1 EPA's Proposed Regulations for Zinc Fertilizers Made from Recycled Hazardous Secondary Materials Response to Comments A. General Comments:

1. Rule should address all micronutrient and macronutrient fertilizers, not just zinc. (NUL)

Response: EPA's authority to regulate fertilizers under RCRA is limited to fertilizers made in part or in whole from recycled hazardous wastes. The predominant type of fertilizer (by volume produced and applied) subject to EPA's RCRA authorities are zinc micronutrient fertilizers which use hazardous secondary materials as an ingredient. "Hazardous secondary materials", as explained in the preamble to the final rule, are sludges, spent materials, and byproducts which may be classified as solid and hazardous wastes when recycled. This rule defines when such secondary materials are, and are not, hazardous wastes when used as ingredients in zinc micronutrient fertilizers, and likewise defines when the resulting fertilizers are and are not classified as hazardous wastes.

EPA chose to focus the scope of this rulemaking on zinc fertilizers made from recycled hazardous secondary materials, primarily because this type of fertilizer accounts for the great majority of fertilizers subject to jurisdiction under RCRA. EPA does have the legal authority to regulate other fertilizers under other environmental statues, but our studies have not indicated a compelling need to do so; such an effort would have required a much more substantial effort, and would have delayed this rulemaking considerably, which we did not believe was a sensible approach.

2. Rule should apply to blended fertilizers that are applied to soil, not to individual nutrients (NUL)

Response: As noted in the response to the previous comment, EPA's authority to regulate fertilizers under RCRA is limited to products made from recycled hazardous wastes. The great majority of these are zinc micronutrient fertilizers. EPA is not aware of any primary nutrient fertilizers (i. e., nitrogen, phosphorous and potassium) made from such materials. The rule in fact effectively applies to blended zinc micronutrient fertilizers by establishing toxic constituent specifications which demarcate when zinc fertilizers should be classified as wastes or as products. Thus, the commenter's point that the rule should apply to fertilizers and not to constituents appears either misplaced, or purely semantic.

3. Rule will be less environmentally protective, since companies will be forced to use 2 hazardous materials to stay in business (NUL)

Response: We disagree that this rule will result in less environmental protection. This rule is expected to result in increased production of high quality zinc fertilizers with low levels of contaminants, and will likely eliminate K061 derived fertilizers (which have relatively high contaminant levels) from the marketplace. It should also lower the cost of zinc fertilizers generally, by encouraging the use of lower cost hazardous secondary material feedstocks. We thus believe that, nationally, this rule will result in fewer tons of toxic metals being applied to the nation's farmlands, since hazardous constituent levels in zinc micronutrient fertilizers should decrease as a result of the rule.

4. Rather than regulate fertilizers under RCRA, EPA should defer to AAPFCO and state agencies to establish appropriate standards (NMA, TFI)

EPA is responsible for establishing federal regulations for recycling of hazardous wastes, including the recycling of such wastes to make fertilizers. This includes the responsibility to ensure that such recycling is legitimate, which is a major focus of this rulemaking effort. A key factor in establishing the legitimacy of recycling is placing limits on toxic constitutents in the resulting fertilizers; the rationale for establishing the limits in today's rule is explained in the preamble. Moreover, this rule does not preclude state regulation of the same fertilizers, should states believe such regulation is appropriate. Such rules could be more stringent than the conditional exclusion adopted in the final federal rule. It is EPA's belief, however, that it would be both protective of human health and the environment, as well as commercially more advantageous, if states were to adopt the federal provisions, to avoid inconsistent standards among different states where the zinc micronutrient fertilizers are used.

5. EPA should finalize the proposed rules expeditiously, and set a 3 month compliance date upon final promulgation to discourage stockpiling of non compliant fertilizers (BAY)

Response: EPA has appreciated the need to promulgate these regulatory revisions in a timely manner. With regard to the effective date of the rules, RCRA section 3010 (b) establishes a presumptive effective date for new regulatory provisions of six months from the date of signature, though a shorter effective date may be established if there is good cause to do so, or if the regulated community does not require six months to come into compliance. In this rule, because the regulated community does not require six months to come into compliance with many of the rule's provisions, EPA is making all but one of the provisions in today's rule effective immediately.

6. General support for rule, which should be expanded to address recycling into other products subject to UCD provisions (OLI) 3 Response: EPA recognizes that the current RCRA regulations applicable to products produced from hazardous wastes that are used in a manner constituting disposal may not be ideal, since current rules may not address exposure pathways other than leaching to groundwater, see, e. g. 53 Fed. Reg. 17578, 17605 606 (May 17, 1988). On the other hand, this could result in stricter regulatory standards than apply to unregulated commercial products used instead of the recycled one (although no such situations have been pointed out to EPA. We will consider further UCD related regulatory efforts as priorities and resources allow.

7. Strong support for the proposed rule, which strikes a fair balance between ensuring recycled zinc dusts are made into good, clean fertilizers while streamlining regulatory restrictions; rule as proposed would improve and increase legitimate recycling (NFF, ISRI)

Response: EPA appreciates this support for the proposed rule.

8. General support for the main provisions of the rule as proposed (MID, WAS, MDQ, AST, others)

Response: EPA appreciates this support for the proposed rule.

9. Rule should address the linkage with PBT reduction goals (AST)

Response: PBT pollutants are chemicals that are toxic, persist in the environment and bioaccumulate in food chains and, thus, pose risks to human health and ecosystems. These pollutants transfer easily among air, water, and land, and span boundaries of programs, geography, and generations. EPA's current strategy for addressing these pollutants is described on the Agency's website, at http:// www. epa. gov/ opptintr/ pbt/ aboutpbt. htm.

This rulemaking is consistent with the Agency's PBT strategy, in that we are addressing priority PBT pollutants such as dioxins and mercury that have been found in certain types of zinc fertilizers.

10. Support for additional regulations for non zinc fertilizers made from hazardous wastes (MINAG, MPCA)

Response: See response to comment A. 1.

11. Proposal should have been reviewed under Executive Order 13045; EPA's justification for not doing so is flawed (MART)

Response: Executive Order 13045, entitled "Protection of Children from Environmental 4 Risks and Safety Risks" applies to certain regulatory actions that are "economically significant" or where the environmental health or safety risks addressed by the rule have a disproportionate effect on children. EPA has complied with this executive order, as explained in section VII. G of the preamble to the final rule.

12. Rule should establish financial responsibility requirements for generators for environmental damages that may occur from fertilizer use (MART)

Response: This comment implies that fertilizers which are properly used and which meet the contaminant limits established in today's rule nevertheless have the potential to cause substantial environmental damage, suggesting the need for some kind of financial assurance mechanism do address such damage cases. We disagree that this potential for harm exists, since the contaminant limits in the rule are well below levels estimated to be "safe" according to risk analyses done by EPA and others. This issue is discussed further in the preambles to the proposed and final rules. In any case, EPA has no legal authority to require such financial assurance for fertilizer products, and EPA believes that the final rule reasonably demarcates between wastes and fertilizer products.

13. EPA should not regulate fertilizers under RCRA, and should instead defer to state fertilizer regulators and the Association of American Plant Food Control Officials' (AAPFCO's) model fertilizer legislation.( TFI)

Response: EPA has a statutory responsibility to regulate the practice of recycling hazardous wastes to make products that are applied to the land.

We note further that RCRA Subtitle C regulations address the management of hazardous wastes (in the case of this rule, hazardous secondary materials) prior to recycling, as well as the contaminant levels in the finished products. This contrasts with state fertilizer regulatory programs, which regulate only the content of finished products. This regulatory gap is one reason why we chose not to defer to state fertilizer regulatory programs, as suggested by these commenters. Another important reason is that the contaminant standards that are being developed by AAPFCO are, in EPA's view, inappropriately lenient (see letter from Elizabeth Cotsworth to Mark Ringler, in the docket for this rulemaking). Finally, we believe that today's final RCRA regulations represent a careful, sensible balance of regulatory incentives and environmental protections that should benefit a wide range of stakeholders, including the farmers and others who are the end users of these products. This perception was obviously shared by many of the industry stakeholders (and others) who commented on the proposal.

B. Economic Impacts 1. EPA has not adequately assessed the costs of its proposal. As part of its rulemaking 5 proposal, EPA attempted to quantify the costs associated with the proposal. The Agency's analysis is contained in a document entitled "Economic Analysis For Regulatory Modification to the Definition of Solid Wastes for Zinc Containing Hazardous WasteDerived Fertilizers Notice of Proposed Rulemaking." This analysis is severely flawed and fails to adequately take into account the true cost of EPA's proposal on all small businesses, in violation of the Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act. [TFI]

Response: EPA's economic analysis for the proposed rulemaking provided an accurate and reasonable estimate of costs to all small businesses as required under the Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA). Both RFA and SBREFA require federal agencies to determine whether there would be a "significant adverse impact to a substantial number of small entities" (SISNOSE). If a proposed rulemaking would result in SISNOSE, then it is required to complete a regulatory flexibility analysis to look for less burdensome alternatives to small business and to conduct outreach with affected entities, the Small Business Administration and the Office of Management and Budget.

In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives "which minimize any significant economic impact of the proposed rule on small entities" (5 U. S. C. Sections 603 and 604). Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule.

There is one small entity incurring incremental costs and offsetting increased revenues resulting from this rulemaking. This firm is Frit Inc, a zinc oxysulfate fertilizer producer. Frit has one branch facility co located onsite with Nucor Steel's Norfolk, Nebraska facility. Frit has been producing zinc oxysulfate fertilizer from Nucor's baghouse dust (K061, a listed hazardous waste). As result of both this rulemaking and market conditions, Frit will no longer be able to make zinc oxysulfate from Nucor's dust. This is due to both the removal of the exemption of K061 derived fertilizer's from LDR requirements and metal limits on zinc fertilizers made from hazardous secondary materials. EPA understands that Frit is ceasing operations at the Norfolk, Nebraska facility. In the economic analysis of the proposed rulemaking, EPA had modeled Frit switching from zinc oxysulfate to zinc sulfate monohydrate at Nucor's facility as the most cost effective postregulatory alternative. For the final rule, EPA has reevaluated two possible alternative regulatory responses for Frit to this rulemaking (1. switching from zinc oxysulfate to zinc sulfate monohydrate, and 2. switching from hazardous secondary sources to nonhazardous secondary sources) and determined that switching to nonhazardous sources of zincbearing secondary materials would be more cost effective for Frit than switching its 1 5/ 3/ 02 facsimile from Ken Herstowski USEPA Region VII to Paul Borst USEPA, Office of Solid Waste containing 5/ 1/ 02 facsimile from Tom Miller, Nucor Steel to Ken Herstowski describing declines in zinc content in K061.

