Using this simplistic comparison method, most of the proposed exclusion levels are at or below the maximum levels allowed by the current regulations. The proposed levels for cadmium and mercury exceed the worst case TCLP standards, but are well within the same order of magnitude, and could be lower than what is actually allowed under the current standards, depending on the leachability of the metals in the tested fertilizers. Thus, EPA considers the exclusion levels proposed today to be more stringent than the existing standards, for the purpose of state authorization (see discussion in Section VII of this preamble). EPA requests comments on the incremental benefits to having more stringent standards, as well as the costs of such an approach. Note that fertilizer manufacturers would always have the opportunity to continue using current standards. The proposed product specifications are expressed as concentrations of metals in product, per unit of zinc. In this case one unit of zinc equals one percent. The primary reason for expressing the standards in this way is that the zinc content of fertilizers varies widely. If the standards were not tied to the percentage of zinc in the product, fertilizers with low zinc content could much more easily comply with the standards due to the dilution effect of the other materials in the fertilizer. EPA requests comments on the relative merits of basing exclusion levels on zinc concentrations versus the total product content. For reasons explained below, the Agency has decided to base today's proposed product specifications for metals in conditionally excluded zinc fertilizers on the levels that have been demonstrated as technically (and economically) achievable in ZSM fertilizers. See § 261.38 (specifications for toxic constituents in fuels based on levels in commercial fossil fuels). ZSM is a common, commercially available product manufactured by several companies in the United States and elsewhere. It can be made from hazardous waste feedstocks, as well as a variety of non hazardous raw material or secondary material feedstocks. ZSM fertilizers are marketed in solid (granular or powdered) form or in a liquid solution. Since zinc fertilizer is applied sparingly to agricultural land (i. e., a few pounds per acre per year), it is almost always blended with other fertilizers before application, either by manufacturers or in the field by fertilizer applicators. It should be noted that ZSM is also widely used as an animal feed supplement, and can be used as an ingredient in a variety of consumer products as well. In recent years there has been a marked increase in manufacturing capacity of ZSM fertilizers, combined with a downward trend in production of oxy sulfates made from K061 and other materials. For example, one major manufacturer (Bay Zinc of Moxee, WA), citing changing market conditions, recently changed its manufacturing process to begin producing a line of ZSM products, and is phasing out its production of other types of zinc fertilizers. The manufacturing process for ZSM involves a series of chemical purification steps that remove the great majority of non nutritive metals. This is generally not the case for other types of zinc fertilizers, such as oxy sulfates made from recycled K061. Thus, the concentrations of non nutritive metals in ZSM are typically much lower than in other types of zinc fertilizers. To illustrate, several manufacturers guarantee a lead content in ZSM fertilizers (35.5% zinc content) of less than 50 ppm, while lead concentrations in K061 derived fertilizers (which often have lower zinc content) are often above 10,000 ppm. The proposed concentration limits for metals in conditionally excluded zinc fertilizers are based on the Agency's analysis of ZSM contaminant data from a number of different sources, and represent products marketed at the time of sampling by at least nine different companies. The concentration limits were calculated to include a small margin to account for variabilities in the manufacturing process. A summary of available data on contaminant levels in ZSM products is included in the record for today's proposal. By basing today's product specifications on contaminant levels that can be routinely and reliably achieved in ZSM fertilizer products, the Agency in effect is using a technologybased approach to setting specifications for these products. The proposed specifications are not intended to represent the very lowest levels of contaminants that could technically be achieved. Rather, they are intended as a reasonable measure of fertilizer product quality from both a commercial and environmental standpoint. It is entirely possible that some manufacturers could achieve significantly lower levels than those proposed todayÐ for example, the average lead levels in ZSM (35.5% zinc) made by at least two different manufacturers typically do not exceed 10 ppm, while the proposed standard would be approximately 100 ppm of lead. For the purpose of this rulemaking, however, the Agency does not believe that it is necessary from an environmental perspective to set standards based on the very lowest levels that may technically be achieved. We do not believe that levels below those proposed would result in any significant gain in environmental protection. In addition, establishing more stringent standards for metal contaminants could force some manufacturers to make substantial additional investments to ensure that the standards were met. As discussed further in section VIII. A of this preamble, this could result in unnecessary dislocations in the zinc fertilizer market, and could raise the prices that farmers must pay for zinc fertilizer, with virtually no commensurate environmental benefit. EPA also acknowledges the possibility that the proposed product specifications VerDate 11< MAY> 2000 13: 27 Nov 27, 2000 Jkt 194001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 28NOP2. SGM pfrm02 PsN: 28NOP2 70970 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules 8 It is possible, of course, that excessively high rates of fertilizer application could result in risks of concern. We do not believe, however, that this is a realistic scenario, since zinc fertilizers are purchased as a commodity, and that is thus a strong incentive not to overuse such products. A massive over application of such fertilizers could in some circumstances be considered a type of `` sham recycling'' since it could be inferred that such use is more akin to disposal than beneficial use of fertilizer. See Marine Shale Processors v. U. S., 81 F 3d 1371, 1381± 83 (5th Cir. 1996) (sham recycling when material is used in excess of what is needed, or where hazardous constituents are present in concentrations unrelated to ostensible recycling purpose). for metal contaminants may not sufficiently account for process variabilities, and could thus be unnecessarily stringent. The proposed specifications were based on a qualitative assessment of the variability of contaminant levels in ZSM fertilizers; for each metal the specification was set at slightly above the `` high end'' range of concentration levels, based on available data. For example, the distribution of lead levels in ZSM (35.5% zinc) indicates that most samples contained well below 50 ppm lead, with a few samples in the 80 to 90 ppm range. The proposed specification for lead in such products would be approximately 100 ppm, to account for such variabilities. Some ZSM manufacturers have argued that significantly higher limits (e. g., 500 ppm lead) should be established to account for these variabilities (`` Land Application of Hazardous Waste Derived Micronutrient Fertilizer, '' Bay Zinc Company and Tetra Technologies, Inc., November 19, 1999). The Agency solicits comment (and supporting data) as to whether the proposed product specification limits for metals are unnecessarily stringent, and what alternative contaminant concentration limits may be more appropriate for this rulemaking. Alternatives Considered. The Agency examined several different approaches to setting limits on metals in conditionally excluded zinc fertilizers. These included: (a) Developing new risk based limits specifically for fertilizers; (b) using the EPA standards for biosolids applied to agricultural land under section 405 (d) of the Clean Water Act (codified at 40 CFR Part 503); (c) using the proposed standards for contaminants in cement kiln dust used as a liming agent; (d) using the Canadian fertilizer standards; and (e) developing contaminant limits based on background soil concentrations. These alternatives are discussed in more detail below. · Risk based standards. Risk assessment is a tool often used by the Agency to set standards aimed at limiting the adverse effects of chemicals that are (or may potentially be) introduced into the environment. One benefit of such an approach is that it is subject to a rigorous peer review process. However, risk assessments to support regulatory standard setting can be time and resource intensive. As mentioned in Section II. A of this preamble, in response to public concerns about possible risks from contaminants in fertilizers, EPA developed a risk assessment for contaminants in a wide range of different types of fertilizers. This assessment was released in August, 1999. A major finding of that assessment was that, with a few exceptions, the contaminant levels found in fertilizer products are not expected to cause risks of concern. However, this risk assessment was not intended to support development of risk based fertilizer standards, and there are a number of uncertainties in the analysis that would need to be addressed if it were to withstand the rigorous technical scrutiny involved in supporting national regulatory standards. For this proposed rule the Agency has chosen not to conduct the additional data gathering and analyses that would be needed to augment the fertilizer risk assessment in this way, given the time and resources that would be required to complete such an effort. Moreover, we do not think it necessary, given the conclusion from several different analyses (see section II. A. of this preamble) that hazardous contaminants in fertilizers generally do not pose unacceptable risks to human health and the environment, even at relatively high rates of application. 8 EPA believes that risk based contaminant limits for this rulemaking could potentially allow substantially higher levels of contaminants in excluded zinc fertilizers than are currently found in such fertlizers. To illustrate, proposed guidelines recently considered by the Association of American Plant Food Control Officials (AAPFCO), which have since been withdrawn, specified risk based limits for toxic metals in fertilizers that would have allowed, for example, up to 26,000 ppm lead in zinc (35.5%) fertilizer (draft SUIP #25, AAPFCO, January 2000). In contrast, levels of lead in ZSM fertilizers rarely exceed 100 ppm. For the purpose of this proposed rulemaking, EPA does not believe that regulatory standards for fertilizers should allow higher riskbased contaminant levels in these products over current levels, when much lower standards can be easily achieved by ZSM fertilizers. EPA requests comment on this issue. · EPA standards for biosolids used in agriculture. The Agency also considered using the standards that have been established by EPA for contaminants in biosolids (e. g., sewage sludge) that are applied to agricultural land (58 FR 9248). Consistent with the discussion above, the use of such risk based standards for this rulemaking could theoretically allow zinc fertilizers to have much higher levels of metal contaminants than are currently found in most, if not all zinc fertilizers currently on the market. As discussed further below, EPA believes that the § 503 standards are fully protective of human health and the environment as they apply to biosolids applied to the land. However, for the reasons outlined in the preceding discussion of riskbased standards, EPA believes that the technology based standards proposed today are more appropriate than the § 503 standards for the purpose of this rulemaking. EPA requests comment on this issue. There are also a number of technical reasons as to why standards for metal contaminants developed for landapplied biosolids are inappropriate for commercial fertilizers. Biosolids and commercial or manmade fertilizers are fundamentally different materials. The key difference between these two materials is organic matter content. Fertilizers can be classified into one of two categories: organic or inorganic. Biosolids are organic fertilizers, composed of biodegradable organic matter from waste products of living organisms or decay products of once living organisms. Most commercial fertilizers are inorganic. Inorganic fertilizers are derived from non living sources and are essentially devoid of organic matter content. Organic and inorganic fertilizers exhibit different physical and chemical properties. Consequently, they effect the fate and mobility of chemical constituents (especially metals) in different ways. In general, biosolids exhibit greater metals adsorption capacity than inorganic fertilizers because organic matter provides reactive sites that bind metals. This binding capacity limits metals mobility in the fertilized soil and makes metals less available for uptake by plants. Organic binding sites are absent in inorganic fertilizers. Therefore, metals applied as a component of inorganic fertilizers tend to be more mobile and more readily taken up by plants. Organic and inorganic fertilizers also differ in chemical composition. Both contain varying levels of metals (e. g., As, Cd, Pb) and agricultural nutrients (e. g., phosphate, nitrogen). However,

