48393
Federal
Register
/
Vol.
67,
No.
142
/
Wednesday,
July
24,
2002
/
Rules
and
Regulations
PART
52—[
AMENDED]

1.
The
authority
citation
for
part
52
continues
to
read
as
follows:

Authority:
42
U.
S.
C.
7401
et
seq.

Subpart
MM—
Oregon
2.
Section
52.1970
is
amended
by
adding
paragraph
(c)(
137)
to
read
as
follows:

§
52.1970
Identification
of
plan.

*
*
*
*
*
(c)
*
*
*
(137)
On
May
31,
2001,
the
Oregon
Department
of
Environmental
Quality
requested
the
redesignation
of
Medford
to
attainment
for
carbon
monoxide.
The
State's
maintenance
plan,
base/
attainment
year
emissions
inventory,
and
the
redesignation
request
meet
the
requirements
of
the
Clean
Air
Act.
(i)
Incorporation
by
reference.
(A)
Oregon
Administrative
Rules
340–
204–
0090,
as
effective
March
27,
2001.
PART
81—[
AMENDED]

1.
The
authority
citation
for
part
81
continues
to
read
as
follows:

Authority:
42
U.
S.
C.
7401
et
seq.

2.
In
§
81.338,
the
table
entitled
``
Oregon—
Carbon
Monoxide,
''
the
entry
for
Medford
Area,
Jackson
County
is
revised
to
read
as
follows:
*
*
*
*
*

§
81.338
Oregon.

*
*
*
*
*

OREGON—
CARBON
MONOXIDE
Designated
Area
Designation
Classification
Date
1
Type
Date
1
Type
*******
Medford
Area:
September
23,
2002
......................
Attainment
.................
Jackson
County
(part).

*******

1
This
date
is
November
15,
1990,
unless
otherwise
noted.

*
*
*
*
*

[FR
Doc.
02–
18584
Filed
7–
23–
02;
8:
45
am]

BILLING
CODE
6560–
50–
P
ENVIRONMENTAL
PROTECTION
AGENCY
40
CFR
Parts
261,
266,
268
and
271
[FRL–
7248–
3]

RIN
2050–
AE69
Zinc
Fertilizers
Made
From
Recycled
Hazardous
Secondary
Materials
AGENCY:
Environmental
Protection
Agency.
ACTION:
Final
rule.

SUMMARY:
The
Environmental
Protection
Agency
(EPA)
is
today
finalizing
regulations
under
the
Resource
Conservation
and
Recovery
Act
(RCRA)
that
apply
to
recycling
of
hazardous
secondary
materials
to
make
zinc
fertilizer
products.
This
final
rule
establishes
a
more
consistent
regulatory
framework
for
this
practice,
and
establishes
conditions
for
excluding
hazardous
secondary
materials
that
are
used
to
make
zinc
fertilizers
from
the
regulatory
definition
of
solid
waste.
The
rule
also
establishes
new
product
specifications
for
contaminants
in
zinc
fertilizers
made
from
those
secondary
materials.

DATES:
This
final
rule
is
effective
July
24,
2002,
except
for
the
amendment
to
40
CFR
266.20(
b),
which
eliminates
the
exemption
from
treatment
standards
for
fertilizers
made
from
recycled
electric
arc
furnace
dust.
The
effective
date
for
that
provision
in
today's
final
rule
is
January
24,
2003.
ADDRESSES:
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
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
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:

I.
General
Information
A.
Regulated
Entities
Entities
potentially
regulated
by
this
action
are
expected
to
include
manufacturers
of
zinc
fertilizers,
and
the
generators
of
hazardous
secondary
materials
who
will
supply
zinc­
bearing
feedstocks
to
those
manufacturers.
Some
intermediate
handlers,
such
as
brokers,
who
manage
hazardous
secondary
materials
may
also
be
affected
by
this
rule.

B.
How
Can
I
Get
Copies
of
This
Document
and
Other
Related
Information?

1.
Docket
EPA
has
established
an
official
public
docket
for
this
action
under
Docket
ID
No.
RCRA–
2000–
0054.
The
official
public
docket
consists
of
the
documents
specifically
referenced
in
this
action,
any
public
comments
received,
and
other
information
related
to
this
action.
Although
a
part
of
the
official
docket,
the
public
docket
does
not
include
Confidential
Business
Information
(CBI)
or
other
information
whose
disclosure
is
restricted
by
statute.
The
official
public
docket
is
the
collection
of
materials
that
is
available
for
public
viewing
at
the
OSWER
Docket,
1235
Jefferson
Davis
Hwy,
1st
Floor,
Arlington,
VA
22201.
You
may
copy
up
to
100
pages
from
any
docket
at
no
charge.
Additional
copies
cost
$0.15
each.

