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November 28, 2000 Part II Environmental Protection Agency 40 CFR Parts 261, 266, and 268 Requirements for Zinc Fertilizers Made From Recycled Hazardous Secondary Materials; Proposed Rule VerDate 11< MAY> 2000 13: 27 Nov 27, 2000 Jkt 194001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\ FR\ FM\ 28NOP2. SGM pfrm02 PsN: 28NOP2 70954 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 261, 266, and 268 [FRL± 6905± 3]

RIN 2050± AE69 Requirements for Zinc Fertilizers Made From Recycled Hazardous Secondary Materials AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

SUMMARY: The Environmental Protection Agency (EPA) is today proposing to revise the existing regulations that apply to recycling of hazardous wastes to make zinc fertilizer products. This proposal would establish a more consistent regulatory framework for this practice, and establish conditions for excluding hazardous secondary materials that are used to make zinc fertilizers from the definition of solid waste under the Resource Conservation and Recovery Act (RCRA). Today's proposal also solicits comments on regulating mining wastes that are used to make fertilizers.

DATES: EPA will accept public comment on this proposed rule until February 26, 2001.

ADDRESSES: Commenters must send an original and two copies of their comments referencing docket number F± 2000± RZFP± FFFFF to: RCRA Docket Information Center, Office of Solid Waste (5305W), Environmental Protection Agency Headquarters (EPA, HQ), 401 M Street, SW., Washington, DC 20460. Hand deliveries of comments should be made to the Arlington, VA, address below. EPA may conduct a public hearing on this proposed rule during the comment period, if there is sufficient interest on the part of commenters. Comments may also be submitted electronically through the Internet to: rcra docket@ epamail. epa. gov. Comments in electronic format should also be identified by the docket number F± 2000± RZFP± FFFFF. All electronic comments must be submitted as an ASCII file avoiding the use of special characters and any form of encryption. Commenters should not submit electronically any confidential business information (CBI). An original and two copies of CBI must be submitted under separate cover to: RCRA CBI Document Control Officer, Office of Solid Waste (5305W), U. S. EPA, 1200 Pennsylvania Ave., NW., Washington, DC 20460. Public comments and supporting materials are available for viewing in the RCRA Docket Information Center (RIC), located at Crystal Gateway I, First Floor, 1235 Jefferson Davis Highway, Arlington, VA. The RIC is open from 9 a. m. to 4 p. m., Monday through Friday, excluding Federal holidays. To review docket materials, it is recommended that the public make an appointment by calling (703) 603± 9230. The public may copy a maximum of 100 pages from any regulatory docket at no charge. Additional copies cost $0.15/ page. The index and some supporting materials are available electronically. See the SUPPLEMENTARY INFORMATION section for information on accessing them.

FOR FURTHER INFORMATION CONTACT: For general information, contact the RCRA Hotline at (800) 424± 9346 or TDD (800) 553± 7672 (hearing impaired). In the Washington, DC metropolitan area, call (703) 412± 9810 or TDD (703) 412± 3323. For more detailed information on specific aspects of this proposed rulemaking, contact Dave Fagan, U. S. EPA (5301W), 1200 Pennsylvania Ave. NW., Washington, DC 20460; (703) 308± 0603, or e mail: fagan. david@ epamail. epa. gov.

SUPPLEMENTARY INFORMATION: The index and the following supporting materials are available from the RCRA Information Center: The official record for this action will be kept in paper form. Accordingly, EPA will transfer all comments received electronically into paper form and place them in the official record, which will also include all comments submitted directly in writing. The official record is the paper record maintained at the address in ADDRESSES at the beginning of this document. EPA responses to comments, whether the comments are written or electronic, will be published in a notice in the Federal Register or in a response to comments document placed in the official record for this proposed rulemaking. EPA will not immediately reply to commenters electronically other than to seek clarification of electronic comments that may be garbled in transmission or during conversion to paper form, as discussed above. The contents of today's action are listed in the following outline: I. Statutory Authority II. Background A. What Is the Intent of Today's Regulatory Proposal? B. What Is the Scope of This Proposed Rule? C. How Is Recycling of Hazardous Wastes To Make Fertilizer Currently Regulated? D. What Are EPA's Goals for This Rulemaking? E. How Would Today's Proposal Affect Producers and Consumers of Zinc Fertilizer? III. Settlement Agreement for the Phase IV Administrative Stay IV. Detailed Description of Today's Proposal A. Removal of Exemption for K061 Derived Fertilizers 1. Background 2. Today's Proposed Action B. Conditional Exclusion for Recycled Zinc Bearing Hazardous Secondary Materials 1. Background 2. Proposed Conditional Exclusion a. Applicability of Conditional Exclusion b. Reporting and Recordkeeping c. Conditions to the Exclusion i. Speculative Accumulation ii. Conditions Applicable to Generators of Excluded Hazardous Secondary Materials iii. Conditions Applicable to Manufacturers of Zinc Fertilizers or Zinc Fertilizer Ingredients Made From Excluded Secondary Materials d. Alternatives Considered e. Implementation and Enforcement Hazardous C. Conditional Exclusion for Zinc Fertilizers Made From Excluded Hazardous Secondary Materials 1. Contaminant Limits a. Product Specifications for Non Nutritive Metals in Conditionally Excluded Zinc Fertilizers b. Product Specifications for Dioxins in Conditionally Excluded Zinc Fertilizers 2. Testing and Recordkeeping V. Mining Wastes Used To Make Fertilizer: Request for Comments VI. Relationship With Other Regulatory Programs VII. State Authority A. Statutory Authority B. Effect of Today's Proposed Rule VIII. Administrative Assessments A. Executive Order 12866 B. Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U. S. C. 601 et. seq. C. Paperwork Reduction Act D. Unfunded Mandates Reform Act E. FederalismÐ Applicability of Executive Order 13132 F. Executive Order 13084: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Risks and Safety Risks H. National Technology Transfer and Advancement Act of 1995 I. Executive Order 12898 VerDate 11< MAY> 2000 19: 16 Nov 27, 2000 Jkt 194001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 28NOP2. SGM pfrm01 PsN: 28NOP2 70955 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules 1 The purpose of the RCRA LDR standards is to assure that threats posed by disposal of hazardous wastes are minimized before disposal. RCRA section 3004( m). However, EPA has long acknowledged that these standards are not ideal for hazardous waste derived products used in a manner constituting disposal, but rather are the minimum needed to satisfy section 3004( m). 53 FR 17578, 17605 (May 17, 1988): see also Association of Battery Recyclers v. EPA, 208 F. 3d 1047 (D. C. Cir. 2000) (acknowledging special risks posed by uses constituting disposal justifying stricter LDR Standards). I. Statutory Authority These regulations are proposed under the authority of sections 3001, 3002, 3003, and 3004 of the Solid Waste Disposal Act of 1970, as amended by the Resource Conservation and Recovery Act of 1976 (RCRA), as amended by the Hazardous and Solid Waste Amendments of 1984 (HSWA), 42 U. S. C. 6921, 6922, 6923 and 6924.

II. Background A. What Is the Intent of Today's Regulatory Proposal? Today's proposed rule is one component of the Environmental Protection Agency's ongoing assessment of contaminants in fertilizers. Prior to this proposed rulemaking the Agency studied available information on contaminants in a wide range of fertilizer products (including waste derived fertilizers), application rates for fertilizers, and how fertilizers are regulated in the United States and in foreign countries. See `` Background Document on Fertilizer Use, Contaminants and Regulation'' (EPA 747± R± 98± 003, January 1999). In addition, EPA developed a risk assessment of contaminants in fertilizers, which was released in August 1999. These documents are both available on EPA's website; their respective website addresses are http:// www. epa. gov/ opptintr/ fertilizer. pdf, and http:// www. epa. gov/ epaoswer/ hazwaste/ recycle/ fertiliz/ risk/ report. pdf. Based on these and similar studies, such as those recently issued by the State of Washington (`` Screening Survey for Metals and Dioxins in Fertilizer Products and Soils in Washington State, '' April 1999) and the State of California (`` Development of Risk Based Concentrations for Arsenic, Cadmium and Lead in Inorganic Commercial Fertilizers, '' California Department of Food and Agriculture, March 1998), EPA has tentatively decided that the relatively small risks associated with contaminants in fertilizers do not warrant a broad new federal regulatory effort in this area (such as under the authority of the Toxic Substances Control Act). However, as part of EPA's overall assessment of the fertilizer contaminant issue, the Agency reexamined the current RCRA regulatory requirements that apply specifically to recycling of hazardous wastes to make fertilizer products. This reexamination was based on the Agency's own experience with implementing the current RCRA regulations, as well as views expressed by regulated industry, public interest groups, state regulatory officials and others (see `` EPA Stakeholder Meetings on Hazardous Waste Derived Fertilizers, November 12± 13, 1998, Meeting Summaries''). From this review EPA has decided to propose certain revisions to the current regulations for hazardous waste derived fertilizers, for the following reasons: · The RCRA standards that now apply to most hazardous waste derived fertilizers, known as the `` land disposal restrictions'' (LDR) standards, were developed based on `` best demonstrated available technology'' for treating hazardous wastes prior to disposal in hazardous waste landfills. The LDR standards were thus not developed specifically for fertilizers. 1 A number of stakeholders have argued persuasively for contaminant standards that are more appropriate and specific to fertilizers. In today's action, EPA is proposing to set new standards for fertilizer contaminants based on the levels that can be readily achieved using demonstrated manufacturing practices. · The current regulations are inconsistent. As discussed above, hazardous waste derived fertilizers must meet the applicable RCRA LDR treatment standards before they may be used as fertilizer products. There is one exception to this requirement, however: Fertilizers made from electric arc furnace dust (also known by its RCRA waste code as K061) are specifically exempted from having to meet the LDR standards. EPA believes that the original basis for exempting K061 derived fertilizers from these standards is no longer valid (for reasons explained further in section IV. A of this preamble), and that fertilizers made from K061 should be subject to the same standards that apply to other hazardous waste derived fertilizers. · Regulating fertilizer feedstocks as hazardous wastes creates unnecessary disincentives to legitimate and beneficial recycling practices. Currently, hazardous waste feedstocks that are used in fertilizer manufacture are subject to full hazardous waste management requirements, which include generator requirements, manifests (when such wastes are transported), and permits for manufacturers who store such materials prior to incorporation into fertilizer. However, fertilizer manufacturers and their suppliers often have strong incentives to avoid being subject to such RCRA requirements, for reasons explained later in this preamble. The net effect is that many such companies simply avoid the use of zinc rich secondary materials to make fertilizer if they carry the label of RCRA `` hazardous waste. '' EPA believes that the regulations that govern this recycling practice should be revised so that appropriate environmental safeguards are maintained, while removing unnecessary regulatory constraints on legitimate and beneficial recycling practices.