VerDate 11< MAY> 2000 13: 27 Nov 27, 2000 Jkt 194001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 28NOP2. SGM pfrm02 PsN: 28NOP2 70971 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules biosolids also contain hydrous metal oxides which tend to bind metals and further increase the capacity of biosolids to limit metals mobility. In addition, biosolids are usually applied at much higher rates than fertilizers. Given the significant difference in composition and use between these materials, EPA believes that the pollutant loading limits established for biosolids are inappropriate for use as health based standards for inorganic fertilizers. EPA requests comment on this issue. · Proposed standards for contaminants in cement kiln dust used in agriculture. On August 20, 1999 EPA proposed standards for management of cement kiln dust, or CKD (64 FR 45631). CKD can be used as a substitute for agricultural lime to maintain proper soil pH for crop production, and is typically applied at a rate of several tons per acre. The proposal included limits on four metal contaminants (thallium, lead, arsenic and cadmium) in CKD that is applied to agricultural land. These contaminant limits were based on a risk assessment conducted in support of the proposed rule. CKD is typically used agriculturally only under certain types of agronomic conditions. Thus, EPA's risk assessment evaluated risks from applying CKD only to acidic, sandy loam soils in a limited number of geographic areas and for a limited number of crop types. In contrast, zinc fertilizers are applied to a wide variety of different soil types to supply nutrient to many different types of crops in virtually every area of the country. Because of these limitations, EPA believes that the proposed CKD standards are not appropriate for establishing contaminant limits for metals in zinc fertilizers. In addition, the Agency has received numerous comments on the CKD risk assessment that have not yet been thoroughly evaluated, and that analysis has not yet been revised to reflect those comments. Until these uncertainties are resolved, we do not think it would be appropriate to propose in today's rule contaminant limits based on the CKD proposal. We invite comment on this regulatory option. · Canadian standards. EPA examined the option of using the Canadian fertilizer standards for this rulemaking (`` Standards for Metals in Fertilizers and Supplements, '' Trade Memorandum T± 4± 93; Canadian Food Inspection Agency, August 1996). These standards, which apply to all fertilizers marketed in Canada, have been in effect since 1993, and were recently adopted (with somewhat modified assumptions for application rates) by the State of Washington. The Canadian standards are not risk based; instead, they are based on a `` no significant degradation'' goal for fertilizer amended soils, assuming 45 years of fertilizer application. The RCRA statute does not have an analogous, explicit `` no significant degradation'' goal. The Canadian fertilizer standards are based on a number of assumptions regarding application rates, crop types, background levels of metals in Canadian agricultural soils, and other factors. In fact, the standards are not expressed as maximum concentrations allowed in fertilizer products, but rather as limits on the total amounts of metals that can be added to farmland over time from fertilizer applications. Although it would be possible to make simplifying assumptions (i. e., regarding application rates) to derive product concentration standards, translating the Canadian standards into RCRA style limits on product contaminants might not be entirely straightforward. This has, in fact, been part of the State of Washington's experience with implementing regulatory restrictions on fertilizer contaminants based on the Canadian standards. Since the application rate of a fertilizer is a major variable in determining the amount of contaminants that are deposited on farmland, it is possible for manufacturers to simply lower the recommended application rate for a product in order to meet the standards. In EPA's view this complexity, and the potential for manipulating application rates to meet contaminant standards, is inconsistent with the objective of establishing contaminant limits in this rule that are straightforward and easily enforced. Another issue that has been raised regarding the Canadian standards is that they do not reflect the highly variable agricultural practices and environmental conditions in the United States. Though it might be possible to modify the Canadian standards to fit conditions prevalent in the United States, doing so would be a major undertaking that would exceed the scope and purpose of this RCRA rulemaking. In any case, to date there has been little support expressed by stakeholders for using the Canadian standards (or some version of them) in this rulemaking effort (`` EPA Stakeholder Meetings on Hazardous Waste Derived Fertilizers, '' US EPA, November 12± 13, 1998). This may be due to the fact that there has been some controversy regarding the lack of a clear scientific basis for the Canadian standards. The standards were originally developed through an expert panel process that involved both qualitative and quantitative evaluations by a group of agronomists, soil scientists and other experts. The standards therefore are based at least in part on expert judgment, rather than a specific, replicable scientific methodology. Despite these potential complications, EPA requests comment on whether the Canadian standards for the purpose of this RCRA rulemaking could be a feasible alternative, and justified on the basis of incremental benefits and costs. The standards are closer to the levels that have been demonstrated as achievable by fertilizer manufacturers, and EPA is not aware of any studies suggesting that the Canadian standards are less than protective of human health or the environment. Such standards have been in effect for more than seven years in Canada, and for two years in the State of Washington. The State of Washington reports that its experience with implementing Canadian based standards has been generally positive, as evidenced in a recent summary of results from the state's fertilizer review process (`` Transparent Results of Ecology's Review Process in the 1999± 2000 Fertilizer Registration Cycle, '' Washington Dept. of Ecology, August 2000). However, EPA chose not to propose the Canadian fertilizer standards as RCRA standards, largely because we believe that the technologybased approach outlined in today's proposal is simpler and more straightforward, and would result in lower volumes of toxic metals in zinc fertilizers. · Background standards. The option of setting contaminant limits for conditionally excluded zinc fertilizers based on naturally occurring (i. e., `` background'') levels of metals in agricultural soils has been advocated by some stakeholder groups, and was also considered by EPA in the development of this proposal. In effect, this approach would require that fertilizers contain contaminants at concentrations no greater than soil background levels. This would ensure that no increase in soil metal concentrations could occur due to fertilizer use, regardless of how much or how often the fertilizers were applied, and regardless of the attendant risks. The Agency chose not to propose this approach, for several reasons. Achieving these standards might be technically feasible, but would likely require major investments in new capital equipment by manufacturers, which would likely result in increased prices of zinc fertilizers. Alternatively (and perhaps more likely), manufacturers could simply use non hazardous feedstock materials to make zinc fertilizer, thus avoiding RCRA regulation altogether. It VerDate 11< MAY> 2000 13: 27 Nov 27, 2000 Jkt 194001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 28NOP2. SGM pfrm02 PsN: 28NOP2 70972 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules should also be noted that the standards being proposed today may not be dramatically different from levels that might be developed using a standard based on background. EPA does not think that it is necessary or appropriate in this rulemaking to place new economic burdens on industry, or to discourage legitimate recycling practices, without clear evidence of any resulting environmental benefits. EPA solicits comments on today's proposed standards, and on the regulatory options outlined above. b. Product Specifications for Dioxins in Conditionally Excluded Zinc Fertilizers. Background. Dioxins are persistent environmental pollutants that are formed as byproducts during combustion of chlorinated organic compounds. Of the more than two hundred dioxin compounds, 2,3,7,8 tetrachlorodibenzo p dioxin (2,3,7,8 TCDD) is the most toxic. Given the number of different dioxin compounds and their different health effects, dioxins are typically measured according to the `` toxicity equivalence'' method. This method assigns a `` toxicity equivalence factor'' (TEF) of one (1) to 2,3,7,8 TCDD, while the less toxic dioxin congeners are assigned values of less than one. In calculating a TEQ value, the concentration of each congener in the measured sample is multiplied by its TEF, and the products of all the congeners are summed. Thus, TEQ values essentially represent the total toxicity of dioxins in a given sample, rather than the actual concentrations of dioxins in the sample. The methodology for calculating TEFs for dioxin congeners is presented in the 1994 EPA publication entitled `` Estimating Exposures to Dioxin like Compounds'' (EPA publication #600/ 6± 88/ 005 Ca). Although dioxin toxicity has been studied extensively, most studies have used animal test data to extrapolate adverse health effects in humans; uncertainty remains with regard to the actual human health effects of dioxins. Once EPA completes its ongoing reassessment of dioxin health effects, the dioxin reassessment will serve as the scientific and technical basis for EPA dioxin policy and programs. However, until the reassessment has completed scientific peer review, and is issued as a final EPA document, the Agency will rely on the existing dioxin assessment as a basis for its actions. The presence of dioxins in wastederived fertilizers first came to light in a sampling study done by the State of Washington Department of Ecology (`` Screening Survey for Metals and Dioxins in Fertilizer Products and Soils in Washington State, '' Washington Department of Ecology Publication #99± 309, April 1999). In that study, test results from two samples of K061 derived fertilizers indicated the highest levels of dioxins of all fertilizers tested, with one product measured at 240 parts per trillion (TEQ). The source of dioxins in K061 is not definitively known, but may be formed from incomplete combustion of chlorine containing contaminants in the scrap metals used as feedstocks in electric arc steelmaking. EPA requests data and analytical results regarding the possible sources of such dioxin contamination. Proposed product specification for dioxins. EPA is today proposing a product specification of eight parts per trillion (8 ppt) TEQ as a condition for excluding hazardous waste derived zinc fertilizers from regulation. Eight parts per trillion is an estimate of the national average background concentration of dioxins in soils in the United States, as presented in the EPA report `` Estimating Exposure to Dioxin Like Compounds, Review Draft'' (EPA/ 600/ 6± 88/ 000Ca; June 1994). More detailed and more recent data indicate that rural background soil concentrations are somewhat lower than 8 ppt, while urban background soil concentrations are somewhat higher. For purposes of this rulemaking, the Agency believes that 8 ppt may be a reasonable, nationallyrepresentative background level for dioxins in soils. We request comment on the validity of the 8 ppt level as a background level for the purpose of this rulemaking, and any data that would support an alternative national background level for dioxins. Today's proposed exclusion level for dioxins based on background soil levels reflects a somewhat different approach than the proposed exclusion levels for metals, which are in essence technology based. We do not believe we currently have sufficient data on dioxin levels in ZSM products to establish a technology based limit on dioxins. The Agency specifically solicits such data. In the absence of additional data, we believe that a background standard, as proposed today, should be readily achievable and would ensure no net increase in national average dioxin background levels. Other regulatory alternatives are presented later in this preamble. EPA requests comments, data and analytical results that address the proposed standard and the alternative options (including the option of not setting a standard). The State of Washington's dioxin study included analyses of two samples from one ZSM product, which indicated dioxin levels of approximately one part per trillion (TEQ) or less. More recent analyses conducted by fertilizer manufacturers on a small number of ZSM product samples produced similar results (letter from Lester Sotsky to David Fagan, May 16, 2000). These very low dioxin levels are not surprising, since available data suggest that the levels in ZSM feedstocks are typically very low, and the manufacturing process involves several chemical refining processes. EPA assumes that zinc fertilizers which meet the proposed conditional limits on metals (which will most likely be ZSM products) would be expected to have only negligible amounts of dioxin contaminants. We believe, therefore, that the proposed dioxin standard should be easily met by fertilizers that meet the proposed limits for metals, and should not impose significant incremental economic burdens on the industry. EPA invites comment on today's proposed limit for dioxins, and its derivation. Alternatives considered. · No dioxin limits. EPA considered the option of not setting a limit for dioxins in this proposed rulemaking, since the available evidence reviewed by the Agency to date does not indicate a compelling need to do so. We decided, however, to propose a limit on dioxins because of the two samples of K061 derived fertilizer that showed high levels of dioxins relative to other fertilizers, the public's high level of concern generally over dioxins in the environment, and the uncertainties inherent in existing risk assessments. EPA solicits comments as to whether a limit on dioxins in excluded zinc fertilizers is necessary and appropriate, and whether any such limit on dioxins should be included in the final rule. · Risk based limits for dioxins in fertilizers. Another option was to develop risk based limits specifically for zinc fertilizers, similar to the standards that have been proposed by EPA for dioxins in cement kiln dust (64 FR 45631, August 20, 1999) and in biosolids (64 FR 72045, December 23, 1999) used in agriculture. Based on admittedly limited data, it appears that a typical dioxin TEQ level in ZSM is approximately one part per trillion or less. It is probable that a risk based dioxin standard for zinc fertilizers would be considerably higher than the actual levels of dioxins currently present in high quality zinc fertilizers. We do not believe that the regulatory standards in this proposed rule should reflect substantially higher risk based levels than the levels commonly found in ZSM fertilizers. In addition, developing risk based dioxin standard VerDate 11< MAY> 2000 13: 27 Nov 27, 2000 Jkt 194001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 28NOP2. SGM pfrm02 PsN: 28NOP2 70973 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules for this rulemaking would likely require considerable additional risk assessment studies. We question the need for such an investment in time and resources without a compelling need to pursue this regulatory alternative. Nevertheless, we are interested in comments and supporting information relating to this issue. · Limits based on the proposed dioxin standard for land applied biosolids. EPA currently regulates the land application of biosolids (e. g., sewage sludge) under the authority of the Clean Water Act (Section 405( d) of the Clean Water Act codified at 40 CFR Part 503). These regulations have established concentration limits for metals in biosolids. In 1999, EPA also proposed a rule that included a numerical standard of 300 parts per trillion TEQ for dioxins and dioxin like compounds for land applied biosolids. The numerical standard includes seven 2,3,7,8 substituted dioxins, ten 2,3,7,8 substituted dibenzofurans, and 12 coplanar polychlorinated biphenyl (PCB) congeners. The proposed standard was based on a multi pathway risk assessment which evaluates human health impacts and the fate and transport of these compounds through the environment. The proposed rule also included monitoring requirements for these compounds to ensure that the numerical standard is met. The proposed rule excluded certain small size categories of biosolids generators. EPA believes that the proposed standards for dioxins and the existing standards for metals in land applied biosolids are protective of human health and the environment. The standards have been developed based on statutory direction given under section 405( d) of the Clean Water Act, and obligations imposed under the terms of a Consent Decree, which also established December 15, 2001 as the date by which the Agency must promulgate a final rule. EPA is currently evaluating the comments submitted on the proposed rule for dioxins in biosolids, in preparing the final rulemaking action. EPA chose not to base today's proposed fertilizer dioxin limits on the proposed biosolids standard for dioxins, for several reasons. The Agency received a number of comments on the proposed biosolids that are still being evaluated, and some additional assessment work is being conducted to support development of the final standard. Given the uncertainty about the final outcome of the proposed standard, we do not think it appropriate to use it as the basis for a dioxin standard in today's rule. In addition, the proposed 300 ppt biosolids standard for dioxin is considerably higher than today's proposed limit of 8 ppt for fertilizers. We believe that the 8 ppt limit for zinc fertilizers should be easily achievable, and are concerned about establishing much higher limits than are in current fertilizers. EPA requests comment on this issue. · Limits based on proposed dioxin standards for cement kiln dust. EPA's proposed rule for cement kiln dust proposed a dioxin standard of 40 ppt for agriculturally applied CKD. The CKD standard was also based on a risk assessment, analogous to the study done to support the proposed dioxin standard for land applied biosolids. EPA chose not to develop a dioxin limit for fertilizers based on the proposed CKD standard, for essentially the same reasons (discussed above) that we chose not to set limits on metals based on that proposed rule. We request comment on the appropriateness of setting a dioxin limit for fertilizers based on the proposed CKD standard. · Complete ban on dioxins in fertilizers. Some stakeholders have argued for a complete ban on making fertilizer from any hazardous waste that is generated from an industrial process known to create or release dioxin. The Agency is not proposing such a ban, primarily because we do not believe that there is a convincing environmental rationale for doing so. A complete ban would likely eliminate, for example, the use of K061 as a fertilizer feedstock material. As explained previously, we believe that K061 can be legitimately processed and recycled to make high quality zinc fertilizer. We are not aware of any evidence that (for example) ZSM products made from recycled K061 contain higher levels of dioxin than other ZSM products. A complete ban would also require some means of determining which industrial processes create or release dioxins. This could become a highly complex technical issue involving the detection limits of various dioxin test methods, and resolving it would be beyond the scope of this rulemaking effort. In addition, it is possible, if not likely, that a complete ban would eliminate all recycling of hazardous wastes to make zinc fertilizer. The Washington dioxin study detected levels of dioxin in the low parts per trillion for many of the fertilizers tested, most of which were not waste derived. It is therefore possible that almost all zinc fertilizer feedstocks could have detectable levels of dioxins, especially given the extraordinarily sensitive analytical methods available today. A complete ban in this rulemaking might thus prohibit the use of any hazardous secondary material as a zinc fertilizer feedstock, even if their dioxin levels were no higher than those in other available feedstock materials. This would be an arbitrary result, and would serve no real environmental purpose. EPA solicits comments and relevant data on the option of a complete ban on the use of hazardous secondary materials generated from industrial processes known to create or release dioxins, and on the other regulatory options discussed above.