2 As quoted in the article "New Rules for Zinc" by Greg Horstmeier from www. farmtested. com/ Pages/ factsht. html as retrieved 5/ 14/ 02.

6 production to ZSM.. This is because although it costs more to purchase nonhazardous zinc bearing secondaries, the fertilizers produced from the nonhazardous sources are sold at a higher price due to lower non nutritive mineral content (i. e. lead and cadmium). Because Frit is ceasing operations at the Nucor site, EPA has modeled the firm consolidating its operations at another branch office to produce zinc oxysulfate from nonhazardous sources. EPA has estimated that Frit costs for nonhazardous feedstocks will increase by $2. 9 million. Also, Frit should realize increased revenues of $3. 4 million that offset these costs and increase profit by $0. 33 million. Thus, Frit should not be significantly impacted by this rule even though it will be required to incur additional costs when substituting to nonhazardous sources.

Moreover, EPA does not believe that one regulated entity constitutes a substantial number of small entities in the zinc micronutrient industry. There are several other firms producing zinc micronutrient fertilizers, some of them small businesses that will benefit as a result of expanded market opportunities for hazardous zinc bearing feedstocks It is also likely that even in the absence of this rulemaking that opportunities to market K061 derived fertilizers would become more limited in response to decreased consumer demand for fertilizers with high non nutritive mineral content . EPA notes that there is currently a market trend away from zinc fertilizers with high heavy metal content (see www. chemexpo. com/ news/ newsframe. cfm? framebody=/ news/ profile. cfm as obtained April 12, 2002 for zinc sulfate). Therefore, it is likely that even in the absence of this rulemaking, the market for zinc fertilizers with relatively high heavy metal content, such as K061 derived zinc oxysulfate, is declining in favor of cleaner zinc fertilizers. And in the past 3 years, there has been a trend away from using K061 in fertilizer production. Two of the three firms that had used K061 in 1997 in zinc oxysulfate production had ceased using this hazardous feedstock prior to EPA's proposed fertilizer rulemaking (see below).

In addition, the zinc content of K061 at Nucor's Norfolk, NE facility has been declining following installation of a new melt shop at the site. Zinc levels have declined from 25 percent in the early 1990s to 10 to 15 percent during 1997 to 1998. 1 Additionally, Frit has stipulated that losing K061 would have little impact on U. S. zinc market and that K061 provided only a fifth of the company's total fertilizer production. Carl Schauble of Frit Industries stated "Because of the expected rules, and industry changes that produced K061 with poorer zinc quality, most companies were moving away from it. It is less than 20 percent of our zinc fertilizer production." 2 EPA notes that according to Agency Toxics Release Inventory data from 1990 to 1995 that K061 was used much more prominently between 1990 to 1995 than it was even in the late 1990s before the Agency first proposed 3 See Tables 9 and 10 of "Factory Farming, Toxic Wastes and Fertilizer in the United States, 1990 to 1995" Environmental Working Group, March 1998. See also Handout entitled "Zinc Micronutrient Fertilizer/ Estimated Market Share Analysis" given to EPA during a meeting between representatives of the zinc micronutrient fertilizer industry and U. S. Environmental Protection Agency, April 14, 1998.

4 See Handout entitled "Zinc Micronutrient Fertilizer/ Estimated Market Share Analysis" given to EPA during a meeting between representatives of the zinc micronutrient fertilizer industry and U. S. Environmental Protection Agency, April 14, 1998.

5 Camp, Richard, Bay Zinc, teleconference with Paul Borst, U. S. Environmental Protection Agency. April 16, 1999.

7 restrictions on the use of K061 fertilizers. For example, from 1990 to 1995, 6 steel mills (Nucor Steel, Oregon Steel Mills, Atlantic Steel, Roanoke Electric Steel, Florida Steel and Nucor Yamoto Steel Co) supplied over 30 percent of hazardous waste used in fertilizer to 5 fertilizer facilities (Bay Zinc, Frit AR, Frit NE, Tri Chem, Stoller Chemical). 3 By April 1998, long before EPA had proposed to restrict K061 used in making fertilizer, the number fertilizer facilities receiving K061 had declined to 3 (Scott G. Williams or TriChem, Bay Zinc and Frit) 4 By 1999, Frit Industries in Norfolk, NE was the sole facility producing K061 derived fertilizer and Nucor Steel's Norfolk NE facility the lone steel mill supplying it. 5 Thus, the trend away from K061 as a feedstock for hazardous waste derived fertilizer was well underway before EPA proposed removing the exemption for K061 derived fertilizers from the LDR program.

2. EPA's estimates relating to the revenues and costs associated with subjecting K061 produced fertilizers to the standards in the proposal are totally flawed (pages 1 2, 1 3, 5 2, 5 3, and A 1). First, Frit Industries, the K061 fertilizer producer identified in the analysis, reports that it would be financially devastating to incur costs of $5. 68 million to install the requisite equipment to achieve compliance with the proposed standards. (TFI)

Response: EPA disagrees. Bay Zinc, also a small business that used K061 to make zinc oxysulfate fertilizers, switched from zinc oxysulfate to zinc sulfate monohydrate production. The company stopped taking K061 for a time, but was able to switch to nonhazardous feedstocks as an interim option and kept the door open to looking at hazardous feedstocks in the future. It's capital expense in converting was not financially devastating. The commenter fails to provide additional data or detail as to why it would not be devastating to Bay Zinc but would be so to Frit. And although EPA has revised its cost modeling and determined that it is more cost effective for Frit to switch to nonhazardous sources, EPA believes that its modeling for the proposed rulemaking were also appropriate and accurate for the information available at the time.

3. EPA's estimate that Frit's "new" process would utilize 12, 000 tons of K061, produce 6,761 tons of zinc sulfate monohydrate, and generate 2,100 tons of hazardous waste at a disposal cost of $164.20/ ton is also flawed. According to Frit's estimates, 10,000 tons of waste would be generated by the process (assuming 20% zinc). The 10,000 tons of waste would cost $1,642,476 to dispose of, instead of $344,820  or $1,297,656 more than 6 http:// chinachlorate. com/ english/ product/ hg2340 92.htm as retrieved on 6/ 18/ 02.

8 EPA's estimate! Also, EPA fails to consider an additional $100/ ton manufacturing cost for zinc sulfate monohydrate production. (TFI)

Response: EPA has revised its modeling for shifting from zinc oxysulfate to ZSM and incorporated additional capital costs required to convert raw K061 into ZSM. After considering these additional costs and comparing the incremental costs of this alternative with shifting to nonhazardous feedstocks, the Agency has determined that the latter alternative is more cost effective. EPA has modeled shifting from hazardous to nonhazardous secondaries to make zinc oxysulfate as the post regulatory compliance scenario for the rule.

EPA disagrees, however, that its proposal did not adequately account for waste disposal costs associated with switching from a zinc oxysulfate to ZSM line. The commenter incorrectly assumes that 100 percent of the mass of feedstock that is not zinc would partition to the filtered lead sulfate material generated from the process (12, 000 tons of K061 minus 2, 000 tons of zinc equals 10, 000 tons of waste). Some of the inert constituents would partition with the ZSM product (ZSM is frequently only 36 percent zinc by weight). Thus the commenter overstates the volume of waste that would have to be managed.

The commenter also assumes that stabilization and land disposal is the only alternative available for the lead sulfate stream generated from the ZSM process. Although EPA modeled this waste being land disposed to be conservative in its cost modeling, the Agency notes that lead sulfate is a chemical intermediate used in commerce. For example, some grades of lead sulfate are used as a stabilizer in PVC opaque plastic products. 6 The lead in the lead sulfate stream may also be recovered and used in resmelting to generate secondary lead. Thus, EPA's disposal scenario for this lead material is a conservative cost estimate rather than a least cost estimate.

4. Because Frit will be unable to utilize K061, it will be required to look for other zinc sources to produce zinc oxysulfate and modify its process accordingly. Current estimates place the cost of switching zinc sources from 2.5 cents per pound of zinc (K061) to 32 cents per pound of zinc (other zinc sources), for a total increase in cost of $1,180,000. Finally, EPA's estimate of the selling price for zinc sulfate monohydrate is flawed. EPA estimates a selling price of $617/ ton, yet the current selling price for granular zinc sulfate monohydrate from China is approximately $470/ ton. This figure points out two things. First, that EPA's cost analysis is flawed. Second, that zinc sulfate monohydrate produced from hazardous waste will enter the United States from China unregulated, while domestic production will be drastically curtailed. (TFI)

Response: EPA notes first that Frit itself has had to increasingly use nonhazardous 9 sources of zinc in the baseline as a means to make up for lost zinc values in Nucor Steel's K061. (See above) The company has acknowledged that currently K061 only makes up 20 percent of its fertilizer feedstock and that its use as a feedstock has declined in part to steel industry changes in emission controls that generate the dust.

The commenter's statement about the selling price of zinc sulfate monohydrate from China is unreferenced and not relevant to the accuracy of the estimate of the selling price of ZSM used by the Agency in the completion of its economic analysis. EPA described in detail a range of ZSM market prices (see Section 2. 4. 2. of the proposed EA generally for this discussion) from $480 to $520 per ton as quoted from Chem Expo as a bulk price fob works (i. e. freight cost and risk of loss are picked up by the purchaser at the manufacturing site). EPA chose to use the $617 per ton ZSM price based on specific data provided to the Agency in April 1998 by zinc fertilizer manufacturers including Frit. The market price for Chinese ZSM, as for domestically produced ZSM, fluctuated with forces of supply and demand. Chinese imports of this material in particular have had a cyclical pattern in the 1990s. After looking at prices and quantities for ZSM consumed in the US over a number of years, the Agency believes that market price used for ZSM in the proposed EA is reasonable. The commenters statement about ZSM produced from hazardous waste entering the United States from China being unregulated while domestic hazardous waste derived ZSM will be dramatically curtailed is supposition that is inconsistent with the higher levels Chinese imports of ZSM into the US from 1996 to 1998, at the same time that higher domestic ZSM production occurred over the same period (see Figure 2 3 and Figure 3 1 of the proposed EA). Contrary to the commenter's suggestion, this rulemaking should stimulate domestic hazardous secondary derived ZSM because of the exclusion of zinc containing hazardous feedstocks such as brass fume dust from RCRA jurisdiction.

