organic underlying hazardous 
    constituents. EPA's review of data from commercial hazardous wastes 
    treatment facilities indicates that TC metal wastes with organic 
    underlying hazardous constituents are not prevalent and when present 
    would rarely require incineration.
        Finally, after the close of the public comment period, 
    representatives of small business hazardous waste-derived fertilizer 
    producers met with the Agency claiming economic hardship resulting from 
    the Agency's proposed UTS for metal wastes. Under existing 40 CFR 
    Sec. 266.20(b) commercial fertilizers sold for public use must meet 
    treatment standards in order to be placed on the land. Currently all 
    such hazardous waste fertilizers (except for K061-derived fertilizers) 
    are subject to treatment standards for metals at the characteristic 
    level. Based on available information, the Agency has found that out of 
    10 secondary small business zinc fertilizer producers only two firms in 
    the United States produce a hazardous waste-derived fertilizer, meet 
    the definition of a small business and are subject to this today's 
    rule. Considering a limited range of regulatory responses (such as 
    switching from a hazardous to a non-hazardous source of zinc waste), 
    EPA believes that only one of the two firms could potentially incur a 
    significant economic impact. Because only one firm in this industry is 
    potentially affected by today's rule, EPA does not consider this to be 
    a substantial number of small entitities.
        Additionally, there are incremental costs estimated to result from 
    today's rule to facilities undergoing remediation of TC metal 
    contaminated soils and sediments with organic underlying hazardous 
    constituents. EPA estimates that between 34 and 93 small entities would 
    be impacted by these costs. Two firms out of the 93 identified as an 
    upper bound estimate incurred estimated compliance costs that exceed 1 
    percent of reported firm revenues. Therefore, I certify that this 
    action will not have a significant economic impact on a substantial 
    number of small entities.
    
    C. Unfunded Mandates Reform Act
    
        Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L. 
    104-4, establishes requirements for Federal Agencies to assess the 
    effects of their regulatory actions on State, local, and tribal 
    governments and the private sector. Under Section 202 of the UMRA, EPA 
    generally must prepare a written statement, including a cost-benefit 
    analysis, for proposed and final rules with ``Federal mandates'' that 
    may result in expenditures to State, local, and tribal governments, in 
    the aggregate, or to the private sector, of $100 million or more in any 
    one year. Before promulgating an EPA rule for which a written statement 
    is needed, section 205 of the UMRA generally requires EPA to identify 
    and consider a reasonable number of regulatory alternatives and adopt 
    the least costly, most cost-effective, or least burdensome alternative 
    that achieves the objectives of the rule. The provisions of section 205 
    do not apply when they are inconsistent with applicable law. Moreover, 
    section 205 allows EPA to adopt an alternative other than the least 
    costly, most cost-effective, or least burdensome alternative if the 
    Administrator publishes with the final rule an explanation why that 
    alternative was not adopted. Before EPA establishes any regulatory 
    requirements that may significantly or uniquely affect small 
    governments, including tribal governments, it must have developed under 
    section 203 of the UMRA a small government agency plan. The plan must 
    provide for notifying potentially affected small governments, enabling 
    officials of affected small governments to have meaningful and timely 
    input in the development of EPA regulatory proposals with significant 
    Federal intergovernmental mandates, and informing, educating, and 
    advising small governments on compliance with the regulatory 
    requirements.
        EPA has determined that this rule does not include a Federal 
    mandate that may result in estimated costs of $100 million or more to 
    either State, local, or tribal governments in the aggregate. The rule 
    would not impose any federal intergovernmental mandate because it 
    imposes no enforceable duty upon State, tribal or local governments. 
    States, tribes and local governments would have no compliance costs 
    under this rule. It is expected that states will adopt similar rules, 
    and submit those rules for inclusion in their authorized RCRA programs, 
    but they have no legally enforceable duty to do so. For the same 
    reasons, EPA also has determined that this rule contains no regulatory
    
    [[Page 28634]]
    
    requirements that might significantly or uniquely affect small 
    governments. In addition, as discussed above, the private sector is not 
    expected to incur costs exceeding $100 million. EPA has fulfilled the 
    requirement for analysis under the Unfunded Mandates Reform Act.
    
    D. Paperwork Reduction Act
    
        The information collection requirements in this rule have been 
    submitted for approval to the Office of Management and Budget (OMB) 
    under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. EPA has 
    prepared an Information Collection Request (ICR) document: OSWER ICR 
    No. 1442.15 would amend the existing ICR approved under OMB Control No. 
    2050-0085. This ICR has not been approved by OMB and the information 
    collection requirements, although they are less stringent than those 
    previously required by the EPA, are not enforceable until OMB approves 
    the ICR. EPA will publish a document in the Federal Register when OMB 
    approves the information collection requirements showing the valid OMB 
    control number. An agency may not conduct or sponsor, and a person is 
    not required to respond to, a collection of information unless it 
    displays a currently valid OMB control number. The OMB control numbers 
    for EPA's regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 
    15.
        Copies of this ICR may be obtained from Sandy Farmer, OPPE 
    Regulatory Information Division; U.S. Environmental Protection Agency 
    (2136); 401 M St., S.W.; Washington, D.C. 20460 or by calling (202) 
    260-2740. Include the ICR number in any request.
        The Agency has estimated the average information collection burden 
    of this final Phase IV rule to the private sector and the government. 
    The burden of this final rule to the private sector is approximately 
    4,880 hours over three years, at a cost of $943,942. The burden to EPA 
    is approximately 787 hours over three years, at a cost of $29,841. The 
    term ``burden'means the total time, effort, or financial resources 
    expended by persons to generate, maintain, retain, or disclose or 
    provide information to or for a Federal agency. This includes the time 
    needed to review instructions; develop acquire, install, and utilize 
    technology and systems for the purposes of collecting, validating, and 
    verifying information; process and maintain information and comply with 
    any previously applicable instructions and requirements; train 
    personnel to be able to respond to a collection of information; search 
    data sources; complete and review the collection of information; and 
    transmit or otherwise disclose the information.
        Send comments on the Agency's burden reduction, the accuracy of the 
    provided burden estimates, and any suggested methods for minimizing 
    respondent burden, including through the use of automated collection of 
    techniques to the Director, OPPE Regulatory Information Division; U.S. 
    Environmental Protection Agency (2136); 401 M St., S.W.; Washington, DC 
    20460; and to the Office of Information and Regulatory Affairs, Office 
    of Management and Budget, 725 17th St., N.W., Washington, D.C. 20503, 
    marked ``Attention: Desk Officer for EPA.'' Include the ICR number in 
    any correspondence.
    
    XIII. Environmental Justice
    
    A. Applicability of Executive Order 12898
    
        EPA is committed to address environmental justice concerns and is 
    assuming a leadership role in environmental justice initiatives to 
    enhance environmental quality for all residents of the United States. 
    The Agencies goals are to ensure that no segment of the population, 
    regardless of race, color, national origin, or income bears 
    disproportionately high and adverse human health and environmental 
    effects as a result of EPA's policies, programs, and activities, and 
    all people live in clean and sustainable communities.
    
    B. Potential Effects
    
        Today's rule covers high-metal wastes (``TC metal wastes,'' 
    hazardous mineral processing wastes, and mineral processing materials). 
    The rule will possibly affect many facilities nationwide, with the 
    potential for impacts to minority or low-income communities. Today's 
    rule is intended to reduce risks to human health and the environment, 
    and to benefit all populations. It is not expected to cause any 
    disproportionate impacts to minority or low income communities versus 
    affluent or non-minority communities.
    
    XIV. State Authority
    
    A. Statutory Authority
    
        Under section 3006 of RCRA, EPA may authorize qualified States to 
    administer and enforce the RCRA hazardous waste program within the 
    State. Following authorization, EPA retains enforcement authority under 
    sections 3008 (a)(2), 3013, and 7003 of RCRA, although authorized 
    States have primary enforcement responsibility. The standards and 
    requirements for authorization are found in 40 CFR Part 271.
        Prior to the Hazardous and Solid Waste Amendments of 1984 (HSWA), a 
    State with final authorization administered its hazardous waste program 
    in lieu of EPA administering the Federal program in that State. The 
    Federal requirements no longer applied in the authorized State, and EPA 
    could not issue permits for any facilities that the State was 
    authorized to permit. When new, more stringent Federal requirements 
    were promulgated or enacted, the State was obliged to enact equivalent 
    authority within specified time frames. New Federal requirements did 
    not take effect in an authorized State until the State adopted the 
    requirements as State law.
        In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)) new 
    requirements and prohibitions imposed by HSWA take effect in authorized 
    States at the same time that they take effect in unauthorized States. 
    Although States are still required to update their hazardous waste 
    programs, EPA is directed to carry out the HSWA requirements and 
    prohibitions in authorized States, including the issuance of permits, 
    until the State is granted authorization.
        Authorized States are required to modify their programs only when 
    EPA promulgates Federal requirements that are more stringent or broader 
    in scope than existing Federal requirements. RCRA section 3009 allows 
    the States to impose standards more stringent than those in the Federal 
    program. See also 40 CFR 271.1(i). Therefore, authorized States can, 
    but do not have to, adopt Federal regulations, both HSWA and non-HSWA, 
    that are considered less stringent. Less stringent regulations, 
    promulgated under both HSWA and non-HSWA authority, do not go into 
    effect in authorized States until those States adopt them and are 
    authorized to implement them.
    