B. What Is the Scope of This Proposed Rule?

Today's proposed regulatory amendments address only one type of fertilizer that is made from recycled hazardous wastes; specifically, zinc micronutrient fertilizer. According to the information that EPA has reviewed, zinc fertilizers account for the great majority of fertilizers that are made from recycled hazardous wastes. Another reason for limiting the scope of this proposal to zinc fertilizers is the Agency's judgment that developing recycling standards for this one type of fertilizer product should be relatively straightforward from a technical standpoint, and it may thus be possible to promulgate final rules for such products in a relatively short time frame. The Agency is aware, however, that some manufacturing of other types of fertilizers from hazardous industrial wastes may be taking place, and that regulatory revisions to address these other recycling practices may also be in order. However, developing appropriate regulations that could apply to virtually any fertilizer made from recycled hazardous wastes would be a more complex, longer term effort. The Agency has chosen to avoid regulatory delays for zinc fertilizers by proceeding with today's limited scope rulemaking proposal. Comment is invited on this aspect of today's proposal. EPA may address other types of hazardous waste derived fertilizers in a follow up rulemaking. Until then, the current RCRA regulatory framework will continue to apply to recycling of hazardous wastes to make fertilizers other than zinc micronutrient fertilizers. These regulations are described in detail in following sections of this preamble.

VerDate 11< MAY> 2000 19: 16 Nov 27, 2000 Jkt 194001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 28NOP2. SGM pfrm01 PsN: 28NOP2 70956 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules The Agency is also aware that at least one iron fertilizer product is currently being produced from a mining waste that is exempted from hazardous waste regulation, despite evidence that the product exhibits a hazardous waste characteristic when tested according to the Toxicity Characteristic Leaching Procedure (TCLP) (Oregon Department of Environmental Quality Laboratory, Case Number 980474, July 31, 1998). Today's proposal invites comment on whether this type of waste recycling practice should be regulated under RCRA.

C. How Is Recycling of Hazardous Wastes To Make Fertilizers Currently Regulated? EPA's longstanding policy is to encourage legitimate recycling of hazardous wastes, as a means of recovering valuable resources (for example, zinc), and lessening the need for extraction of virgin materials to make products. The Agency continues to believe that recycling of hazardous wastes in fertilizer manufacture can be (and is) a safe and beneficial practice, when proper environmental safeguards are observed. With regard to recycling hazardous wastes to make fertilizer, current RCRA regulations place controls on the management of the hazardous wastes prior to incorporation of the waste into a fertilizer, and define when fertilizers made from recycled hazardous wastes are legitimate products. These regulatory requirements are specified in 40 CFR Part 266, Subpart C. Under RCRA, placement of hazardous wastes on the land is generally regulated as a disposal practice, and thus the regulations that apply to this type of recycling practice are generally referred to as the `` use constituting disposal'' (UCD) regulations. Fertilizers produced from hazardous waste (i. e., incorporating hazardous wastes as one of their ingredients) are one example of a use constituting disposal. Hazardous waste derived asphalt is another example of such a product. See 63 FR at 28609± 610 (May 26, 1998); Association of Battery Recyclers, 208 F. 3d 1047 (DC Cir. 2000), upholding LDR rules applied to hazardous waste derived asphalt. Products made from recycled hazardous wastes whose intended use involves placement on the land may create risks that are potentially higher than for other types of recycled products (actual risk potential depends, of course, on concentrations of toxic constituents in the products and a number of other factors). Regulating these products as hazardous wastes, however, would have the effect of prohibiting their use altogether. See 50 FR at 628 (January 4, 1985). Rather than prohibiting their use, current regulations require that these products meet the same treatment standards they would have to meet if they were disposed in a landfill. In the final rule on the definition of solid waste (50 FR 614, Jan. 4, 1985), EPA asserted jurisdiction over all hazardous secondary materials, and over products that contain these wastes, when they are applied to the land. However, in the preamble to that rule, the Agency noted that we hoped eventually to develop standards or specification levels for toxic constituents in waste derived products whose use on the land may cause substantial harm (50 FR 628). Based on the information described elsewhere in this preamble, we have decided to propose specific levels (discussed elsewhere in this preamble) at which waste derived zinc fertilizers should be considered products, rather than wastes. Under the current UCD regulations, hazardous wastes that are going to be recycled to make fertilizers must be managed in accordance with all applicable hazardous waste management requirements, until they are incorporated into a fertilizer. Generators of the hazardous wastes must comply with the RCRA generator requirements (see 40 CFR Part 262), offsite shipments of the wastes must be manifested (Subpart B of Part 262), and storage of these materials by fertilizer manufacturers generally requires a RCRA permit. In addition, the fertilizers produced from hazardous wastes must meet the LDR treatment standards prior to being land disposed. The requirements for hazardous waste derived fertilizers to meet LDR treatment standards were first promulgated in the `` First Third'' LDR rule (August 17, 1988, 53 FR 31138). The standards were revised in the `` Third Third'' LDR rule, which established treatment standards for metals in characteristic hazardous wastes (June 1, 1990, 55 FR 22520). In the Third Third rule the treatment standards for hazardous waste derived fertilizers were specified as the toxicity characteristic levels (i. e., the levels that identified when wastes are considered `` hazardous'' according to the TCLP). The Agency changed those standards in the `` Phase IV'' LDR rule (May 26, 1998, 63 FR 28556), which set new (and for most constituents, more stringent) treatment standards for metals in toxicity characteristic wastes. In response to the Phase IV LDR rule, affected fertilizer manufacturers submitted information to the Agency arguing that the Phase IV standards could actually have negative environmental consequences by eliminating relatively `` clean'' zinc fertilizers from the market, and encouraging the use of fertilizers with higher levels of contaminants (e. g., K061 derived fertilizers) that were not subject to the LDR standards. In response, the Agency administratively stayed the effectiveness of the Phase IV rule as it applied to zinc micronutrient fertilizers (63 FR 46332, August 31, 1998). In that notice EPA announced its intent to address more broadly the requirements for recycling of hazardous wastes into fertilizer through a rulemaking process, as manifested by today's proposal. The effect of the Phase IV administrative stay was that the Third Third treatment standards (i. e., the characteristic levels) continue to apply to zinc fertilizers made from recycled hazardous wastes. A petition for review of this part of the final Phase IV rule, which challenged the stay, was subsequently filed in the D. C. Circuit Court of Appeals by several petitioners. Further discussion of this petition and its resolution is presented in section III of this preamble. As mentioned previously, fertilizer products made from one particular type of hazardous waste (K061, or electric arc furnace dust) are exempt from having to meet the LDR treatment standards. However, management of the K061 feedstocks prior to recycling is subject to the same hazardous waste management standards described above for other hazardous wastes used as components of fertilizers. Further discussion of the regulatory exemption for K061 derived fertilizers is contained in section IV. A. of this preamble.

D. What Are EPA's Goals for This Rulemaking? EPA hopes to achieve the following through this rulemaking effort: · More regulatory consistency. Today's proposal is intended to create a `` level playing field'' with regard to how the recycling of hazardous waste into zinc fertilizers is regulated. Removing the current exemption for K061 derived fertilizers is one aspect of today's proposal that should result in a more comprehensive and more consistent regulatory framework for hazardous waste derived zinc fertilizers. In this same vein, today's proposal requests comments on eliminating the current exemption from the definition of solid waste for mining wastes that exhibit a hazardous characteristic and that are used to make fertilizer products. · Limits on contaminants in recycled zinc fertilizers that are based on VerDate 11< MAY> 2000 13: 27 Nov 27, 2000 Jkt 194001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 28NOP2. SGM pfrm02 PsN: 28NOP2 70957 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules demonstrated manufacturing practices. Today's proposed limits on metals in recycled zinc fertilizers are based on levels that have been demonstrated to be technically and economically achievable by the industry, are protective of human health and the environment, and will result in overall reductions in the volumes of heavy metals that are applied to the nation's farmlands from hazardous waste derived zinc fertilizers. · More appropriate controls on management of hazardous secondary materials used in legitimate zinc fertilizer recycling practices. Today's proposal should serve to better define `` legitimate recycling'' for zinc fertilizers, and streamline current regulatory restrictions on management of hazardous secondary materials used as feedstocks in zinc fertilizer manufacturing.

E. How Would Today's Proposal Affect Producers and Consumers of Zinc Fertilizer? We believe that today's regulatory proposal should have very few negative impacts on fertilizer manufacturers, the waste generators who supply them, or on farmers who use zinc fertilizers. In fact, many elements of today's proposal are expected to have a positive effect on the zinc fertilizer market. However, the Agency is interested in any further information that commenters may be able to provide on such impacts, either positive or negative. A more detailed discussion of the economic impact analysis prepared in support of this rulemaking is presented in section VIII. A. of this preamble. RCRA regulations affect only a portion of the overall zinc fertilizer industry. It is estimated that roughly one half of the total zinc fertilizer produced in the United States is made from hazardous secondary materials, such as K061, brass fume dust and other zinc oxide materials. (Land Application of Hazardous Waste Derived Micronutruent Fertilizers, Bay Zinc Company and Tetra Technologies, Inc.; November 19, 1999) The balance of zinc fertilizer production is made from secondary materials (or in some cases, `` virgin'' mineral concentrates) that are not hazardous wastes, and thus are not subject to RCRA controls. An example of a non hazardous waste that is commonly used to make zinc fertilizer is zinc oxide `` skimmings, '' a by product from galvanizing of various steel products. Manufacturers of high purity zinc fertilizers (such as zinc sulfate monohydrate, or ZSM) typically can use either hazardous or non hazardous secondary materials; the resultant fertilizer products are essentially identical (Ibid.). EPA recognizes that regulating one half of the industry while the other half is essentially unregulated has the potential for creating distortions in the zinc fertilizer market. One of the Agency's concerns in this regard is that imposing stringent regulations on recycling of hazardous material feedstocks can create a strong economic incentive for manufacturers to use feedstock materials that carry no RCRA regulatory `` baggage. '' This can be detrimental environmentally, if unregulated fertilizers with higher concentrations of toxic constituents have a market advantage. This partial regulation could also lead to greater reliance on non RCRA regulated feedstock materials from foreign sources. Ultimately, such distortions in the market would likely result in lower volumes of zinc bearing wastes being beneficially recycled. EPA believes that the regulatory amendments proposed today could greatly reduce these deleterious effects on the industry and its customers, and may encourage beneficial recycling by zinc fertilizer producers and their suppliers, while ensuring appropriate environmental protections.

III. Settlement Agreement for the Phase IV Administrative Stay On December 18, 1998, a petition for review of the Phase IV administrative stay (described in Section II. C above) was filed by the Washington Toxics Coalition, the Sierra Club and the Environmental Technology Council. Since the objectives of the petitioners to ensure protection of human health and the environment are generally consistent with EPA's, and in order to avoid protracted litigation on this matter, a settlement agreement was reached on June 20, 2000, in which the Agency committed to address several issues relating to hazardous waste derived fertilizers in this rulemaking effort. In summary, in the settlement agreement the Agency agreed to: · Sign a notice of proposed rulemaking (NPRM) by November 15, 2000; · Propose in the NPRM: ÐTechnology based standards for certain metal contaminants in hazardous waste derived zinc fertilizers; ÐElimination of the current exemption from LDR treatment standards for K061 derived zinc fertilizers; ÐStandards for dioxins in hazardous waste derived zinc fertilizers; and ÐRecord keeping and reporting requirements. · In the NPRM, solicit comments on a regulatory option that would establish a comprehensive reporting and record keeping system for generators, transporters and manufacturers involved with production of any fertilizer made from hazardous waste, based on the RCRA Biennial Reporting system. · In the NPRM, solicit comment on eliminating the current exemption from Subtitle C regulation for fertilizers made from mining wastes; · In the NPRM, discuss the option of retaining the current generator, transportation and storage requirements, if the Agency proposes to modify those requirements; · Sign a Notice of Final Rulemaking that addresses the above provisions no later than May 15, 2002. Today's proposed rule is consistent with the terms of this agreement. Pursuant to Administrative Procedures Act regulations, the Agency has not committed to promulgating any specific regulatory action in the final fertilizer rulemaking. The final rulemaking will reflect the comments and data submitted during the public comment period on this proposal, as well as any new analyses conducted by the Agency. A copy of the settlement agreement is included in the docket for today's proposed rule.