5. Pages 1 3 and 1 4: The conclusion that the increase in revenues would off set Frit's costs is unrealistic. The net effect of removing the current exemption for K061 fertilizers is that such fertilizers will no longer be manufactured. The result is that approximately 10, 000 tons of K061 will need to be treated and disposed of in hazardous waste landfills or treated via high temperature metals recovery. Thus, instead of a steel manufacturer receiving $10/ ton of valuable K061 product, that same manufacturer will have to pay over $164/ ton to dispose of the material. (TFI)

Response: The Agency agrees that the effect of this rulemaking will be that zinc oxysulfate K061 derived fertilizer will no longer be produced. As noted above, there is a good deal of evidence that this result would have occurred with or without the rule given the declining zinc levels in steel mill emission control dust, a decline in consumer demand for fertilizers with high heavy metal content and an empirical decline in both the number of steel mills generating K061 used in fertilizer and the decline in the number of recycling facilities receiving K061 for that purpose (see above). EPA has incorporated the added cost to Nucor Steel of landfilling and stabilizing its K061. 10 The Agency disagrees, however, that higher revenues for zinc oxysulfate produced from nonhazardous feedstocks is unrealistic. First, this is based on market data for these fertilizers provided to EPA by the fertilizer industry itself. Second, EPA has confirmed with Richard Green, a fertilizer distributor, that consumers will pay higher prices for fertilizers with lower non nutritive (e. g. heavy metal) content. See Section 2. 4. 2 of the proposed EA.

6. Pages 1 4, 2 1, 6 1, and 6 2: There is no proof that EPA's proposal will reduce the loading of non nutritive elements to the environment. For example, if Frit replaces its current K061 zinc units with crude zinc oxide (the zinc oxide concentrate that is produced from the high temperature recovery of zinc from K061), lead and cadmium will carry over in the crude zinc oxide. Thus, using this material as a substitute for K061 will result in a product with the same amount of non nutritive elements as in a product made from K061

with no benefit to public health or the environment based on the CDFA, EPA, and TFI risk assessment results. (TFI)

Response: If Frit were to replace K061 with crude zinc oxide made from K061, the latter would be considered K061 since it is a product used in a manner constituting disposal (see 40 CFR §261.3( c)( 2)( i) ) and would be subject to the same terms and conditions of for lead and cadmium content as the raw K061 derived zinc oxysulfate fertilizer.

7. Page 2 3: The content of zinc fines from galvanizing is 50 55 percent zinc, not 72 percent zinc. (TFI)

Response: EPA's source for this zinc level in galvanizing fines is Richard Camp, President of Bay Zinc, a zinc micronutrient fertilizer producer. The Agency believes that Mr. Camp's estimate is sufficiently accurate given his experience and credentials.

8. Page 2 7: The average application rate for zinc fertilizers is approximately 2 pounds of zinc per acre. (TFI)

Response: The primary reference for the Agency's estimate of 5 to 20 lbs per acre is USDA's Ag Extension Service data. The commenter has provided no reference for its estimate. We also note that these figures for application rates were provided only as background information in the economic analysis, and are not relevant to the actual results of the analysis.

9. Page A 3: EPA's assumption that zinc oxysulfate produced from a concentrated material will have a higher analysis than one produced from a low analysis material is incorrect. Raw materials are mixed together to produce whatever analysis is required. (TFI)

Response: EPA does not state on Page A 3 that zinc oxysulfate produced from a 11 concentrated material will have a higher analysis than one produced from a low analysis material. The Agency has estimated on Page A 3 that if you use a higher zinc content feed material (i. e. 60 percent zinc in the nonhazardous feed vs. 20 percent zinc in the hazardous feed) that you need less of it (i. e. 7, 500 tons of nonhazardous feed vs. 12, 000 tons of hazardous feed). This does not state that a higher zinc feedstock results in higher zinc oxysulfate as the commenter claims.

10. Page B 1, B 2, D 1, and D 2: Contrary to EPA's conclusion, the demand for zinc micronutrient fertilizers is not cyclical. It is dependent on the results of soil analyses and specific crop nutrient needs. (TFI)

Response: EPA agrees with the commenter that the demand for micronutrient fertilizers is dependent on the results of soil analyses and specific crop needs. The Agency has revised its conclusions in the economic analysis for the final rule in light of more recent data that indicates that micronutrient fertilizer is less cyclical than previously believed.

11. Rule will create an economic advantage for manufacturers who will be able to buy and process less expensive feedstocks (i. g., hazardous wastes) than are currently available to them. The commenter (a zinc fertilizer manufacturer) cannot afford the capital investment necessary to make ZSM, and will thus be at a competitive disadvantage with those companies. (NUL)

Response: This rule may provide a competitive advantage for firms that will be able to use hazardous secondary materials as feedstocks in zinc fertilizer manufacture, replacing more expensive materials not potentially subject to RCRA regulations. Companies that are unable for whatever reason to operate within the new rules may be at a competitive disadvantage vis a vis those firms. However, EPA is not required to shape its regulatory actions under RCRA to address these types of marketplace issues, and we therefore see no need to adjust this regulatory action to protect this commenter from potential business competitors.

12. Rule would encourage use of cheaper foreign secondary materials with high concentrations of contaminants (e. g., dioxins) (MAD)

Response: We disagree that this new rule will encourage the industry to use more highly contaminated feedstock materials from foreign sources in zinc fertilizer manufacture. We believe that the new rules will encourage the the industry to use relatively inexpensive, domestically available secondary material feedstocks, while ensuring that the resulting fertilizer products are of high purity. By making domestic feedstocks less expensive, the industry should generally have less incentive to import materials from foreign sources.

13. Proposed standards "could lead to an increase in the likelihood of environmental harm by encouraging a shift in the industry to zinc containing raw materials that are not subject to 12 EPA regulation" (TFI)

Response: We disagree with the commenter's assertion that today's rule may increase the likelihood of environmental harm in this way. As stated in the response to the previous question, we believe that the incentives in this rule are much more likely to lead to higher rates of legitimate recycling in this industry, and lower contaminant levels generally in the zinc fertilizers used on the nation's farmlands.

14. EPA's economic impact analysis underestimates the costs of complying with the proposal, and overestimates its benefits (BAY)

Response: The Agency has revised its estimates of costs and benefits of this rulemaking, as discussed in section VII. A of the preamble the final rule, and more thoroughly in the background document "Economic Analysis for Regulatory Modifications to the Definition of Solid Waste for Zinc Containing Hazardous Waste Derived Fertilizers, Notice of Final Rulemaking." We believe that our estimates of costs and benefits are reasonably accurate, based on the data available to the Agency, and represent a good faith effort on our part to carefully assess the economic implications of the rule in accordance with the Executive Order. In any case, the commenter did not furnish any additional cost data or other information to challenge the methodology used in our analysis, to refute the accuracy of our estimates, or otherwise support his contention that our analysis of costs and benefits for this rule is substantially flawed.

C. K061 Exemption 1. Most commenters expressed support for eliminating the regulatory exemption from land disposal restrictions (LDR) treatment standards for fertilizers made from recycled K061 (electric arc furnace dust).

Response: The Agency appreciates these commenters' support for this provision of the proposed (and final) rule.

2. Removing exemption will provide advantage to companies that can use hazardous secondary materials (NUL)

Response: See responses to comments A. 3 and B. 1 (above).

3. Rule should have a nine month effective date, so that the one remaining manufacturer of K061 derived fertilizers will have sufficient time to make the transition to alternative feedstock materials (FRIT).

Response: EPA does not believe that an effective date of more than six months is necessary or appropriate for this rule. For one thing, the remaining manufacturer of K061 13 fertilizers has for several years been aware of the Agency's intent to remove this regulatory exemption, and should by now have had ample time to respond by developing different manufacturing techniques or finding alternative feedstock materials. This commenter also did not provide any information to support why a nine month effective date would be more appropriate for either economic or environmental reasons, or to demonstrate that a six month effective date would cause hardship for the company. Nor is it clear that an effective date of nine months is even legally permissible, given that section 3010 (b) of the statute indicates that Subtitle C rules must become effective in no more than 6 months, although EPA may adopt shorter effective dates with proper justification.

D. Conditional Exclusion for Hazardous Secondary Materials 5. A plain reading of the UCD regulations is that zinc sulfate or oxysulfate made from hazardous secondary materials subject to RCRA regulations are not subject to RCRA, unless they exhibit a hazardous characteristic. (TFI)

Response: This interpretation of the UCD regulations is incorrect. A detailed explanation of these regulatory requirements is presented in the preamble to the proposed rule (see 65 FR at 70956).

6. Consideration of environmental damage is not appropriate in determining whether a material is a waste  only in determining whether a waste is hazardous (ACC)

Response: First, the basic scheme of the rule does not rely on past environmental damage incidents caused by hazardous wastes recycled to produce zinc fertilizers. Rather, the rule establishes conditions for exclusion, which conditions reflect reasonable demarcations between products and non products. These demarcations, by and large, are based on existing commercial practice for bona fide products, not on past damage incidents. However, past damage incidents can be relevant in determining whether a material is discarded, both in illustrating (in the rubric of the case law) when a secondary material is `part of the waste disposal problem', and also in determining when a material is being discarded because handling practices are so haphazard that large scale loss is not prevented, or because handling practices which have led to large scale past releases are inconsistent with a claim that such materials are valuable products and not wastes.

7. By establishing product specification limits on contaminants in zinc fertilizers made from materials that are not wastes (because they are conditionally excluded), EPA has asserted RCRA jurisdiction over those fertilizers. It is unclear, however, how RCRA jurisdiction over these products can be maintained, since they are not made from wastes. (AST)

Response: As the commenter states, fertilizers which satisfy the conditions in the rule are excluded from authority, so that no continuing regulation applies to such fertilizers. The 14 same is true of the secondary materials meeting the rule's conditions for exclusion.