    B. Effect on State Authorization
    
        Today's rule is promulgated in part pursuant to non-HSWA authority, 
    and in part pursuant to HSWA. The more stringent HSWA portions of this 
    rule will become effective at the same time in all states. The new LDR 
    treatment standards for metal-bearing and mineral processing wastes are 
    being promulgated pursuant to section 3004 (g)(4) and (m), provisions 
    added by HSWA. (Note, however, that the treatment standards, even 
    though they are promulgated pursuant to HSWA, will not apply to mineral 
    processing wastes unless the wastes are currently included in the 
    authorized State's
    
    [[Page 28635]]
    
    definition of solid waste.) The application of the TCLP to mineral 
    processing wastes likewise implements a HSWA provision, section 
    3001(g). These requirements are being added to Table 1 in 40 CFR 
    271.1(j), which identifies the Federal program requirements that are 
    promulgated pursuant to HSWA, and would take effect in all States, 
    regardless of authorization status. States may apply for final or 
    interim authorization for the HSWA provisions in Table 1, as discussed 
    in the following section of this preamble. Table 2 in 40 CFR 271.1(j) 
    is also modified to indicate those provisions of this rule that are 
    self-implementing provisions of HSWA. Note that there are other HSWA 
    provisions that are not more stringent than the current program, such 
    as the revisions to certain of the existing LDR treatment standards. 
    These would not be implemented by EPA in those states authorized for 
    the existing provisions prior to a State being authorized for them. 
    These provisions are further discussed below.
        Today's rule contains provisions, both under HSWA and non-HSWA 
    authority, that are less stringent than the current Federal program. 
    First is the non-HSWA provision which would allow mineral processing 
    spent materials being reclaimed within the mineral processing industry 
    sector, or in beneficiation processes, to be excluded from the 
    definition of solid waste. This provision can be adopted at the States' 
    option, although EPA strongly encourages States to adopt this 
    provision. As stated earlier in the preamble, part of the purpose of 
    this rule is to eliminate distinctions among reclaimed spent materials, 
    by-products, and sludges within this industry. This change, in 
    combination with the conditioned exclusion for the reclaimed byproducts 
    and sludges, will result in more control over land-based mineral 
    processing units than exists presently, encourage additional material 
    recovery within the industry, properly control land-based storage of 
    mineral processing industry secondary materials awaiting intra-industry 
    recovery, and also simplify the solid waste regulatory classification 
    scheme. In addition, State adoption of these provisions will provide 
    national consistency.
        Similarly, another less stringent non-HSWA provision in this rule 
    excludes from RCRA regulation certain recycled wood preserving 
    wastewaters and spent wood preserving solutions. The exclusion will not 
    be effective in authorized States until they amend their regulations 
    and received authorization. Although the States do not have to adopt 
    these provisions, EPA strongly encourage them to do so, because the 
    exclusion encourages properly conducted material recovery in the wood 
    preserving industry.
        Last, the treatment standards for soil contaminated with hazardous 
    waste (and the associated site-specific risk based variance provision 
    for contaminated soils), promulgated under HSWA, are less stringent 
    than the existing treatment standards. Although the authority for these 
    standards is under HSWA, EPA will not implement them in those States 
    that are authorized for the existing standards because they are less 
    stringent. EPA will implement them in those States that are 
    unauthorized for the applicable existing treatment standards. However, 
    EPA strongly encourages States to seek authorization for these 
    standards in order to encourage and speed up cleanups of contaminated 
    sites based on remedies involving treatment of contaminated soils, thus 
    providing more permanent remedial solutions.
        Some of today's regulatory amendments are neither more or less 
    stringent than the existing Federal requirements. These are the 
    revisions to the existing UTS numbers. EPA clarified in a December 19, 
    1994, memorandum (which is in the docket for today's rule) that EPA 
    would not implement the Universal Treatment Standards (promulgated 
    under HSWA authority in the Phase II LDR rule) separately for those 
    States for which the State has received LDR authorization. EPA views 
    changes from the existing limits to be neither more or less stringent 
    since the technology basis of the standards has not changed. 
    Accordingly, EPA will not implement today's amendments to the UTS in 
    those States with authorization for the treatment standards.
        Today's rule also clarifies the scrap metal exemption from solid 
    waste as it applies to whole circuit boards. This part of the preamble 
    simply clarifies the Agency's interpretation of the existing rules. If 
    authorized for the scrap metal exemption, States do not need further 
    authorization to interpret their rules in conformity with this 
    interpretation.
    
    C. Authorization Procedures
    
        Because portions of today's rule are promulgated pursuant to HSWA, 
    a State submitting a program modification for those portions may apply 
    to receive interim authorization under RCRA section 3006(g)(2) or final 
    authorization under RCRA section 3006(b), on the basis of requirements 
    that are, respectively, substantially equivalent or equivalent to 
    EPA's. For program modifications for the non-HSWA portions of this 
    rule, States can received final authorization only. The procedures and 
    schedule for final authorization of State program modifications are 
    described in 40 CFR 271.21. It should be noted that all HSWA interim 
    authorizations will expire January 1, 2003. (See 40 CFR 271.24(c) and 
    57 FR 60132, December 18, 1992.)
        Section 271.21(e)(2) requires that States with final authorization 
    modify their programs to reflect Federal program changes and 
    subsequently submit the modification to EPA for approval. The deadline 
    by which the State would have to modify its program to adopt these 
    regulations is specified in section 271.21(e). This deadline can be 
    extended in certain cases (see section 271.21(e)(3)). Once EPA approves 
    the modification, the State requirements become Subtitle C RCRA 
    requirements.
        States with authorized RCRA programs may already have requirements 
    similar to those in today's rule. These State regulations have not been 
    assessed against the Federal regulations being promulgated today to 
    determine whether they meet the tests for authorization. Thus, a State 
    is not authorized to implement these requirements in lieu of EPA until 
    the State program modifications are approved. Of course, States with 
    existing standards could continue to administer and enforce their 
    standards as a matter of State law. In implementing the Federal 
    program, EPA will work with States under agreements to minimize 
    duplication of efforts.
    
    D. Streamlined Authorization Procedures
    
        It is EPA's policy to provide as much flexibility as possible to 
    encourage States to become authorized for rules under the hazardous 
    waste program. EPA discussed an expedited authorization approach in the 
    proposed Phase IV LDR rule (60 FR 43688, August 22, 1995), and the 
    supplemental proposal (61 FR 2338, January 25, 1996). EPA also 
    discussed streamlined authorization procedures in a more comprehensive 
    fashion in the proposed HWIR-media rule (61 FR 18780, April 29, 1996). 
    This expedited approach would apply to those minor or routine changes 
    to the existing program that do not expand the scope of the program in 
    significant ways, and was called Category 1. EPA has decided to address 
    this proposed authorization procedure in the upcoming HWIR-Media rule 
    rather than here, so that the expedited authorization approaches can be 
    dealt with in a comprehensive manner.
    
    [[Page 28636]]
    
    XV. Submission to Congress and General Accounting Office
    
        The Congressional Review Act, 5 U.S.C. Sec. 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. 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 rule is 
    not a ``major rule'' as defined by 5 U.S.C. Sec. 804(2).
    
    XVI. Executive Order 13045: Protection of Children From 
    Environmental Health Risks and Safety Risks
    
        Executive Order 13045: The Executive Order 13045 applies to any 
    rule that EPA determines (1) ``economically significant'' as defined 
    under Executive Order 12866, and (2) the environmental health or safety 
    risk addressed by the rule has a disproportionate effect on children. 
    If the regulatory action meets both criteria, the Agency must evaluate 
    the environmental health or safety effects of the planned rule on 
    children, and explain why the planned regulation is preferable to other 
    potentially effective and reasonably feasible alternatives considered 
    by the Agency.
        This final rule is not subject to E.O. 13045, entitled ``Protection 
    of Children from Environmental Health Risks and Safety Risks 
    (62FR19885, April 23, 1997), because this is not an economically 
    significant regulatory action as defined by E.O. 12866.
    
    XVII. National Technology Transfer and Advancement Act
    
        Under Sec. 12(d) of the National Technology Transfer and 
    Advancement Act, the Agency is directed 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, business practices, 
    etc.) that are developed or adopted by voluntary consensus standard 
    bodies. Where available and potentially applicable voluntary consensus 
    standards are not used by EPA, the Act requires the Agency to provide 
    Congress, through the Office of Management and Budget, an explanation 
    of the reasons for not using such standards.
        EPA is not proposing any new test methods or other technical 
    standards as part of today's final rule. Thus, the Agency has no need 
    to consider the use of voluntary consensus standards in developing this 
    proposed rule.
    
    List of Subjects
    
    40 CFR Part 148
    
        Administrative practice and procedure, Hazardous waste, Reporting 
    and recordkeeping requirements, Water supply.
    
    40 CFR Part 261
    
        Environmental protection, Hazardous waste, Recycling, Reporting and 
    recordkeeping requirements.
    
    40 CFR Part 266
    
        Energy, Hazardous waste, Recycling, Reporting and recordkeeping 
    requirements.
    
    40 CFR Part 268
    
        Hazardous waste, Reporting and recordkeeping requirements.
    
    40 CFR Part 271
    
        Administrative practice and procedure, Hazardous materials 
    transportation, Hazardous waste, Penalties, Reporting and recordkeeping 
    requirements.
    
        Dated: April 30, 1998.
    Carol M. Browner,
    Administrator.
    
        For the reasons set out in the preamble, Title 40, chapter I of the 
    Code of Federal Regulations is amended as follows:
    
    PART 148--HAZARDOUS WASTE INJECTION RESTRICTIONS
    
        1. The authority citation for Part 148 continues to read as 
    follows:
    
        Authority: Secs. 3004, Resource Conservation and Recovery Act, 
    42 U.S.C. 6901, et seq.
    
        2. Section 148.18 is amended by redesignating paragraphs (a) 
    through (f) as (c) through (h) respectively, and by adding paragraphs 
    (a) and (b) to read as follows:
    
    
    Sec. 148.18  Waste specific prohibitions--newly listed and identified 
    wastes.
    
        (a) Effective August 24, 1998, all newly identified D004-D011 
    wastes and characteristic mineral processing wastes, except those 
    identified in paragraph (b) of this section, are prohibited from 
    underground injection.
        (b) Effective May 26, 2000, characteristic hazardous wastes from 
    titanium dioxide mineral processing, and radioactive wastes mixed with 
    newly identified D004-D011 or mixed with newly identified 
    characteristic mineral processing wastes, are prohibited from 
    underground injection.
    * * * * *
    
    PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
    
    Subpart A--General
    
        3. The authority citation for Part 261 continues to read as 
    follows:
    
        Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y), and 
    6938.
    