IV. Detailed Description of Today's Proposal A. Removal of Exemption for K061 Derived Fertilizers 1. Background Electric arc furnace dust, known by its RCRA waste code as K061, is a zinc rich waste collected in air emission control baghouses and scrubbers at electric arc steel making plants. K061 was listed by EPA as a hazardous waste in 1980, due to relatively high concentrations of heavy metals such as lead, cadmium and chromium. More recent data indicate that the levels of heavy metal contaminants in K061 have generally declined, as generators have made advances in removing such contaminants from the scrap metal feedstocks used in this type of steelmaking process. However, concentrations of lead in excess of one percent (by weight) are still reported to be relatively common in K061 used by the fertilizer industry (`` Land Application of Hazardous Waste Derived Micronutrient Fertilizers, Bay Zinc Company and Tetra Technologies Inc., November 19, 1999, Appendix A).

VerDate 11< MAY> 2000 13: 27 Nov 27, 2000 Jkt 194001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 28NOP2. SGM pfrm02 PsN: 28NOP2 70958 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules Measurable levels of dioxin contaminants have also been reported in a limited number of K061 samples: Data from the State of Washington's recent study of fertilizer contaminants (`` Screening Survey for Metals and Dioxins in Fertilizer Products and Soils in Washington State, '' April 1999) indicated dioxin levels in one sample of raw K061 at over 800 ppt, and a sample of K061 derived fertilizers at approximately 340 ppt. Other types of zinc fertilizers that were tested showed far lower (in many cases, non detect) levels of dioxins. Manufacturing zinc fertilizer from K061 typically involves treating the material with sulfuric acid to form a granular zinc `` oxy sulfate'' fertilizer product. Thus, the manufacturing process does not involve any processing to remove heavy metal contaminants. K061 fertilizers are only partially soluble in water, since much of the zinc remains in an oxide or ferrite (a zinciron compound) form, which is less water soluble than zinc sulfate. Recent trends in the zinc fertilizer industry indicate a shift away from K061 oxysulfate products, and increased production of zinc sulfate monohydrate (ZSM) products, which typically have much lower levels of heavy metal contaminants (Ibid). Further discussion of zinc fertilizer manufacturing processes, and ZSM fertilizer products in particular, is presented in section IV. B. of today's preamble. It should be noted that K061 can be processed thermally (e. g., in multiple hearth furnaces) to reclaim iron and produce a zinc oxide material that is amenable to further processing to manufacture high purity zinc fertilizer such as ZSM. Although this is not yet a widespread practice, it further illustrates that the purity of zinc fertilizer is largely a function of how feedstock materials are processed, rather than the type of feedstock itself. In 1988, as part of the `` First Third'' land disposal restrictions final rule, EPA exempted fertilizers made from K061 from having to meet the LDR treatment standards applicable to other types of hazardous waste derived fertilizers. EPA's decision to promulgate this exemption was based on an analysis of then available data that indicated heavy metal contaminant levels in K061 derived fertilizer were comparable to (and in some cases were lower than) contaminant levels in zinc fertilizers made from non hazardous waste feedstocks. Thus, it was concluded that eliminating K061 fertilizers from the market (as would have been likely absent the regulatory exemption) would not have had any net environmental benefit. EPA also concluded at that time that, based on available information, agricultural application of K061 fertilizers did not appear to pose significant risks for either ground water or food chain contamination pathways (see 53 FR 31164, August 17, 1988).

2. Today's Proposed Action Today's proposed rule would amend the current regulations at § 266.20, by removing the provision that exempts fertilizers made from K061 from having to meet applicable land disposal restrictions standards. In effect, this proposal would require all zinc fertilizers made from recycled hazardous secondary materials to meet the same set of contaminant standards. This aspect of today's proposal is in accord with the Agency's objective of creating a more consistent regulatory framework for this particular recycling practice. EPA's rationale for eliminating the current regulatory exemption for K061 derived fertilizers also rests on the fact that the composition of zinc fertilizers on the market has changed significantly since the exemption was granted in 1988. Current data on zinc fertilizer composition clearly indicate that levels of certain heavy metal contaminants in K061 fertilizers are considerably higher than those in other types of zinc fertilizers that are now widely marketed. For example, total concentrations of lead in K061 fertilizers commonly exceed one percent (10,000 mg/ kg) by weight, while available data suggest that lead levels in zinc sulfate monohydrate fertilizers (which are also widely marketed) rarely exceed 100 mg/ kg in dry product (see, for example, `` Land Application of Hazardous Waste Derived Micronutrient Fertilizers, '' Bay Zinc Company and Tetra Technologies, Inc., November 19, 1999). Such higher purity zinc fertilizers were not widely available as substitutes for K061 derived fertilizers in 1988. Today's proposal to eliminate the exemption for K061 derived fertilizers has also been made in consideration of the levels of dioxins in K061 fertilizers that were identified in the State of Washington's report `` Screening Survey of Metals and Dioxins in Fertilizer Products and Soils in Washington State, '' (April 1999). As discussed further in Section VII. A. of this preamble and in the Regulatory Impact Analysis (RIA) prepared in support of today's proposal, EPA believes that subjecting K061 zinc fertilizers to the same regulatory controls as other types of hazardous waste derived fertilizers will have the benefit of creating a more consistent regulatory framework for this type of zinc fertilizer manufacturing, and will not create undue hardships for the zinc fertilizer industry. At the present time EPA is aware of only one manufacturer (Frit Industries of Ozark, AL) currently using K061 to produce zinc oxy sulfate fertilizer. Although this company would need to modify its manufacturing practices to comply with this regulatory change, EPA believes that this should not cause undue economic hardship for either the company or for zinc fertilizer consumers. In any case, we do not believe that it is sensible to exempt this type of fertilizer from having to meet contaminant limits, while other zinc fertilizers of greater purity would be required to meet them. In addition, the provisions in today's proposal that would streamline regulatory controls on management of hazardous feedstocks in zinc fertilizer manufacture should benefit the industry by increasing the availability of alternative hazardous feedstock materials (e. g., brass foundry dusts). Some stakeholders have advocated a total ban on the use of K061 to make zinc fertilizer, largely because of concerns about measured concentrations of dioxin contaminants in two samples of these fertilizers, which were analyzed as part of the State of Washington's previously cited screening study. The Agency considered this option, but is not proposing it. EPA believes that K061 can be a suitable feedstock for manufacturing zinc fertilizer, provided that it is processed sufficiently to address metal and dioxin contaminants. In fact, at least one steel manufacturer in the United States is currently thermally processing K061 to recover its iron content and to produce a zinc oxide material that can be further refined to make high quality zinc fertilizer (Illinois Pollution Control Board, AS99± 3, May 5, 1999). The Agency does not believe that there is any environmental reason to discourage recycling of K061 to make fertilizer; in fact, we hope that this rulemaking may serve to encourage beneficial metals recovery from K061 that might otherwise be landfilled. In summary, given the relatively high contaminant levels in K061 fertilizers, and the availability to the industry of alternative hazardous waste (and other) feedstock materials, EPA sees no compelling reason to continue subjecting K061 fertilizers to less stringent regulatory controls than other types of hazardous waste derived zinc fertilizers. The Agency requests comment on this provision of today's proposal.

VerDate 11< MAY> 2000 13: 27 Nov 27, 2000 Jkt 194001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 28NOP2. SGM pfrm02 PsN: 28NOP2 70959 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules 2 EPA is reciting this history as an aid to readers; EPA is not accepting comment on these past determinations; or otherwise reopening these issues. B. Conditional Exclusion for Recycled Zinc Bearing Hazardous Secondary Materials 1. Background a. General. As discussed in Section II. C. of this preamble, the `` use constituting disposal'' (UCD) requirements of § 266.20 currently apply to management of any RCRA hazardous waste that is recycled to make fertilizer. This in effect requires the wastes to be managed according to all applicable hazardous waste regulations, including requirements for generation, transportation and storage of the wastes prior to recycling. The recycling processes themselves are generally not subject to RCRA regulation. EPA's rationale for regulating these materials as hazardous wastes is that the end disposition of the waste closely resembles uncontrolled land disposal, which is the classic type of discard under RCRA. (January 4, 1985, 50 FR at 627± 28; August 17, 1988, 53 FR at 31198). At the time these regulations were promulgated, however, EPA was unsure as to how to regulate the end disposition of the waste derived products, since full Subtitle C regulation would essentially prohibit their use as products (January 4, 1985; 50 FR at 646). The original regulatory scheme consequently applied RCRA Subtitle C regulation only to persons generating, transporting and storing hazardous wastes before they were incorporated into the waste derived products. Id. At 646± 47. As explained earlier, because the use of waste derived products on the land is a type of land disposal, EPA in 1988 amended these regulations to require all such waste derived products (with the exception of K061 derived fertilizers) to meet LDR treatment standards 2 . As mentioned previously, zinc fertilizers can be manufactured from a variety of different feedstock materialsÐ some are `` virgin'' materials such as refined ores, while others are secondary materials generated from emission control devices or other industrial processes. While their origins may differ, the physical and chemical characteristics of these materials are generally quite similarÐ for the most part they are dry, powdery solid materials containing a high percentage of zinc in oxide or chloride form, along with lower levels of non nutritive contaminants such as lead, cadmium and other heavy metals. The zinc content of these materials typically ranges from 50% to 80% by weight. Levels of metal contaminants in these feedstocks vary considerably, even from batch to batch; on average, contaminant levels in non hazardous feedstocks are slightly lower than those in hazardous feedstocks. Levels of lead (for example) in non hazardous galvanizer ash typically range between one and two percent, while levels in hazardous brass foundry dust can be as high as six percent (letter from George M. Obeldobel, March 6, 2000). As a general matter, however, we believe that any potential risks posed by hazardous and non hazardous zinc feedstock materials would be substantially similar, which argues for more consistent regulation of these materials under RCRA. In EPA's view, more consistent regulation of zinc fertilizer feedstocks is also appropriate since the current regulatory structure tends to discourage legitimate and beneficial recycling of those materials that are now classified as hazardous wastes. As mentioned previously, the current UCD regulations that apply to this recycling practice were originally promulgated in 1985. A thorough, prospective examination of the potential impacts of the UCD regulations specifically on the zinc fertilizer industry was beyond the scope of that original rulemaking. Since 1985 the Agency has gained considerable insight as to how the UCD regulations have affected manufacturers of zinc fertilizers and their suppliers. Based on this experience with implementing the UCD requirements, EPA has concluded that the existing UCD regulatory structure unnecessarily constrains legitimate recycling in the zinc fertilizer industry, as discussed in more detail below. Under the current regulations, companies that use hazardous wastes to make fertilizers typically will need a RCRA permit for storage of the material prior to recycling. This can have important implications for zinc fertilizer manufacturers. Obtaining a RCRA permit can be costly and time consuming. In addition, a RCRA permit carries with it other obligations, such as the requirement for facility wide corrective action, which can incur further substantial costs. Most companies (and fertilizer manufacturers are no exception) thus have a strong incentive to avoid the RCRA permit requirement for their facilities whenever possible. One way for a zinc fertilizer manufacturer to avoid the RCRA permit requirement is to simply use nonhazardous feedstock materials. These materials are generally more expensive than hazardous waste feedstocks, which increases the price of zinc fertilizer products. For manufacturers who do accept hazardous feedstock materials, the RCRA permit requirement can also be avoided by selling the end product for purposes other than fertilizer. ZSM, for example, can also be used as an animal feed supplement, which does not trigger the UCD regulatory requirements. This creates the anomalous situation in which a manufacturer of ZSM would be subject to full regulation under RCRA if the product is sold as fertilizer, but is not regulated at all if the identical product is sold as animal feed. EPA does not believe that there is a convincing environmental rationale for perpetuating this somewhat artificial regulatory distinction between zinc products that trigger the UCD requirements and those that do not, particularly when the composition of the products may be identical. The current UCD regulations create similar disincentives for generators of hazardous zinc secondary materials. Such generators typically prefer not to have such materials classified as hazardous waste, since they are then less valuable as a commodity, are subject to stringent hazardous waste management requirements, and in many states are assessed hazardous waste generation fees. These generators therefore tend to avoid selling their material to companies that make fertilizer products. However, fertilizer is by far the largest market for ZSM. Since this market is effectively closed for many generators, and alternative recycling options are limited, generators of zinc bearing secondary materials can often be forced to dispose of the material as hazardous waste, rather than sell it to fertilizer manufacturers. In EPA's view, such distortions in the market for recyclable hazardous secondary materials are both environmentally and economically nonproductive b. Reporting and Recordkeeping. As discussed above, under current regulations hazardous wastes that are used to make fertilizers are subject to the RCRA `` cradle to grave'' requirements for tracking and recordkeeping prior to being recycled. The following is a summary of these requirements: · Generators of such hazardous wastes must: ÐManifest off site shipments of hazardous waste (§ 262.20± 23); ÐSubmit exception reports for any unconfirmed deliveries of waste shipments (§ 262.42);