2.
Electronic
Access
You
may
access
this
Federal
Register
document
electronically
through
the
EPA
Internet
under
the
``
Federal
Register''
listings
at
http://
www.
epa.
gov/
fedrgstr/.
An
electronic
version
of
the
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Federal
Register
/
Vol.
67,
No.
142
/
Wednesday,
July
24,
2002
/
Rules
and
Regulations
public
docket
is
available
through
EPA's
electronic
public
docket
and
comment
system,
EPA
Dockets.
You
may
use
EPA
Dockets
at
http://
www.
epa.
gov/
edocket/
to
access
the
index
listing
of
the
contents
of
the
official
public
docket,
and
to
access
those
documents
in
the
public
docket
that
are
available
electronically.
Although
not
all
docket
materials
may
be
available
electronically,
you
may
still
access
any
of
the
publicly
available
docket
materials
through
the
docket
facility
identified
above.
Once
in
the
system,
select
``
search,
''
then
key
in
the
appropriate
docket
identification
number.
The
index
of
comments
received
and
supporting
materials
for
this
rulemaking
are
available
from
the
RCRA
Information
Center.
The
official
record
for
this
action
is
in
paper
form.
EPA
has
transferred
all
comments
received
electronically
into
paper
form
and
has
placed
them
in
the
official
record,
which
also
includes
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's
responses
to
the
major
comments
received
on
this
rulemaking
are
presented
in
the
preamble
to
this
final
rule;
other
comments
are
addressed
in
a
separate
``
Response
to
Comments''
document
which
is
also
part
of
the
official
record
for
this
rulemaking.
The
contents
of
today's
action
are
listed
in
the
following
outline:

I.
Statutory
Authority
II.
Background
A.
What
Is
the
purpose
of
today's
final
rule?
B.
Who
will
be
affected
by
today's
final
rule?
C.
How
were
public
comments
on
the
proposal
considered
by
EPA?
D.
How
does
this
final
rule
compare
to
the
proposal?
E.
Why
does
EPA
believe
this
is
the
best
approach
for
regulating
this
recycling
practice?
III.
Detailed
description
of
today's
final
rule
A.
Applicability
B.
Removal
of
exemption
for
fertilizers
made
from
electric
arc
furnace
dust
(K061)
C.
Conditional
exclusion
for
hazardous
secondary
materials
used
to
make
zinc
fertilizers
1.
Applicability
2.
Conditions
to
the
exclusion
3.
Other
provisions
4.
Implementation
and
enforcement
5.
Response
to
comments
D.
Conditional
exclusion
for
zinc
fertilizers
made
from
excluded
hazardous
secondary
materials
1.
Hazardous
constituent
levels
for
excluded
zinc
fertilizers
2.
Limits
on
metal
contaminants
3.
Limit
on
dioxins
IV.
Mining
wastes
used
to
make
fertilizers
V.
State
fertilizer
regulatory
programs
VI.
State
authority
A.
Applicability
of
Federal
RCRA
Rules
in
Authorized
States
B.
Authorization
of
States
for
Today's
Proposal
VII.
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.
Federalism—
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
J.
Executive
Order
13211
(Energy
Effects)
K.
Congressional
Review
Act
I.
Statutory
Authority
These
regulations
are
promulgated
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
Purpose
of
Today's
Final
Rule?
Today's
final
rule
puts
in
place
a
new,
more
coherent
system
for
regulating
the
practice
of
manufacturing
zinc
fertilizers
from
hazardous
secondary
materials,
and
establishes
conditions
under
which
such
materials
can
be
recycled
to
produce
fertilizers
without
the
materials
or
the
fertilizers
being
regulated
as
hazardous
wastes.
The
rule,
which
was
proposed
on
November
28,
2000
(65
FR
70954),
is
the
Agency's
response
to
concerns
expressed
by
public
interest
groups,
citizens,
industry
and
state
environmental
agencies
with
regard
to
the
RCRA
regulations
that
have
previously
applied
to
this
practice.
We
believe
that
these
new
regulations
will
create
a
more
consistent
and
comprehensive
regulatory
framework
for
such
recycling
activities,
will
make
industry
more
accountable
for
those
activities,
will
establish
more
appropriate
limits
on
contaminants
in
zinc
fertilizers
made
from
hazardous
secondary
materials,
and
in
general
will
promote
safe,
beneficial
recycling
in
the
zinc
fertilizer
industry.
EPA
wishes
to
emphasize
that
today's
regulatory
action
addresses
only
one
aspect
of
the
larger
issue
of
contaminants
in
fertilizers.
Fertilizers
made
from
recycled
hazardous
wastes
(which
are
the
only
types
of
fertilizers
subject
to
regulation
under
EPA's
RCRA
authorities)
represent
a
very
small
segment­
less
than
one
half
of
one
percent—
of
the
total
fertilizer
market.
To
our
knowledge,
virtually
all
of
these
are
zinc
micronutrient
fertilizers.
Currently,
less
than
half
of
all
zinc
fertilizers
on
the
market
are
made
from
such
recycled
materials.
In
any
case,
EPA's
studies
of
contaminants
in
fertilizers
have
indicated
that
the
great
majority
of
fertilizers
are
safe
when
used
properly.
This
general
finding
is
consistent
with
similar
studies
done
by
states
such
as
Washington
and
California.
Because
fertilizers
are
generally
safe,
EPA
sees
no
compelling
reason
to
launch
a
broad
new
federal
regulatory
program
to
address
fertilizer
contaminants
generally
(such
regulatory
authority
is
potentially
available
under
the
Toxic
Substances
Control
Act).
This
is
not
to
say,
however,
that
there
is
no
need
at
all
to
regulate
fertilizer
contaminants.
A
wide
range
of
fertilizers
and
soil
amendments,
including
many
products
that
are
not
made
from
recycled
wastes,
contain
appreciable
levels
of
heavy
metal
contaminants.
In
addition,
EPA's
fertilizer
studies
concluded
that
a
few
of
these
products
may
contain
contaminants
at
levels
approaching
those
which
could
pose
unacceptable
risks
to
human
health
and
the
environment.
There
is
also
the
potential
for
tainted
feedstocks
to
be
introduced
into
the
market
unknowingly,
particularly
when
such
materials
are
imported
into
the
country
from
unknown
sources.
A
recent
incident
in
the
Pacific
Northwest
involving
imported
shipments
of
zinc
sulfate
material
with
extremely
high
cadmium
levels
is
evidence
that
such
problems
can
occur
(see
Washington
Department
of
Ecology
fact
sheet
at
http://
www.
ecy.
wa..
gov/
pubs/
004025.
pdf).
Traditionally,
state
agriculture
agencies
have
had
responsibility
for
regulating
the
content
of
fertilizers,
and
in
recent
years
several
states
(so
far,
Washington,
Texas
and
California)
have
developed
comprehensive
programs
to
control
contaminants
in
fertilizers
and
soil
amendments.
We
believe
that
these
state
programs
have
been
largely
successful,
and
the
Agency
supports
further
state
efforts
in
this
area.
Additional
discussion
of
state
fertilizer
regulations
and
how
they
relate
to
this
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Federal
Register
/
Vol.
67,
No.
142
/
Wednesday,
July
24,
2002
/
Rules
and
Regulations
RCRA
rulemaking
is
presented
in
section
V.
of
this
preamble.