        4. Section 261.2 is amended by revising Table 1 in paragraph 
    (c)(4), paragraph (c)(3) and (e)(1)(iii) to read as follows:
    
    
    Sec. 261.2  Definition of solid waste.
    
    * * * * *
        (c) * * *
        (3) Reclaimed. Materials noted with a ``*'' in column 3 of Table 1 
    are solid wastes when reclaimed (except as provided under 40 CFR 
    261.4(a)(15)). Materials noted with a ``--'' in column 3 of Table 1 are 
    not solid wastes when reclaimed (except as provided under 40 CFR 
    261.4(a)(15)).
    * * * * *
        (4) * * *
    
    [[Page 28637]]
    
    
    
                                                         Table 1                                                    
    ----------------------------------------------------------------------------------------------------------------
                                                                               Reclamation (Sec.                    
                                                                                 261.2(c)(3))                       
                                                                                  (except as                        
                                       Use constituting    Energy recovery/       provided in         Speculative   
                                        disposal (Sec.        fuel (Sec.       261.4(a)(15) for   accumulation (Sec.
                                         261.2(c)(1))        261.2(c)(2))     mineral processing      261.2(c)(4))  
                                                                                   secondary                        
                                                                                  materials)                        
    ----------------------------------------------------------------------------------------------------------------
                                                   1                   2                   3                   4    
    ----------------------------------------------------------------------------------------------------------------
    Spent Materials.................             (*)                 (*)                 (*)                 (*)    
    Sludges (listed in 40 CFR Part                                                                                  
     261.31 or 261.32...............             (*)                 (*)                 (*)                 (*)    
    Sludges exhibiting a                                                                                            
     characteristic of hazardous                                                                                    
     waste..........................             (*)                 (*)                  --                 (*)    
    By-products (listed in 40 CFR                                                                                   
     261.31 or 261.32)..............             (*)                 (*)                 (*)                 (*)    
    By-products exhibiting a                                                                                        
     characteristic of hazardous                                                                                    
     waste..........................             (*)                 (*)                  --                 (*)    
    Commercial chemical products                                                                                    
     listed in 40 CFR 261.33........             (*)                 (*)                  --                  --    
    Scrap metal other than excluded                                                                                 
     scrap metal (see 261.1(c)(9))..             (*)                 (*)                 (*)                 (*)    
    ----------------------------------------------------------------------------------------------------------------
    Note: The terms ``spent materials,'' ``sludges,'' ``by-products,'' and ``scrap metal'' and ``processed scrap    
      metal'' are defined in Sec.  261.1.                                                                           
    
    * * * * *
        (e) * * *
        (1) * * *
        (iii) In cases where the materials are generated and reclaimed 
    within the primary mineral processing industry, the conditions of the 
    exclusion found at Sec. 261.4(a)(15) apply rather than this provision.
    * * * * *
        5. Section 261.3 is amended by revising paragraphs (a)(2)(i) and 
    (a)(2)(iii) to read as follows:
    
    
    Sec. 261.3  Definition of hazardous waste.
    
        (a) * * *
        (2) * * *
        (i) It exhibits any of the characteristics of hazardous waste 
    identified in subpart C of this part. However, any mixture of a waste 
    from the extraction, beneficiation, and processing of ores and minerals 
    excluded under Sec. 261.4(b)(7) and any other solid waste exhibiting a 
    characteristic of hazardous waste under subpart C is a hazardous waste 
    only if it exhibits a characteristic that would not have been exhibited 
    by the excluded waste alone if such mixture had not occurred, or if it 
    continues to exhibit any of the characteristics exhibited by the non-
    excluded wastes prior to mixture. Further, for the purposes of applying 
    the Toxicity Characteristic to such mixtures, the mixture is also a 
    hazardous waste if it exceeds the maximum concentration for any 
    contaminant listed in table I to Sec. 261.24 that would not have been 
    exceeded by the excluded waste alone if the mixture had not occurred or 
    if it continues to exceed the maximum concentration for any contaminant 
    exceeded by the nonexempt waste prior to mixture.
    * * * * *
        (iii) It is a mixture of a solid waste and a hazardous waste that 
    is listed in subpart D of this part solely because it exhibits one or 
    more of the characteristics of hazardous waste identified in subpart C 
    of this part, unless the resultant mixture no longer exhibits any 
    characteristic of hazardous waste identified in subpart C of this part, 
    or unless the solid waste is excluded from regulation under 
    Sec. 261.4(b)(7) and the resultant mixture no longer exhibits any 
    characteristic of hazardous waste identified in subpart C of this part 
    for which the hazardous waste listed in subpart D of this part was 
    listed. (However, nonwastewater mixtures are still subject to the 
    requirements of part 268 of this chapter, even if they no longer 
    exhibit a characteristic at the point of land disposal).
    * * * * *
        6. Section 261.4 is amended by adding paragraphs (a)(9)(iii) and 
    (a)(16) and by revising paragraph (b)(7) to read as follows:
    
    
    Sec. 261.4  Exclusions.
    
        (a) * * *
        (9) * * *
        (iii) Prior to reuse, the wood preserving wastewaters and spent 
    wood preserving solutions described in paragraphs (a)(9)(i) and 
    (a)(9)(ii) of this section, so long as they meet all of the following 
    conditions:
        (A) The wood preserving wastewaters and spent wood preserving 
    solutions are reused on-site at water borne plants in the production 
    process for their original intended purpose;
        (B) Prior to reuse, the wastewaters and spent wood preserving 
    solutions are managed to prevent release to either land or groundwater 
    or both;
        (C) Any unit used to manage wastewaters and/or spent wood 
    preserving solutions prior to reuse can be visually or otherwise 
    determined to prevent such releases;
        (D) Any drip pad used to manage the wastewaters and/or spent wood 
    preserving solutions prior to reuse complies with the standards in part 
    265, subpart W of this chapter, regardless of whether the plant 
    generates a total of less than 100 kg/month of hazardous waste; and
        (E) Prior to operating pursuant to this exclusion, the plant owner 
    or operator submits to the appropriate Regional Administrator or State 
    Director a one-time notification stating that the plant intends to 
    claim the exclusion, giving the date on which the plant intends to 
    begin operating under the exclusion, and containing the following 
    language: ``I have read the applicable regulation establishing an 
    exclusion for wood preserving wastewaters and spent wood preserving 
    solutions and understand it requires me to comply at all times with the 
    conditions set out in the regulation.'' The plant must maintain a copy 
    of that document in its on-site records for a period of no less than 3 
    years from the date specified in the notice. The exclusion applies only 
    so long as the plant meets all of the conditions. If the plant goes out 
    of compliance with any condition, it may apply to the appropriate 
    Regional Administrator or State Director for reinstatement. The 
    Regional Administrator or State Director may reinstate the exclusion 
    upon finding that the plant has returned to compliance with all 
    conditions and that violations are not likely to recur.
    * * * * *
        (16) Secondary materials (i.e., sludges, by-products, and spent 
    materials as defined in Sec. 261.1) (other than
    
    [[Page 28638]]
    