VerDate 11< MAY> 2000 19: 16 Nov 27, 2000 Jkt 194001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 28NOP2. SGM pfrm01 PsN: 28NOP2 70960 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules ÐMaintain copies of manifests, exception reports, biennial reports and any data used to make hazardous waste determinations, for at least three years (§ 262.40); and ÐSubmit a biennial report describing all hazardous wastes generated and the facilities they were shipped to every other year (§ 262.41). · Manufacturers of hazardous waste derived fertilizers must: ÐMaintain copies of manifests for at least three years [§ 264.71( b)( 5)]; ÐSubmit a report for each shipment of hazardous waste received without a manifest (§ 264.76) and each shipment with significant manifest discrepancies (§ 264.72); and ÐSubmit a biennial report for each odd numbered year describing all hazardous wastes received from any off site generators, and who the generators were. These RCRA requirements were designed to be a `` cradle to grave'' tracking system, to document and ensure that hazardous wastes shipped from a generator's facility actually arrive at their intended destination (e. g., a hazardous waste disposal facility), and do not become `` lost'' or dumped indiscriminately. The biennial reporting requirement is intended to provide information to the public on hazardous waste generation and movement, and to enable EPA to report to Congress with national profiles of these activities. While these requirements apply when the recycled end product is subject to the UCD regulations, such cradle tograve requirements generally do not apply if such wastes are used to make other types of products. Thus, the RCRA tracking system does not apply to many hazardous waste streams that are recycled but are exempt or excluded from regulation because the end products are not used on the land. With regard to monitoring and tracking hazardous wastes that are used to make fertilizers (and other recycled products), the current RCRA regulations have certain limitations. For example, hazardous waste generators who supply fertilizer manufacturers are not required to notify regulatory agencies of the practice, so identifying the sources of hazardous waste feedstock materials involves reviewing individual manifests, which are typically maintained at the fertilizer manufacturer's facility. Tracking such waste movements may be especially difficult in cases where there is a middleman (e. g., a waste broker or processor) involved, who may aggregate or blend wastes from various sources before shipping them to a fertilizer manufacturer. In addition, generators are required to identify only the facility to which their wastes are shipped, but do not need to identify what their wastes may be used for. Many facilities that receive such wastes make a variety of products in addition to fertilizers, which makes it difficult for regulators (and others) to determine whether or not a particular waste shipment was used specifically for fertilizer manufacture. The biennial reporting system has similar limitations for much the same reasons, and in addition only applies to hazardous waste management activities that occur every other year. In summary, the existing regulatory framework provides regulators and others with only limited means of identifying and monitoring generators who supply manufacturers of hazardous waste derived fertilizers, or what they are supplying. Furthermore, the current biennial reporting system is admittedly only marginally useful for identifying at an aggregate national level who is engaged in these practices, what wastes are being used, or what products are being produced. EPA believes that the current recordkeeping, reporting and tracking system (as it applies to recycling of hazardous wastes in zinc fertilizers) can be streamlined and greatly improved with relatively minor modifications. To this end, EPA is today proposing (as discussed below) a new set of reporting and recordkeeping requirements specifically for this industry that should enhance oversight capabilities of regulatory agencies, and provide more complete, more accurate and more accessible information to regulators and others on this particular type of hazardous waste recycling. In addition, as discussed in section VIII. C. of this preamble, we believe that the proposed new requirements would actually result in less overall paperwork burden on industry than the current system. EPA requests comments on whether the new set of reporting and recordkeeping requirements in today's proposal is necessary, and on the potential impacts of such requirements.

2. Proposed Conditional Exclusion EPA is today proposing in § 261.4( a)( 20) a conditional exclusion from the definition of solid waste for hazardous secondary materialsÐ that is, spent materials, sludges and byproductsÐ that are recycled to make zinc fertilizers or zinc fertilizer ingredients. We believe excluding these materials from being classified as wastes is appropriate, for the reasons outlined above. However, we do not believe that a total exclusion (which would allow unrestricted management of these materials) is appropriate, given the Agency's recent experience with at least three cases of environmental damage caused by improper management of such materials by zinc product manufacturers (these cases are discussed further in the economic impact analysis prepared for this proposed rule). As mentioned previously, these materials are typically dry zinc oxide dusts that contain significant levels of non nutritive metals such as lead, cadmium and arsenic, often in soluble form. They are thus susceptible to wind and water dispersion if not managed properly. The damage cases that the Agency has dealt with have primarily involved situations where the secondary material feedstocks and/ or wastes generated from fertilizer manufacturing processes have been stored outdoors, usually in uncovered, unlined piles. These cases have resulted in contamination of soils, sediments and ground water via uncontrolled dispersal, a form of `` throwing away'' inconsistent with the notion that these zinc containing materials were valuable feedstocks (`` Report of RCRA Compliance Inspection at American Microtrace Corporation, '' US EPA Region VII, December 4, 1996). In summary, today's proposal would replace the current Subtitle C regulatory controls on these materials with conditions designed to ensure that the unprocessed materials do not become discarded. EPA is not aware of any damage cases that may have occurred from mismanagement of hazardous waste derived zinc fertilizers themselves. EPA requests information on any other proven damage cases due to mismanagement of secondary material feedstocks and/ or wastes generated from fertilizer manufacturing processes, or proven damage cases involving mismanagement of hazardous waste derived zinc fertilizers. a. Applicability of Conditional Exclusion. The conditional exclusion proposed today would be an exclusion only from the RCRA Subtitle C regulations, and not from the emergency, remediation and information gathering sections of the RCRA statute (sections 3004( u), 3007, 3013, and 7003). This restates the principle already codified for other excluded secondary materialsÐ that the exclusion is only from RCRA regulatory provisions, and not from these statutory authorities. See section 261.1( b).