2. Testing and Recordkeeping Testing. Under today's proposal, manufacturers of conditionally excluded zinc fertilizer products would need to periodically sample and analyze their products to determine whether or not they meet the exclusion contaminant limits. If analyses show that one or more contaminants in the fertilizer exceeds an exclusion limit, the manufacturer could choose to reprocess the fertilizer so that it meets the limits. An alternative would be to manage the manufactured material as a hazardous waste, in compliance with all applicable management standards. EPA is proposing that manufacturers test their fertilizer products for metals at least once every six months, and at least once per year for dioxins. As a practical matter, EPA believes that fertilizer manufacturers typically sample and analyze their products for metal contaminants on more or less an ongoing basis, as a means of monitoring quality control. Thus, we believe that twice yearly testing for metal contaminants in excluded zinc fertilizers is reasonable, and would likely impose few, if any, additional testing burdens on manufacturers. We solicit comment on whether twice yearly testing of fertilizer products is appropriate in the context of this rule, or if more frequent or less frequent testing should be required. For dioxins, less frequent (once peryear testing of excluded fertilizers is proposed today, for several reasons. For one thing, zinc fertilizer manufacturers do not routinely test for dioxins, so any such testing requirement would impose an additional burden on industry. Dioxin testing is relatively expensive ($ 2,000 or more per sample), so the costs would not be inconsequential. Further, we believe more frequent testing for dioxins in excluded zinc fertilizers may not be necessary, since (as explained earlier) it is likely that fertilizers meeting the proposed metals standards would easily meet the 8 ppt limit for dioxins.