    hazardous wastes listed in subpart D of this part) generated within the 
    primary mineral processing industry from which minerals, acids, 
    cyanide, water or other values are recovered by mineral processing, 
    provided that:
        (i) The secondary material is legitimately recycled to recover 
    minerals, acids, cyanide, water or other values;
        (ii) The secondary material is not accumulated speculatively;
        (iii) Except as provided in paragraph (a)(15)(iv) of this section, 
    the secondary material is stored in tanks, containers, or buildings 
    meeting the following minimum integrity standards: a building must be 
    an engineered structure with a floor, walls, and a roof all of which 
    are made of non-earthen materials providing structural support (except 
    smelter buildings may have partially earthen floors provided the 
    secondary material is stored on the non-earthen portion), and have a 
    roof suitable for diverting rainwater away from the foundation; a tank 
    must be free standing, not be a surface impoundment (as defined in 40 
    CFR 260.10), and be manufactured of a material suitable for containment 
    of its contents; a container must be free standing and be manufactured 
    of a material suitable for containment of its contents. If tanks or 
    containers contain any particulate which may be subject to wind 
    dispersal, the owner/operator must operate these units in a manner 
    which controls fugitive dust. Tanks, containers, and buildings must be 
    designed, constructed and operated to prevent significant releases to 
    the environment of these materials.
        (iv) The Regional Administrator or the State Director may make a 
    site-specific determination, after public review and comment, that only 
    solid mineral processing secondary materials may be placed on pads, 
    rather than in tanks, containers, or buildings. Solid mineral 
    processing secondary materials do not contain any free liquid. The 
    decision-maker must affirm that pads are designed, constructed and 
    operated to prevent significant releases of the secondary material into 
    the environment. Pads must provide the same degree of containment 
    afforded by the non-RCRA tanks, containers and buildings eligible for 
    exclusion.
        (A) The decision-maker must also consider if storage on pads poses 
    the potential for significant releases via groundwater, surface water, 
    and air exposure pathways. Factors to be considered for assessing the 
    groundwater, surface water, air exposure pathways are: the volume and 
    physical and chemical properties of the secondary material, including 
    its potential for migration off the pad; the potential for human or 
    environmental exposure to hazardous constituents migrating from the pad 
    via each exposure pathway, and the possibility and extent of harm to 
    human and environmental receptors via each exposure pathway.
        (B) Pads must meet the following minimum standards: be designed of 
    non-earthen material that is compatible with the chemical nature of the 
    mineral processing secondary material, capable of withstanding physical 
    stresses associated with placement and removal, have run on/runoff 
    controls, be operated in a manner which controls fugitive dust, and 
    have integrity assurance through inspections and maintenance programs.
        (C) Before making a determination under this paragraph, the 
    Regional Administrator or State Director must provide notice and the 
    opportunity for comment to all persons potentially interested in the 
    determination. This can be accomplished by placing notice of this 
    action in major local newspapers, or broadcasting notice over local 
    radio stations.
        (v) The owner or operator provides a notice to the Regional 
    Administrator or State Director, identifying the following information: 
    the types of materials to be recycled; the type and location of the 
    storage units and recycling processes; and the annual quantities 
    expected to be placed in land-based units. This notification must be 
    updated when there is a change in the type of materials recycled or the 
    location of the recycling process.
        (vi) For purposes of Sec. 261.4(b)(7), mineral processing secondary 
    materials must be the result of mineral processing and may not include 
    any listed hazardous wastes. Listed hazardous wastes and characteristic 
    hazardous wastes generated by non-mineral processing industries are not 
    eligible for the conditional exclusion from the definition of solid 
    waste.
        (b) * * *
        (7) Solid waste from the extraction, beneficiation, and processing 
    of ores and minerals (including coal, phosphate rock, and overburden 
    from the mining of uranium ore), except as provided by Sec. 266.112 of 
    this chapter for facilities that burn or process hazardous waste.
        (i) For purposes of Sec. 261.4(b)(7) beneficiation of ores and 
    minerals is restricted to the following activities; crushing; grinding; 
    washing; dissolution; crystallization; filtration; sorting; sizing; 
    drying; sintering; pelletizing; briquetting; calcining to remove water 
    and/or carbon dioxide; roasting, autoclaving, and/or chlorination in 
    preparation for leaching (except where the roasting (and/or autoclaving 
    and/or chlorination)/leaching sequence produces a final or intermediate 
    product that does not undergo further beneficiation or processing); 
    gravity concentration; magnetic separation; electrostatic separation; 
    flotation; ion exchange; solvent extraction; electrowinning; 
    precipitation; amalgamation; and heap, dump, vat, tank, and in situ 
    leaching.
        (ii) For the purposes of Sec. 261.4(b)(7), solid waste from the 
    processing of ores and minerals includes only the following wastes as 
    generated:
        (A) Slag from primary copper processing;
        (B) Slag from primary lead processing;
        (C) Red and brown muds from bauxite refining;
        (D) Phosphogypsum from phosphoric acid production;
        (E) Slag from elemental phosphorus production;
        (F) Gasifier ash from coal gasification;
        (G) Process wastewater from coal gasification;
        (H) Calcium sulfate wastewater treatment plant sludge from primary 
    copper processing;
        (I) Slag tailings from primary copper processing;
        (J) Fluorogypsum from hydrofluoric acid production;
        (K) Process wastewater from hydrofluoric acid production;
        (L) Air pollution control dust/sludge from iron blast furnaces;
        (M) Iron blast furnace slag;
        (N) Treated residue from roasting/leaching of chrome ore;
        (O) Process wastewater from primary magnesium processing by the 
    anhydrous process;
        (P) Process wastewater from phosphoric acid production;
        (Q) Basic oxygen furnace and open hearth furnace air pollution 
    control dust/sludge from carbon steel production;
        (R) Basic oxygen furnace and open hearth furnace slag from carbon 
    steel production;
        (S ) Chloride process waste solids from titanium tetrachloride 
    production;
        (T) Slag from primary zinc processing.
        (iii) A residue derived from co-processing mineral processing 
    secondary materials with normal beneficiation raw materials remains 
    excluded under paragraph (b) of this section if the owner or operator:
        (A) Processes at least 50 percent by weight normal beneficiation 
    raw materials; and,
        (B) Legitimately reclaims the secondary mineral processing 
    materials.
    * * * * *
    
    [[Page 28639]]
    
    PART 268--LAND DISPOSAL RESTRICTIONS
    
        7. The authority citation for Part 268 continues to read as 
    follows:
    
        Authority: 42 U.S.C. 6905, 6912(a), 6921, and 6924.
    
        8. Section 268.2 is amended by revising paragraph (i) and adding 
    paragraph (k) to read as follows:
    
    
    Sec. 268.2  Definitions applicable in this part.
    
    * * * * *
        (i) Underlying hazardous constituent means any constituent listed 
    in Sec. 268.48, Table UTS--Universal Treatment Standards, except 
    fluoride, selenium, sulfides, vanadium, and zinc, which can reasonably 
    be expected to be present at the point of generation of the hazardous 
    waste at a concentration above the constituent-specific UTS treatment 
    standards.
    * * * * *
        (k) Soil means unconsolidated earth material composing the 
    superficial geologic strata (material overlying bedrock), consisting of 
    clay, silt, sand, or gravel size particles as classified by the U.S. 
    Soil Conservation Service, or a mixture of such materials with liquids, 
    sludges or solids which is inseparable by simple mechanical removal 
    processes and is made up primarily of soil by volume based on visual 
    inspection.
        9. Section 268.3 is amended by adding paragraph (d) to read as 
    follows:
    
    
    Sec. 268.3  Dilution prohibited as a substitute for treatment.
    
    * * * * *
        (d) It is a form of impermissible dilution, and therefore 
    prohibited, to add iron filings or other metallic forms of iron to 
    lead-containing hazardous wastes in order to achieve any land disposal 
    restriction treatment standard for lead. Lead-containing wastes include 
    D008 wastes (wastes exhibiting a characteristic due to the presence of 
    lead), all characteristic wastes containing lead as an underlying 
    hazardous constituent, listed wastes containing lead as a regulated 
    constitutent, and hazardous media containing any of the aforementioned 
    lead-containing wastes.
        10. Section 268.4 is amended by revising paragraphs (a)(2)(ii) and 
    (a)(2)(iii) to read as follows:
    
    
    Sec. 268.4  Treatment surface impoundment exemption.
    
        (a) * * *
        (2) * * *
        (ii) Removal. The following treatment residues (including any 
    liquid waste) must be removed at least annually; residues which do not 
    meet the treatment standards promulgated under subpart D of this part; 
    residues which do not meet the prohibition levels established under 
    subpart C of this part or imposed by statute (where no treatment 
    standards have been established); residues which are from the treatment 
    of wastes prohibited from land disposal under subpart C of this part 
    (where no treatment standards have been established and no prohibition 
    levels apply); or residues from managing listed wastes which are not 
    delisted under Sec. 260.22 of this chapter. If the volume of liquid 
    flowing through the impoundment or series of impoundments annually is 
    greater than the volume of the impoundment or impoundments, this flow-
    through constitutes removal of the supernatant for the purpose of this 
    requirement.
        (iii) Subsequent management. Treatment residues may not be placed 
    in any other surface impoundment for subsequent management.
    * * * * *
        11. Section 268.7 is amended by revising paragraphs (a)(1), 
    (a)(3)(ii), (a)(7), (b)(1), (b)(2), (b)(5) and (b)(6); by revising the 
    first sentence of the paragraphs (a)(2), (a)(3) introductory text, 
    (a)(4), (a)(5) introductory text, (a)(6), and (b)(3) introductory text; 
    by adding paragraph (a)(2)(i) and three sentences to the end of 
    paragraph (b)(4) introductory text and adding paragraphs (b)(4)(iv), 
    (b)(4)(v), and (e) and adding and reserving paragraph (a)(2)(ii); and 
    by revising entries 1 and 3, designating entry 8 as 9, and adding entry 
    8 in the table entitled ``Generator Paperwork Requirements Table'' in 
    paragraph (a)(4), and by revising entries 1 and 2 designating entry 5 
    as 6, and adding entry 5 in the table entitled ``Treatment Facility 
    Paperwork Requirements Table'' in paragraph (b)(3)(ii) to read as 
    follows:
    
    
    Sec. 268.7  Testing, tracking, and recordkeeping requirements for 
    generators, treaters, and disposal facilities.
    
        (a) * * *
        (1) A generator of hazardous waste must determine if the waste has 
    to be treated before it can be land disposed. This is done by 
    determining if the hazardous waste meets the treatment standards in 
    Sec. 268.40, Sec. 268.45, or Sec. 268.49. This determination can be 
    made in either of two ways: testing the waste or using knowledge of the 
    waste. If the generator tests the waste, testing would normally 
    determine the total concentration of hazardous constituents, or the 
    concentration of hazardous constituents in an extract of the waste 
    obtained using test method 1311 in ``Test Methods of Evaluating Solid 
    Waste, Physical/Chemical Methods,'' EPA Publication SW-846, as 
    referenced in Sec. 260.11 of this chapter, depending on whether the 
    treatment standard for the waste is expressed as a total concentration 
    or concentration of hazardous constituent in the waste's extract. In 
    addition, some hazardous wastes must be treated by particular treatment 
    methods before they can be land disposed and some soils are 
    contaminated by such hazardous wastes. These treatment standards are 
    also found in Sec. 268.40, and are described in detail in Sec. 268.42, 
    Table 1. These wastes, and soils contaminated with such wastes, do not 
    need to be tested (however, if they are in a waste mixture, other 
    wastes with concentration level treatment standards would have to be 
    tested). If a generator determines they are managing a waste or soil 
    contaminated with a waste, that displays a hazardous characteristic of 
    ignitability, corrosivity, reactivity, or toxicity, they must comply 
    with the special requirements of Sec. 268.9 of this part in addition to 
    any applicable requirements in this section.
        (2) If the waste or contaminated soil does not meet the treatment 
    standard: With the initial shipment of waste to each treatment or 
    storage facility, the generator must send a one-time written notice to 
    each treatment or storage facility receiving the waste, and place a 
    copy in the file. * * *
        (i) For contaminated soil, the following certification statement 
    should be included, signed by an authorized representative:
        I certify under penalty of law that I personally have examined this 
    contaminated soil and it [does/does not] contain listed hazardous waste 
    and [does/does not] exhibit a characteristic of hazardous waste and 
    requires treatment to meet the soil treatment standards as provided by 
    268.49(c).
        (ii) [Reserved]
        (3) If the waste or contaminated soil meets the treatment standard 
    at the original point of generation:
    * * * * *
        (ii) For contaminated soil, with the initial shipment of wastes to 
    each treatment, storage, or disposal facility, the generator must send 
    a one-time written notice to each facility receiving the waste and 
    place a copy in the file. The notice must include the information in 
    ``268.7(a)(3) of the Generator Paperwork Requirements Table in 
    Sec. 268.7(a)(4).
        (4) For reporting, tracking, and recordkeeping when exceptions 
    allow certain wastes or contaminated soil that
    