VerDate 11< MAY> 2000 13: 27 Nov 27, 2000 Jkt 194001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 28NOP2. SGM pfrm02 PsN: 28NOP2 70961 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules EPA is repeating that principle here in the interests of clarity, not to reopen the issue. The legal basis for the distinction of the Agency's authority under these provisions is that they use the broader statutory definition of solid waste (and hazardous waste as well) and so need not (and should not) be read as being limited by the regulatory definition. See, for example, 50 FR 627; January 4, 1985. b. Reporting and Recordkeeping. Today's proposed rule includes conditions for reporting and recordkeeping by generators and manufacturers that are designed to ensure that government oversight over the handlers of excluded materials (e. g., generators and manufacturers) is not compromised. These conditions would replace the current hazardous waste regulatory requirements for reporting and recordkeeping. As discussed below, the proposed conditions are in fact designed to improve the accountability system, and government oversight capabilities, over the handling of secondary materials used to make zinc fertilizers. Today's proposal would replace the existing tracking system with a set of reporting and recordkeeping requirements (i. e., conditions to the exclusion) to specifically identify zinc fertilizer manufacturers who receive excluded hazardous secondary materials and the generators who supply them, to track shipments of these materials, and to provide a much more detailed accounting of the types and volumes of hazardous secondary materials that are actually used to make zinc fertilizer products. The proposal also specifies recordkeeping requirements for finished zinc fertilizer products that are made from excluded materials, as discussed below in section IV. C. 2. The proposed conditions on reporting and recordkeeping are not expected to impose substantial new paperwork burdens on affected companies, since we believe they rely primarily on standard business record keeping practices. At the same time, however, it should be understood that the proposed requirements would be unique, in that no other RCRA regulated recycling practice is subject to such an expanded, industry specific accountability system. EPA solicits comments on whether such an accountability system is warranted, whether it would necessitate substantial changes to current business practices, and on any other potential impacts of such a system. c. Conditions of the Exclusion. i. Speculative Accumulation. Today's proposal would prohibit speculative accumulation (as defined in existing § 261.1( c)( 8)), which generally requires an annual recycling rate of 75% of all hazardous secondary materials accumulated as of the first day of each calendar year. This proposed provision is mainly for emphasis and clarity; a general provision classifying secondary materials accumulated speculatively as solid wastes already appears at § 261.2( c)( 4). See generally 50 FR at 634± 37; January 4, 1985. ii. Conditions Applicable to Generators of Excluded Hazardous Secondary Materials. Overview. As discussed above, under today's proposal generators would no longer be subject to current hazardous waste management regulations, provided that the generator met the specified conditions relating to accumulation, storage, transportation, reporting and recordkeeping of excluded materials. The following is a general, simplified reiteration of how requirements for generators would change under these proposed rules, followed by a more detailed explanation of each of the proposed conditions. Accumulation/ Generation. Currently, generators of hazardous wastes used to make zinc fertilizers may accumulate the wastes on site for no more than 90 days without triggering the need for a RCRA permit. In addition, a number of states levy fees on all such generated wastes, which are typically based on the volumes generated in a given year. Under today's proposal, these requirements would no longer apply to generators (unless a state chose to adopt more stringent requirements). Storage. On site storage (e. g., in tanks or containers) of hazardous waste accumulations is currently allowed if the generator meets the management requirements for such units at interim status facilities. Under today's proposal, these storage requirements would be replaced by a set of more general, performance based conditions intended to ensure that excluded materials are stored safely at generator facilities. Transportation. Off site shipments of hazardous wastes (e. g., from a generator to a fertilizer manufacturer) currently must be manifested according to the requirements of 40 CFR Part 262, Subparts B and C. These requirements include provisions for packaging, labeling, marking, and placarding of waste shipments, as well as procedural requirements such as those for dealing with manifest discrepancies. Under today's proposal hazardous waste manifests and the requirements associated with their use would not apply. The generator would, however, need to document shipments of excluded materials and maintain copies of shipping papers, analogous to the current manifesting requirements. Reporting and Recordkeeping. Under current regulations, generators of hazardous wastes used to make zinc fertilizers must provide notice to the authorized agency of their hazardous waste management activity (§ 262.12), submit biennial report information every other year (§ 262.41), and maintain manifest records for at least three years (§ 262.40). These requirements would no longer apply under today's proposal. Instead, generators would need to: (a) Submit a one time notice of their intent to manage (now excluded) materials according to the proposed conditions; and (b) maintain shipping records (containing information analogous to that in manifests) for at least three years. The following is a more detailed explanation of today's proposed conditions for generators. Storage. Under today's proposal (§ 261.4( a)( 20)( ii)( A)), storage of excluded hazardous secondary materials at a generator's facility would, as a condition of the exclusion, only be allowed in tanks, containers or in buildings. These units would have to be constructed and maintained in a way intended to prevent releases of the material into the environment from occurring. This is in effect a general performance standard for such units, coupled with a few broad design conditions. EPA expects that in most cases generators will choose to store their feedstock materials inside buildings, either in bulk (i. e., in piles) or in `` supersack'' containers. Supersacks are reusable woven resin bags that can contain approximately one ton of dry material, and are typically handled with forklifts, cranes or other heavy machinery. As mentioned previously, the damage cases known to the Agency that involved hazardous zinc feedstock materials have all resulted from outside storage, typically in uncovered, unlined piles. Storage of these materials inside well designed and maintained buildings should adequately prevent against releases of such materials into the environment. Thus, the proposed storage condition is that any such building be engineered to have a floor, walls and a roof made of non earthen materials, such that dispersal or contact by rainwater are prevented. These buildings may, however, have doors or removable sections to enable access by trucks or machinery. Excluded secondary materials could also be stored in tanks that are not located inside buildings. Such tanks are often used for receiving shipments of VerDate 11< MAY> 2000 13: 27 Nov 27, 2000 Jkt 194001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 28NOP2. SGM pfrm02 PsN: 28NOP2 70962 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules bulk material from trucks or rail cars. A tank (as defined in § 260.10) subject to this exclusion would have to be structurally sound, and have a roof or cover that prevents wind or water dispersal. Outside storage of secondary materials in containers at generating facilities would also be allowed, with some restrictions. Such containers would have to have lids or covers to prevent dispersal of the contents, and be constructed of metal or other rigid materials. This last requirement is intended to prevent the use of supersacks or similar types of containers for outside storage. This is because supersacks are to some extent porous, and do not have sealed openings. They are not waterproof or airtight, and can rupture if mishandled. EPA believes that this type of container does not offer secure enough storage under outside conditions, and so is proposing not to allow their use for outdoor storage of excluded materials. EPA believes that the proposed conditions on storage of excluded hazardous secondary materials at generator facilities would be protective of human health and the environment. However, we recognize that the proposed conditions do not address every possible circumstance that could lead to releases of these materials at a generator's facility. The same can be said, of course, for permitted hazardous waste management facilities. An example might be an accident during loading or unloading of material that causes spillage or wind dispersal, and (at least potentially) contamination of soils. In all cases, unless the owner/ operator of the facility responds immediately to clean up the released material, these situations would be considered an act of discard under RCRA. Such materials would then be considered waste (i. e., the conditional exclusion would not longer apply), and the owner/ operator would potentially be subject to enforcement action for illegal disposal of hazardous waste. EPA invites comment on all aspects of today's proposed storage requirements for generators. One time notification. The proposed rule would require generators of excluded hazardous secondary materials to submit a one time notice (§ 261.( 4)( a)( 20)( ii)( B)) to the EPA Regional Administrator (or the state Director in an authorized state) identifying the name, location and EPA ID number of the generating facility, and the type (e. g., brass foundry dust) and estimated annual volume of material that is expected to be excluded under these fertilizer recycling regulations. This condition is intended to enable regulatory agencies to readily identify the generators who supply (or intend to supply) excluded secondary materials to zinc fertilizer producers. If the generator anticipates shipping excluded materials off site, the generator would also have to certify in the notice that he will only ship excluded materials to states that are authorized to administer these regulations (i. e., if that state were not authorized, the material would not be excluded in that state and would have to be managed as hazardous waste in that state). With regard to off site shipments, the DOT requirements for transportation of hazardous materials (which generally involve proper identification of such materials in case of emergency incidents) could potentially apply. The shipments would not be subject to RCRA manifest requirements (since the materials would not be hazardous wastes), although similar shipping papers would be required for tracking purposes, as discussed below. This proposed reporting requirement is generally analogous to the current requirement for generators of excluded secondary materials that are placed on the land (see § 268.7( a)( 7)), which requires the generator to place a similar one time notice in the generator facility's on site files. However, the proposed requirement should have the effect of enhancing regulatory agencies' tracking and oversight capabilities, since the information would be submitted directly to the overseeing agency, rather than being maintained in the facility's files. EPA considered alternatives to this one time notice requirement, such as requiring periodic (e. g., yearly, or once every five years) notices, or a new notice whenever a significant change occurs, such as process changes that could change the product's composition. The one time notice is consistent, however, with similar conditional exclusions (e. g., for comparable fuelsÐ see § 261.38( c)( 1)( i)( A)), and it is not clear that additional notices from generators would be necessary for regulatory oversight purposes. We solicit comment on the need for a one time notice to the regulating agency, as well as the content and frequency of this reporting condition. Recordkeeping. Today's proposal would require generators to maintain records of all shipments of excluded hazardous secondary materials for a minimum of three years. These proposed recordkeeping conditions should enable regulatory agencies to more easily investigate shipments of excluded materials for compliance and enforcement purposes. We believe that these recordkeeping conditions should be generally consistent with normal business recordkeeping practices, and thus would not be expected to impose significant additional paperwork burdens on generators. We invite comment on this issue. As specified in § 261.4( a)( 20)( ii)( C), these records would have to identify for each shipment the name of the transporter, date of the shipment, the quantity shipped and a brief description of the excluded material in the shipment, name and location of the fertilizer manufacturer who received the shipment, a notice to the receiving manufacturer that the shipped materials are subject to the conditions specified in this rule, and documentation confirming receipt of the shipment by the manufacturer. These conditions are analogous to the current requirements for shipping hazardous wastes under manifests and maintenance of manifest records. Copies of manifests are typically kept at the generator's facility, though some states require copies of manifests to be submitted to the state agency. The proposed recordkeeping conditions would require generators of excluded hazardous secondary materials to verify that each off site shipment of excluded material was received as intended at the destination fertilizer manufacturing facility. This is intended to ensure a clear, documented chain of custody between the generator and the fertilizer manufacturer. In addition, under the proposed conditions generators would need to provide for each shipment a notice to the receiving manufacturer that the material is a hazardous secondary material excluded from hazardous waste regulations only as long as certain conditions are met. This is intended to ensure that manufacturers are fully aware of the regulatory status of each shipment of material, the obligations associated with receiving it, and the consequences of failing to meet the exclusion conditions. These conditions may have particular implications for generators who ship their wastes to or through middlemen, such as waste brokers or transfer facilities. The conditions are not intended to prevent this practiceÐ the use of a middleman to facilitate shipments from generator to fertilizer manufacturer would be allowed, provided that the manufacturer receives the same wastes that the generator shipped. If excluded wastes were to be mixed with other materials, all of the mixed materials would need to be managed in accordance with the exclusion conditions (or in accordance VerDate 11< MAY> 2000 13: 27 Nov 27, 2000 Jkt 194001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 28NOP2. SGM pfrm02 PsN: 28NOP2 70963 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules with Subtitle C requirements, if they were mixed with hazardous wastes). Other issues could arise with regard to shipments of material through middlemen. For example, a generator of zinc fume dust might send secondary material to a treatment facility that recovers lead, with the treated material then sent to a manufacturer of zinc micronutrient fertilizer. As explained below, under today's proposal the intermediate processor in this scenario would be considered a manufacturer of fertilizer ingredients, and would need to meet the conditions applicable to manufacturers in order to maintain the excluded status of the secondary material. If the processed secondary material was still hazardous after the intermediate processing (i. e., if it exhibited a hazardous characteristic, or if it would be considered a listed hazardous waste were it not excluded), the processor would be considered both a manufacturer and a generator, and would need to meet both sets of conditions in order to maintain the material's excluded status. If the processor rendered the material nonhazardous however, the conditions for generators would not apply to the processor, since there would be no need to further exclude the material. Although we believe that a clear chain of custody between generator and fertilizer manufacturer is important to maintaining the integrity and effectiveness of today's conditional exclusion, we recognize that the conditions described above could have consequences for generators and other entities that we have not yet fully evaluated. For example, it is possible that some intermediate handlers could blend excluded hazardous secondary materials with other bulk materials before they are shipped to a fertilizer manufacturer. In such a case the blended material would all be subject to the conditions in today's proposal in order to maintain the excluded status of the material. This could create problems for the intermediate handler (and perhaps the manufacturer) in accurately tracking the shipments of excluded materials and maintaining the excluded status of all such blended materials. We therefore invite comment on this aspect of today's proposal having to do with intermediate processors, as well as on the other proposed conditions (described above) that generators would have to comply with to maintain the excluded status of their secondary materials. iii. Conditions Applicable to Manufacturers of Zinc Fertilizers and Zinc Fertilizer Ingredients Made From Excluded Hazardous Secondary Materials. Today's proposal specifies certain conditions that manufacturers of zinc fertilizers and zinc fertilizer ingredients would need to meet in order for hazardous secondary materials that they handle at their facilities to be excluded from regulation as hazardous wastes. The following is a general, simplified discussion of how requirements for fertilizer manufacturers would change under these proposed rules, followed by a more detailed explanation of each proposed condition. Permits. Currently, zinc fertilizer manufacturers typically need RCRA permits for storage of hazardous wastes prior to recycling. Under today's proposal, a manufacturer would not be subject to RCRA permitting requirements, provided that the manufacturer met the proposed conditions. Storage. Manufacturers who are subject to RCRA permit requirements under the current regulations need to comply with specific requirements for storage (e. g., in tanks or containers) at permitted facilities. Under today's proposal, these storage requirements would not apply; storage of excluded hazardous secondary materials prior to recycling would instead need to be conducted according to the more general, performance based conditions proposed today. Transportation. Manufacturers must now comply with manifest requirements for shipments of hazardous wastes from off site, including procedural requirements and those pertaining to retention of manifest records. Under today's proposal, these transportation requirements would be replaced with less prescriptive conditions for documenting and maintaining records of shipments of excluded materials. Reporting and Recordkeeping. Under current regulations, manufacturers of hazardous waste derived fertilizers must: (a) Submit a notice of waste management activity and obtain an ID number (§ 262.11); (b) submit a one time notice and certification relating to compliance with land disposal restrictions (LDRs) standards (§ 268.7); (c) notify the authorized agency of each shipment of product made from recycled hazardous waste (§ 268.7( b)( 6)); and (d) submit biennial report information (§ 264.75). Under today's proposal the manufacturer would instead need to: (a) submit a one time notice to the authorized agency; (b) maintain shipping records; and (c) Submit an annual report of recycling activity to the authorized agency. Applicability of conditional exclusion. The proposed conditions would apply to both manufacturers of finished zinc fertilizer products, as well as manufacturers of chemicals or materials that are in turn used as ingredients in zinc fertilizers. The distinction between fertilizer manufacturers and those who manufacture fertilizer ingredients may in this context be important for some companies. In some cases, zinc refiners or zinc metal producers that are not in the business of making fertilizers may manufacture chemicals (e. g., ZSM) that are then sold to fertilizer manufacturers as ingredients. Such producers are currently subject to the UCD regulations in the same way as zinc fertilizer manufacturers, since they make a product from hazardous waste that ultimately is used on the land. Similarly, some facilities may process or reclaim hazardous secondary materials (e. g., K061) to make them amenable for recycling into zinc fertilizers; these would also be considered manufacturing facilities for the purpose of this conditional exclusion. Note that if the same processed or reclaimed materials are used for other purposes than to make zinc fertilizer, the conditional exclusion would not apply (and would probably not be needed unless the materials are used for some other purpose subject to UCD regulatory requirements). In the situations described above involving manufacturers of zinc fertilizer ingredients, it is possible that in some cases the manufacturer of the ingredient may sell the product to another company, unaware that it will be used to make fertilizer. We believe that such cases will be rare, given the relatively small size of the industry and the limited number of uses for such zinc products. We invite comment, however, as to how common this scenario might be and what impacts today's proposed regulations might have on business transactions such as these. For the reasons outlined above, EPA believes today's proposal should extend to manufacturers of zinc fertilizer ingredients, as well as to manufacturers of finished fertilizer products. We invite comment on this aspect of the proposed rule, including the need for such a provision, as well as information on which companies or facilities might be affected by such a provision, and any implementation issues that might occur as a result. Storage. Under today's proposal, manufacturers of zinc fertilizers or ingredients would need to meet