VerDate 11< MAY> 2000 18: 03 Nov 27, 2000 Jkt 194001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 28NOP2. SGM pfrm01 PsN: 28NOP2 70974 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules With regard to the frequency of required dioxin testing, we considered several options. One option was to not require testing for dioxins as long as the limits for metal contaminants were not exceeded, based on the assumption that meeting the limits for metals would ensure that the dioxin limit is met. Other options could be to specify a onetime only test to verify that the excluded zinc fertilizer product meets the dioxin standard, to allow less frequent dioxin testing (e. g., once every five years), or testing only when there is a manufacturing process change that could affect dioxin levels. We solicit comment on the proposed once per year testing condition for dioxins in excluded fertilizers, the alternative regulatory options outlined above, and other potential options. Test methods. Today's proposal would not require manufacturers to use any specific sampling and analytical procedures in demonstrating compliance with product specification limits for metals or dioxins. The proposal would instead set a performance standard for sampling and analysis manufacturers would have the flexibility to select appropriate methods and procedures, provided they can demonstrate that they are unbiased, precise and representative of their products. Examples of EPArecommended testing methods and procedures are contained in the EPA publication (`` Test Methods for Evaluating Solid Waste, Physical/ Chemical Methods, '' EPA publication SW± 846, 1986). EPA solicits comment and supporting data as to whether the final rule should specify the analytical procedures to be used (such as one or more of those in SW± 846, cited above), the methods used to ensure that fertilizer samples are representative, or otherwise specify in more detail methods for compliance sampling and analysis of fertilizer products.

V. Mining Wastes Used To Make Fertilizer: Request for Comments Although zinc fertilizers are the primary focus of today's proposed rule, EPA is aware of one iron micro nutrient fertilizer product that is made from mining wastes and has been the subject of some concern by state regulators and others. This material, which is marketed under the brand name `` Aeronaut, '' is an iron micro nutrient fertilizer made from wastes generated from beneficiation zinc ores at a mine (now inactive) located in Humboldt, Arizona. The mining waste material that is used is exempt from regulation as hazardous waste, under the so called `` Belville exemption. '' The primary reason for requesting comment on the use of mining wastes to make fertilizers has to do with the very high levels of contaminants such as arsenic in Ironite, relative to other fertilizers. Data compiled by EPA on fertilizer contaminants indicates that Ironite contains, by a wide margin, the highest levels of arsenic of all fertilizer products surveyed. A 1998 study by the Arizona Department of Health Services indicated mean arsenic concentrations in Ironite of 4400 ppm, and mean lead concentrations of 2850 ppm (`` Human Health Risk Assessment for Long Term Residential Use of Ironite Lawn and Garden Nutrient Supplement, '' Arizona Department of Health Services, October 8, 1998). In comparison, the California Department of Food and Agriculture's 1997 study indicated average arsenic concentrations in zinc micronutrient fertilizers (many of which are also waste derived) of approximately 30 ppm. In 1998, a TCLP analysis done by the Oregon Department of Environmental Quality found that Ironite exhibited the hazardous characteristic of toxicity for arsenic (Oregon Department of Environmental Quality Laboratory, Case Number 980474, July 31, 1998). Subsequent TCLP testing of Ironite performed by Washington State's Department of Ecology generated the same result, indicating at least the potential for arsenic to leach into groundwater at levels of concern. Arsenic is a highly toxic metal, and is also classified as a probable human carcinogen by EPA. Recent information indicates that arsenic may be of concern at levels below existing regulatory standards. A 1999 report by the National Research Council of the National Academy of Sciences, entitled Arsenic in Drinking Water concluded that EPA's drinking water standard of 50 ppb was not protective of human health, and should be revised downward. Subsequently, the Agency has proposed to revise the arsenic standard, to 5 ppb (65 FR 38887, June 22, 2000), although this standard has not been finalized. In May 1998 Washington State's Department of Ecology and Department of Health commissioned in vitro bioavailability tests on Ironite. The results of these tests indicated an up to 36% and 81% bioavailability of arsenic and lead, respectively. These results were similar to the data initially supplied by the company to the State of Washington. From these results, the State of Washington's Department of Health concluded that this level of bioavailability could pose an acute risk from direct ingestion of the product by children. In view of this conclusion, and the fact that no warning labels were on the product at the time, the State of Washington Department of Health issued a news release advising the public that Ironite `` could be dangerous to health'' under certain circumstances (Washington Department of Ecology press release, June 5, 1998). The product is now labeled in accordance with the State of Washington's requirements. Arsenic concentrations such as those in Ironite clearly have the potential to substantially increase soil arsenic levels, especially if the product is improperly applied (the average background level of arsenic in soils in the United States is less than 10 ppm). Ingestion of Ironiteamended soils (or worse, ingestion of the product itself) by children is also a possible concern, and could potentially cause serious adverse health effects. As mentioned above, contamination of ground water from contaminants in Ironite may be another potential exposure pathway. Ironite is marketed nationally, primarily as a home and garden fertilizer. The company has defended the safety of the product, citing several studies that generally support its contention. The Arizona Department of Health Services report cited above concluded that `` * * * the accumulation of metals that may occur following prolonged use of Ironite does not appear to represent a health risk to child or adult residents of homes where it is used if the product is applied in accordance with the recommendations on the label. '' A separate analysis prepared for the Ironite Products Company reached a similar conclusion (`` Product Safety Risk Assessment of Ironite, a Nutritional Lawn Supplement, '' RUST Environment and Infrastructure, June 1998). These studies, and other studies commissioned by the company based their findings in large part on the fact that much of the arsenic and lead in the product are present in naturally occurring arsenopyrite and galena mineral forms, respectively, which (according to the company and its supporting studies) are relatively nonbioavailable and non toxic to humans. EPA has not studied this particular issue in depth, and has not reached any scientific conclusions as to the potential health effects of Ironite use. EPA is not currently aware of any fertilizers other than Ironite that are being made from zinc extraction/ beneficiation wastes; it is possible, however, that other fertilizers that exhibit a hazardous characteristic could be made from other exempted extraction/ beneficiation wastes. In any case, at issue in this matter is that Ironite is made from mining wastes that VerDate 11< MAY> 2000 13: 27 Nov 27, 2000 Jkt 194001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 28NOP2. SGM pfrm02 PsN: 28NOP2 70975 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules are currently exempt from regulation as hazardous wastes. The Bevill exemption (RCRA section 3001( b)( 3)( A)( ii)) is codified in regulations at § 261.4( b)( 7), and applies generally to solid wastes from extraction and beneficiation of minerals, as well as the so called `` special twenty'' mineral processing wastes. These types of wastes are therefore not regulated as hazardous under RCRA, even if they exhibit a hazardous waste characteristic (e. g., are toxic as measured by the TCLP). However, under RCRA section 3001( b)( 2)( C), such exempted wastes may be subjected to RCRA regulation, based on a finding by EPA that such regulation is warranted. In making determinations as to whether Bevill exempt wastes (which would include these types of fertilizers) should be regulated under RCRA Subtitle C, the RCRA statute specifies in section 8002( f) certain criteria that EPA must evaluate: (1) The sources and volume of discarded material generated per year from mining; (2) Present disposal practices; (3) Potential dangers to human health and the environment from surface runoff of leachate and air pollution by dust; (4) Alternatives to current disposal methods; (5) The cost of those alternatives in terms of the impact on mine product costs; and (6) Potential for use of discarded material as a secondary source of the mine product. After extensive study, on July 3, 1986, EPA published its final regulatory determination for mining wastes, according to RCRA section 3001( b)( 2)( C) (51 FR 24496). This determination concluded that extraction/ beneficiation wastes should be regulated as nonhazardous solid wastes under RCRA Subtitle D. However, the Agency noted that if a Subtitle D program with appropriate federal enforcement and oversight authority is not developed for these wastes, the Agency may find it necessary to reexamine use of Subtitle C authority, with modified mining waste standards (51 FR 24501). EPA did not specifically address the practice of manufacturing fertilizers from these wastes in the 1986 regulatory determination, nor was the issue examined as part of the study prepared in support of the determination. It should be understood that if EPA were to determine that removing the § 261.4( b)( 7) exemption for these types of fertilizer products is warranted, such a decision would affect only a very small portion of the universe of Bevill exempt mining wastes. Removing the exemption in this case would apply only to the micronutrient fertilizer products that are made from extraction/ beneficiation wastes; it would not affect the regulatory status of any exempted mining wastes prior to being recycled into fertilizers. EPA has not at this time reached any definitive conclusions as to whether Ironite and similar fertilizer products (if any) merit regulation under RCRA Subtitle C. We believe, however, that concerns over potential adverse health effects from exposure to fertilizers with extremely high arsenic levels, such as Ironite, are worthy of serious consideration. We therefore are requesting comments and additional information that may assist the Agency in making such a determination, either positive or negative. Comments and information that directly address the criteria listed above would be particularly useful, as would specific information on related issues, such as the following:

· Additional information on potential human health or ecological effects from exposure to Ironite.