    [[Page 28640]]
    
    do not meet the treatment standards to be land disposed: There are 
    certain exemptions from the requirement that hazardous wastes or 
    contaminated soil meet treatment standards before they can be land 
    disposed. * * *
    * * * * *
    
                                         Generator Paperwork Requirements Table                                     
    ----------------------------------------------------------------------------------------------------------------
                                                               Sec.  268.7   Sec.  268.7   Sec.  268.7   Sec.  268.7
                      Required information                       (a)(2)        (a)(3)        (a)(4)        (a)(9)   
    ----------------------------------------------------------------------------------------------------------------
    1. EPA Hazardous Waste Numbers and Manifest Number of                                                           
     first shipment.                                                                                                
                                                                                                                    
    *                  *                  *                  *                  *                  *                
                                                            *                                                       
    3. The waste is subject to the LDRs. The constituents of                                                        
     concern for F001-F005, and F039, and underlying                                                                
     hazardous constituents in characteristic wastes, unless                                                        
     the waste will be treated and monitored for all                                                                
     constituents. If all constituents will be treated and                                                          
     monitored, there is no need to put them all on the LDR                                                         
     notice.................................................         ............  ............  ............
                                                                                                                    
    *                  *                  *                  *                  *                  *                
                                                            *                                                       
    8. For contaminated soil subject to LDRs as provided in                                                         
     268.49(a), the constituents subject to treatment as                                                            
     described in 268.49(d), and the following statement:                                                           
     This contaminated soil [does/does not] contain listed                                                          
     hazardous waste and [does/does not] exhibit a                                                                  
     characteristic of hazardous waste and [is subject to/                                                          
     complies with' the soil treatment standards as provided                                                        
     by 268.49(c) or the universal treatment standards......         ............  ............  ............
                                                                                                                    
    *                  *                  *                  *                  *                  *                
                                                            *                                                       
    ----------------------------------------------------------------------------------------------------------------
    
        (5) If a generator is managing and treating prohibited waste or 
    contaminated soil in tanks, containers, or containment buildings 
    regulated under 40 CFR 262.34 to meet applicable LDR treatment 
    standards found at Sec. 268.40, the generator must develop and follow a 
    written waste analysis plan which describes the procedures they will 
    carry out to comply with the treatment standards. * * *
    * * * * *
        (6) If a generator determines that the waste or contaminated soil 
    is restricted based solely on his knowledge of the waste, all 
    supporting data used to make this determination must be retained on-
    site in the generator's files. * * *
        (7) If a generator determines that he is managing a prohibited 
    waste that is excluded from the definition of hazardous or solid waste 
    or is exempted from Subtitle C regulation under 40 CFR 261.2 through 
    261.6 subsequent to the point of generation (including deactivated 
    characteristic hazardous wastes managed in wastewater treatment systems 
    subject to the Clean Water Act (CWA) as specified at 40 CFR 261.4(a)(2) 
    or that are CWA-equivalent, or are managed in an underground injection 
    well regulated by the SDWA), he must place a one-time notice describing 
    such generation, subsequent exclusion from the definition of hazardous 
    or solid waste or exemption from RCRA Subtitle C regulation, and the 
    disposition of the waste, in the facility's on-site files.
    * * * * *
        (b) * * *
        (1) For wastes or contaminated soil with treatment standards 
    expressed in the waste extract (TCLP), the owner or operator of the 
    treatment facility must test an extract of the treatment residues, 
    using test method 1311 (the Toxicity Characteristic Leaching Procedure, 
    described in ``Test Methods for Evaluating Solid Waste, Physical/
    Chemical Methods,'' EPA Publication SW-846 as incorporated by reference 
    in Sec. 260.11 of this chapter) to assure that the treatment residues 
    extract meet the applicable treatment standards.
        (2) For wastes or contaminated soil with treatment standards 
    expressed as concentrations in the waste, the owner or operator of the 
    treatment facility must test the treatment residues (not an extract of 
    such residues) to assure that they meet the applicable treatment 
    standards.
        (3) A one-time notice must be sent with the initial shipment of 
    waste or contaminated soil to the land disposal facility. * * *
    * * * * *
        (ii) * * *
    
                 Treatment Facility Paperwork Requirements Table            
    ------------------------------------------------------------------------
                       Required information                         Sec.    
    --------------------------------------------------------------268.7(b)--
    1. EPA Hazardous Waste Numbers and Manifest Number of                   
     first shipment.                                                        
    2. The waste is subject to the LDRs. The constituents of                
     concern for F001-F005, and F039, and underlying                        
     hazardous constituents in characteristic wastes, unless                
     the waste will be treated and monitored for all                        
     constituents. If all constituents will be treated and                  
     monitored, there is no need to put them all on the LDR                 
     notice..................................................        
                                                                            
    *                  *                  *                  *              
                      *                  *                  *               
    5. For contaminated soil subject to LDRs as provided in                 
     268.49(a), the constituents subject to treatment as                    
     described in 268.49(d) and the following statement,                    
     ``this contaminated soil [does/does not] contain listed                
     hazardous waste and [does/does not] exhibit                            
     acharacteristic of hazardous waste and [is subject to/                 
     complies with] the soil treatment standards as provided                
     by 268.49(c)............................................        
    *                  *                  *                  *              
                      *                  *                  *               
    ------------------------------------------------------------------------
    
        (4) * * * A certification is also necessary for contaminated soil 
    and it must state:
    
        I certify under penalty of law that I have personally examined 
    and am familiar with the treatment technology and operation of the 
    treatment process used to support this certification and believe 
    that it has been maintained and operated properly so as to
    
    [[Page 28641]]
    
    comply with treatment standards specified in 40 CFR 268.49 without 
    impermissible dilution of the prohibited wastes. I am aware there 
    are significant penalties for submitting a false certification, 
    including the possibility of fine and imprisonment.
    * * * * *
        (iv) For characteristic wastes that are subject to the treatment 
    standards in Sec. 268.40 (other than those expressed as a required 
    method of treatment) that are reasonably expected to contain underlying 
    hazardous constituents as defined in Sec. 268.2(i); are treated on-site 
    to remove the hazardous characteristic; and are then sent off-site for 
    treatment of underlying hazardous constituents, the certification must 
    state the following:
    
        I certify under penalty of law that the waste has been treated 
    in accordance with the requirements of 40 CFR 268.40 to remove the 
    hazardous characteristic. This decharacterized waste contains 
    underlying hazardous constituents that require further treatment to 
    meet universal treatment standards. I am aware that there are 
    significant penalties for submitting a false certification, 
    including the possibility of fine and imprisonment.
    
        (v) For characteristic wastes that contain underlying hazardous 
    constituents as defined Sec. 268.2(i) that are treated on-site to 
    remove the hazardous characteristic to treat underlying hazardous 
    constituents to levels in Sec. 268.48 Universal Treatment Standards, 
    the certification must state the following:
    
        I certify under penalty of law that the waste has been treated 
    in accordance with the requirements of 40 CFR 268.40 to remove the 
    hazardous characteristic and that underlying hazardous constituents, 
    as defined in Sec. 268.2(i) have been treated on-site to meet the 
    Sec. 268.48 Universal Treatment Standards. I am aware that there are 
    significant penalties for submitting a false certification, 
    including the possibility of fine and imprisonment.
    
        (5) If the waste or treatment residue will be further managed at a 
    different treatment, storage, or disposal facility, the treatment, 
    storage, or disposal facility sending the waste or treatment residue 
    off-site must comply with the notice and certification requirements 
    applicable to generators under this section.
        (6) Where the wastes are recyclable materials used in a manner 
    constituting disposal subject to the provisions of Sec. 268.20(b) 
    regarding treatment standards and prohibition levels, the owner or 
    operator of a treatment facility (i.e., the recycler) is not required 
    to notify the receiving facility, pursuant to paragraph (b)(3) of this 
    section. With each shipment of such wastes the owner or operator of the 
    recycling facility must submit a certification described in paragraph 
    (b)(4) of this section, and a notice which includes the information 
    listed in paragraph (b)(3) of this section (except the manifest number) 
    to the Regional Administrator, or his delegated representative. The 
    recycling facility also must keep records of the name and location of 
    each entity receiving the hazardous waste-derived product.
    * * * * *
        (e) Generators and treaters who first receive from EPA or an 
    authorized state a determination that a given contaminated soil subject 
    to LDRs as provided in Sec. 268.49(a) no longer contains a listed 
    hazardous waste and generators and treaters who first determine that a 
    contaminated soil subject to LDRs as provided in Sec. 268.49(a) no 
    longer exhibits a characteristic of hazardous waste must:
        (1) Prepare a one-time only documentation of these determinations 
    including all supporting information; and,
        (2) Maintain that information in the facility files and other 
    records for a minimum of three years.
    
    Subpart C--Prohibitions on Land Disposal
    
        12. Section Sec. 268.34 is revised to read as follows:
    
    
    Sec. 268.34  Waste specific prohibitions--toxicity characteristic metal 
    wastes.
    