4. Conditional exclusion approach is inappropriate  favor the regulatory option described in the preamble as "Maintain current UCD requirements, with additional reporting, recordkeeping and testing requirements for all hazardous waste derived fertilizers" (NWF, many others )

Response: EPA believes that the conditional exclusion approach outlined in this final rule is reasonable and provides an appropriate balance of incentives and protections, as discussed in more detail in section III. C of the preamble to the final rule. Put another way, EPA believes it reasonable not to apply subtitle C regulation to products that are essentially physical identical to bona fide products not produced from hazardous secondary materials, and that EPA has the authority to classify such fertilizers as products rather than wastes. Similarly, EPA has the authority to establish a similar classification scheme for the secondary materials used to produce zinc micronutrient fertilizers.

5. Support the conditional exclusion concept generally for hazardous wastes (NDI, SOC, others)

Response: The Agency appreciates this support for this provision of the rule.

6. Support the conditional exclusion, including the elimination of permitting requirements, and the proposed operating, management and recordkeeping conditions for manufacturers (BAY)

Response: The Agency appreciates this support for this provision of the rule.

7. Proposal strikes a reasonable balance between minimizing burden on generators while providing adequate regulatory oversight; documentation and management requirements are reasonable (SOC)

Response: The Agency appreciates this support for this provision of the rule.

8. Conditional exclusion approach is sound and will encourage recycling while protecting the environment, though some further simplifications are urged (OLI)

Response: The Agency appreciates this support for this provision of the rule.

9. Conditional exclusion concept should be applied more broadly to other recycled/ reclaimed secondary materials in other industries (NDI, SOC)

Response: The Agency appreciates this support for this provision of the rule. 15 10. Conditions are adequate to protect human health and the environment (NDI)

Response: We agree.

11. The option of meeting LDR standards should be available for zinc fertilizers that don't qualify for the conditional exemption (NDI)

Response: As explained in section III. D of the preamble to the final rule, zinc fertilizers that are made from non excluded hazardous wastes will continue to be subject to applicable LDR standards. Meeting the new contaminant limits will be mandatory only for zinc fertilizers made from materials that are excluded from hazardous waste regulatory requirements under the conditions of this rule (i. e. to be excluded, such fertilizers will have to meet the conditions).

12. Rule is unclear whether fertilizers would be eligible for the UCD exemption if they meet LDRs but don't qualify for the exclusion (NDI)

Response: The commenter's use of the term "UCD exemption" in this context is somewhat confusing. Meeting the LDR standards will still be required for zinc fertilizers that are made from recycled hazardous wastes. The new product specification limits in this final rule will need to be met only if the fertilizer is to be excluded from RCRA subtitle C rules.

13. The rule should exclude all secondary materials, intermediates and fertilizer products from RCRA regulations without conditions, since only one damage case was included in the docket, and thus the Agency has not made a convincing case that such regulation/ conditions are necessary. (TFI, ARA)

Response: EPA has compiled information on seven specific cases where environmental damage has occurred as a result of improper material handling practices at zinc fertilizer production facilities. These cases are in the administrative record for this rulemaking. However, as explained in an earlier response, damage incidents are not the basic organizing principle of the rule. Rather, the conditions for exclusion are drawn, for the most part, from existing commercial practice.

14. Regulation of hazardous secondary materials is unnecessary, given EPA's ability to monitor recycling practices under its statutory information gathering authorities, such as 3007( d) (ARA)

Response: EPA believes that the regulatory approach in today's final rule is reasonable and appropriate, given the history of this issue and the damage cases cited in the previous comment response. At this point, EPA has adequate information on the practice, and what is required is some type of regulatory response. 16 15. Should EPA pursue a regulation with conditions for exclusion, the conditions should be limited to a prohibition on speculative accumulation and limited reporting and recordkeeping (TFI)

Response: We believe that the conditions for the exclusion in today's final rule are reasonable, reflect normal industry practices, and will result in overall cost savings for the affected industry. We base this belief in part on the comments we received from a number of other industry commenters, who expressed general support for the conditional exclusion approach outlined in the proposal.

16. Requests EPA to be flexible regarding speculative accumulation in the case of fertilizer manufacturers, since there may be cases where the 75% recycling requirement in the speculative accumulation provision could be problematic (TFI)

Response: EPA believes that maintaining the regulatory prohibition on speculative accumulation makes sense in the context of this rule, and in fact is one key to ensuring against potential abuse of the conditional exclusion. The commenter did not provide any information to support the contention that this provision will be problematic in any way for affected manufacturers, nor was this comment made by any of the fertilizer manufacturers who commented on the proposal. Indeed, although the rules have included an exception to the 75% annual turnover requirement since 1985, which exception allows an individual to demonstrate that it needs a longer accumulation period, there has not been a single application under that provision to date. (See 260.31 (a)). We thus have no reason to believe that commercially viable manufacturers will have difficulty in meeting the 75% annual recycling requirement of this provision, and see no reason to change this element of the proposed rule. In addition, the case by case exception provision just cited remains available in the unlikely event that an individual company is unable to satisfy the annual turnover requirement.

17. Exclusion without conditions would be preferred, since such conditions are not necessary environmentally, and eliminating such conditions would level the "playing field" for all zinc fertilizer manufacture (BAY)

Response: We understand that industry stakeholders would prefer to have hazardous secondary materials excluded from regulation without any conditions at all. However, it is our view that the conditions in the rule are reasonable, serve a valid purpose of demarcating products from wastes based on standard industry practices, and should encourage legitimate recycling with only minimal associated economic impact on affected companies. Further, we believe that the rule helps to "level the playing field" considerably by removing most of the regulatory disincentives on use of hazardous secondary materials in zinc fertilizer manufacture.

18. Support option of no conditions to exclusion, in order to fully encourage recycling and 17 create a level regulatory playing field for hazardous secondary materials and other raw feedstock materials (CBF, SOC)

Response: See response to previous comment.

19. EPA has exceeded its legal authority by proposing contingent management requirements for materials that are not wastes; conditions should be established to define when a material is discarded, rather than what is protective (ACC)

Response: As explained in detail in the preamble to the final rule, the conditions in the final rule are developed precisely as the commenter indicates to define when a material is discarded. The conditions, moreover, are not those EPA would establish were it developing rules necessary to protect human health and the environment. Rather, the conditions are based on existing commercial practices for legitimate fertilizer products and handling practices based on practices for legitimate fertilizer feedstocks.

G. Exclusion Levels  General 1. Proposed levels are not easily achievable economically, and will force companies to invest in additional equipment and training (NUL)

Response: The product specification limits on contaminants in zinc fertilizers that are specified in today's final rule are based on the levels that have been demonstrated to be consistently achieved in widely marketed, high quality zinc fertilizers. The Agency acknowledges that this rule may benefit certain zinc fertilizer producers who are currently making such high quality products, since it will remove regulatory barriers to use of less expensive feedstock, and should thus result in lower production costs and lower prices of finished products to farmers. This may increase competitive pressures on other producers, as noted by the commenter. Though such indirect competitive effects may be a consequence of this rule, they are outside the scope of the economic analyses that we are required to prepare in support of the rule.

2. Technology based levels are not appropriate; should be risk based levels (NUL, TFI, BAY, others)

Response: We disagree with these commenters, for the reasons discussed in the preamble to the proposed rule, and in section III. D of the preamble to the final rule. (Ironically, in other contexts, TFI appears to criticize EPA for establishing conditions designed to be protective, rather than conditions focused on whether discarding is occurring. As noted in response to that comment, the characterization is not correct.) 18 3. Rule doesn't consider the fact that contaminants in fertilizer and animal feed all are deposited on the ground (NUL)

Response: This comment refers to the fact that RCRA currently places limits on contaminants in zinc sulfate fertilizers made from recycled hazardous wastes, but such limits do not apply if the same zinc sulfate is used as animal feed, even though (the commenter suggests) in both cases the contaminants eventually are applied to the land. This issue was discussed in the preamble to the proposed rule (see 65 FR 70959). We do not dispute the idea that contaminants in animal feed often are eventually applied to the land in the form of manures. We disagree, however, that we have failed to consider this point in developing the rule. In fact, this rule was designed in part to alleviate some of the regulatory inconsistencies that apply to recycled products that are used on the land and those that are not. We are currently considering further regulatory revisions to the definition of solid waste, to address similar consistency issues associated with other products that are subject to current regulations governing "use constituting disposal" under RCRA.

4. EPA is attempting to circumvent the rule making process by arbitrarily lowering the standard numbers for metals (NUL).

Response: We find it oddly contradictory for this commenter on the proposed rule to accuse the Agency of circumventing the notice and comment rule making process. In any case, we disagree that the contaminant limits in this final rule were established arbitrarily. Our rationale for establishing the new limits have been discussed at length in the preambles to the proposed and final rules, and reflect existing commercial practice .

5. EPA should use standards set by AAPFCO and the states (based on TFI's risk assessment) as exclusion levels, should EPA decide that exclusion levels are necessary (TFI)

Response: EPA does not believe that risk based exclusion levels are appropriate as the basis for exclusion levels in the context of this rulemaking. One reason is that the exclusion levels are intended as an indicator of legitimate recycling, and to demarcate products from wastes, by reflecting the levels that have been demonstrated as achievable using available, economically viable production processes. Risk based levels would presumably allow much higher levels of contaminants than currently are found in highquality zinc fertilizers; as such, they would not serve as an indicator of legitimate recycling. In fact, such lenient limits could be viewed as allowing the non contributing contaminants like lead, cadmium, and dioxins to simply be discarded (i. e., disposed), which could be considered sham recycling.

6. Rule is at odds with previous Agency statements indicating that risk based demonstrations of the safety of products subject to UCD regulations would be appropriate (TFI) 19 EPA's previous statements were that an individualized, risk based determination might be appropriate for hazardous wastes used in a manner constituting disposal. 50 FR at 628 (Jan. 4, 1985). This might be a possible scheme for products which remain classified as hazardous wastes, albeit a scheme which is extremely resource intensive for those having to prove a practice is safe, and for those evaluating such a claim. However, the present rule seeks to distinguish which fertilizers should be classified as products, and which should be classified as wastes, a different matter altogether. For making such determinations, EPA, consistently since 1981 (exclusion of spent pickle liquor used as a wastewater conditioner), has indicated that a proper means of delineation is to compare toxic constituent levels in non secondary material based products with those in the analogous product produced from hazardous secondary materials. EPA most recently used this approach in the fuel specification standards found at section 261.38. That is precisely the approach EPA is utilizing in this rule.