· Exposure pathways that may be particularly relevant to assessing risks associated with the use and handling of this type of product.

· Information on any actual damage cases arising from use or misuse of Ironite or similar products.

· Information on any other fertilizers (including primary nutrient fertilizers containing potassium, nitrogen or phosphorous) that are made from Bevillexempt hazardous extraction, beneficiation or mineral processing wastes.

· Information on how and where Ironite or other iron fertilizers are actually used, and by whom.

· Other relevant information. The Agency will consider all relevant comments and information submitted on these issues. At the time EPA finalizes today's proposal, we may also issue a proposed determination as to whether or not micronutrient fertilizer products that exhibit a hazardous characteristic, and that are made from Bevill exempt extraction/ beneficiation wastes, should be subject to regulation as hazardous wastes under RCRA Subtitle C, as provided under section 3001( b)( 3). Alternatively, the Agency may decide that further data and/ or analysis is required before such a determination can be made. VI. Relationship With Other Regulatory Programs A. Cement Kiln Dust Regulatory Proposal On August 20, 1999, EPA proposed Standards for the Management of Cement Kiln Dust (CKD) (64 FR 45631). As part of that rulemaking we proposed to exclude from regulation under RCRA CKD that is used as a liming agent on agricultural fields, provided that such CKD meet specified levels for concentrations of certain hazardous constituents. CKD is currently used as a substitute for agricultural lime. Liming materials are added to agricultural soils to maintain optimum pH for crop production and offset the effects of fertilizers that lower soil pH. CKD used for pH control is applied in high volumes relative to fertilizers and other soil nutrients. The application rate needed to maintain the desired increase in soil pH is 2 to 5 tons of CKD per acre every 2 to 3 years. EPA has a relatively large amount of data on the chemical composition of CKD. This data was collected and used as part of EPA's Report to Congress (RTC) on CKD (59 FR 709, January 6, 1994), its 1994 Notice of Data Availability (NODA) (59 FR 47133, September 14, 1994), and its 1995 Regulatory Determination on CKD (60 FR 7366, February 7, 1995). While EPA encourages environmentally sound beneficial use of production process waste streams, including CKD, we believe that the benefits from recycling CKD must be balanced against the potential hazards which agricultural use of CKD may present. Consequently, we conducted a screening level analysis of agricultural use as part of the RTC and NODA. That analysis suggested that some CKD, when used at plausible application rates, might contain sufficiently high concentrations of metals and dioxins to cause food chain risks. Based on these initial findings, EPA conducted a more detailed analysis of potential risks from use of CKD as an agricultural liming agent. Given our data on the chemical composition of CKD, and the preliminary results of the risk assessment, we concluded that use of a risk assessment conducted to identify protective levels of potentially hazardous constituents in CKD used as a liming agent provided the most appropriate way to allow for safe beneficial use of CKD. Results of EPA's more detailed risk assessment suggest that concentrations of arsenic, thallium, lead, cadmium and chlorinated dioxins and furans may be present in CKD above levels that pose potential risk to human health. Based on VerDate 11< MAY> 2000 13: 27 Nov 27, 2000 Jkt 194001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 28NOP2. SGM pfrm02 PsN: 28NOP2 70976 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules these findings, EPA proposed to limit the concentrations of these compounds that can be present in CKD used to adjust soil pH. In other words, EPA proposed standards to limit concentrations of these constituents in CKD used as agricultural lime because our risk analysis indicated that these compounds are present in CKD in excess of levels that may pose risk to human health when CKD is applied at rates necessary to attain desired soil pH. Based on these risk findings, EPA expressed concern in the proposal that unregulated use of CKD as an agricultural liming agent may cause adverse effects on human health. EPA received substantial comments on this aspect of the 1999 CKD proposal, and is now evaluating them.

B. EPA Standards for Biosolids EPA currently regulates the land application of biosolids (e. g., sewage sludge) under the authority of the Clean Water Act (Section 405( d) of the Clean Water Act codified at 40 CFR Part 503). These regulations have established concentration limits for metals in biosolids. In 1999, EPA also proposed a rule that included a numerical standard of 300 parts per trillion TEQ for dioxins and dioxin like compounds for landapplied biosolids. The numerical standard includes seven 2,3,7,8 substituted dioxins, ten 2,3,7,8 substituted dibenzofurans, and 12 coplanar polychlorinated biphenyl (PCB) congeners. The proposed standard was based on a multi pathway risk assessment which evaluates human health impacts and the fate and transport of these compounds through the environment. The proposed rule also included monitoring requirements for these compounds to ensure that the numerical standard is met. The proposed rule excluded certain small size categories of biosolids generators. EPA believes that the proposed standards for dioxins and the existing standards for metals in land applied biosolids are protective of human health and the environment. The standards have been developed based on statutory direction given under section 405 (d) of the Clean Water Act, and obligations imposed under the terms of a Consent Decree, which also established December 15, 2001 as the date by which the Agency must promulgate a final rule. EPA is currently evaluating the comments submitted on the proposed rule for dioxins in biosolids, in preparing the final rulemaking action.

C. State Fertilizer Regulations Virtually all States have regulatory programs for fertilizers, which are usually administered by state agricultural agencies. Traditionally, the primary focus of these regulatory programs has been to ensure that fertilizers are accurately classified and labeled, and meet manufacturers' plant nutrient claims. Until quite recently, state regulatory programs did not explicitly address the issue of controlling contaminants such as heavy metals in fertilizer products. In 1998 the State of Washington enacted legislation to create this country's first comprehensive system for regulating fertilizer contaminants, to include limits on metal contaminants in fertilizers, labeling requirements, and a mandate for several research projects to study the effects of metal contaminants on food crop plants. The specific standards for metals in fertilizers were adapted from the Canadian standards. The Washington regulations, which apply to all fertilizers marketed in the state, also mandate that waste derived fertilizers receive additional scrutiny as to their content and origin, as part of the fertilizer registration process. Washington also now maintains a publicly accessible internet website containing data on all fertilizers registered in the State of Washington, including data on levels of non nutrient metals in each registered product. This database can be accessed at hhtp:// www. wa. gov/ 80/ ecology/ hwtr/ fertilizer/ reports/ products. html. The State of Texas has enacted similar regulations based on the federal standards for biosolids. The State of California has also done extensive research into fertilizer contaminants, and is currently developing a California regulatory program. A number of other states are likewise considering regulatory initiatives in this area. EPA supports State efforts to regulate contaminants in fertilizers. EPA regulates only a small percentage of the fertilizers currently on the market (perhaps as little as one percent or less of all fertilizers are derived from hazardous wastes, subject to RCRA requirements), and the potential certainly exists for contaminant problems in other types of fertilizers. For example, cadmium levels in certain phosphate fertilizers (which typically are not waste derived) have been the subject of some concern recently by researchers, state regulators and others. We believe that the State of Washington's fertilizer regulatory program has been highly successful in controlling, and in a number of cases reducing, contaminants in fertilizer products sold in that state. Washington has also successfully pioneered the idea of making fertilizer contaminant data available to the public, farmers and others through the internet. As more states develop comprehensive regulatory programs for fertilizers, the consistency between RCRA standards and more broadly applicable state standards is expected to become more and more at issue. We do not believe that such regulatory inconsistency makes sense environmentally or from a public policy perspective, and the Agency urges states at a minimum to adopt consistent regulatory standards for all zinc fertilizers.

