Tuesday,

November
28,
2000
Part
II
Environmental
Protection
Agency
40
CFR
Parts
261,
266,
and
268
Requirements
for
Zinc
Fertilizers
Made
From
Recycled
Hazardous
Secondary
Materials;
Proposed
Rule
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Federal
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/
Vol.
65,
No.
229
/
Tuesday,
November
28,
2000
/
Proposed
Rules
ENVIRONMENTAL
PROTECTION
AGENCY
40
CFR
Parts
261,
266,
and
268
[FRL±
6905±
3]

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

ACTION:
Proposed
rule.

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

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

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

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

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

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

B.
What
Is
the
Scope
of
This
Proposed
Rule?

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

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/
Vol.
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229
/
Tuesday,
November
28,
2000
/
Proposed
Rules
The
Agency
is
also
aware
that
at
least
one
iron
fertilizer
product
is
currently
being
produced
from
a
mining
waste
that
is
exempted
from
hazardous
waste
regulation,
despite
evidence
that
the
product
exhibits
a
hazardous
waste
characteristic
when
tested
according
to
the
Toxicity
Characteristic
Leaching
Procedure
(TCLP)
(Oregon
Department
of
Environmental
Quality
Laboratory,
Case
Number
980474,
July
31,
1998).
Today's
proposal
invites
comment
on
whether
this
type
of
waste
recycling
practice
should
be
regulated
under
RCRA.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