B.
Who
Will
Be
Affected
by
Today's
Final
Rule?
We
expect
that
the
primary
impact
of
this
rule
will
be
on
manufacturers
of
zinc
fertilizer
products
who
have
an
interest
in
using
hazardous
secondary
materials
as
feedstocks,
and
the
generators
who
supply
them.
We
expect
that
a
number
of
manufacturers
who
have
heretofore
been
avoiding
the
use
of
hazardous
wastes
will
use
the
exclusion
in
today's
rule
to
begin
using
materials
such
as
zinc­
rich
dusts
from
brass
foundries
and
fabricators
as
substitutes
for
other
feedstocks.
The
generators
of
those
materials
are
thus
expected
to
benefit
from
this
rule.
The
Agency
is
aware
that
the
last
manufacturer
of
K061
derived
fertilizer
(Frit
Industries
of
Ozark,
Alabama)
has
already
begun
the
transition
to
use
of
alternative
feedstock
materials.
Nucor
Steel,
the
K061
generator
that
has
been
Frit
Industries'
supplier,
is
likewise
switching
to
other
recycling
or
disposal
options.
More
detailed
discussion
of
the
impacts
of
this
rule
is
presented
in
section
VII.
A
of
this
preamble,
and
in
the
economic
impact
analysis
document
that
has
been
prepared
for
this
rulemaking.

C.
How
Were
Public
Comments
on
the
Proposal
Considered
by
EPA?
EPA
received
more
than
600
comments
on
the
proposal
during
the
formal
comment
period,
which
closed
on
February
26,
2001.
The
Agency
also
received
a
number
of
letters,
cards
and
emails
commenting
on
the
proposal
after
the
comment
period,
and
these
comments
have
been
entered
into
the
docket
for
this
rulemaking.
In
addition,
more
than
seventy
individuals
made
oral
statements
at
the
public
hearing
on
the
proposal,
which
was
held
in
Seattle,
WA
on
November
29,
2001.
Those
statements
have
been
recorded
in
the
transcript
of
that
hearing,
which
is
also
in
the
docket.
At
the
hearing
a
substantial
number
of
written
comments
were
also
submitted
to
the
Agency,
and
have
been
included
in
the
docket
as
well.
In
total,
nearly
1000
comments
were
received
on
the
proposed
rule.
EPA
has
reviewed
each
comment
on
the
proposal
that
was
submitted.
The
major
substantive
comments
that
were
received,
and
the
Agency's
response
to
them,
are
discussed
in
following
sections
of
today's
preamble.
Other
comments
(with
EPA's
responses)
are
set
out
in
a
separate
Response
to
Comments
document.
Where
many
commenters
expressed
similar
or
identical
views
on
certain
issues,
these
have
been
consolidated
in
the
document,
and
the
Agency
has
prepared
a
collective
response
to
them.
The
Response
to
Comments
document
has
been
placed
in
the
docket
for
this
rulemaking.