7. Exclusion levels should apply only to those entities producing a material suitable for direct application as fertilizer without additional processing (except for blending with conventional fertilizer) (BAY)

Response: We agree; the exclusion levels apply only to products that are suitable for use as zinc fertilizers, and not to intermediate products or materials.

8. The proposed exclusion levels are unnecessarily low, and could inhibit development of new processes and/ or use of other feedstock materials that would still pose low risks. (BAY)

Response: This commenter is in essence suggesting that the technology based limits in today's rule are inappropriate, and that more lenient (e. g., risk based) limits would be preferable because they would allow greater flexibility for manufacturers to use alternative processes or materials to make products with higher contaminant levels that could still be regarded as "safe" from a risk perspective. We acknowledge that technology based limits such as those in today's rule will require manufacturers to produce fertilizers of relatively high purity to be excluded from regulation, which we believe is appropriate and reasonable because the levels are drawn from existing commercial practice. Thus, fertilizer producers demonstrate that their secondary material derived zinc fertilizers are not wastes because they contain the same hazardous constituent concentrations of quality fertilizers not produced from such materials. We do not believe it would be appropriate for this rule to establish contaminant limits at much higher, risk based levels, for the reasons discussed in the preambles to the proposal (see 65 FR 70969 70) and the final rule (section III. D. 2), as well as in other comment responses.

9. Regulations could encourage the use of cheaper, potentially more hazardous imported zinc bearing materials and fertilizer products, to the detriment of the domestic industry. EPA should work with other federal government agencies to subject imported materials to 20 the standards established in this rule. (BAY)

Response: EPA expects that one outcome of this rule will be to make a wider variety of lower cost feedstock materials available to zinc fertilizer manufacturers, under a more streamlined regulatory regime. It is not clear to us how this would serve to encourage the import of alternative feedstock materials or fertilizer products from foreign sources, and the commenter did not elaborate on this point. We recognize the possibility that in some cases the source of feedstock materials imported from abroad may be unknown, and the potential thus exists for hazardous wastes to be imported and distributed illegally, without any RCRA regulatory controls. We expect, however, that today's final rule will lessen this possibility, by providing the option to manufacturers of using less expensive, domestically available feedstock materials. In any case, in light of recent incidents involving highly contaminated zinc sulfate material imported from China, it would seem prudent for manufacturers and others who handle imported zinc bearing feedstock materials to have reliable information as to the content and origin of any such materials. If such imported materials are hazardous wastes, they are potentially subject to RCRA regulatory requirements in same way as non imported materials. Note that for the purpose of enforcement, if the origin of such imported material is at question, the manufacturer or other respondent bears the burden of proof in demonstrating that the material is not a solid waste (see §261.2( f)).

10. Exclusion levels are unnecessary, would impose additional costs and would discourage legitimate recycling of hazardous secondary materials (CBF)

Response: We disagree. As discussed in the preamble to the final rule, we believe the exclusion levels are reasonable and serve several useful purposes. See also the response to comment #G. 16, below.

11. Use of technology based standards for metals and background standard for dioxins is appropriate (WAS)

Response: The Agency appreciates the commenter's support for this provision.

12. Manufacturers should have the option of meeting either the exclusion levels, or the universal treatment standards (AST)

Response: Manufacturers who do not use the conditional exclusion in today's final rule will have the option of meeting either the new exclusion levels (in order to be excluded from regulation) or the universal treatment standards (and remain classified as a solid, and potentially hazardous waste). However, if the conditional exclusion is used, the manufacturer will need to meet the somewhat more stringent exclusion levels, which reflect commercial practice. 21 13. Limits on composition of products made from materials that have not been discarded are beyond EPA's legal jurisdiction, and are unnecessary based on EPA's finding that fertilizers generally do not pose unacceptable risks (ACC)

Response: For the reasons discussed in today's preamble, we reject the commenters assertion that establishing contaminant limits in this rule is beyond our legal jurisdiction. As for the comment suggesting that it is unnecessary to place any limits on contaminants in fertilizers because EPA's studies indicate fertilizers are generally safe, we disagree. In our view, it would be difficult, if not unconscionable, to assure the public and other stakeholders as to the safety and legitimacy of using hazardous secondary materials i. e., what otherwise are hazardous wastes to make fertilizers without having any means of limiting contaminants in the resulting fertilizer products. Moreover, opportunities for sham recycling obviously would become rife under such an approach.

14. EPA should defer to state/ AAPFCO regulations for contaminants in fertilizers (ACC)

Response: EPA believes that the contaminant limits in today's rule are reasonable, easily achievable with existing technology, and are appropriate for demarcating zinc fertilizer products from wastes. We do not believe it appropriate to defer to state agriculture agencies to establish RCRA regulatory limits, especially when it is unclear as to how many states will actually set such limits, or what methodology they would use. Further, since they are federally established, the contaminant limits in this rule should provide national regulatory consistency for the industry, which should be to its benefit (we note that the three states that have so far enacted specific limits on fertilizer contaminants have each adopted a different set of standards).

15. EPA's and other risk assessments are flawed, and thus claims of safety regarding proposed contaminant limits are inappropriate (MART)

Response: The commenter offered no specific information as to how EPA's risk assessment (or similar studies) may be flawed, how those flaws might affect the conclusions of the study, or what might be done to correct any of the alleged flaws. It is therefore difficult to respond directly to these allegations. As with virtually any risk assessment, EPA's study identified a number of uncertainties in the analysis, and these are discussed at length in the document. However, we believe that the conservative methods and assumptions used in the EPA study lend credibility to its general conclusions regarding fertilizer contaminant risks, and the commenter has provided no information that causes us to think otherwise.

H. Exclusion Levels for Metals 1. Liquid fertilizers would be at a disadvantage under new rules, since 20 1 TCLP dilution factor wouldn't apply to liquid fertilizers (NUL) 22 Response: This comment is apparently based on a misunderstanding of the proposed exclusion limits. There will be no disadvantage in the final rule for liquid zinc fertilizers, since it makes no distinction between liquid and solid products. The TCLP dilution factor cited by the commenter has no relevance to this issue, since the exclusion limits are measured as total concentrations in the product, rather than as concentrations in leachate as would be measured using the TCLP test method.

2. A limit of less than 600 ppm for total chromium will inhibit development of new technologies. (BAY)

Response: The proposed limit for total chromium (0. 6 ppm per unit of zinc) represents the level that has been demonstrated as readily achievable in ZSM fertilizers, including a small margin to account for variabilities in the manufacturing process. The commenter did not question EPA's assertion that this level can be easily achieved in ZSM products, but instead referred to an unspecified "advanced technology" for making zinc fertilizer that is not designed to remove these contaminants. We note that the commenter did not supply any description of this advanced process, or submit any data to substantiate the claim that this unidentified technology would be unable to meet the proposed limit for total chromium. In fact, it is unclear from the commenter's discussion that this unspecified technology has been actually used in actual manufacture of zinc fertilizers. We also note that there is little, if any, available ZSM analytical data that differentiates between the different forms of chromium, although the basic chemical properties of chromium suggest that the presence of hexavalent chromium in ZSM fertilizers is likely to be relatively rare. In any case, it is certainly not EPA's intent in this rule to stifle development of new technologies for legitimate recycling in the fertilizer industry. However, without additional data and/ or considerably more substantiation of the commenter's claims it is difficult for the Agency to conclude that the proposed limit on chromium is inappropriate or will otherwise be a hardship for zinc fertilizer manufacturers. The final limit on (total) chromium is therefore unchanged from the proposal.

3. Exclusion levels for mercury, chromium and nickel are unnecessary and would increase costs; fertilizers that meet standards for lead, cadmium and arsenic would likely meet the proposed levels for these metals (OLI)

Response: For reasons explained in the preamble to the final rule, the proposed exclusion level for nickel has been eliminated. With regard to mercury and chromium, significant levels of these metals have been found in a number of fertilizers, particularly those made from recycled secondary materials. Thus, we believe that limits on mercury and chromium are consistent with the concept of demarcating products from wastes through the use of contaminant limits. In any case, we note that the incremental costs of testing for five metals instead of three are exceedingly small, and should impose little, if any burden on manufacturers (particularly if, as the commenter suggests, actually meeting the limits for these metals will pose little difficulty). 23 4. Standards for beryllium and antimony may be necessary, since dusts from brass processing may contain these metals (MAD)

Response: While it is possible that some secondary materials may contain metals such as beryllium and antimony, our review of fertilizer contaminant data did not identify any products with elevated levels of these metals, and the commenter did not submit any analytical data demonstrating otherwise. We therefore see no reason to set limits on these metals.

5. Proposed limits on metals may not be low enough to be protective, given uncertainties in EPA's risk assessment (NWF, others)

Response: EPA believes that the proposed and final limits on metals are protective. While there are uncertainties in EPA's study of fertilizer contaminant risks, we are confident in its basic conclusions, particularly since the limits are well below EPA's thresholds for acceptable risks to human health. The commenter did not offer any specific technical information to support his contention that the limits in this rule are insufficiently protective, nor did the commenter identify any particular aspect of EPA's study that should cause us to question its basic findings.

6. Rule should set an upper bound limit on metal contaminants, based on a zinc content of 50% (WTC)

Response: The limits on metals in the final rule are tied to the zinc content of the fertilizer product, for reasons explained in the preamble. The commenter is apparently concerned that fertilizers with high zinc content might be allowed to contain excessive amounts of these contaminants. We believe that such concern is misplaced. For one thing, the zinc content of fertilizers that can meet the new limits (e. g., ZSM) is unlikely to exceed 36%, since that is the maximum amount of elemental zinc that can be present in this chemical formulation (ZnSO4  H2 O) and, in confirmation, the commenter did not identify any products with a higher zinc content. The commenter also did not provide any technical basis for setting an absolute limit based on 50% zinc content. We therefore see no reason to establish an upper bound limit as suggested by the commenter.

7. Proposed limits on mercury and arsenic were set based on data that reflected detection limits of test methods, rather than actual measured concentrations in fertilizers (WTC)

Response: We have adjusted the limit on arsenic, in response to this comment. We did not change the final limit for mercury, since we believe there is sufficient data on mercury content in ZSM fertilizers that do not reflect analytical detection limits to support the final limit.