VII. State Authority A. Statutory Authority Under section 3006 of RCRA, EPA may authorize qualified States to administer the RCRA hazardous waste program within the State. See 40 CFR part 271 for the overall standards and requirements for authorization. Following authorization, the State requirements authorized by EPA apply in lieu of equivalent Federal requirements and become Federally enforceable as requirements of RCRA. EPA maintains independent authority to bring enforcement actions under RCRA sections 3007, 3008, 3013, and 7003. Authorized States also have independent authority to bring enforcement actions under State law. A State may receive authorization by following the approval process described under 40 CFR 271. After a State receives initial authorization, new Federal requirements promulgated under RCRA authority existing prior to the 1984 Hazardous and Solid Waste Amendments (HSWA) do not apply in that State until the State adopts and receives authorization for equivalent State requirements. The State must adopt such requirements to maintain authorization. In contrast, under RCRA section 3006( g) (42 U. S. C. 6926( g)), new Federal requirements and prohibitions imposed pursuant to HSWA provisions take effect in authorized States at the same time that they take effect in unauthorized States. Although authorized States are still required to update their hazardous waste programs to remain equivalent to the Federal program, EPA carries out HSWA requirements and prohibitions in authorized States, including the issuance of new permits implementing those requirements, until EPA authorizes the State to do so. Authorized States are required to modify their programs only when EPA promulgates Federal requirements that VerDate 11< MAY> 2000 18: 03 Nov 27, 2000 Jkt 194001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 28NOP2. SGM pfrm01 PsN: 28NOP2 70977 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules are more stringent or broader in scope than existing Federal requirements. RCRA section 3009 allows the States to impose standards more stringent than those in the Federal program. See also 40 CFR 271.1( i). Therefore, authorized States are not required to adopt Federal regulations, both HSWA and nonHSWA that are considered less stringent.

B. Effect on State Authorization Today's proposal would be promulgated pursuant to non HSWA authority, and contains provisions that are both more stringent and less stringent than the current Federal program. The elimination of the exemption for K061 derived fertilizers and the proposed product specification limits are more stringent provisions which the States would have to adopt if promulgated. The conditional exclusion for hazardous waste used in zinc fertilizers is less stringent. EPA strongly encourages States to adopt all of the provisions of the rule once they are finalized.

VIII. Administrative Assessments A. Executive Order 12866 Under Executive Order 12866, (58 FR 51735 October 4, 1993) the Agency must determine whether a regulatory action is `` significant'' and therefore subject to OMB review and the requirements of the Executive Order. The Order defines `` significant regulatory action'' as one that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. The economic analysis suggest that this rule is not economically significant under Executive Order 12866. OMB has deemed this rule to be significant for novel legal or policy issues. As such, this action was submitted to OMB for review. Changes made in response to OMB suggestions or recommendations will be documented in the public record. '' Detailed discussions of the methodology used for estimating the costs, economic impacts and the benefits attributable to today's proposed rule for regulatory modifications to the definition of solid waste for zinccontaining hazardous waste derived fertilizers, followed by a presentation of the cost, economic impact and benefit results, may be found in the background document: `` Economic Analysis for Regulatory Modifications to the Definition of Solid Waste For ZincContaining Hazardous Waste Derived Fertilizers, Notice of Proposed Rulemaking, '' which was placed in the docket for today's proposed rule.

1. Methodology Section To estimate the cost, economic impacts to potentially affected firms and benefits to society from this proposed rulemaking, we analyzed data from zinc micronutrient producers, firm financial reports, trade associations and chemical production data. The Agency has used both model facilities and actual facilities in analyzing the effects of this proposed regulation. To estimate the incremental cost of this rule making, we reviewed baseline management practices and costs of potentially affected firms. The Agency has modeled the most likely postregulatory scenario resulting from the listing (e. g., shifts to non hazardous fertilizer feedstocks, shifting from zinc oxysulfate to zinc sulfate monohydrate production) and the estimated the cost of complying with it. The difference between the baseline management cost and the post regulatory cost is the incremental cost of the rulemaking. To estimate the economic impact of today's proposed rulemaking, we compared the incremental cost of the rulemaking with model firm sales. The Agency has also considered the ability of potentially affected firms to pass compliance costs on in the form of higher prices. To characterize the benefits of today's proposal, we evaluated available data and presented a qualitative assessment of benefits including ecological benefits and protection of natural resources such as groundwater.

2. Results a. Volume Results. Data reviewed by the Agency indicates that there are 3 to 4 zinc micronutrient producers, one zinc producer, one steel mill, one wasteto energy facility and 23 brass fume dust generators (ingot makers, mills, and foundries) potentially affected by today's proposed rule. Although the exact amount of hazardous waste used in zinc micronutrient fertilizer production an annual basis varies from year to year, in 1997, data indicate that approximately 46,000 tons of hazardous waste were used in the production of zinc micronutrient fertilizer. The principal hazardous waste feedstocks were tire ash, electric arc furnace dust (K061) and brass fume dust from ingot makers, mills and foundries. b. Cost Results. For the part of today's proposed rule pertaining to zinc micronutrient fertilizers, we estimate the total annual cost savings from today's proposal to be $3.24 million for all facilities. Costs savings for different groups are summarized in Table 1.

TABLE 1.Ð ESTIMATED INCREMENTAL COSTS AND COST SAVINGS BY FACILITY CATEGORY Potentially Affected Facility Incremental Annual Costs (Cost Savings) (1999$)

Zinc Oxysulfate Producers ......................... ($ 0.29 million) Zinc Sulfate Monohydrate Producers .................... ($ 0.75 million) Primary Zinc Products .... ($ 1.0 million) Tire Ash Generators ....... ($ 0.2 million) Brass Fume Dust Generators ......................... ($ 1.4 million)

Total ..................... ($ 3.24 million)

Costs and cost savings to zinc oxysulfate producers are estimated from either shifting production to zinc sulfate monohydrate or shifting to nonhazardous sources of oxysulfate feedstocks. Zinc sulfate monohydrate producers and primary zinc producers are estimated to realize cost savings from shifting brass fume dust currently used in animal feed production to fertilizer production. Under current zinc sulfate markets, fertilizers are sold at a higher price than animal feed. Waste toEnergy facilities that generate tire ash are expected to incur additional cost from having to shift their ash from fertilizer production to zinc oxide reclamation. And brass fume dust generators (mills, ingot makers, foundries) are estimated to incur cost savings from shifting their dust from zinc reclamation and animal feed to fertilizer production. c. Economic Impact Results. To estimate potential economic impacts resulting from today's proposed rule, we use a first order economic impacts measure: the estimated incremental costs or cost savings of today's proposed rule as a percentage of affected firms sales. Because of data limitations, EPA was unable to obtain profit information for potentially affected firms. EPA solicits comment about the availability and usefulness of profit data in VerDate 11< MAY> 2000 19: 16 Nov 27, 2000 Jkt 194001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 28NOP2. SGM pfrm01 PsN: 28NOP2 70978 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules evaluating the economic impact of this proposal on these entities. For two zinc oxysulfate producers the estimated impact of the rule is 1.42 percent in incremental costs for one firm and 0.64 percent in cost savings for the other. Two zinc sulfate monohydrate producers are estimated to realize cost savings of 0.1 and 15 percent of revenue. For the primary zinc producer, the rule is estimated to result in cost savings equal to 1 percent of firm sales. The waste to energy facility is estimated to incur costs of 1.22 percent of annual revenues. More detailed information on this estimate can be found in the economic analysis placed into today's docket. d. Benefits Assessment. Because EPA did not use any risk assessments of current or projected metals and dioxin concentrations in zinc fertilizers in the development of this rulemaking, the Agency cannot make any quantitative conclusions about the risk reduction from today's proposal. To estimate the benefits resulting from today's rule, EPA looked at available literature and records regarding hazardous waste feedstocks used to make zinc micronutrient fertilizers. The data suggest that today's rule will reduce loading of toxic non nutritive constituents to the soil. Two zinc oxysulfate samples produced from hazardous waste and analyzed by the State of Washington had dioxin concentrations between 17 and 42 times background level (`` Final Report Screening Survey for Metals and Dioxins in Fertilizer Products and Soils in Washington State, '' Washington State Department of Ecology, April 1999, Figures 1± 1 and 1± 2). In addition, the zinc oxysulfate manufacturing process does not remove any of the lead or cadmium from the feedstock material. If promulgated, today's proposal would reduce annual loadings of these metals to the soil. In addition, today's proposal may reduce natural resource damage and contamination to groundwater. EPA is aware of at least two damage incidents caused by land placement of hazardous waste prior to fertilizer production that resulted in contamination of either groundwater or surrounding surface water bodies adjacent to the site. (`` Report of RCRA Compliance Inspection at American Microtrace Corporation, '' US EPA Region VII, December 4, 1996, Editorial, The Atlanta Journal/ Constitution, April 11, 1993). Today's proposal may increase non use values for these environmental amenities as well. The Agency also believes that this rule has the potential for reducing what may be considered low probability but high consequence adverse human health or environmental impact if contamination from hazardous secondary material used in fertilizer production should, because of geological conditions such as karst terrain, reach a major population drinking water source or sensitive environmental location. This proposed rule should lessen the chances of this type of event even though the probabilities of such occurrences and the magnitude of any impacts are not known.