D.
How
Does
This
Final
Rule
Compare
to
the
Proposal?
In
today's
final
rule
EPA
is
promulgating
the
same
basic
regulatory
approach
that
was
outlined
in
the
November
28,
2000
proposal.
To
summarize,
today's
rule:
 
Removes
the
exemption
from
land
disposal
restrictions
(LDR)
treatment
standards
for
zinc
fertilizers
made
from
electric
arc
furnace
dust,
or
K061;
and
 
Establishes
a
conditional
exclusion
from
the
RCRA
regulatory
definition
of
solid
waste
for
hazardous
secondary
materials
that
are
legitimately
recycled
to
make
zinc
micronutrient
fertilizers;
and
 
Establishes
conditions
(chiefly
concentration
limits
for
certain
heavy
metals
and
dioxins)
under
which
zinc
fertilizers
produced
from
hazardous
secondary
materials
are
not
classified
as
solid
wastes,
and
hence
are
not
subject
to
RCRA
subtitle
C
regulation.
Although
EPA
has
finalized
the
same
basic
regulatory
approach
that
was
outlined
in
the
November
28,
2000
proposed
rule,
several
substantive
revisions
have
been
made
in
response
to
comments
received.
The
following
is
a
summary
of
these
changes,
which
are
discussed
in
more
detail
in
following
sections
of
this
preamble:
Applicability.
The
final
rule
clarifies
how
the
new
product
specification
contaminant
limits
will
apply
to
zinc
fertilizers
made
from
regulated
(i.
e.,
non­
excluded)
hazardous
wastes.
In
short,
such
fertilizers
will
need
to
comply
with
the
existing,
applicable
land
disposal
restrictions
(LDR)
treatment
standards
for
the
hazardous
wastes
the
fertilizers
contain.
Manufacturers
of
such
fertilizers
may,
however,
choose
to
meet
the
new,
more
stringent
contaminant
limits,
if
they
wish.
Intermediate
handlers.
Under
today's
final
rule,
intermediate
handlers
(e.
g.,
brokers)
of
excluded
materials
will
be
eligible
for
the
same
exclusion
as
generators,
provided
they
choose
to
meet
the
same
conditions
for
reporting,
record
keeping
and
storage
of
excluded
materials
that
apply
to
generators
of
such
materials.
The
proposed
rule
did
not
contain
any
provisions
specifically
addressing
intermediate
handlers.
Additional
testing.
Today's
final
rule
provides
for
additional
sampling
and
analysis
of
fertilizer
products
in
cases
where
processes
or
feedstock
materials
are
changed
in
ways
that
could
significantly
affect
contaminant
levels
in
the
fertilizers.
One­
time
notice.
Two
changes
have
been
made
to
the
condition
for
one­
time
notices
that
generators
will
need
to
submit
to
EPA
or
to
authorized
state
agencies.
One
change
eliminates
the
need
to
provide
certain
potentially
proprietary
information
in
the
notices
(e.
g.,
estimated
quantities
of
material
to
be
shipped
to
specific
manufacturers).
The
other
change
will
require
that
facilities
identify
in
the
one­
time
notice
when
they
intend
to
begin
managing
materials
under
the
terms
of
the
conditional
exclusion.
Certifications.
The
final
rule
eliminates
the
proposed
condition
that
each
shipment
of
excluded
material
to
another
state
be
accompanied
by
a
certification
that
the
receiving
state
is
authorized
to
administer
the
conditional
exclusion
in
this
regulation.
Unit
Closure.
The
final
rule
includes
a
provision
clarifying
that
storage
units
which
have
previously
stored
hazardous
wastes,
and
that
subsequently
will
only
store
excluded
materials
according
to
these
regulations,
will
not
be
subject
to
RCRA
closure
requirements.
Limits
for
nickel
and
arsenic.
The
proposed
level
for
arsenic
has
been
lowered
in
this
final
rule,
and
the
proposed
level
for
nickel
has
been
eliminated.
Storage
in
supersacks.
The
proposed
condition
that
would
have
prohibited
outside
storage
of
excluded
secondary
materials
in
non­
rigid
``
supersack''
containers
has
been
revised
to
allow
the
use
of
these
types
of
containers
outdoors,
provided
they
are
managed
within
units
(e.
g.,
on
concrete
pads)
that
have
containment
systems
to
prevent
releases
from
leaks,
spills
or
precipitation
events.

E.
Why
Does
EPA
Believe
This
Is
the
Best
Approach
for
Regulating
This
Recycling
Practice?
EPA's
main
objectives
for
this
rulemaking
are
to:
 
Establish
a
more
consistent,
more
comprehensive,
and
more
protective
regulatory
framework
for
this
recycling
practice;
and
 
Establish
more
appropriate
limits
on
contaminants
in
recycled
zinc
fertilizers
that
effectively
distinguish
fertilizer
products
from
wastes
by
adopting
limits
that
are
already
found
in
commercial
fertilizers,
which
can
be
achieved
with
well­
demonstrated
manufacturing
techniques,
and
that
are
protective;
and
 
Encourage
legitimate
recycling
by
streamlining
regulatory
restrictions
on
the
management
of
hazardous
secondary
materials
used
to
make
zinc
fertilizers,