8. It is not good public policy to allow waste derived products to be used on the land that 24 could exhibit a hazardous (TC) characteristic. (AST)

Response: As explained in the preamble to the proposed and final rules, EPA believes that the limits on metals in this rule are well below any "safe" levels that might be determined through the science of risk assessment. The Agency is not aware of any data indicating that ZSM products exhibit a hazardous characteristic, and the commenter did not submit any such data.

9. Technology based standards are too restrictive, since risks are relatively small (CDFA)

Response: We believe that the technology based approach to establishing contaminant limits in this rule is appropriate, as discussed in section III. D of the preamble to today's rule. In essence, we believe using commercial product specifications for non contributing hazardous constituents as a reasonable means of distinguishing products from wastes.

10. Concern that technology based limits may allow increased levels of contaminants as compared with the current LDR standards (CAL)

Response: As explained in the preamble to the proposed and final rules, direct comparisons between the LDR standards and the contaminant limits in today's rule are difficult to make, since the test methodologies are very different. Using the most conservative assumptions regarding leachability of metals according to the TCLP method, the final exclusion limits are likely to be roughly comparable to, or more stringent than, the LDR universal treatment standards. Even if (for the sake of argument) the exclusion limits were somewhat less stringent than the LDR standards they are nevertheless substantially below the Agency's risk thresholds, and we therefore believe that any incremental environmental consequences attributable to the conditional limits are likely to be exceedingly small.

11. Limits should be based on Phase IV LDRs (MART)

Response: The commenter apparently believes that the Phase IV LDRs (i. e., the universal treatment standards specified at §268.48) would offer more environmental protection than the proposed exclusion levels, which we do not believe to be the case, as explained in the previous comment response. We believe that the exclusion levels in today's rule are reasonable, protective, and more appropriate than the LDR standards in distinguishing between fertilizer products and wastes, as discussed further in section III. D of today's preamble.

12. Rule should set limits on additional contaminants such as barium, vanadium, thallium, antimony, beryllium, silver and selenium (MART)

Response: See response to comment H. 7 above. 25 13. Support for proposed standards based on good manufacturing practice (MPCA, others)

Response: The agency appreciates this support for this provision of the rule.

I. Exclusion Levels for Dioxins 1. Proposed dioxin limits are inconsistent (lower) with CWA section 503 and cement kiln dioxin standards (NUL, BAY)

Response: EPA acknowledges that the limit on dioxins in today's rule is lower than the limits that EPA has proposed for dioxins in cement kiln dust and sewage sludges applied to agricultural land. These proposed rules would implement different statutory authorities under different legal standards, and neither is intended to distinguish products from wastes. Our rationale for the limit in today's rule is discussed at length in the preambles to the proposed and final rules. In any case, it should be noted that the proposed dioxin standards for cement kiln dust and sewage sludge have not yet been finalized, and may change substantially from the proposed standards. Thus, any issues having to do with consistency between the dioxin limits in these rules are premature.

2. Complete ban on dioxins is unreasonable (NUL)

Response: We agree.

3. A standard for dioxins is not justified by the data, which are limited and unrepresentative, nor has EPA demonstrated a dioxin "problem" with regard to zinc fertilizers. (TFI, CBF, ARA)

Response: Although the existing data on dioxins in zinc fertilizers are limited, we see no reason to totally discount this evidence, which indicates the presence of dioxins in K061 derived fertilizers in the several hundred parts per trillion range. The commenter offered no data questioning the accuracy of the analytical results that are available, or to otherwise refute the notion that such levels of dioxins are present in this type of fertilizer. We therefore disagree with the commenter's suggestion that we have no basis for establishing a limit on dioxins in this rule. Further discussion of the basis for our decision to limit dioxins in this rulemaking is presented in the preambles to the proposed and final rules.

4. If a dioxin standard is finalized the 300 ppt standard for sewage sludge should be used instead of the proposed background standard (TFI)

Response: The 300 ppt standard for sewage sludge has not been finalized by EPA, and the final standard may be very different than the proposal. As such, adopting that standard in this rule would be premature at best. Nor is the sewage sludge standard addressing the 26 issue of what levels of non contributing hazardous constituent (deriving, moreover, from a source unrelated to fertilizer production) could be a type of discarding and illegitimate recycling. Further discussion of this issue can be found in the preamble to the proposed rule.

5. Dioxin standard is unnecessarily low, and should be raised to allow 2. 5 ppt per percent of zinc, not to exceed 100 ppt in the final product (BAY)

Response: We disagree that the limit of 8 ppt is unnecessarily low, as we believe it can be (and is) easily achieved by manufacturers of high quality zinc fertilizers. We see no reason to allow much higher levels, as suggested by the commenter. The commenter did not submit information demonstrating or even suggesting that the 8 ppt limit will be difficult for industry to achieve, nor did the commenter provide any technical or environmental data to support the suggested alternative limit of 100 ppt.

6. Dioxin standard will increase costs unnecessarily. (OLI, AZA, DOE)

Response: As noted in the response to the previous question, we disagree that a limit on dioxins in this rule is unnecessary. The incremental cost of this limit should be quite low, since we do not believe manufacturers of quality zinc fertilizers will need to make any processing changes or other investments to meet the dioxin limit. It is likely that the cost of this limit to industry will be limited to the costs of once yearly testing and analysis, which we believe are reasonable and will not be a significant economic burden to industry.

7. Exclusion level for dioxins should be set at non detect level, or a level that represents preindustrial background concentrations (NWF)

Response: The Agency does not believe that setting a limit in this rule for dioxins at a nondetect or pre industrial background level is necessary environmentally, nor would it be consistent with the goals of this rulemaking. The commenter is in essence arguing for a dioxin limit of zero, or very close to it, given the extraordinary sensitivity of current analytical test methods for measuring dioxins. Since dioxins are nearly ubiquitous in the environment, and exceedingly small but detectable amounts of dioxins have been measured in a wide range of fertilizer products (most of which were not waste derived), it is reasonable to assume that few if any zinc fertilizer products could meet such a limit. This would effectively put an end to this recycling practice, which we do not believe would be environmentally beneficial, as explained in section III. D of today's preamble.

8. Dioxin test result for the commenter's ZnO product was essentially zero (HES)

The Agency appreciates the additional dioxin data submitted by the commenter, which appears to be consistent with the existing, limited data on dioxins in zinc sulfate monohydrate fertilizer products. 27 9. The assumption that reducing metals contaminants results in low dioxin content is untrue (WTC)

Response: The data EPA reviewed in developing this rulemaking indicate that high quality zinc fertilizers such as zinc sulfate monohydrate, which have relatively low levels of metal contaminants, also have very low levels of dioxins (approximately one part per trillion or less). We believe the low dioxin levels in ZSM are likely due at least in part to the processing steps (e. g., acid digestion, precipitation, filtering, etc.) involved in removing metal contaminants from feedstocks materials, though they may also be influenced by other factors. The commenter offered no technical or scientific information to challenge these conclusions, and we therefore see no need to modify our regulatory approach to dioxins in response to this comment.

10. Regulatory levels for dioxins should apply only to K061 derived fertilizers (CDFA)

Response: Although available data indicate that zinc fertilizers made from K061 have the highest levels of dioxins of the fertilizer products tested, it is certainly possible that other types of zinc fertilizers could contain dioxins exceeding the eight parts per trillion limit established in today's rule. We therefore see no reason to limit the applicability of the dioxin limit in this way, especially since we expect the dioxin limit can be easily achieved in high quality zinc fertilizers, with minimal associated economic impact on industry.

11. Proposed limit is too lenient, as it will result in buildup of dioxin contaminants in soils (KKIM)

Response: We disagree that the proposed (and final) limit for dioxins is too lenient and will increase levels of dioxins in soils. The limit is based on EPA's estimate of average national background soil levels of dioxins. Since it is an average level, it is certainly possible that some soils that will be amended with zinc fertilizers may have somewhat lower levels of dioxins than 8 ppt. However, the rate at which zinc fertilizer is applied to agricultural land (a few pounds per acre per year) is so low that the actual potential for buildup of dioxins in these soils over time is so small as to be insignificant. This is consistent with the results of the State of Washington's dioxin soil survey, which indicated that agricultural soils (which presumably have been amended over time with repeated applications of fertilizers, including in many cases K061 derived fertilizers) have lower dioxin levels than soils in open, forested or urban areas, which have not been amended with fertilizers.

12. Compliance testing for dioxins should be done with the same frequency as for metals.

Response: EPA believes the condition for once yearly testing of dioxins in zinc fertilizers is reasonable and adequate, particularly since available data indicate that dioxin levels in high quality zinc fertilizers are well below the 8 ppt limit, and the production processes 28 involved with removing metals from feedstock materials are likely to remove dioxins as well.

J. Conditions for Generators 1. Proposed conditions for generators should be eliminated (though the conditions themselves are not particularly burdensome) since they will discourage generators from selling secondary materials to fertilizer manufacturers, in favor of alternative markets not subject to RCRA controls (BAY, CBF, OLI)

Response: Today's rule is intended to remove most of the regulatory disincentives that have to date discouraged generators from supplying material to zinc fertilizer producers. As such, we believe that today's rule will actually encourage more generators to supply more secondary materials to this industry, rather than fewer. This belief is supported by a number of comments received in support of the proposed rule from generators companies and generator industry trade associations.

2. If generator conditions are necessary, they should only address retention of normal business records (OLI)

Response: The conditions applicable to generators in today's rule are designed to reflect normal industry practices, including recordkeeping practices associated with sending and receiving shipments of secondary material to off site parties. We thus believe that this commenter's request has been satisfied in the final rule.

3. Generator conditions belie the "level playing field" goal, since no other generators of recyclable hazardous wastes are subject to such controls (BAY, CBF)

Response: The commenters are apparently referring to one of EPA's stated goals for this rulemaking, which is to remove many of the regulatory disincentives that have to date discouraged the use of hazardous wastes to make zinc fertilizers, while encouraging the use of non hazardous materials. We believe this goal has been largely met in this rule. The commenter's assertion that no other generators are subject to such controls is not accurate, since in many cases generators of recyclable materials are subject to full RCRA subtitle C regulatory requirements (see §261.2( c)), which are more stringent than the conditions in today's rule. It is also true, however, that many generators of recyclable hazardous secondary materials wastes are completely exempt from RCRA regulatory requirements, which we believe is the commenter's point of comparison. We note, for one thing, that our reference to the "playing field" in the proposal had to do with the zinc fertilizer production industry, and not to hazardous waste recycling in general. In any case, we believe the conditions for generators in the final rule are reasonable and will encourage greater recycling in this industry. We note also that many of the generators who commented on the rule expressed support for it, indicating that they also consider the 29 conditions for generators to be reasonable.