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. The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business that has fewer than 1000, 750, or 500 employees per firm depending upon the SIC code the firm is primarily classified in; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; or (3) a small organization that is any notfor profit enterprise which is independently owned and operated and is not dominant in its field. After considering the economic impacts of today's final rule on small entities, we have determined that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives `` which minimize any significant economic impact of the proposed rule on small entities'' (5 U. S. C. Sections 603 and 604). Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule. There are three small entities incurring incremental costs resulting from this rulemaking. This first firm is Exeter Energy, a waste to energy facility that burns tires. It is estimated to incur annual costs of $220,000 which is slightly more than one percent of its annual sales. Exeter Energy is only one of two waste to energy facilities in the United States that burns tires for energy. It is therefore likely that this firm will be able to pass on much of this cost through price increases for its services. EPA does not believe that this firm will be significantly impacted. The second firm, Bay Zinc, is a zinc sulfate/ zinc oxysulfate producer. The firm is estimated to realize costs equal to slightly more than one percent of revenues for its zinc oxysulfate line. However, EPA does not believe that Bay Zinc will be significantly impacted because its increased costs will be offset to some extent by the increased availability of less expensive (previously hazardous waste) feedstocks such as brass fume dust for its zinc sulfate monohydrate line. EPA has only analyzed the impact of the rule on this firm's zinc oxysulfate line. However the rule will affect both zinc fertilizer lines. The net economic impact of the rule on Bay Zinc is likely to be far less than 1 percent of the firm's sales notwithstanding the cost to its oxysulfate line. EPA also notes that there is currently a market trend away from zinc oxysulfate in favor of zinc sulfate monohydrate due to the former's higher heavy metal content (see www. chemexpo. com/ news/ newsframe. cfm? framebody=/ news/ profile. cfm as obtained August 27, 2000 for zinc sulfate). Therefore, it is likely that even in the absence of this proposed rulemaking, the marketability of zinc oxysulfate is declining in favor of zinc sulfate monohydrate production. For the reasons discussed above, I hereby certify that this rule will not have a significant adverse economic impact on a substantial number of small entities. This rule, therefore, does not require a regulatory flexibility analysis.

C. Paperwork Reduction Act The information collection requirements in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act, 44 U. S. C. 3501 et seq. An Information Collection Request (ICR) document has been prepared by EPA (ICR No. 1189.08) and a copy may be obtained from Sandy Farmer by mail at OPPE Regulatory Information Division;

VerDate 11< MAY> 2000 18: 03 Nov 27, 2000 Jkt 194001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 28NOP2. SGM pfrm01 PsN: 28NOP2 70979 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules U. S. Environmental Protection Agency, Office of Environmental Information, Collection Strategies Division (2822), 1200 Pennsylvania Avenue, NW., Washington, DC 20460; by email at farmer. sandy@ epa. epa. gov, or by calling (202) 260± 2740. A copy may also be downloaded off the internet at http:// www. epa. gov/ icr. EPA is proposing the following conditions for reporting and recordkeeping by generators and manufacturers: The proposed rule would require generators to submit a one time notice to the EPA Regional Administrator (or the state Director in an authorized state) and to maintain all records of all shipments of excluded hazardous secondary materials for a minimum of three years. As a condition of the exclusion, manufacturers would be required to submit a one time notice, 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, and submit an annual report identifying the types, quantities and origins of all such excluded materials that were received by the manufacturer in the preceding year. The manufacturer would also be required to perform sampling and analysis of the fertilizer product to determine compliance with the contaminant limits for metals no less than every six months, and for dioxins no less than every twelve months. These conditions would replace the current hazardous waste regulatory requirements for reporting and recordkeeping and are designed to improve the accountability system, and government oversight capabilities over the handling of secondary materials used to make zinc fertilizers. EPA estimates that the total annual respondent burden for the new paperwork requirements in the rule is approximately 45 hours per year and the annual respondent cost for the new paperwork requirements in the rule is approximately $9,875. However, in addition to the new paperwork requirements in the proposed rule, EPA also estimated the burden and cost savings that generators and manufacturers could expect as a result of no longer needing to comply with the existing RCRA information collection requirements for the excluded materials. This cost savings of $21,149 minus the $9,875 cost for the new paperwork requirements would result in an overall cost savings $11,275 from the proposed rule. The net cost to EPA of administering the rule was estimated at approximately $244 per year. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An Agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15. Comments are requested on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques. Send comments on the ICR to the U. S. Environmental Protection Agency, Office of Environmental Information, Collection Strategies Division (2822), 1200 Pennsylvania Avenue, NW., Washington, DC 20460 and to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th St., NW., Washington, DC 20503, marked `` Attention: Desk Officer for EPA. '' Include the ICR number in any correspondence. Since OMB is required to make a decision concerning the ICR between 30 and 60 days after November 28, 2000, a comment to OMB is best assured of having its full effect if OMB receives it by December 28, 2000. The final rule will respond to any OMB or public comments on the information collection requirements contained in this proposal.

D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104± 4, establishes requirements for Federal Agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA must prepare a written analysis, including a cost benefit analysis, for proposed and final rules with `` Federal mandates'' that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials to have meaningful and timely input in the development of regulatory proposals, and informing, educating, and advising small governments on compliance with the regulatory requirements. This rule does not include a Federal mandate that may result in expenditures of $100 million or more to State, local, or tribal governments in the aggregate, because this rule imposes no enforceable duty on any State, local, or tribal governments. EPA also has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. In addition, as discussed above, the private sector is not expected to incur costs exceeding $100 million. Therefore, today's proposed rule is not subject to the requirements of sections 202, 203, and 205 of UMRA.

E. FederalismÐ Applicability of Executive Order 13132 Executive Order 13132, entitled `` Federalism'' (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure `` meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. '' `` Policies that have federalism implications'' is defined in the Executive Order to include regulations that have `` substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. '' Under section 6 of Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides VerDate 11< MAY> 2000 13: 27 Nov 27, 2000 Jkt 194001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 28NOP2. SGM pfrm02 PsN: 28NOP2 70980 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law, unless the Agency consults with State and local officials early in the process of developing the proposed regulation. Section 4 of the Executive Order contains additional requirements for rules that preempt State or local law, even if those rules do not have federalism implications (i. e., the rules will not have substantial direct effects on the States, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government). Those requirements include providing all affected State and local officials notice and an opportunity for appropriate participation in the development of the regulation. If the preemption is not based on express or implied statutory authority, EPA also must consult, to the extent practicable, with appropriate State and local officials regarding the conflict between State law and Federally protected interests within the agency's area of regulatory responsibility. This proposed rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This proposed rule directly affects primarily zinc micronutrient producers and generators of hazardous wastes used in zinc fertilizer production. There are no State and local government bodies that incur direct compliance costs by this rulemaking. And State and local government implementation expenditures are expected to be less than $500,000 in any one year (for more information, please refer to the background document entitled `` Federalism Analysis (Executive Order 13132) for Zinc Containing Hazardous Waste Derived Fertilizers, Notice of Proposed Rulemaking: Substantial Direct Effects'', August 2000). Thus, the requirements of section 6 of the Executive Order do not apply to this rule. This proposed rule would preempt State and local law that is less stringent for these zinc bearing hazardous wastes. Under the Resource Conservation and Recovery Act (RCRA), 42 U. S. C. 6901 to 6992k, the relationship between the States and the national government with respect to hazardous waste management is established for authorized State hazardous waste programs, 42 U. S. C. 6926 (§ 3006), and retention of State authority, 42 U. S. C. 6929 (section 3009). Under section 3009 of RCRA, States and their political subdivisions may not impose requirements less stringent for hazardous waste management than the national government. By publishing and inviting comment on this proposed rule, we hereby provide State and local officials notice and an opportunity for appropriate participation. Thus, we have complied with the requirements of section 4 of the Executive Order.

F. Executive Order 13084: Consultation and Coordination With Indian Tribal Governments Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian Tribal governments, and that imposes substantial direct compliance costs on those communities of Indian Tribal governments, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 13084 requires EPA to provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments `` to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities. '' Today's proposal would not significantly or uniquely affect the communities of Indian tribal governments, nor would it impose substantial direct compliance costs on them.

G. Executive Order 13045: Protection of Children From Environmental Risks and Safety Risks The Executive Order 13045, entitled `` Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997) applies to any rule that EPA determines: (1) Is `` economically significant'' as defined under Executive Order 12866; and (2) the environmental health or safety risk addressed by the rule has a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children; and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered. This proposal is not economically significant under Executive Order 12866.

H. National Technology Transfer and Advancement Act of 1995 Section 12( d) of the National Technology Transfer and Advancement Act of 1995 (`` NTTAA''), Public Law No. 104± 113, section 12( d) (15 U. S. C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e. g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. EPA has proposed to condition exclusion on the fertilizer material based on contaminant levels for metals and dioxins. And after considering alternatives, EPA has determined that it would be impractical to use voluntary consensus standards for the reasons stated in Section C above.