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/
Vol.
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No.
142
/
Wednesday,
July
24,
2002
/
Rules
and
Regulations
1
Sham
recycling
is
waste
treatment
or
disposal
occurring
under
the
guise
of
recycling.
United
States
v.
Marine
Shale
Processors,
81
F.
3d
1361,
1365
(5th
Cir.
1996).
Sham
recycling
occurs,
for
example,
``
if
extra
materials
are
added
to
[the
material
to
be
recycled]
that
provide
no
benefit
to
the
industrial
process
*
*
*.
''
American
Petroleum
Inst.
v.
EPA,
216
F.
3d
50,
58
(D.
C.
Cir.
2000).
EPA
has
frequently
noted
factors
that
are
likely
to
be
relevant
in
determining
whether
sham
recycling
is
occurring.
See
United
States
v.
Marine
Shale
Processors,
81
F.
3d
at
1365
nn.
3
and
4
(compiling
Federal
Register
citations).
These
include:
(a)
Whether
the
secondary
material
is
ineffective
or
only
marginally
effective
for
the
claimed
use
(i.
e.,
does
not
contribute
a
significant
element
to
the
recycled
product
or
to
the
recycling
process);
(b)
whether
the
secondary
material
is
used
in
excess
of
the
amount
needed;
and
(c)
whether
the
secondary
material
is
handled
in
a
manner
consistent
with
its
use
as
a
substitute
for
an
industrial
feedstock
(i.
e.,
to
guard
against
loss).
while
making
industry
more
accountable
for
its
recycling
activities.
EPA
believes
that
the
regulatory
approach
in
today's
final
rule
is
the
best
means
of
achieving
these
objectives,
for
several
reasons.
We
expect
it
to
be
environmentally
beneficial
by
removing
regulatory
anomalies
and
making
zinc
fertilizers
cleaner—
for
example,
by
halting
production
of
K061­
derived
zinc
fertilizers
with
relatively
high
contaminant
levels
(see
section
III.
B.
of
this
preamble).
A
further
environmental
benefit
will
be
recovery
of
large
volumes
of
valuable
zinc,
rather
than
landfilling
this
resource.
The
rule
will
also
enhance
the
ability
of
regulatory
agencies
to
effectively
monitor
this
recycling
practice,
while
removing
unnecessary
regulatory
disincentives
on
legitimate
recycling.
We
also
believe
that
the
new
contaminant
limits
in
this
rule
are
reasonable
and
are
consistent
with
the
environmental
objectives
stated
above,
and
can
be
(and
are
being)
easily
achieved
by
industry
using
relatively
simple,
economically
viable,
existing
manufacturing
practices.
These
levels
thus
reasonably
demarcate
products
from
wastes.
While
EPA
believes
that
this
final
rule
provides
an
appropriate
balance
of
conditions
and
incentives,
a
large
proportion
of
the
more
than
1000
total
comments
we
received
expressed
a
clear
preference
for
a
more
stringent
regulatory
approach.
Most
of
these
comments
were
received
in
the
form
of
emails,
post
cards,
form
letters
and
oral
statements
made
at
the
public
hearing.
In
general,
these
commenters
expressed
support
for
a
regulatory
approach
similar
to
the
option
in
the
preamble
identified
as
``
Maintain
current
UCD
requirements,
with
additional
reporting,
record
keeping
and
testing
requirements
for
all
hazardous
waste
derived
fertilizers''
(see
65
FR
70964–
5,
November
28,
2000).
Under
this
type
of
approach,
the
current
hazardous
waste
regulatory
structure
would
be
maintained
and
made
more
stringent
by
requiring
lower
limits
on
a
wider
range
of
potential
fertilizer
contaminants,
greatly
expanded
testing
requirements,
labeling
of
hazardous
waste
derived
fertilizer
products,
and
much
more
indepth
reporting
of
environmental
and
manufacturing
data.
Many
commenters
suggested
in
addition
that
there
should
be
a
complete
prohibition
on
the
use
of
any
dioxin­
containing
hazardous
wastes
to
make
fertilizers.
Such
a
regulatory
approach
would
likely
result
in
a
complete
elimination
of
hazardous
secondary
materials
as
a
source
of
zinc
to
make
fertilizers,
since
it
would
perpetuate
existing
regulatory
disincentives
(e.
g.,
RCRA
permit
requirements,
as
explained
further
in
this
preamble)
and
substantially
increase
compliance
costs.
To
avoid
these
regulatory
disincentives,
manufacturers
would
almost
certainly
use
alternative
feedstock
materials
(which
would
likely
contain
the
same
or
similar
contaminants
as
are
found
in
hazardous
wastes)
to
make
fertilizers.
The
resulting
fertilizers
would
be
largely
unregulated,
since
they
would
not
be
subject
to
EPA's
RCRA
regulatory
system,
and
only
a
few
states
presently
regulate
fertilizer
contaminants
under
other
legal
authorities.
Therefore,
by
eliminating
the
use
of
hazardous
wastes
in
fertilizer
manufacture,
contaminant
levels
in
some
fertilizers
could
actually
increase,
which
we
do
not
believe
is
a
desirable
environmental
result
(not
to
mention
the
energy
and
other
resources
conserved
by
avoiding
treatment
and
disposal
of
zinc­
bearing
secondary
materials).
As
explained
in
the
preamble
to
the
proposed
rule,
EPA
has
found
that
a
wide
variety
of
zinc­
bearing
materials—
including
hazardous
wastes—
can
be
safely
and
legitimately
processed
and
recycled
into
high­
quality
zinc
fertilizer
products
by
using
relatively
simple,
existing
manufacturing
techniques.
In
other
words,
the
quality
of
the
end
fertilizer
product
depends
almost
entirely
on
the
manufacturing
process,
rather
than
on
the
type
of
feedstock
material
that
is
used.
EPA
did
not
receive
any
comments
on
the
proposal
that
presented
technical
or
scientific
information
to
challenge
these
findings,
and
we
therefore
have
no
reason
to
believe
that
high­
purity
zinc
fertilizers
made
from
recycled
hazardous
wastes
are
any
different
in
composition
or
risk
potential
from
those
made
from
other
types
of
materials.
(See
proposed
rule
at
65
FR
at
70959
n.
2
discussing
the
similarity
of
hazardous
constituent
levels
in
zinc
fertilizers
made
from
hazardous
wastes
and
from
other
materials).
Given
that
high
purity
zinc
fertilizers
made
from
hazardous
secondary
materials
are
essentially
identical
to
those
made
from
other
types
of
feedstock
materials,
we
see
no
environmental
reason
for
increasing
regulatory
restrictions
over
such
products.
We
believe
that
today's
rule
provides
the
proper
balance
of
protections
and
incentives
for
this
recycling
practice
without
the
need
for
additional,
more
prescriptive
regulatory
controls.
The
Agency
therefore
chose
not
to
adopt
the
more
stringent
regulatory
approach
(described
above)
that
was
advocated
by
many
commenters.
We
also
received
a
number
of
comments
that
simply
decried
the
practice
of
using
hazardous
waste
to
make
fertilizers,
claiming
that
it
creates
serious
threats
to
human
health,
the
food
supply,
and
the
environment.
None
of
these
commenters,
however,
offered
any
specific
evidence
of
such
threats,
or
any
concrete
information
indicating
that
hazardous
wastes
are
being
indiscriminately
added
to
fertilizers
as
a
way
of
disposing
of
them.
It
is
important
to
note
that
any
such
acts
would
be
considered
``
sham''
recycling
of
hazardous
waste,
which
is
illegal.
1
Further,
EPA's
studies
of
contaminants
in
fertilizers
have
not
found
evidence
to
support
such
serious
concerns.
We
do
not
wish
to
minimize
the
potential
for
adverse
health
effects
from
exposure
generally
to
toxic
chemicals
such
as
heavy
metals.
We
believe,
however,
that
with
regard
to
fertilizers,
much
of
this
concern
is
apparently
misplaced,
and
may
have
resulted
from
unsubstantiated
speculations
and
exaggerated
claims
of
risk
that
have
appeared
in
the
media
and
elsewhere.
We
hope
that
this
final
rule,
and
the
record
of
evidence
that
supports
it,
will
help
to
allay
unnecessary
public
fears
with
regard
to
fertilizers
made
from
recycled
hazardous
wastes.