        (a) Effective August 24, 1998, the following wastes are prohibited 
    from land disposal: the wastes specified in 40 CFR Part 261 as EPA 
    Hazardous Waste numbers D004--D011 that are newly identified (i.e. 
    wastes, soil, or debris identified as hazardous by the Toxic 
    Characteristic Leaching Procedure but not the Extraction Procedure), 
    and waste, soil, or debris from mineral processing operations that is 
    identified as hazardous by the specifications at 40 CFR Part 261.
        (b) Effective May 26, 2000, the following wastes are prohibited 
    from land disposal: newly identified characteristic wastes from 
    elemental phosphorus processing; radioactive wastes mixed with EPA 
    Hazardous wastes D004--D011 that are newly identified (i.e. wastes, 
    soil, or debris identified as hazardous by the Toxic Characteristic 
    Leaching Procedure but not the Extraction Procedure); or mixed with 
    newly identified characteristic mineral processing wastes, soil, or 
    debris.
        (c) Between May 26, 1998 and May 26, 2000, newly identified 
    characteristic wastes from elemental phosphorus processing, radioactive 
    waste mixed with D004--D011 wastes that are newly identified (i.e. 
    wastes, soil, or debris identified as hazardous by the Toxic 
    Characteristic Leaching Procedure but not the Extraction Procedure), or 
    mixed with newly identified characteristic mineral processing wastes, 
    soil, or debris may be disposed in a landfill or surface impoundment 
    only if such unit is in compliance with the requirements specified in 
    Sec. 268.5(h)(2) of this part.
        (d) The requirements of paragraphs (a) and (b) of this section do 
    not apply if:
        (1) The wastes meet the applicable treatment standards specified in 
    subpart D of this part;
        (2) Persons have been granted an exemption from a prohibition 
    pursuant to a petition under Sec. 268.6, with respect to those wastes 
    and units covered by the petition;
        (3) The wastes meet the applicable alternate treatment standards 
    established pursuant to a petition granted under Sec. 268.44; or
        (4) Persons have been granted an extension to the effective date of 
    a prohibition pursuant to Sec. 268.5, with respect to these wastes 
    covered by the extension.
        (e) To determine whether a hazardous waste identified in this 
    section exceeds the applicable treatment standards specified in 
    Sec. 268.40, the initial generator must test a sample of the waste 
    extract or the entire waste, depending on whether the treatment 
    standards are expressed as concentrations in the waste extract or the 
    waste, or the generator may use knowledge of the waste. If the waste 
    contains constituents (including underlying hazardous constituents in 
    characteristic wastes) in excess of the applicable Universal Treatment 
    Standard levels of Sec. 268.48 of this part, the waste is prohibited 
    from land disposal, and all requirements of part 268 are applicable, 
    except as otherwise specified.
    
    Subpart D--Treatment Standards
    
        13. Section 268.40 is amended by revising paragraph (e), adding 
    paragraph (h), and revising the Table of Treatment Standards to read as 
    follows:
    
    
    Sec. 268.40  Applicability of treatment standards.
    
    * * * * *
        (e) For characteristic wastes (D001--D043) that are subject to 
    treatment standards in the following table ``Treatment Standards for 
    Hazardous Wastes,'' and are not managed in a wastewater treatment 
    system that is regulated under the Clean Water Act (CWA), that is CWA-
    equivalent, or that is injected into a Class I nonhazardous
    
    [[Page 28642]]
    
    deep injection well, all underlying hazardous constituents (as defined 
    in Sec. 268.2(i)) must meet Universal Treatment Standards, found in 
    Sec. 268.48, Table Universal Treatment Standards, prior to land 
    disposal as defined in Sec. 268.2(c) of this part.
    * * * * *
        (h) Prohibited D004-D011 mixed radioactive wastes and mixed 
    radioactive listed wastes containing metal constituents, that were 
    previously treated by stabilization to the treatment standards in 
    effect at that time and then put into storage, do not have to be re-
    treated to meet treatment standards in this section prior to land 
    disposal.
    
    BILLING CODE 6560-50-P
    
    [[Page 28643]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.000
    
    
    
    [[Page 28644]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.001
    
    
    
    [[Page 28645]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.002
    
    
    
    [[Page 28646]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.003
    
    
    
    [[Page 28647]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.004
    
    
    
    [[Page 28648]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.005
    
    
    
    [[Page 28649]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.006
    
    
    
    [[Page 28650]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.007
    
    
    
    [[Page 28651]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.008
    
    
    
    [[Page 28652]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.009
    
    
    
    [[Page 28653]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.010
    
    
    
    [[Page 28654]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.011
    
    
    
    [[Page 28655]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.012
    
    
    
    [[Page 28656]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.013
    
    
    
    [[Page 28657]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.014
    
    
    
    [[Page 28658]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.015
    
    
    
    [[Page 28659]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.016
    
    
    
    [[Page 28660]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.017
    
    
    
    [[Page 28661]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.018
    
    
    
    [[Page 28662]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.019
    
    
    
    [[Page 28663]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.020
    
    
    
    [[Page 28664]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.021
    
    
    
    [[Page 28665]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.022
    
    
    
    [[Page 28666]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.023
    
    
    
    [[Page 28667]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.024
    
    
    
    [[Page 28668]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.025
    
    
    
    [[Page 28669]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.026
    
    
    
    [[Page 28670]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.027
    
    
    
    [[Page 28671]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.028
    
    
    
    [[Page 28672]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.029
    
    
    
    [[Page 28673]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.030
    
    
    
    [[Page 28674]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.031
    
    
    
    [[Page 28675]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.032
    
    
    
    [[Page 28676]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.033
    
    
    
    [[Page 28677]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.034
    
    
    
    [[Page 28678]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.035
    
    
    
    [[Page 28679]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.036
    
    
    
    [[Page 28680]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.037
    
    
    
    [[Page 28681]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.038
    
    
    
    [[Page 28682]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.039
    
    
    
    [[Page 28683]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.040
    
    
    
    [[Page 28684]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.041
    
    
    
    [[Page 28685]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.042
    
    
    
    [[Page 28686]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.043
    
    
    
    [[Page 28687]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.044
    
    
    
    [[Page 28688]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.045
    
    
    
    [[Page 28689]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.046
    
    
    
    [[Page 28690]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.047
    
    
    
    [[Page 28691]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.048
    
    
    
    [[Page 28692]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.049
    
    
    
    [[Page 28693]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.050
    
    
    
    [[Page 28694]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.051
    
    
    
    [[Page 28695]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.052
    
    
    
    [[Page 28696]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.053
    
    
    
    [[Page 28697]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.054
    
    
    
    [[Page 28698]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.055
    
    
    
    [[Page 28699]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.056
    
    
    
    [[Page 28700]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.057
    
    
    
    [[Page 28701]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.058
    
    
    
    [[Page 28702]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.059
    
    
    
    [[Page 28703]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.060
    
    
    
    [[Page 28704]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.061
    
    
    
    [[Page 28705]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.062
    
    
    
    [[Page 28706]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.063
    
    
    
    [[Page 28707]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.064
    
    
    
    [[Page 28708]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.065
    
    
    
    [[Page 28709]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.066
    
    
    
    [[Page 28710]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.067
    
    
    
    [[Page 28711]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.068
    
    
    
    [[Page 28712]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.069
    
    
    
    [[Page 28713]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.070
    
    
    
    [[Page 28714]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.071
    
    
    
    [[Page 28715]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.072
    
    
    
    [[Page 28716]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.073
    
    
    
    [[Page 28717]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.074
    
    
    
    [[Page 28718]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.075
    
    
    
    [[Page 28719]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.076
    
    
    
    [[Page 28720]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.077
    
    
    
    [[Page 28721]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.078
    
    
    
    [[Page 28722]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.079
    
    
    
    [[Page 28723]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.080
    
    
    
    [[Page 28724]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.081
    
    
    
    [[Page 28725]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.082
    
    
    
    [[Page 28726]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.083
    
    
    
    [[Page 28727]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.084
    
    
    
    [[Page 28728]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.085
    
    
    
    [[Page 28729]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.086
    
    
    
    [[Page 28730]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.087
    
    
    
    [[Page 28731]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.088
    
    
    
    [[Page 28732]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.089
    
    
    
    [[Page 28733]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.090
    
    
    
    [[Page 28734]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.091
    
    
    
    [[Page 28735]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.092
    
    
    
    [[Page 28736]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.093
    
    
    
    [[Page 28737]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.094
    
    
    
    [[Page 28738]]
    
    Footnotes to Treatment Standard Table 268.40
    
        \1\ The waste descriptions provided in this table do not replace 
    waste descriptions in 40 CFR 261. Descriptions of Treatment/
    Regulatory Subcategories are provided, as needed, to distinguish 
    between applicability of different standards.
        \2\ CAS means Chemical Abstract Services. When the waste code 
    and/or regulated constituents are described as a combination of a 
    chemical with its salts and/or esters, the CAS number is given for 
    the parent compound only.
        \3\ Concentration standards for wastewaters are expressed in mg/
    l and are based on analysis of composite samples.
        \4\ All treatment standards expressed as a Technology Code or 
    combination of Technology Codes are explained in detail in 40 CFR 
    268.42 Table 1--Technology Codes and Descriptions of Technology-
    Based Standards.
        \5\ Except for Metals (EP or TCLP) and Cyanides (Total and 
    Amenable) the nonwastewater treatment standards expressed as a 
    concentration were established, in part, based upon incineration in 
    units operated in accordance with the technical requirements of 40 
    CFR Part 264 Subpart O or Part 265 Subpart O, or based upon 
    combustion in fuel substitution units operating in accordance with 
    applicable technical requirements. A facility may comply with these 
    treatment standards according to provisions in 40 CFR 268.40(d). All 
    concentration standards for nonwastewaters are based on analysis of 
    grab samples.
        \6\ Where an alternate treatment standard or set of alternate 
    standards has been indicated, a facility may comply with this 
    alternate standard, but only for the Treatment/Regulatory 
    Subcategory or physical form (i.e., wastewater and/or nonwastewater) 
    specified for that alternate standard.
        \7\ Both Cyanides (Total) and Cyanides (Amenable) for 
    nonwastewaters are to be analyzed using Method 9010 or 9012, found 
    in ``Test Methods for Evaluating Solid Waste, Physical/Chemical 
    Methods,'' EPA Publication SW-846, as incorporated by reference in 
    40 CFR 260.11, with a sample size of 10 grams and a distillation 
    time of one hour and 15 minutes.
        \8\ These wastes, when rendered nonhazardous and then 
    subsequently managed in CWA, or CWA-equivalent systems, are not 
    subject to treatment standards. (See Sec. 268.1(c) (3) and (4)).
        \9\ These wastes, when rendered nonhazardous and then 
    subsequently injected in a Class I SDWA well, are not subject to 
    treatment standards. (See Sec. 148.1(d)).
        \10\ Between August 26, 1996, and August 26, 1997, the treatment 
    standard for this waste may be satisfied by either meeting the 
    constituent concentrations in this table or by treating the waste by 
    the specified technologies: combustion, as defined by the technology 
    code CMBST at Sec. 268.42 Table 1 of this Part, for nonwastewaters; 
    and, biodegradation as definded by the technology code BIODG, carbon 
    adsorption as defined by the technology code CARBN, chemical 
    oxidation as defined by the technology code CHOXD, or combustion as 
    defined as technology code CMBST at Sec. 268.42 Table 1 of this 
    Part, for wastewaters.
        \11\ For these wastes, the definition of CMBST is limited to: 
    (1) combustion units operating under 40 CFR 266, (2) combustion 
    units permitted under 40 CFR Part 264, Subpart O, or (3) combustion 
    units operating under 40 CFR 265, Subpart O, which have obtained a 
    determination of equivalent treatment under 268.42 (b).
    