the same storage requirements for excluded hazardous secondary materials that VerDate 11< MAY> 2000 13: 27 Nov 27, 2000 Jkt 194001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 28NOP2. SGM pfrm02 PsN: 28NOP2 70964 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules 3 This objective is tempered by the specific goals that such properly conducted recycling is expected to achieve: increased waste minimization and decreased land disposal. It could be argued that because these fertilizers are placed on the land (land disposal under section 3004( k)), the policy of encouraging this type of recycling carries less weight. Nonetheless, EPA believes the conditional exclusion approach available to both secondary material generators and fertilizer manufacturers will encourage safe and legitimate use of these zinccontaining secondary materials, and that this result is therefore in keeping with RCRA's recycling goals. would apply to the generators of such materials (described above), as a condition of the exclusion. Again, the general intent of these storage conditions is to ensure that the materials are managed securely at fertilizer manufacturing facilities, and that releases of the materials into the environment are avoided. EPA solicits comments on the need for and approach to these proposed storage conditions, and specifically whether additional conditions (e. g., controls on fugitive dust emissions from production buildings) may be necessary to ensure adequate protections. One time notification. As a condition of the exclusion, manufacturers would also need to submit a one time notice to the authorized agency that identifies the name and location of the manufacturing facility, and estimated annual quantities and types (e. g., generating industrial processes) of excluded materials that are expected to be used in zinc fertilizer production. The intent of this one time notice is to provide regulators with general knowledge of which manufacturers intend to make use of the conditional exemption, as well as background information on the nature and scale of their intended recycling operations. This notice would in effect replace and streamline the current notification requirements for hazardous waste recyclers who make products used in a manner constituting disposal, as specified in § 268.7( b)( 6). Under those requirements manufacturers of hazardous waste derived fertilizers must submit to the overseeing agency an LDR certification statement (see § 268.7( b)( 4)), and certain other information relating to compliance with LDR treatment standards, for each shipment of fertilizer products. While we believe that it is reasonable and desirable for regulatory agencies to be informed as to which companies are making zinc fertilizer from excluded secondary materials and what materials they intend to use, we do not believe that it is necessary to require reporting on every shipment of fertilizer products, especially in light of the proposed annual reporting requirement for manufacturers (see following discussion). EPA considered alternatives to this proposed one time notice requirement, similar to the alternatives described above for the proposed one time notice requirement for generators. We solicit comment on the need for a one time notice to the regulating agency, as well as the content and frequency of this reporting requirement. Recordkeeping. Under today's proposal manufacturers would need to retain for a minimum of three years records of all shipments of excluded hazardous secondary materials that were received by the zinc fertilizer manufacturer during that period (§ 261.4( a)( 20)( iii)( C)). These records would need to include information identifying the names and addresses of the generators and transporters of excluded wastes received by the manufacturer, the date each shipment was received, and information on the types and quantities of excluded materials in each received shipment. This recordkeeping condition is also intended to enhance the capability of regulatory agencies to (when necessary) account for shipments of excluded secondary materials. We believe that the condition is consistent with standard business practices, and thus should not be burdensome to fertilizer manufacturers. We request comment as to whether such a recordkeeping provision is needed, on the impacts of such a requirement, and on the alternatives that might be available. Annual report. Under proposed § 261.4( a)( 20)( iii)( D), each zinc fertilizer manufacturer who uses excluded hazardous secondary materials would need to submit to the appropriate regulatory agency an annual report that identifies the types, quantities and origins of all such excluded materials that were received by the manufacturer in the preceding year. This would also be a new type of report, intended to ensure an adequate tracking and accountability system for these excluded materials. EPA requests comment on this proposed condition, particularly with regard to whether such a requirement is necessary, and/ or whether additional information (e. g., material composition data) should be required. d. Alternatives Considered. EPA considered several regulatory approaches as alternatives to the conditional exclusion approach outlined in today's proposed rule. For each of the alternatives, EPA is interested in the views of potentially regulated entities and the public regarding the costs, benefits and other impacts of such alternatives. The following is a description of the alternatives considered: · Maintain current regulatory structure. EPA considered retaining the current UCD regulatory approach for zinc fertilizer recycling, as an alternative to today's proposed conditional exclusion. As explained previously, under the current regulations hazardous secondary materials that are recycled to make zinc fertilizer are considered hazardous wastes, and thus must be managed in accordance with all applicable RCRA Subtitle C regulations. Note that under this regulatory option the LDR standards for product contaminants could be retained, or other product contaminant limits (such as those proposed today) could be applied, in which case the limits would be regulatory standards, rather than conditions for exclusion. The main advantage of retaining Subtitle C controls over these materials prior to recycling into zinc fertilizer is presumably the greater certainty that they will be managed properly. The RCRA permit requirement for off site storage (i. e., at the manufacturing facility) additionally imposes facilitywide corrective action obligations on the owner/ operators of such facilities. EPA believes that the disadvantages of retaining the current UCD regulatory structure for zinc fertilizer recycling outweigh the potential advantages. The Agency is persuaded that the current UCD regulations have created unnecessary impediments to safe and legitimate recycling, as discussed previously in this preamble. We also believe that the conditional exclusion proposed today would be protective and would result in greater volumes of hazardous secondary materials legitimately and beneficially recycled into valuable products. It must be remembered that encouraging `` properly conducted recycling and reuse'' is a statutory objective. RCRA section 1003( a)( 5). 3 Further, today's proposal is expected to enhance government oversight capabilities over these practices through more complete reporting and recordkeeping by generators and fertilizer manufacturers. EPA requests comment on the alternative of retaining the current UCD regulatory structure for hazardous wastes that are used to make zinc fertilizers. · Maintain current UCD requirements, with additional reporting, recordkeeping and testing requirements for all hazardous waste derived fertilizers. Under this option the current UCD regulatory framework would be retained (i. e., management of hazardous waste fertilizer feedstocks prior to VerDate 11< MAY> 2000 13: 27 Nov 27, 2000 Jkt 194001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 28NOP2. SGM pfrm02 PsN: 28NOP2 70965 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules recycling would be subject to RCRA regulation), the K061 exemption would be removed, and today's proposed fertilizer contaminant limits would apply. More importantly, under this regulatory alternative, expanded biennial reporting requirements (see § 262.41) would be required for all manufacturers of hazardous waste derived fertilizers (not just zinc fertilizer manufacturers), and the hazardous waste generators that supply them. The main objective of such expanded requirements would be to collect much more detailed information on zinc fertilizer recycling practices, and provide greater public access (as well as access by regulatory agencies) to that information. The following is an outline of the expanded biennial reporting requirements that would be required: 1. Applicability. Generators of hazardous wastes being sent to fertilizer manufacturers, waste brokers and receivers [i. e., hazardous waste treatment, storage or disposal (TSD) facility owner/ operators] who use hazardous wastes to make fertilizers would be subject to the enhanced reporting, recordkeeping and testing requirements. 2. General reporting requirements. Generators and facility owner/ operators who are currently required to submit biennial reports (see § 262.41) would be required to submit additional information in those reports, in electronic format (consistent with electronic reporting procedures that are currently being developed by EPA). Such information would include (asterisk indicates items already required): ÐEPA ID Number * ÐCompany Name * ÐStreet Address * ÐMailing Address ÐCity, State, Zip * ÐCounty ÐTax ID ÐContact Name and Title and Telephone #, ext.* ÐDunn and Bradstreet Number ÐIndustry SIC Codes * (one code for the overall production of the site and one code for the specific industrial process that generated the waste) ÐParent Company Name ÐParent Company Dunn and Bradstreet Number ÐLatitude and Longitude ÐRegulatory Status (under what laws reports are made) 3. Additional requirements for generators (only): ÐType of waste (waste code) and amount of total hazardous waste generated and shipped for use in fertilizer manufacture. If the waste is made into fertilizer on site by the same company, this information would be reported under the `` receiver'' section. If the facility does not know how much might be used for fertilizer (e. g., if they send it to a waste broker) they would have to report the total amount shipped that could be made into fertilizer. ÐEPA ID # of facility waste is shipped to ÐChemical specific information (CAS code): ÐChemical composition data for shipped wastes, including data on concentrations as well as the total weight of each contaminant in each shipment of waste (see testing requirements) 4. Additional requirements for receivers (only): ÐType (waste code) and amount of hazardous waste received from any source (i. e., including waste brokers) for use as fertilizer, and amount that was actually used to manufacture fertilizer. ÐEPA ID # of waste generator facility ÐTotal amount of fertilizer produced from hazardous waste ÐChemical specific information (CAS code): ÐChemical composition data for hazardous waste received, and for finished fertilizer products made from hazardous wastes (see testing requirements) ÐFertilizer specific information: Brand name, guaranteed analysis, type of fertilizer, batch number and date received. 5. Testing requirements. Chemical analyses would have to be performed by the generator and the facility owner/ operator on the types and amounts of chemicals in hazardous wastes before they are made into fertilizers, as well as the finished fertilizer products. Chemicals to be tested for would include: arsenic, beryllium, cadmium, cobalt, chromium 6, lead, manganese, molybdenum, zinc, boron, antimony, barium, nickel, copper, aluminum, iron, selenium, sodium, silver, magnesium, strontium, thallium, titanium, vanadium, cyanide, chloride, benzene, toluene, xylene, styrene, ethylene glycol, phenol, aldehydes (formaldehyde), vinyl chloride, chlorinated hydrocarbons (including trichloroethylene, perchlorethylene, 1,1,1 trichloroethane, methylene chloride, and chloroform), phthalates, dioxins and furans, PACs, PCBs, hexachlorobenzene, radioactivity, fluoride, and ketones. 6. Data management. The data would be accessible to the public in hard copy form and maintained in a searchable database accessible through the EPA Web Site. This database would also need to be accessible and available in electronic form (i. e., on diskette or CD). 7. Labeling. Labels (i. e., on consumer product packaging) or product disclosure documents (i. e., for farmers) would identify that the fertilizer is made from hazardous waste. The labels and documents would also identify the chemical composition of the fertilizer, including concentrations of plant nutrient chemicals and regulated contaminants. EPA requests comment on this regulatory alternative. Specifically, EPA is interested in the views of affected entities and the public on the need for, potential impacts of, and incremental benefits of each requirement in this alternative compared with the other options discussed in the preamble. · Exclusion without conditions. EPA also considered the option of simply excluding from the definition of solid waste hazardous secondary materials that are recycled to make zinc fertilizer. Recycling such materials to make zinc fertilizer would then be regulated the same as recycling them to make other types of zinc products, such as animal feed or zinc metal for galvanizing. This option would not include regulatory contaminant limits for fertilizers, since other recycled zinc products do not have such limits. One rationale for this regulatory option would be that hazardous wastes used to make zinc fertilizers do not need to be regulated under RCRA Subtitle C, since they have commodity value and are essentially the same as alternative, non hazardous feedstock materials. It could be further argued that restrictions on managing hazardous feedstock materials are unnecessary, since the original concern behind the UCD regulations had more to do with uncontrolled use of contaminated products on the land than management of feedstock materials prior to recycling. EPA does not prefer this regulatory option, for several reasons. Damage cases involving mismanagement of hazardous zinc fertilizer feedstocks are evidence of the need for some system of controls over these materials. In addition, eliminating all reporting, recordkeeping or storage requirements would compromise the ability of regulatory agencies (and others) to monitor these recycling practices. EPA does not believe that eliminating virtually all controls and accountability over hazardous waste fertilizer feedstocks would serve the public's (and regulators') interest in ensuring proper management of these materials. These VerDate 11< MAY> 2000 13: 27 Nov 27, 2000 Jkt 194001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 28NOP2. SGM pfrm02 PsN: 28NOP2 70966 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules 4 EPA notes that, in a recent Federal Register preamble, the Agency may have implied that RCRA section 3008( h) authority ceases whenever a facility's application for a permit has been denied. See, 63 FR 56712 & 56716 (October 22, 1998). The Agency, however, did not intend by that notice to opine on the scope of the Agency's authority under section 3008( h). The statements reflect the Agency's general practice of ensuring that any necessary corrective action has been completed prior to denying a permit application. Where cleanup has been completed prior to permit denial, further action under section 3008( h) is obviously unnecessary. factors argue convincingly, in our opinion, for maintaining enforceable conditions over hazardous secondary materials prior to recycling into fertilizers. Nevertheless, we request comments on this alternative, including information on tradeoffs between the level of regulation and the potential for risks. e. Implementation and Enforcement. Implementation. If finalized, today's proposed conditional exclusion for hazardous secondary materials could have important implications for facilities that are currently in this business and are subject to the UCD hazardous waste regulatory requirements. As a general matter, once the regulatory changes become effective and facilities begin complying with the exclusion conditions, the affected activities of those facilities (some facilities might be managing hazardous wastes that are not affected by this rule) would no longer be subject to hazardous waste management regulations. Under this proposal, a RCRApermitted facility that is now managing hazardous waste, but which under the new rules would be managing only excluded hazardous secondary materials, would not be required to maintain the operating portion of its permit, since it would no longer be engaged in hazardous waste management. In these cases the permit should be modified to reflect the changes in the facility's hazardous waste management operations. The type of modification necessary will depend upon facility specific circumstances, as described below. For permitted facilities that manage excluded secondary materials in addition to regulated hazardous wastes, changes to the facility's permit would be relatively minor. These facilities would still need operating permitsÐ only those units used solely to manage excluded materials would be relieved of permitting requirements. In this case, the facility owner/ operator might seek a permit modification to remove the formerly subject unit( s) from the permit. As mentioned above, a permitted facility that would no longer be considered a hazardous waste management facility (e. g., a facility that now managed only excluded hazardous secondary materials) would no longer need a hazardous waste operating permit. However, where such a facility has not yet completed facility wide corrective action (see 40 CFR 264.101), the obligation to conduct such cleanup continues. Therefore, one approach would be to modify the permit to remove the requirements applicable to hazardous waste storage, but not to eliminate the corrective action portion of the facility's permit. In such a case, the facility would thereafter have a corrective action only permit that would expire only when facility wide corrective action is determined to be complete. A similar situation could occur in the case of permits that have long term `` post closure'' requirements for monitoring or remediating groundwater contamination from RCRA regulated units such as landfills. In cases like these the authorized agency would also have the option of eliminating only the provisions of the permit relating to the affected storage units holding excluded materials at the facility, while leaving in effect the permit conditions for postclosure care. EPA recognizes that there may be practical issues associated with transitioning a RCRA permitted facility to a facility that no longer would be subject to hazardous waste regulations under the provisions of today's conditional exclusion. One issue in particular could be that the terms of the facility's permit (a legally enforceable document) would technically remain in effect until the authorized agency took action to modify or terminate the permit. Such permit conditions could include unit specific requirements (e. g., design, operating and closure requirements for storage tanks), as well as general facility requirements such as financial assurance, security and personnel training. This could potentially put the owner/ operator (and the authorized agency) in the awkward situation of being subject to two sets of overlapping and inconsistent regulatory requirements, that is, the hazardous waste permit requirements and the conditions of today's proposed rule. Current RCRA regulations do not provide an explicit mechanism for automatically eliminating permit conditions in these situations. We expect that such situations would be temporary and relatively rare, and an authorized agency should be able to deal with them in a common sense manner, without legal difficulties. It is possible, however, that some problems could arise under some circumstances. EPA is therefore considering (and solicits comment on) whether a more explicit regulatory provision is necessary to address these potential transition issues. One approach to more explicitly deal with this issue might involve amending the current permit requirements in 40 CFR Part 270 to specify that permit conditions pertaining to any active hazardous waste management activity at a facility in this type of situation would automatically be eliminated, without the need for any action on the part of the authorized agency. Such a regulatory amendment would not relieve owner/ operators of permit obligations that do not pertain to active hazardous waste management in the unit in question, such as corrective action requirements. Alternatively, permit termination could be accomplished through the Class I permit modification process (§ 270.42( a)). A facility that is operating under RCRA interim status would be affected by promulgation of today's proposed rule in much the same way as permitted facilities, and the issue of corrective action would be addressed in a similar manner. In this case, Part 265 interim status standards that apply to the affected unit and the general facility standards would be moot and no longer in effect. Under RCRA regulations, however, cessation of hazardous waste operations alone does not eliminate a facility's interim status. See 40 CFR 270.73. A facility that wishes to no longer be in `` interim status'' could seek a denial of its pending permit application. Since the Agency believes it appropriate to ensure that corrective action is addressed prior to denying a permit under these circumstances, we would expect to grant the denial only when we concluded that corrective action obligations have been satisfied 4 . In addition to the above described issues relating to permits and corrective action, today's proposed rule may also have implications with regard to closure of hazardous waste storage units at affected facilities. If today's rule were finalized, wastes currently managed as hazardous wastes would no longer be so classified as long as the facility complies with the proposed exclusion conditions. Such a conditional exemption could be read as triggering the existing closure requirements, since owners/ operators of non land based hazardous waste units (e. g., tanks, containers, containment buildings) must begin closure within 90 days of receiving the unit's final volume of hazardous wastes. 40 CFR 264.113( a) and 265.113( a).