III.
Detailed
Description
of
Today's
Final
Rule
A.
Applicability
Today's
rule
establishes
a
new
regulatory
framework
for
legitimate
recycling
of
``
hazardous
secondary
materials''
in
the
manufacture
of
zinc
micronutrient
fertilizers.
A
secondary
material
is
a
sludge,
by­
product,
or
spent
material.
See
50
FR
at
616
n.
4
(Jan.
4,
1985).
A
hazardous
secondary
material
is
a
secondary
material
that
would
be
a
hazardous
waste
(i.
e.,
is
listed
or
exhibits
a
characteristic
of
hazardous
waste)
if
it
is
first
a
solid
waste.
Hazardous
secondary
materials
are
presently
classified
as
hazardous
wastes
when
recycled
to
produce
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Vol.
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142
/
Wednesday,
July
24,
2002
/
Rules
and
Regulations
fertilizers.
See
65
FR
at
70958–
59,
explaining
the
``
use
constituting
disposal''
provisions
in
EPA's
hazardous
waste
recycling
rules.
However,
EPA
is
referring
to
these
materials
in
this
preamble
as
``
secondary
materials''
or
``
hazardous
secondary
materials,
''
rather
than
as
``
hazardous
wastes,
''
since
today's
rule
excludes
them
from
being
defined
as
wastes
provided
that
certain
conditions
are
followed.
The
rule
will
potentially
apply
to
manufacturers
of
zinc
fertilizers
who
use
(or
wish
to
use)
hazardous
secondary
materials
as
ingredients
in
their
production
processes,
and
to
the
generators
and
any
intermediate
handlers
who
supply
those
materials
to
the
manufacturers.
The
rule
will
not
directly
affect
any
zinc
fertilizers
that
are
made
from
non­
hazardous
materials
(``
secondary''
or
otherwise),
nor
will
it
change
the
current
regulatory
requirements
for
non­
zinc
fertilizers
made
from
hazardous
wastes.
A
full
explanation
of
the
regulatory
requirements
for
hazardous
waste
fertilizer
recycling
that
have
been
in
effect
prior
to
today's
action
is
presented
in
the
preamble
to
the
proposed
rule
(see
November
28,
2000,
65
FR
at
70956).
It
should
be
noted
that
today's
final
rule
creates
two
separate
conditional
exclusions­
an
exclusion
from
regulation
for
the
hazardous
secondary
materials
used
in
zinc
fertilizer
manufacture,
and
an
exclusion
for
the
fertilizer
products
that
are
made
from
these
materials.
The
exclusion
for
hazardous
secondary
materials
will
potentially
be
available
to
those
parties
who
handle
such
materials
prior
to
recycling
(i.
e.,
the
secondary
material
generators,
any
intermediate
handlers,
and
the
fertilizer
manufacturers).
The
exclusion
provided
for
the
finished
zinc
fertilizer
products
will
only
apply
to
fertilizer
manufacturers,
since
they
are
solely
responsible
for
ensuring
that
their
products
meet
the
specifications
in
today's
rule.
To
reiterate,
today's
final
rule
will
not
apply
to
any
fertilizers
other
than
zinc
fertilizers
that
are
made
from
recycled
hazardous
secondary
materials.
Thus,
if
a
manufacturer
were
to
use
hazardous
waste
as
an
ingredient
in
a
non­
zinc
fertilizer,
the
manufacturer
would
not
be
eligible
for
the
conditional
exclusion
in
today's
rule,
and
will
need
to
comply
with
applicable
hazardous
waste
management
requirements
[see
existing
§
266.20(
b)].
Effective
Dates.
Except
for
one
provision,
today's
rule
will
become
effective
immediately
upon
publication
in
the
Federal
Register.
The
exception
is
the
provision
in
the
rule
that
amends
§
266.20(
b),
removing
the
exemption
from
treatment
standards
for
fertilizers
made
from
recycled
K061.
The
effective
date
for
that
provision
will
be
January
23,
2002.
The
RCRA
statute
establishes
six
months
as
the
usual
effective
date
for
Subtitle
C
rules
(see
RCRA
section
3010
(b)),
though
the
Agency
may
provide
for
a
shorter
or
immediate
effective
date
in
the
case
of
regulations
with
which
the
regulated
community
does
not
need
six
months
to
come
into
compliance,
as
determined
by
the
Admininstrator.
Since
today's
final
rule
is
essentially
deregulatory
in
nature
(with
the
exception
noted
above),
we
see
no
reason
to
delay
its
effective
date.
Thus,
except
for
the
provision
that
removes
the
exemption
for
K061
derived
fertilizers,
today's
rule
will
be
effective
immediately
upon
publication
in
the
Federal
Register.
One
commenter
(Frit
Industries)
requested
an
extended
(nine
month)
effective
date
for
removing
the
exemption
from
treatment
standards
for
K061
fertilizers.
We
note
that
there
is
no
provision
in
the
RCRA
statute
for
such
extended
effective
dates.
In
addition,
the
commenter
has
had
ample
notice
of
the
Agency's
intent
to
finalize
this
provision,
and
has
been
aware
of
the
Agency's
schedule
for
completing
this
regulatory
action.
Thus,
we
believe
the
commenter
has
had
sufficient
notice
of
this
action.
Once
this
provision
of
the
rule
becomes
effective,
sales
of
K061
derived
fertilizers
by
manufacturers
to
other
parties
will
not
be
permitted,
unless
those
fertilizers
can
meet
the
specifications
for
exclusion
in
today's
rule.
Assuming
they
cannot
meet
the
exclusion
specifications,
remaining
manufacturer
inventories
of
K061
fertilizers
after
the
effective
date
will
need
to
be
managed
in
accordance
with
applicable
hazardous
waste
regulations.
As
a
practical
matter,
however,
inventories
of
K061
(or
other)
fertilizers
that
have
already
entered
commerce
(i.
e.,
have
been
sold
and
shipped
to
other
parties)
before
the
effective
date
will
not
be
affected.
Thus,
fertilizer
dealers
and
others
who
may
have
unsold
stocks
of
K061
fertilizers
after
this
rule's
effective
date
will
not
be
affected,
provided
the
fertilizers
were
sold
and
shipped
by
the
manufacturer
prior
to
the
effective
date.
It
is
our
intent
to
hold
manufacturers
of
K061
fertilizers
(and
any
other
affected
fertilizers)
responsible
for
ensuring
that
noncompliant
products
do
not
enter
commerce
after
the
effective
date
of
this
rule.
B.
Removal
of
Exemption
for
Fertilizers
Made
from
Electric
Arc
Furnace
Dust
(K061)