4. Generator conditions are not necessary environmentally, since the materials they generate have economic value and will therefore not be mismanaged (BAY)

Response: We disagree that the generator conditions in the rule are unnecessary environmentally. We believe that there is potential for mismanagement of these materials, given the damage cases we have seen to date involving improper storage of zinc feedstock materials at a number of facilities (reports of these damage cases are in the docket for today's rule). In any case, we believe the conditions for generators are reasonable, will have minimal economic impact on the generating industry, and reflect normal industry practices.

5. Necessary conditions should be placed solely on fertilizer manufacturers, rather than also on generators, since such conditions are unnecessary, since normal business practices already provide a confirmatory system for tracking these materials, and since placing r/ r requirements on manufacturers alone would provide the necessary oversight capability (BAY)

Response: EPA disagrees that the conditions on generators in this rule are unnecessary, as explained in the response to the previous comment. Conditions for generators will help ensure that these hazardous materials are managed carefully in a continuous manner, from the point of generation to when they are recycled. We further believe that the conditions are reasonable, and note that they were supported by many of the generators who commented on the proposed rule.

6. Recordkeeping requirements do not reflect normal business practices, would impose additional costs, and would be problematic for generators who ship materials through middlemen (CBF)

Response: We disagree, and note that the commenter did not submit any information to substantiate these assertions. We also note that they are inconsistent with other comments submitted by the generator industry. With regard to shipments through middlemen, the final rule includes specific provisions addressing the use of such middlemen in this industry, which should alleviate the problems cited by the commenter.

7. No storage conditions should be placed on generators, since non hazardous materials aren't subject to such conditions, and generators have an incentive to manage these materials safely (CBF, OLI)

Response: See response to comment #4, above.

8. General support for generator requirements, with plea for outside storage of supersacks, 30 and less required information in the one time notice, since normal business records would provide necessary information to regulators (BBI)

Response: We appreciate the commenter's support, and generally agreed with these comments. Thus, the final rule provides for outside storage of supersacks, and requires less information to be submitted in the one time notice for generators.

9. The one time notification requirement should be supplemented by a requirement to submit biennial report information. (WAS)

Response: We believe that the conditions for generators for notification and recordkeeping, combined with the similar conditions for manufacturers, should be adequate for state agencies in monitoring compliance by the industry. Further, we note that RCRA's biennial reporting requirements apply to generators of hazardous wastes. Since under this rule generators will handling excluded hazardous secondary materials instead of wastes, such a requirement would be inconsistent with the conditional exclusion concept.

10. Requirement for generarators to certify that states receiving shipments of excluded materials are authorized for this rule should be removed  generators should be allowed to ship to states that aren't authorized for the rule, as long as the materials are managed according to the authorized states's regulations. (AST)

Response: We agree with this commenter, and have eliminated the language of the final rule accordingly.

K. Conditions for Manufacturers 1. Conditions for manufacturers should also apply to manufacturers of fertilizer ingredients (BAY, KKIM)

Response: We agree; the conditions in §261.4( a)( 20)( iii) apply to manufacturers of zinc fertilizer products, as well as manufacturers of ingredients that become incorporated into those fertilizers.

2. The yearly report from manufacturers is appropriate, and should require (for manufacturers and generators) additional information on the amount of materials being stored at the time of the report, and a certification that the secondary materials are not being speculatively accumulated (WAS)

Response: EPA believes that the current regulatory prohibitions on speculative 31 accumulation of hazardous wastes, combined with the new conditions for reporting and recordkeeping, should be sufficient in dissuading manufacturers from such illegal accumulation, and will enable states and EPA to adequately oversee manufacturers' and generators' recycling activities. We thus do not see a clear need in this rule for additional conditions relating to speculative accumulation, though states may choose to adopt more stringent provisions.

3. The proposed recordkeeping requirements for manufacturers are appropriate, and should be supplemented with a requirement to maintain documentation that at least 75% of each secondary material is processed within a year (WAS)

Response: See response to comment #2, above.

4. Testing of fertilizers (for compliance with exclusion levels) should be required for batches of fertilizer products made from different feedstocks (WAS)

Response: The final regulation contains a new condition for manufacturers under which they will need to perform additional testing of their fertilizer products whenever changes occur to manufacturing processes or ingredients that could significantly affect the amounts of contaminants in the product. We believe this adequately addresses the concern of this commenter.

5. Testing of fertilizer products should be required more often than twice per year, and consistent specifications for sampling and analysis should be required (MDH)

Response: EPA believes that the testing requirements in the proposed rule (which have been finalized) are adequate for the purpose of establishing manufacturers' compliance with the exclusion levels. The commenter did not provide any additional information to show why more frequent testing or more explicit specification of test methodologies are needed, and we thus chose not to modify the proposed conditions for product compliance testing.

6. Testing frequency is inadequate; the rule does not support the conclusion that sampling and testing is done by manufacturers on "more or less an ongoing basis;" there should be more frequent testing if levels of constitutents increase by more than an increment set by EPA (KKIM)

Response: In developing this rule EPA reviewed a considerable volume of analytical data on ZSM contaminant levels, which were generated by several manufacturers. Much of these data were the result of monthly testing conducted as a routine quality control measure. Discussions with industry personnel have also confirmed that such testing is a normal practice. We further understand that sampling and analysis of key indicator constituents is typically done either on a daily basis or for each batch of material 32 processed. We believe it is reasonable to assume that these quality control measures, combined with the twice yearly confirmatory testing specified in the conditions for manufacturers, should be adequate to ensure that products meet the specification levels. Note that the final rule includes a new condition that would require additional testing based on process and/ or material changes that could affect contaminant levels.

L. Reporting and Recordkeeping Conditions 1. Some of these conditions may not be necessary environmentally (NDI)

Response: Certain reporting and recordkeeping conditions in the proposed rule have been eliminated as unnecessary, in response to this and other comments. The conditions that remain are, we believe, necessary and appropriate, and reflect normal industry practices.

2. Manifests would be better for ensuring proper handling of hazardous feedstock materials (MAD)

Response: We believe that the reporting and recordkeeping conditions in this rule will be sufficient to ensure proper handling of these materials; the commenter offered no substantiation as to why RCRA manifests would be better for this purpose.

3. Reporting and recordkeeping conditions are not necessary for monitoring/ enforcement purposes, since RCRA section 3007 provides EPA with the authority to inspect facilities and request relevant information. (TFI)

Response: The reporting and recordkeeping conditions in this rule (which have been reduced to some extent from the proposal) will help assist overseeing agencies in monitoring and tracking (as necessary) this recycling practice. We do not believe these conditions will be onerous for industry. Relying on the Agency's RCRA 3007 information gathering authority to collect this kind of information each time we have an interest in reviewing this type of data would be an inefficient use of agency resources, and could cause considerable delays, which we believe would unnecessarily hamper our oversight capability.

4. Rule should require only a one time notification, and not require three years of record retention, as such requirements are extremely burdensome and don't promote recycling (TFI, ACC)

Response: We do not agree that retaining records of the type specified in the condition for recordkeeping in the final rule will be burdensome. We believe these records are kept in the course of normal business, and the need to retain them for three years should not be onerous. 33 5. Concern for maintaining clear chain of custody with regard to intermediate materials handlers is valid, and such Intermediaries (e. g., brokers) should be subject to the same conditions as for fertilizer manufacturers (BAY)

Response: We agree with the commenter's view that maintaining the chain of custody over excluded hazardous secondary materials will be important to maintaining the effectiveness and credibility of the conditional exclusion. The final rule thus specifies that intermediate handlers (such as brokers) will be subject to the same conditions for storage, recordkeeping and reporting that generators must meet. In our view, in the context of this rule, the functions and incentives of such intermediate handlers are more similar to those of generators than manufacturers, which is why the final rule is structured in this way.

6. Support the proposed paperwork requirements DOT shipping documents are adequate in lieu of manifests (SOC)

Response: The Agency appreciates this commenter's support for the paperwork conditions.

7. Reporting and recordkeeping should not be conditions to the exclusion, since they do not help define when materials are discarded (ACC)

Response: The reporting and recordkeeping conditions in the final rule are intended to reflect normal industry practices, and are thus consistent with the idea that the conditions for exclusion in the rule serve to reasonably demarcate normal product production practices from waste management.

8. Notices by generators to receiving facilities should be with initial shipments only; requiring notices with each shipment is unnecessary and would be more stringent than current LDR notice requirements. (ACC)

Response: We believe that requiring (as a condition) shipping papers to accompany and verify receipt of each shipment of conditionally excluded material is a reasonable precaution to ensure that such shipments are received at their intended destination; such records will also assist regulatory personnel in their oversight efforts. We disagree with the commenter's assertion that this condition is more stringent than current LDR notice requirements, which involve for each off site shipment a RCRA manifest, a certification to the land disposal facility, and a notice to the EPA Regional Administrator or his designee (see §268.7( b)( 6).

9. Notification requirements to receiving facilities should be made more explicit in the regulation (ACC)

Response: The final rule has been reworded in response to this comment, to clarify that as 34 a condition to the exclusion each off site shipment of excluded material be accompanied by a notice stating that the material is subject to the conditions of the exclusion in this rule.

10. Rule should require testing and notification for each shipment of fertilizer made from hazardous waste, consistent with requirements under §268.7( b)( 6) (MART).

Response: EPA does not believe that testing and notification for each shipment of fertilizer made from hazardous secondary materials is either necessary or appropriate. For one thing, such requirements would add considerably to the costs associated with this rule, while in our view the potential environmental benefits of such requirements are highly questionable. The commenter did not offer any substantiation as to why such additional testing and notification is warranted (especially in light of the protections provided in this rule), or what problems might be avoided by imposing such requirements.