        14. Section 268.42 is amended by revising the introductory text of 
    paragraph (a) and removing paragraphs (a)(1), (a)(2), and (a)(3) to 
    read as follows:
    
    
    Sec. 268.42  Treatment standards expressed as specified technologies.
    
        (a) The following wastes in the table in Sec. 268.40 ``Treatment 
    Standards for Hazardous Wastes,'' for which standards are expressed as 
    a treatment method rather than a concentration level, must be treated 
    using the technology or technologies specified in the table entitled 
    ``Technology Codes and Description of Technology-Based Standards'' in 
    this section.
    * * * * *
        15. Section 268.44 is amended by redesignating paragraph (h)(3) as 
    (h)(5), and adding new paragraphs (h) (3) and (4) to read as follows:
    
    
    Sec. 268.44  Variance from a treatment standard.
    
    * * * * *
        (h) * * *
        (3) For contaminated soil only, treatment to the level or by the 
    method specified in the soil treatment standards would result in 
    concentrations of hazardous constituents that are below (i.e., lower 
    than) the concentrations necessary to minimize short- and long-term 
    threats to human health and the environment. Treatment variances 
    approved under this paragraph must:
        (i) At a minimum, impose alternative land disposal restriction 
    treatment standards that, using a reasonable maximum exposure scenario:
        (A) For carcinogens, achieve constituent concentrations that result 
    in the total excess risk to an individual exposed over a lifetime 
    generally falling within a range from 10 -4 to 10 
    -6; and
        (B) For constituents with non-carcinogenic effects, achieve 
    constituent concentrations that an individual could be exposed to on a 
    daily basis without appreciable risk of deleterious effect during a 
    lifetime.
        (ii) Not consider post-land-disposal controls.
        (4) For contaminated soil only, treatment to the level or by the 
    method specified in the soil treatment standards would result in 
    concentrations of hazardous constituents that are below (i.e., lower 
    than) natural background concentrations at the site where the 
    contaminated soil will land disposed.
    * * * * *
        16. Section 268.45 is amended by revising the introductory text of 
    paragraph (a), and paragraphs (d)(3) and (d)(4) to read as follows:
    
    
    Sec. 268.45  Treatment standards for hazardous debris.
    
        (a) Treatment standards. Hazardous debris must be treated prior to 
    land disposal as follows unless EPA determines under Sec. 261.3(f)(2) 
    of this chapter that the debris is no longer contaminated with 
    hazardous waste or the debris is treated to the waste-specific 
    treatment standard provided in this subpart for the waste contaminating 
    the debris:
    * * * * *
        (d) * * *
        (3) Cyanide-reactive debris. Residue from the treatment of debris 
    that is reactive because of cyanide must meet the treatment standards 
    for D003 in ``Treatment Standards for Hazardous Wastes'' at 
    Sec. 268.40.
        (4) Ignitable nonwastewater residue. Ignitable nonwastewater 
    residue containing equal to or greater than 10% total organic carbon is 
    subject to the technology specified in the treatment standard for D001: 
    Ignitable Liquids.
    * * * * *
        17. Section 268.48 is amended by revising the table Universal 
    Treatment Standards to read as follows:
    
    
    Sec. 268.48  Universal treatment standards.
    
        (a) * * *
    
    [[Page 28739]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.095
    
    
    
    [[Page 28740]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.096
    
    
    
    [[Page 28741]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.097
    
    
    
    [[Page 28742]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.098
    
    
    
    [[Page 28743]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.099
    
    
    
    [[Page 28744]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.100
    
    
    
    [[Page 28745]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.101
    
    
    
    [[Page 28746]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.102
    
    
    
    [[Page 28747]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.103
    
    
    
    [[Page 28748]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.104
    
    
    
    [[Page 28749]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.105
    
    
    
    [[Page 28750]]
    
    [GRAPHIC] [TIFF OMITTED] TR26MY98.106
    
    
    
    BILLING CODE 6560-50-C
    
    [[Page 28751]]
    
        18. Subpart D is amended by adding Sec. 268.49 to read as follows:
    
    
    Sec. 268.49  Alternative LDR treatment standards for contaminated soil.
    
        (a) Applicability. You must comply with LDRs prior to placing soil 
    that exhibits a characteristic of hazardous waste, or exhibited a 
    characteristic of hazardous waste at the time it was generated, into a 
    land disposal unit. The following chart describes whether you must 
    comply with LDRs prior to placing soil contaminated by listed hazardous 
    waste into a land disposal unit:
    
    ----------------------------------------------------------------------------------------------------------------
                If LDRs                  And if LDRs           And if                        Then you               
    ----------------------------------------------------------------------------------------------------------------
    Applied to the listed waste      Apply to the        ..................  Must comply with LDRs                  
     when it contaminated the soil*.  listed waste now.                                                             
    Didn't apply to the listed       Apply to the        The soil is         Must comply with LDRs.                 
     waste when it contaminated the   listed waste now.   determined to                                             
     soil*.                                               contain the                                               
                                                          listed waste when                                         
                                                          the soil is first                                         
                                                          generated.                                                
    Didn't apply to the listed       Apply to the        The soil is         Needn't comply with LDRs.              
     waste when it contaminated the   listed waste now.   determined not to                                         
     soil*.                                               contain the                                               
                                                          listed waste when                                         
                                                          the soil is first                                         
                                                          generated.                                                
    Didn't apply to the listed       Don't apply to the  ..................  Needn't comply with LDRs.              
     waste when it contaminated the   listed waste now.                                                             
     soil*.                                                                                                         
    ----------------------------------------------------------------------------------------------------------------
    * For dates of LDR applicability, see 40 CFR Part 268 Appendix VII. To determine the date any given listed      
      hazardous waste contaminated any given volume of soil, use the last date any given listed hazardous waste was 
      placed into any given land disposal unit or, in the case of an accidental spill, the date of the spill.       
    
        (b) Prior to land disposal, contaminated soil identified by 
    paragraph (a) of this section as needing to comply with LDRs must be 
    treated according to the applicable treatment standards specified in 
    paragraph (c) of this section or according to the Universal Treatment 
    Standards specified in 40 CFR 268.48 applicable to the contaminating 
    listed hazardous waste and/or the applicable characteristic of 
    hazardous waste if the soil is characteristic. The treatment standards 
    specified in paragraph (c) of this section and the Universal Treatment 
    Standards may be modified through a treatment variance approved in 
    accordance with 40 CFR 268.44.
        (c) Treatment standards for contaminated soils. Prior to land 
    disposal, contaminated soil identified by paragraph (a) of this section 
    as needing to comply with LDRs must be treated according to all the 
    standards specified in this paragraph or according to the Universal 
    Treatment Standards specified in 40 CFR 268.48.
        (1) All soils. Prior to land disposal, all constituents subject to 
    treatment must be treated as follows:
        (A) For non-metals, treatment must achieve 90 percent reduction in 
    total constituent concentrations, except as provided by paragraph 
    (c)(1)(C) of this section.
        (B) For metals, treatment must achieve 90 percent reduction in 
    constituent concentrations as measured in leachate from the treated 
    media (tested according to the TCLP) or 90 percent reduction in total 
    constituent concentrations (when a metal removal treatment technology 
    is used), except as provided by paragraph (c)(1)(C) of this section.
        (C) When treatment of any constituent subject to treatment to a 90 
    percent reduction standard would result in a concentration less than 10 
    times the Universal Treatment Standard for that constituent, treatment 
    to achieve constituent concentrations less than 10 times the universal 
    treatment standard is not required. Universal Treatment Standards are 
    identified in 40 CFR 268.48 Table UTS.
        (2) Soils that exhibit the characteristic of ignitability, 
    corrosivity or reactivity. In addition to the treatment required by 
    paragraph (c)(1) of this section, prior to land disposal, soils that 
    exhibit the characteristic of ignitability, corrosivity, or reactivity 
    must be treated to eliminate these characteristics.
        (3) Soils that contain nonanalyzable constituents. In addition to 
    the treatment requirements of paragraphs (c)(1) and (2) of this 
    section, prior to land disposal, the following treatment is required 
    for soils that contain nonanalyzable constituents:
        (A) For soil that also contains analyzable constituents, treatment 
    of those analyzable constituents to the levels specified in paragraphs 
    (c)(1) and (2) of this section; or,
        (B) For soil that contains only nonanalyzable constituents, 
    treatment by the method specified in Sec. 268.42 for the waste 
    contained in the soil.
        (d) Constituents subject to treatment. When applying the soil 
    treatment standards in paragraph (c) of this section, constituents 
    subject to treatment are any constituents listed in 40 CFR 268.48, 
    Table UTS--Universal Treatment Standards that are reasonably expected 
    to be present in any given volume of contaminated soil, except 
    fluoride, selenium, sulfides, vanadium and zinc, and are present at 
    concentrations greater than ten times the universal treatment standard.
        (e) Management of treatment residuals. Treatment residuals from 
    treating contaminated soil identified by paragraph (a) of this section 
    as needing to comply with LDRs must be managed as follows:
        (1) Soil residuals are subject to the treatment standards of this 
    section;
        (2) Non-soil residuals are subject to:
        (A) For soils contaminated by listed hazardous waste, the RCRA 
    Subtitle C standards applicable to the listed hazardous waste; and
        (B) For soils that exhibit a characteristic of hazardous waste, if 
    the non-soil residual also exhibits a characteristic of hazardous 
    waste, the treatment standards applicable to the characteristic 
    hazardous waste.
        19. Table 1 in Appendix VII to Part 268 is amended by removing the 
    entries for waste code F033; revising the second entry for waste code 
    F032, the second entry for F034, and the first entry for K088; revising 
    the entries for D003-D011 and two entries for waste code F035; and, 
    Table 2 is amended by revising entry number 9 and adding entries 12 and 
    13 to read as follows:
    