Today's
rule
eliminates
the
provision
in
§
266.20
that
has
exempted
zinc
fertilizers
made
specifically
from
electric
arc
furnace
dust
(K061)
from
having
to
meet
applicable
land
disposal
restrictions
(LDR)
treatment
standards
(i.
e.,
the
treatment
standards
for
K061).
This
exemption
was
originally
promulgated
in
the
``
First
Third''
LDR
rulemaking
(August
17,
1988,
52
FR
31138),
based
on
a
determination
by
EPA
that
fertilizers
made
from
K061
had
metal
contaminant
levels
comparable
to
those
of
substitute
zinc
fertilizers
(including
those
made
from
nonhazardous
waste
feedstocks),
and
that
the
use
of
K061
fertilizers
did
not
appear
to
pose
significant
risks
(see
53
FR
31164,
August
17,
1998).
However,
in
recent
years
zinc
fertilizers
of
much
higher
purity
(e.
g.,
zinc
sulfate
monohydrate,
or
ZSM
fertilizers)
have
become
widely
available,
and
K061
derived
zinc
fertilizers
now
have
among
the
highest
contaminant
(i.
e.,
hazardous
constituent)
levels
of
any
zinc
fertilizers.
Thus,
EPA
believes
that
the
original
basis
for
the
K061
exemption
is
no
longer
valid,
and
sees
no
reason
why
these
fertilizer
products
should
not
have
to
meet
the
same
contaminant
limits
as
other
fertilizers
made
from
recycled
hazardous
wastes
(or
be
excluded
from
regulation
in
the
same
way
as
other
such
fertilizers).
Response
to
Comments.
Numerous
commenters
expressed
support
for
a
complete
ban
on
the
use
of
K061
in
fertilizer
manufacture,
often
citing
the
relatively
high
levels
of
dioxins
in
K061
fertilizers
compared
to
other
fertilizer
products.
Others
urged
a
ban
on
the
use
of
all
``
dioxin
laden
wastes''
to
make
fertilizer.
A
few
commenters
opposed
removing
the
current
LDR
exemption
for
K061
derived
fertilizers.
EPA
chose
not
to
ban
the
use
of
K061
to
make
zinc
fertilizers,
for
several
reasons.
Most
importantly,
we
believe
that
with
the
promulgation
of
today's
rule
the
issue
of
dioxins
in
K061
derived
fertilizers
will
effectively
become
moot,
largely
because
the
new
rules
will
in
all
likelihood
eliminate
the
use
of
K061
to
make
zinc
oxysulfate
fertilizers.
Oxysulfate
is
a
type
of
zinc
fertilizer
that
is
typically
made
by
simply
mixing
zinc­
bearing
material
(e.
g.,
K061)
with
sulfuric
acid.
There
is
typically
no
processing
step
to
remove
contaminants—
whatever
impurities
are
in
the
feedstock
material
will
usually
remain
in
the
finished
product.
Such
products
will
be
unable
to
meet
the
new
exclusion
levels
in
today's
rule,
or
the
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/
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24,
2002
/
Rules
and
Regulations
applicable
LDR
standards.
Thus,
we
do
not
expect
this
type
of
fertilizer
to
be
produced
after
the
effective
date
of
today's
regulations.
At
the
same
time,
it
is
possible
to
remove
the
contaminants
in
K061
to
make
a
different
type
of
fertilizer,
such
as
high­
purity
ZSM
fertilizer,
which
can
satisfy
the
conditional
exclusion
levels.
Most
of
the
zinc
in
K061
is
bound
with
iron
in
a
zinc
ferrite
compound
that
is
relatively
insoluble
and,
at
normal
temperatures,
cannot
be
effectively
digested
with
acids
to
precipitate
and
filter
out
contaminants
such
as
lead
and
other
metals.
However,
it
has
been
demonstrated
that
raw
K061
can
be
first
processed
in
high­
temperature
furnaces
to
form
a
zinc
oxide
material
that
can
then
easily
be
made
into
ZSM.
Such
thermal
treatment,
combined
with
subsequent
manufacturing
processes,
is
likely
to
destroy
most
or
nearly
all
dioxins
present
in
K061.
The
agency
thus
sees
no
dioxin­
related
reason
to
prohibit
this
use
of
K061.
Further
discussion
of
dioxins
in
hazardous
waste
derived
fertilizers
is
presented
in
section
III.
D.
3
of
this
preamble.
A
few
comments
were
received
that
opposed
removing
the
current
exemption
from
LDR
treatment
standards
for
K061
derived
zinc
fertilizers.
These
commenters
did
not,
however,
challenge
the
Agency's
logic
for
eliminating
the
exemption,
but
rather
argued
that
EPA
has
no
legal
jurisdiction
to
regulate
these
fertilizers
at
all,
based
on
recent
court
decisions.
EPA
rejects
these
arguments,
for
the
reasons
discussed
later
in
this
preamble.