I. Executive Order 12898 EPA is committed to addressing environmental justice concerns and is assuming a leadership role in environmental justice initiatives to enhance environmental quality for all populations in the United States. The Agency's goals are to ensure that no segment of the population, regardless of race, color, national origin, or income bears disproportionately high and adverse human health or environmental impacts as a result of EPA's policies, programs, and activities, and that all people live in safe and healthful environments. In response to Executive Order 12898 and to concerns voiced by many groups outside the Agency, EPA's Office of Solid Waste and Emergency Response formed an Environmental Justice Task Force to analyze the array of environmental justice issues specific VerDate 11< MAY> 2000 13: 27 Nov 27, 2000 Jkt 194001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 28NOP2. SGM pfrm02 PsN: 28NOP2 70981 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules to waste programs and to develop an overall strategy to identify and address these issues (OSWER Directive No. 9200.3± 17). Today's proposed rule pertains to hazardous wastes used in zinc micronutrient production. It is not certain whether the environmental problems addressed by this rule could disproportionately affect minority or low income communities. Today's proposed rule is intended to reduce risks of excluded hazardous secondary materials as proposed, and to benefit all populations. As such, this rule is not expected to cause any disproportionately high and adverse impacts to minority or low income communities versus non minority or affluent communities. The wastes proposed for exclusion will be subject to protective conditions regardless of where they are generated and regardless of where they may be managed. Although the Agency understands that the proposed exclusion, if finalized, may affect where these wastes are managed in the future, the Agency's decision to conditionally exclude these materials is independent of any decisions regarding the location of waste generators and the siting of waste management facilities. Today's proposed rule will reduce loadings of toxic non nutritive constituents to the soil. It will also preclude outdoor storage of hazardous secondary materials used in zinc fertilizer production. EPA believes that these provisions of the proposal will benefit all populations in the United States, including low income and minority communities. We encourage all stakeholders including members of the environmental justice community and members of the regulated community to provide comments or further information related to potential environmental justice concerns or impacts, including information and data on facilities that have evaluated potential ecological and human health impacts (taking into account subsistence patterns and sensitive populations) to minority or low income communities.

List of Subjects 40 CFR Part 261 Environmental protection, Hazardous waste, Recycling, Reporting and recordkeeping requirements.

40 CFR Part 266 Environmental protection, Energy, Hazardous waste, Recycling, Reporting and recordkeeping requirements. 40 CFR Part 268 Environmental protection, Hazardous waste, Reporting and recordkeeping requirements.

Dated: November 15, 2000. Carol M. Browner, Administrator. For the reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations is proposed to be amended as follows:

PART 261Ð IDENTIFICATION AND LISTING OF HAZARDOUS WASTE 1. The authority citation for part 261 continues to read as follows:

Authority: 42 U. S. C. 6905, 6912( a), 6921, 6922, 6924y, and 6938.

Subpart AÐ General 2. Section 261.4 is amended by adding new paragraphs (a)( 20) and (21) to read as follows:

§ 261.4 Exclusions. (a) * * * (20) Hazardous secondary materials used to make zinc fertilizers, provided that the following conditions are satisfied: (i) Hazardous secondary materials used to make zinc micronutrient fertilizers must not be accumulated speculatively. (ii) Generators of zinc bearing hazardous secondary materials that are to be incorporated into zinc fertilizers must: (A) Store the excluded secondary material in tanks, containers, or in buildings. The tanks, containers or buildings must be constructed and maintained in a way that prevents releases of the secondary materials into the environment. At a minimum, any building used for this purpose must be an engineered structure made of nonearthen materials that provide structural support, and must have a floor, walls and a roof that prevent against wind dispersal or contact with rainwater. Tanks used for this purpose must be structurally sound and must have roofs or covers that prevent contact with wind or rain. Containers used for this purpose that are not located in buildings must be made of metal or other rigid material that has structural integrity, and must have lids or covers that prevent wind or water dispersal of the stored materials. (B) Submit a one time notice to the Regional Administrator or State Director in whose jurisdiction the exclusion is being claimed, which contains the following information: (1) Name, address and EPA ID number of the generator facility; (2) Name and address of the fertilizer manufacturer( s) to which excluded secondary materials are expected to be shipped; (3) A brief description of the industrial process( s) which generated the secondary material, and estimated annual quantity of excluded secondary materials that are expected to be shipped to each fertilizer manufacturer; and (4) If excluded secondary materials are to be shipped off site, a certification that the state in which the receiving facility( s) is located is authorized to administer the provisions of this section. (C) Maintain at the generating facility for no less than three years records of all shipments of excluded hazardous secondary materials. For each shipment these records must at a minimum contain the following information: (1) Name of the transporter and date of the shipment; (2) Name and address of the fertilizer manufacturer who received the excluded material, documentation confirming the manufacturer's receipt of the shipment, and a notice to the receiving manufacturer that the shipped materials are excluded from regulation, subject to the conditions specified in this paragraph (a)( 20); (3) Type and quantity of excluded secondary material in each shipment. (iii) Manufacturers of zinc fertilizers or zinc fertilizer ingredients made from excluded hazardous secondary materials must: (A) Store excluded hazardous secondary materials in accordance with the storage requirements for generators, as specified in paragraph (a)( 20)( ii)( A) of this section. (B) Submit a one time notification to the Regional Administrator or State Director that, at a minimum, contains the following information: (1) Name, address and EPA ID number of the manufacturing facility. (2) Estimated annual quantities of excluded hazardous secondary materials to be used, and the industrial processes from which they are expected to be generated. (3) Names, locations and EPA ID numbers of generator facilities expected to supply such materials. (C) Maintain for a minimum of three years records of all shipments of excluded secondary materials received by the manufacturer, which must at a minimum identify for each shipment the name and address of the generating facility, name of transporter and date the materials were received, type and quantity received, and a brief VerDate 11< MAY> 2000 13: 27 Nov 27, 2000 Jkt 194001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 28NOP2. SGM pfrm02 PsN: 28NOP2 70982 Federal Register / Vol. 65, No. 229 / Tuesday, November 28, 2000 / Proposed Rules description of the industrial process that generated the waste. (D) Submit to the Regional Administrator or State Director an annual report that identifies the total quantities of all excluded hazardous secondary materials that were used to manufacture zinc fertilizer or zinc fertilizer ingredients in the previous year, the name and address of each generating facility, and the industrial process( s) from which they were generated. (iv) Nothing in this section preempts, overrides or otherwise negates the provision in § 262.11 of this chapter, which requires any person who generates a solid waste to determine if that waste is a hazardous waste. (21) Zinc fertilizers made from hazardous wastes, or hazardous secondary materials excluded under paragraph (a)( 20) of this section, provided that: (i) The fertilizers meet the following contaminant limits: (A) For metal contaminants:

Constituent Total 1 1. Lead ............................................ 2.8 2. Cadmium .................................... 1.4 3. Arsenic ........................................ 0.6 4. Mercury ....................................... 0.3 5. Nickel .......................................... 1.4 6. Chromium ................................... 0.6 1 Maximum Allowable Total Concentration in Fertilizer, per Unit (1%) of Zinc (ppm).

(B) For dioxin contaminants the fertilizer must contain no more than eight (8) parts per trillion of dioxin, measured as toxic equivalent (TEQ). (ii) The manufacturer performs sampling and analysis of the fertilizer product to determine compliance with the contaminant limits for metals no less than every six months, and for dioxins no less than every twelve months. The manufacturer may use any reliable analytical method to demonstrate that no constituent of concern is present in the product at concentrations above the applicable limits. It is the responsibility of the manufacturer to ensure that the sampling and analysis are unbiased, precise, and representative of the product( s) that is introduced into commerce. (iii) The manufacturer maintains for no less than three years records of all sampling and analyses performed for purposes of determining compliance with the requirements of (a)( 21)( ii) of this section. Such records must at a minimum include: (A) The dates and times product samples were taken, and the dates the samples were analyzed; (B) The names and qualifications of the person( s) taking the samples; (C) A description of the methods and equipment used to take the samples; (D) The name and address of the laboratory facility at which analyses of the samples were performed; (E) A description of the analytical methods used, including any cleanup and sample preparation methods; and (F) All laboratory analytical results used to determine compliance with the contaminant limits specified in this paragraph (a)( 21)( iii)( F). (iv) In an enforcement action, the burden of proof to establish conformance with the conditions in this paragraph (a)( 21)( iv) and in paragraph (a)( 20) of this section, shall be on the generator or manufacturer claiming the exclusion. * * * * * PART 266Ð[ AMENDED]

3. The authority citation for Part 266 continues to read as follows:

Authority: 42 U. S. C. 1006, 2002( a), 3004, and 3014, 6905, 6906, 6912, 6922, 6924, 6925, and 6937.

Subpart CÐ Recyclable Materials Used in a Manner Constituting Disposal 4. Section 266.20 is amended by removing the last two sentences of paragraph (b), and adding a new paragraph (d) to read as follows:

§ 266.20 Applicability.

* * * * * (d) Fertilizers that contain recyclable materials are not subject to regulation provided that: (1) They are zinc fertilizers excluded from the definition of solid waste according to § 261.4( a)( 21) of this chapter; or (2) For non zinc fertilizers, the fertilizers meet the applicable treatment standards in subpart D of Part 268 of this chapter for each hazardous waste that they contain.

PART 268Ð[ AMENDED]

5. The authority citation for part 268 continues to read as follows:

Authority: 42 U. S. C. 6905, 6912( a), 6921, and 6921.

Subpart DÐ Treatment Standards § 268.40 [Amended]

6. Section 268.40 is amended by removing paragraphs (i) and (j).

[FR Doc. 00± 29876 Filed 11± 27± 00; 8: 45 am]

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