VerDate 11< MAY> 2000 13: 27 Nov 27, 2000 Jkt 194001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 28NOP2. SGM pfrm02 PsN: 28NOP2 70967 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules EPA is concerned that requiring closure of units in these situations would serve little environmental purpose since, after closure, the unit would be immediately reopened and be used to store the same (now excluded) material. It should also be noted that, under today's proposal, units storing excluded materials would be considered essentially the same as similar units used to store products. Thus, we do not believe that requiring these particular units to close through RCRA Subtitle C procedures is necessary to protect human health and the environment. For these reasons, EPA is considering an explicit regulatory exemption from RCRA closure requirements for units that store hazardous wastes that subsequently become conditionally excluded under this rule. EPA's closure regulations fit into the broader RCRA hazardous waste `` cradle to grave'' management system by minimizing or eliminating potential threats to human health and the environment and the need for future corrective action at the site after active hazardous waste management activities cease. See 52 FR 8712, 8713. The Agency is today proposing that hazardous secondary materials do not warrant classification as hazardous waste when managed in compliance with the specified conditions of today's rule, and that storage units containing excluded materials do not warrant regulation under the closure standards when they cease storing hazardous wastes. We therefore request comment as to whether a more explicit regulatory exemption from RCRA closure requirements may be appropriate for units that once stored hazardous wastes but now store only conditionally excluded materials. Another option would be to treat such units comparably to those at generator facilities that cease managing hazardous wastes. When this occurs such storage units are subject to unit specific removal and decontamination standards (40 CFR 262.34( a)). Under this option, a hazardous waste storage unit that subsequently is used to store only excluded material would have to meet the removal and decontamination standards at the point when the unit no longer is used to manage excluded materials. EPA does not favor this approach, however, since we do not believe it necessary or appropriate for such RCRA regulatory requirements to remain in effect (for what could be a long period of time) after such a unit ceases managing hazardous wastes. In addition, any concerns about hazardous waste spills and contamination from these units would be dealt with through corrective action requirements. Therefore, EPA is not proposing this approach. Finally, EPA is also considering revising the `` delay of closure'' rules, set forth at 40 CFR 265.133( d) and (e), to allow units storing only conditionally exempt wastes to postpone closure until the unit is taken out of service. Such an approach would involve certain procedural steps built into the delay ofclosure rule, but it would avoid triggering closure for units that are managing now conditionally exempt waste, while at the same time requiring that such units eventually undergo formal RCRA closure under Subtitle C. EPA questions the need for this approach, however, especially since the delay of closure regulations are based on the assumption that hazardous waste remains in the closing unit, which is not the case here. EPA requests comment on all of the implementation issues described above. Enforcement. With regard to generators and fertilizer manufacturers who would be interested in making use of the conditional exclusion provisions of today's proposed rule, it should be understood that failure to meet one or more of the conditions specified in the rule could have serious consequences. Each condition must be met in order to maintain the excluded status of the hazardous secondary materials used to make zinc fertilizers. Thus, failure to meet any of the conditions would have the effect of removing the exclusion, and the secondary materials would be considered hazardous wastes subject to regulation under RCRA Subtitle C. If, for example, a fertilizer manufacturer failed to store hazardous secondary materials according to the conditions in the rule, the manufacturer could be required to obtain a RCRA permit, and begin managing the waste materials according to applicable hazardous waste regulations. As a general matter, if a facility's conditional exclusion were to be revoked under circumstances like these such an action would typically not affect the excluded status of the material before it was received at the manufacturer's facility. In other words, in the above example the generator of the material would typically be allowed to retain the excluded status of the material at the generating facility, provided that the generator continued to meet the applicable conditions. An owner/ operator of a generating or manufacturing facility who chooses to use the exclusion would need to be able to demonstrate to the appropriate regulatory agency that the conditions are being met. Thus, for the purpose of clarity, proposed § 261.4( a)( 21)( iv) specifies that in an enforcement action the facility owner/ operators claiming the exclusion would bear the burden of proof with regard to demonstrating conformance with the conditions specified in the rule. It should be noted that for fertilizer manufacturers the proposed exclusions in today's rule would apply only to the secondary materials being recycled and to the finished fertilizer products. Manufacturers (or intermediate processors) would not be relieved of the existing obligation to make a hazardous waste determination for all wastes generated from the fertilizer manufacturing process. Under current regulations, any such wastes that exhibit a hazardous waste characteristic would have to be managed in accordance with all applicable hazardous waste regulations. EPA requests comment on these enforcement issues.