These
contaminant
limits
are
expressed
as
total
concentrations
of
the
metal
in
the
zinc
fertilizer
product.
This
is
in
contrast
to
the
current
LDR
standards,
which
are
expressed
as
levels
in
a
leachate
extract,
using
the
``
toxicity
characteristic
leaching
procedure
(TCLP).
''
See
63
FR
at
28609
(May
26,
1998)
(noting
that
total
concentration
limits
are
often
the
more
appropriate
measure
for
minimizing
threats
posed
by
uses
constituting
disposal,
in
light
of
exposure
pathways
other
than
leaching
to
groundwater);
Association
of
Battery
Recyclers
v.
EPA,
208
F.
3d,
1047,
D.
C.
Circuit
2000
(noting
special
risks
posed
by
use
constituting
disposal
situations).
We
believe
that
establishing
these
limits
as
total
concentrations,
rather
than
as
concentrations
in
leachate,
is
more
appropriate
for
the
purpose
of
today's
rulemaking.
For
wastes
containing
hazardous
metal
constituents,
compliance
with
LDR
standards
typically
requires
adding
some
type
of
stabilizing
material
to
the
waste
(such
as
concrete),
thereby
reducing
the
leachability
of
the
metal
contaminants
once
the
waste
is
disposed
in
a
landfill.
Stabilization
is
obviously
an
impractical
way
to
limit
contaminants
in
zinc
fertilizers,
since
the
zinc
content
of
the
fertilizer
would
also
be
stabilized,
and
thus
would
be
useless
as
fertilizer.
In
addition,
the
TCLP
was
intended
to
simulate
the
fate
and
transport
of
hazardous
constituents
in
a
municipal
landfill,
a
scenario
quite
unlike
fertilizer
application
to
agricultural
land.
For
these
reasons,
the
Agency
believes
that
standards
for
total
concentrations
of
contaminants
in
fertilizers
are
more
appropriate
for
this
rule
than
standards
based
on
a
leachate
test.
Comments
are
solicited
on
this
aspect
of
today's
proposal.
The
product
specifications
in
today's
proposal
specify
maximum
allowable
concentrations
in
conditionally
excluded
zinc
fertilizer
for
six
metals:
lead,
cadmium,
arsenic,
mercury,
nickel,
and
chromium.
Although
the
Agency
considered
setting
standards
for
other
metals
(e.
g.,
selenium,
beryllium
and
vanadium),
we
did
not
have
sufficient
data
on
levels
of
such
metals
in
ZSM
fertilizers
to
establish
numerical
standards
for
them,
nor
are
we
aware
of
evidence
of
such
metals
in
any
appreciable
amounts
in
zinc
fertilizers.
The
Agency
solicits
additional
data
on
metals
concentrations
in
ZSM
fertilizers,
including
metals
for
which
we
are
not
proposing
standards,
and
on
the
associated
risks
that
such
metals
pose
in
fertilizers
under
typical
application
scenarios.
At
this
time,
we
believe
that
establishing
standards
for
the
six
metals
listed
above
should
be
sufficient
for
the
purpose
of
this
rulemaking.
Several
recent
studies
report
that
the
primary
metals
of
concern
for
fertilizers
are
lead,
cadmium
and
arsenic.
In
fact,
a
recent
screening
study
done
by
the
State
of
California
concluded
that
only
those
three
metals
are
found
in
fertilizer
products
at
levels
that
merit
regulation
under
California
law.
(``
Development
of
Risk
Based
Concentrations
for
Arsenic,
Cadmium
and
Lead
in
Inorganic
Commercial
Fertilizers'';
California
Department
of
Food
and
Agriculture,
March
1998).
Today's
proposal
addresses
the
three
additional
metals
generally
because
they
were
specifically
highlighted
in
the
settlement
agreement
discussed
earlier
in
this
preamble.
In
any
case,
because
of
the
chemical
purification
processes
that
are
used
to
manufacture
ZSM,
it
is
highly
likely
that
fertilizers
which
meet
the
specifications
for
lead,
cadmium
and
arsenic
would
also
meet
the
specifications
for
these
additional
metals,
without
the
need
for
additional
processing.
Since
the
current
RCRA
standards
for
metal
contaminants
in
fertilizers
are
expressed
as
concentrations
in
leachate
(measured
according
to
the
TCLP),
and
today's
proposed
constituent
limits
are
expressed
as
total
concentrations
in
the
fertilizer
product,
comparing
the
two
sets
of
limits
with
regard
to
their
``
stringency''
is
not
entirely
straightforward.
The
main
reason
for
this
is
that,
using
the
TCLP,
not
all
of
the
metals
in
a
given
test
sample
are
actually
extracted
or
leached,
especially
those
that
are
relatively
non­
soluble.
Perhaps
the
simplest
way
to
compare
the
numbers,
however,
is
to
assume
that
100%
of
the
metals
in
a
TCLP
sample
become
dissolved
in
the
tested
leachate.
Since
the
acidic
test
medium
used
in
the
TCLP
dilutes
the
concentration
of
the
metals
by
a
factor
of
twenty,
the
maximum
total
concentration
of
metals
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229
/
Tuesday,
November
28,
2000
/
Proposed
Rules
6
Other
zinc
fertilizers
have
lower
zinc
contents
and
would,
therefore,
have
proportionally
lower
exclusion
levels.
7
Note
that
the
exclusion
levels
listed
in
the
table
would
be
lower
for
a
fertilizer
that
contained
less
than
35.5%
zinc.
For
example,
the
limit
for
lead
in
a
20%
zinc
fertilizer
would
be
56
ppm
(i.
e.,
2.8
´
20).
in
a
given
sample
can
be
assumed
to
be
twenty
times
the
TCLP
leachate
concentration.
Thus,
under
the
assumption
that
100%
of
the
metals
are
leached,
the
maximum
contaminant
level
for
a
toxic
metal
in
fertilizer
would
be
twenty
times
the
toxicity
characteristic
limit.
For
lead,
for
example,
this
would
be
100
ppm
(5
ppm
´
20)
total
concentration.
In
reality,
of
course,
the
concentration
of
lead
in
an
actual
tested
fertilizer
sample
would
likely
be
considerably
higher
than
100
ppm,
since
it
is
likely
that
not
all
of
the
lead
in
the
sample
would
leach.
The
following
is
a
comparison
of
today's
proposed
conditional
limits
for
metals
in
35.5%
zinc
fertilizer
(the
typical
zinc
content
of
most
dry
ZSM
fertilizers
6
),
and
the
highest
levels
that
would
be
allowed
under
the
current
regulations
using
this
very
conservative
approach
to
comparing
leachate
levels
to
total
concentration
levels
7
.

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

1
No
limit.

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
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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,

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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.
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Federal
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/
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
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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.

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/
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
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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.
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on
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229
/
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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
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/
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
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/
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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;

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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
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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
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229
/
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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
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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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