M. Conditions for Storage 1. Support for general, performance based conditions (which could be further simplified) on storage of excluded materials (SOC)

Response: The Agency appreciates the commenter's support for the performance based conditions in this rule, which we note have been simplified to some extent in response to similar comments.

2. The general performance standards for inside storage of feedstocks would provide inadequate protection from tracking and air dispersal of wastes; the standards for RCRAcompliant containment buildings should be required to prevent such tracking and dispersal of excluded secondary materials (see 264.1101( c)( 1)( iii) and (iv)). (WAS)

Response: The commenter refers to several specific design requirements for hazardous waste containment buildings that are intended to prevent these types of releases. The Agency decided not to add such conditions in the final rule, for several reasons. For one, the design specifications cited by the commenter are quite detailed, and would be inconsistent with the rest of the storage conditions in the rule, which were intended to be more performance oriented. The final rule includes a general performance standard (§ 261.2( a)( 20)( ii)( B)) for prevention of releases, which should be adequate in addressing the types of small but cumulative releases cited by the commenter as a concern. Further, as discussed in the following comment response, soil contamination resulting from releases of product or feedstock material is potentially subject to federal and state remediation authorities, and the substantial costs that are often incurred in cleaning up such releases should give facility operators a strong incentive to prevent these releases from happening.

3. Soils that have been contaminated with spills or other releases of wastes or products have 35 been claimed by at least one facility to be viable feedstock materials, rather than environmental contamination, which suggests the need in this rule for more stringent controls over releases in this rule. (WAS)

Response: Releases of hazardous constituents into the environment that are not promptly cleaned up can be considered acts of illegal disposal under RCRA, and are potentially subject to a variety of federal and state enforcement authorities, regardless of whether the contaminants originate from products, secondary material feedstocks or other material sources. As a general matter, the Agency would not consider such contaminated soils as potential feedstock materials, though in some case specific situations we might determine otherwise (for example, if a facility were to demonstrate a viable technology and a clear, workable plan for expeditiously removing the contaminated soil and recovering the contained zinc units). In our view, the performance oriented conditions for secondary material storage in this final rule, combined with facility operator's incentive to avoid potentially costly remediation obligations, should effectively prevent the types of contamination problems cited by the commenter.

4. Releases from process lines should be subject to controls (WAS)

Response: This comment is similar in substance to the previous comment; see the response above.

5. The proposed conditions are not appropriate for storage of liquid hazardous wastes used to make fertilizers, such as spent sulfuric acid. The rule should specifically state that the exclusion applies only to solid waste materials, or establish supplemental standards for liquids. (WAS)

Response: The commenter did not specify why the proposed conditions would be inappropriate for storage of liquid materials. We believe that the final conditions for storage of excluded hazardous secondary materials are appropriate for management of both liquids and solid materials.

N. Technical Issues 1. Support standards expressed as total levels of contaminants, rather than the TCLP leach test( BAY, NWF, WAS, others)

Response: We appreciate the support of these commenters for this aspect of the final rule.

2. More specific requirements for analytical methods should be specified (WAS)

Response: The final rule specifies the general condition that results from sampling and 36 analysis of fertilizer products be unbiased, precise and representative, though it does not prescribe any specific methods or procedures. Providing such flexibility in meeting this performance standard is typical of RCRA regulatory requirements, and is also appropriate, we believe, for the purpose of this rulemaking.

O. Mining Waste 1. EPA's statements about potential risks from Ironite are unsupported (NMA)

Response: EPA made no definitive statements in the proposed rule (or elsewhere) regarding estimates of potential risk from use of Ironite products. As stated in section IV of today's preamble, the Agency has underway a research effort that will hopefully shed further light on this issue, and inform our future regulatory strategy for fertilizers made from mining wastes.

2. EPA is attempting a "backdoor" approach to narrowing the scope of the Bevill exemption for mining and mineral processing wastes (NMA)

Response: We disagree with the commenter's assertion. We believe this is a legitimate environmental issue worthy of further investigation. Should the Agency decide at a future time to initiate a regulatory action to address fertilizers made from Bevill exempt mining wastes, we will do so in accordance with appropriate notice and comment procedures.

3. Preamble language erroneously implies that the Bevill exemption doesn't apply to all mining and mineral processing wastes (NMA)

Response: Since EPA is taking no final action on this matter, no response is necessary.

4. Rule contradicts EPA's assertions that its regulatory determinations for extraction, benificiation and mineral processing wastes would not be revisited (NMA)

Response: Since EPA is taking no final action on this matter, no response is necessary.

5. Regulating fertilizers made from Bevill exempt mining wastes can only be done through a formal regulatory determination, which requires conducting a study consistent with statutory requirements, submitting a report to Congress, holding hearings and taking public comment, before such a determination may be made (NMA, TFI)

Response: Should the Agency decide, based on further study, that subtitle C regulation of fertilizers made from Bevill exempt mining wastes is warranted, we will proceed with such action in accordance with applicable procedures. 37 6. Ironite may be unsafe for residential use; the product safety risk assessment done by the company is likely to underestimate the potential health risks to children from Ironite (MDH)

Response: The Agency will be addressing these issues in its separate study of Ironite risks, results of which are expected in 2003.

P. Implementation and Enforcement 1. Support a more explicit regulatory provision eliminating permit conditions, and similar treatment for interim status facilities (BAY)

Response: The Agency chose not to include an explicit provision in the final rule to terminate permits, permit conditions, and/ or interim status at facilities regulated under RCRA subtitle C, since we believe that at least in some cases such facility transitions may not be entirely straightforward (particularly where there are ongoing remediation activities that could be affected by permit changes), and will need some level of regulatory agency oversight.

2. Oppose using the "delay of closure" approach to eliminating closure requirements. (BAY)

Response: The final rule includes a specific provision to clarify that closure will not be required for certain units affected by today's rule; we agree that using the "delay of closure" concept in this context would not have been appropriate.

3. For the sake of regulatory consistency, EPA should use its influence to persuade States to adopt the rule (BAY)

Response: EPA encourages states to adopt this rule, as stated in the preamble. Our discussions with state agencies indicate that most states are interested in adopting the rule, and we thus expect the rule to be widely implemented in a relatively short period of time.

4. Proposal for burden of proof in enforcement actions to be on facility owner/ operators is a substantial change to current regulations and is unnecessary for this rule (OLI)

Response: We disagree that the proposed language pertaining to establishing the burden of proof in enforcement actions is a change to current regulations. This provision already exists at §261.2( f). The proposed provisions were essentially redundant with this provision, and for that reason have been eliminated from the final rule language.

5. Proposed regulation does not have adequate requirements for reporting of spills or 38 releases. (WAS)

Response: Facilities that will operate under the conditional exclusions provided in today's rule will be subject to the same requirements for reporting of spills and releases that apply to normal manufacturers and handlers, including reporting under EPCRA (i. e., the Toxics Release Inventory, or TRI). We believe that requiring additional, specific reporting requirements is unnecessary for such entities, nor would it serve to reasonably demarcate normal production practices from waste management.

6. Cleanup/ post closure care obligations should not be diminished for facilities qualifying for the conditional exclusion. (WAS)

Response: We agree that the conditional exclusion in this rule should not affect a facility's obligation to implement corrective action and/ or post closure care for hazardous waste management units. We believe this is explained sufficiently in the preambles to the proposed and final rules.

7. Final regulation should ensure flexibility for states to use alternative cleanup authorities and approaches at facilities qualifying for the exclusion (permitted facilities and those in interimstatus). (WAS)

Response: This rule will not affect the ability of states to use alternative (i. e., non RCRA) cleanup authorities to remediate facilities.

8. The option of automatically terminating permit conditions without the need for agency oversight should is not appropriate; the rule should allow flexibility for dealing with these situations by the overseeing agency (WAS)

Response: We agree with the commenter, the final rule provides this flexibility to overseeing agencies.

9. Storage units should not be subject to closure requirements at qualifying facilities. Though this will eliminate the requirement to maintain financial assurance, this concern would be eased if the rule prescribes more explicit requirements for speculative accumulation (WAS)

Response: We agree that closure requirements for certain units that store excluded materials at affected facilities are unnecessary, and the final rule explicitly waives this requirement. We believe that the current regulatory prohibition on speculative accumulation is sufficient for the purpose of this rule, as described elsewhere in this document. 39 Q. State Authorization 1. Final rule preamble needs to clarify the discussion of state authorization, to say that nonHSWA rules adopted by a state are enforceable by the state, whether or not the state has been authorized for them by EPA (AST, MDNR)

Response: We agree with the point made by the commenter, and have clarified the preamble discussion dealing with state authorization in the final rule. EPA encourages states to adopt and begin implementing these regulations under state law, pending authorization from EPA.

R. Other 1. Rule proposes labeling of fertilizers, which is irrational and will cause greater public concerns (NUL)

Response: This commenter apparently misread the preamble discussion on labeling of fertilizers; such labeling was not proposed in the NPRM, nor do we believe that such labeling requirements are necessary or within EPA's legal authority, as discussed in section III of today's preamble. Labeling was mentioned in the preamble to the proposal as part of a regulatory option that EPA considered but rejected.

2. Proposal to remove 268.40( j) is unclear, since that paragraph does not relate to fertilizer (ACC)

Response: The commenter is correct; the reference to §268.40( j) in the proposal was in error, and has been corrected in the final rule.

Key to Commenters:

ARA  Agricultural Retailers Association AST  ASTSWMO Recycling Subcommittee BAY  Bay Zinc and Tetra Technologies BBI  Brass and Bronze Ingot Industry BRZ  Big River Zinc CAL  California Integrated Waste Management Board CDFA  California Department of Food and Agriculture CBF  Copper and Brass Fabricators Council 40 FRIT  Frit Industries HES  Heritage Environmental Services ISRI  Institute of Scrap Recycling Industries KKIM  Katharine Kimball MAD  Madison Industries MART  Patty Martin MDH  Minnesota Department of Health MDQ  Michigan Department of Environmental Quality NDI  Nickel Development Institute, et. al. NFF  Non Ferrous Founders Society NLX  Nulex, Inc. NMA  National Mining Association NWF  National Wildlife Federation NYD  New York Department of Environmental Conservation OLI Olin OMRI  Organic Materials Review Institute SOC  Speciality Organic Chemical Manufacturers Association TFI  Fertilizer Institute WAS  Washington Department of Ecology WTC  Washington Toxics Coalition