C. Conditional Exclusion for Zinc Fertilizers Made From Hazardous Wastes or Excluded Hazardous Secondary Materials As mentioned previously, under current regulations manufacturers of zinc fertilizers made from recycled hazardous wastes must comply with the following requirements for the manufactured fertilizer products: (a) The fertilizer must meet the applicable LDR treatment standards before they may be used (§ 268.40), and (b) notice of each shipment of product must be submitted to the authorized agency (§ 268.7( b)( 6)). Under today's proposal manufacturers would need to: (a) meet the proposed technology based contaminant limits, and (b) maintain analytical data and analyses demonstrating compliance with the limits. The following is a more detailed discussion of today's proposed conditions.

1. Contaminant Limits As discussed previously in this preamble, the current regulations require fertilizers made from recycled hazardous wastes to meet the LDR treatment standards applicable to the hazardous wastes which they contain. This applies to hazardous waste derived products made from characteristic hazardous waste, even if the product no longer exhibits a hazardous waste characteristic. Chemical Waste Management v. EPA, 976 F. 2d2, 12± 14. The LDR standards also apply to fertilizers made from listed hazardous wastes, with the exception of those made from K061, as discussed elsewhere in this preamble. Under today's proposal, these LDR treatment VerDate 11< MAY> 2000 18: 03 Nov 27, 2000 Jkt 194001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 28NOP2. SGM pfrm01 PsN: 28NOP2 70968 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules standards would be replaced with a new set of product specification contaminant limits for metals and dioxins. These contaminant limits would apply to zinc fertilizer products in their `` pure'' or manufactured form; in other words, before they are blended with other types of fertilizers prior to application. Thus, compliance with the standards could not be achieved simply by diluting a conditionally excluded zinc fertilizer with other products, such as primary nutrient (nitrogen, phosphorous or potassium) fertilizers. It should also be noted that the proposed product specification limits would apply to manufacturers of zinc fertilizer products, but would not apply to manufacturers of fertilizer ingredients. The reason for this is that ingredient manufacturers who use excluded hazardous secondary materials would likely not be able to control the content of the end product that is sold as fertilizer. We believe that meeting the proposed product specifications should be the responsibility of the product manufacturer; requiring manufacturers of fertilizer ingredients to meet the specification limits would likely be duplicative and unnecessary. We understand, however, that in some cases fertilizer `` manufacturers'' may buy ZSM (or other zinc compounds) in bulk from zinc chemical suppliers, and simply package it and market it as fertilizer. In these situations it might make sense to require the company that actually manufactured the product to demonstrate compliance with the proposed exclusion conditions. We invite comment on this issue. a. Product Specifications for NonNutritive Metals in Conditionally Excluded Zinc Fertilizers. Today's proposal would establish product specifications (i. e., contaminant concentration limits) for non nutritive metals as a condition for excluding from the RCRA definition of solid waste zinc fertilizers that are made from excluded hazardous secondary materials. The proposed specifications are based on contaminant levels that have been demonstrated to be technically (and economically) achievable, that will reduce the volumes of heavy metals applied to agricultural lands from these products, and that are protective of human health and the environment. The approach used to develop these proposed contaminant limits is described in detail below. The proposed standards for metal constituents in conditionally excluded zinc fertilizers are: Metal constituent Maximum allowable total concentration in fertilizer, per unit (1%) of zinc (ppm) 5 Lead .......................................... 2.8 Cadmium .................................. 1.4 Arsenic ...................................... 0.6 Mercury ..................................... 0.3 Nickel ........................................ 1.4 Chromium ................................. 0.6 5 A zinc unit in this context represents one percent (by weight) of zinc in the fertilizer product that is applied to the land. Thus, for example, an excluded fertilizer containing 10% zinc could contain no more than 28 ppm of lead.

These contaminant limits are expressed as total concentrations of the metal in the zinc fertilizer product. This is in contrast to the current LDR standards, which are expressed as levels in a leachate extract, using the `` toxicity characteristic leaching procedure (TCLP). '' See 63 FR at 28609 (May 26, 1998) (noting that total concentration limits are often the more appropriate measure for minimizing threats posed by uses constituting disposal, in light of exposure pathways other than leaching to groundwater); Association of Battery Recyclers v. EPA, 208 F. 3d, 1047, D. C. Circuit 2000 (noting special risks posed by use constituting disposal situations). We believe that establishing these limits as total concentrations, rather than as concentrations in leachate, is more appropriate for the purpose of today's rulemaking. For wastes containing hazardous metal constituents, compliance with LDR standards typically requires adding some type of stabilizing material to the waste (such as concrete), thereby reducing the leachability of the metal contaminants once the waste is disposed in a landfill. Stabilization is obviously an impractical way to limit contaminants in zinc fertilizers, since the zinc content of the fertilizer would also be stabilized, and thus would be useless as fertilizer. In addition, the TCLP was intended to simulate the fate and transport of hazardous constituents in a municipal landfill, a scenario quite unlike fertilizer application to agricultural land. For these reasons, the Agency believes that standards for total concentrations of contaminants in fertilizers are more appropriate for this rule than standards based on a leachate test. Comments are solicited on this aspect of today's proposal. The product specifications in today's proposal specify maximum allowable concentrations in conditionally excluded zinc fertilizer for six metals: lead, cadmium, arsenic, mercury, nickel, and chromium. Although the Agency considered setting standards for other metals (e. g., selenium, beryllium and vanadium), we did not have sufficient data on levels of such metals in ZSM fertilizers to establish numerical standards for them, nor are we aware of evidence of such metals in any appreciable amounts in zinc fertilizers. The Agency solicits additional data on metals concentrations in ZSM fertilizers, including metals for which we are not proposing standards, and on the associated risks that such metals pose in fertilizers under typical application scenarios. At this time, we believe that establishing standards for the six metals listed above should be sufficient for the purpose of this rulemaking. Several recent studies report that the primary metals of concern for fertilizers are lead, cadmium and arsenic. In fact, a recent screening study done by the State of California concluded that only those three metals are found in fertilizer products at levels that merit regulation under California law. (`` Development of Risk Based Concentrations for Arsenic, Cadmium and Lead in Inorganic Commercial Fertilizers''; California Department of Food and Agriculture, March 1998). Today's proposal addresses the three additional metals generally because they were specifically highlighted in the settlement agreement discussed earlier in this preamble. In any case, because of the chemical purification processes that are used to manufacture ZSM, it is highly likely that fertilizers which meet the specifications for lead, cadmium and arsenic would also meet the specifications for these additional metals, without the need for additional processing. Since the current RCRA standards for metal contaminants in fertilizers are expressed as concentrations in leachate (measured according to the TCLP), and today's proposed constituent limits are expressed as total concentrations in the fertilizer product, comparing the two sets of limits with regard to their `` stringency'' is not entirely straightforward. The main reason for this is that, using the TCLP, not all of the metals in a given test sample are actually extracted or leached, especially those that are relatively non soluble. Perhaps the simplest way to compare the numbers, however, is to assume that 100% of the metals in a TCLP sample become dissolved in the tested leachate. Since the acidic test medium used in the TCLP dilutes the concentration of the metals by a factor of twenty, the maximum total concentration of metals VerDate 11< MAY> 2000 13: 27 Nov 27, 2000 Jkt 194001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 28NOP2. SGM pfrm02 PsN: 28NOP2 70969 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules 6 Other zinc fertilizers have lower zinc contents and would, therefore, have proportionally lower exclusion levels. 7 Note that the exclusion levels listed in the table would be lower for a fertilizer that contained less than 35.5% zinc. For example, the limit for lead in a 20% zinc fertilizer would be 56 ppm (i. e., 2.8 ´ 20). in a given sample can be assumed to be twenty times the TCLP leachate concentration. Thus, under the assumption that 100% of the metals are leached, the maximum contaminant level for a toxic metal in fertilizer would be twenty times the toxicity characteristic limit. For lead, for example, this would be 100 ppm (5 ppm ´ 20) total concentration. In reality, of course, the concentration of lead in an actual tested fertilizer sample would likely be considerably higher than 100 ppm, since it is likely that not all of the lead in the sample would leach. The following is a comparison of today's proposed conditional limits for metals in 35.5% zinc fertilizer (the typical zinc content of most dry ZSM fertilizers 6 ), and the highest levels that would be allowed under the current regulations using this very conservative approach to comparing leachate levels to total concentration levels 7 .

Metal Proposed exclusion levels (35.5% zinc), mg/ kg dry wt. 20 ´ TCLP limit, mg/ kg dry weight Arsenic .............. 21.3 100.0 Cadmium .......... 49.7 20.0 Chromium ......... 21.3 100.0 Lead .................. 99.4 100.0 Mercury ............. 10.7 4.0 Nickel ................ 49.7 ( 1 )

1 No limit.