    [[Page 28752]]
    
    
    
                                  Table 1.--Effective Dates of Surface Disposed Wastes                              
                           [(Non-soil and Debris) Regulated in the LDRSa--Comprehensive List]                       
    ----------------------------------------------------------------------------------------------------------------
                  Waste code                         Waste category                       Effective date            
    ----------------------------------------------------------------------------------------------------------------
                                                                                                                    
       *                  *                  *                  *                  *                  *         *   
    D003..................................  Newly identified surface-         May 26, 2000.                         
                                             disposed elemental phosphorus                                          
                                             processing wastes.                                                     
    D004..................................  Newly identified D004 and         August 24, 1998.                      
                                             mineral processing wastes.                                             
    D004..................................  Mixed radioactive/newly           May 26, 2000.                         
                                             identified D004 or mineral                                             
                                             processing wastes.                                                     
    D005..................................  Newly identified D005 and         August 24, 1998.                      
                                             mineral processing wastes.                                             
    D005..................................  Mixed radioactive/newly           May 26, 2000.                         
                                             identified D005 or mineral                                             
                                             processing wastes.                                                     
    D006..................................  Newly identified D006 and         August 24, 1998.                      
                                             mineral processing wastes.                                             
    D006..................................  Mixed radioactive/newly           May 26, 2000.                         
                                             identified D006 or mineral                                             
                                             processing wastes.                                                     
    D007..................................  Newly identified D007 and         August 24, 1998.                      
                                             mineral processing wastes.                                             
    D007..................................  Mixed radioactive/newly           May 26, 2000.                         
                                             identified D007or mineral                                              
                                             processing wastes.                                                     
    D008..................................  Newly identified D008 and         August 24, 1998.                      
                                             mineral processing waste.                                              
    D008..................................  Mixed radioactive/newly           May 26, 2000.                         
                                             identified D008 or mineral                                             
                                             processing wastes.                                                     
    D009..................................  Newly identified D009 and         August 24, 1998.                      
                                             mineral processing waste.                                              
    D009..................................  Mixed radioactive/newly           May 26, 2000.                         
                                             identified D009or mineral                                              
                                             processing wastes.                                                     
    D010..................................  Newly identified D010 and         August 24, 1998.                      
                                             mineral processing wastes.                                             
    D010..................................  Mixed radioactive/newly           May 26, 2000.                         
                                             identified D010 ormineral                                              
                                             processing wastes.                                                     
    D011..................................  Newly identified D011 and         August 24, 1998.                      
                                             mineral processing wastes.                                             
    D011..................................  Mixed radioactive/newly           May 26, 2000.                         
                                             identified D011or mineral                                              
                                             processing wastes.                                                     
                                                                                                                    
       *                  *                  *                  *                  *                  *         *   
    F032..................................  All others......................  August 12, 1997.                      
                                                                                                                    
       *                  *                  *                  *                  *                  *         *   
    F034..................................  All others......................  August 12, 1997.                      
    F035..................................  Mixed with radioactive wastes...  May 12, 1999.                         
    F035..................................  All others......................  August 12, 1997.                      
                                                                                                                    
       *                  *                  *                  *                  *                  *         *   
    K088..................................  All others......................  October 8, 1997.                      
                                                                                                                    
       *                  *                  *                  *                  *                  *         *   
    ----------------------------------------------------------------------------------------------------------------
    
    * * * * *
    
     Table 2.--Summary of Effective Dates of Land Disposal Restrictions for 
                       Contaminated Soil and Debris (CSD)                   
    ------------------------------------------------------------------------
         Restricted hazardous waste in CSD             Effective date       
    ------------------------------------------------------------------------
                                                                            
    *                    *                    *                    *        
                         *                    *                  *          
    9. Soil and debris contaminated with K088   October 8, 1997.            
     wastes.                                                                
                                                                            
    *                    *                    *                    *        
                         *                    *                  *          
    12. Soil and debris contaminated with       August 24, 1998.            
     newly identified D004-D011 toxicity                                    
     characteristic wastes and mineral                                      
     processing wastes.                                                     
    13. Soil and debris contaminated with       May 26, 2000.               
     mixed radioactive newly identified D004-                               
     D011 characteristic wastes and mineral                                 
     processing wastes.                                                     
    ------------------------------------------------------------------------
    
        20. Appendix VIII to Part 268 is amended by revising the title and 
    adding in alpha numeric order the entry ``NA'' to read as follows:
    
    Appendix VIII to Part 268--LDR Effective Dates of Injected 
    Prohibited Hazardous Wastes
    
                 National Capacity LDR Variances for UIC Wastes             
    ------------------------------------------------------------------------
             Waste code              Waste category        Effective date   
    ------------------------------------------------------------------------
                                                                            
    *                    *                    *                    *        
                         *                    *                  *          
    NA.........................  Newly identified       May 26, 2000.       
                                  mineral processing                        
                                  wastes from titanium                      
                                  dioxide production                        
                                  and mixed                                 
                                  radioactive/newly                         
                                  identified D004-D011                      
                                  characteristic                            
                                  wastes and mineral                        
                                  processing wastes.                        
                                                                            
    *                    *                    *                    *        
                         *                    *                  *          
    ------------------------------------------------------------------------
    
    
    [[Page 28753]]
    
    PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE 
    PROGRAMS
    
        21. The authority citation for Part 271 continues to read as 
    follows:
    
        Authority: 42 U.S.C. 6905, 6912(a) and 6926.
    
    Subpart A--Requirements for Final Authorization
    
        22. Section 271.1(j) is amended by adding the following entries to 
    Table 1 in chronological order by date of publication in the Federal 
    Register, and by adding the following entries to Table 2 in 
    chronological order by effective date in the Federal Register, to read 
    as follows:
    
    
    Sec. 271.1  Purpose and scope.
    
    * * * * *
        (j) * * *
    
                   Table 1.--Regulations Implementing the Hazardous and Solid Waste Amendments of 1984              
    ----------------------------------------------------------------------------------------------------------------
                                                                  Federal Register                                  
           Promulgation date            Title of regulation           reference               Effective date        
    ----------------------------------------------------------------------------------------------------------------
                                                                                                                    
    *                  *                  *                  *                  *                  *                
                                                            *                                                       
    May 26, 1998...................  Land Disposal              [Insert FR page       August 24, 1998.              
                                      Restrictions Phase IV      numbers].                                          
                                      Final Rule.                                                                   
                                                                                                                    
    *                  *                  *                  *                  *                  *                
                                                            *                                                       
    ----------------------------------------------------------------------------------------------------------------
    
    * * * * *
    
                                   Table 2.--Self-Implementing Provisions of the Hazardous and Solid Waste Amendments of 1984                               
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                Self-implementing                                                                                           
                Effective date                      provision                RCRA citation                        Federal Register reference                
    --------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                            
                       *                  *                  *                  *                  *                  *                  *                  
    August 24, 1998.......................  Prohibition on land        3004(m)..................  Date of publication and FR page cite.                     
                                             disposal of newly                                                                                              
                                             identified wastes                                                                                              
                                             including TC metal                                                                                             
                                             wastes and                                                                                                     
                                             characteristic mineral                                                                                         
                                             processing wastes;                                                                                             
                                             treatment standards for                                                                                        
                                             contaminated soil.                                                                                             
    May 26, 2000..........................  Prohibition on land        3004(m)..................  Date of publication and FR page cite.                     
                                             disposal of newly                                                                                              
                                             identified wastes from                                                                                         
                                             elemental phosphorus                                                                                           
                                             processing and mixed                                                                                           
                                             radioactive and newly                                                                                          
                                             identified TC metal/                                                                                           
                                             mineral processing                                                                                             
                                             wastes (including soil                                                                                         
                                             and debris).                                                                                                   
                                            Prohibition on                                                                                                  
                                             underground injection of                                                                                       
                                             newly identified mineral                                                                                       
                                             processing wastes from                                                                                         
                                             titanium dioxide                                                                                               
                                             production                                                                                                     
                                                                                                                                                            
                       *                  *                  *                  *                  *                  *                  *                  
    --------------------------------------------------------------------------------------------------------------------------------------------------------
    
    * * * * *
    [FR Doc. 98-12575 Filed 5-22-98; 8:45 am]
    BILLING CODE 6560-50-P
    
    
    

Document Information

Effective Date:
8/24/1998
Published:
05/26/1998
Department:
Environmental Protection Agency
Entry Type:
Rule
Action:
Final rule.
Document Number:
98-12575
Dates:
This final rule is effective on August 24, 1998.
Pages:
28556-28753 (198 pages)
Docket Numbers:
EPA-F-98-2P4F-FFFFF, FRL-6010-5
RINs:
2050 AE05
PDF File:
98-12575.pdf
CFR: (15)
40 CFR 268.7(a)(4)
40 CFR 261.4(b)(7)
40 CFR 268.5(h)(2)
40 CFR 148.18
40 CFR 261.2
More ...