C.
Conditional
Exclusion
for
Hazardous
Secondary
Materials
Used
To
Make
Zinc
Fertilizers
In
this
final
rule,
EPA
has
created
a
``
conditional
exclusion''
from
the
RCRA
definition
of
solid
waste
for
hazardous
secondary
materials
(which
would
otherwise
be
classified
as
hazardous
wastes,
as
explained
above)
that
are
used
as
ingredients
to
make
zinc
micronutrient
fertilizers.
As
mentioned
previously,
this
feature
of
the
final
rule
is
consistent
with
the
proposal,
though
a
few
specific
changes
have
been
made,
as
explained
below.
The
conditional
exclusion
provided
in
today's
rule
is
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
is
consistent
with
the
principle
already
codified
for
other
excluded
secondary
materials—
that
the
exclusion
is
only
from
RCRA
regulatory
provisions,
and
not
from
these
statutory
authorities.
See
§
261.1(
b).
EPA
is
restating
this
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
at
627.
See
also
Connecticut
Coastal
Fishermen's
Assn.
v.
Remington
Arms,
989
F.
2d
1305,
1313–
15
(2d
Cir.
1993)
(EPA
may
permissibly
ascribe
different
definitions
to
the
term
``
solid
waste''
for
regulatory
and
statutory
purposes).
Today's
conditional
exclusion
is
intended
to
remove
many
of
the
regulatory
disincentives
that
to
date
have
discouraged
legitimate
recycling
in
the
zinc
fertilizer
industry.
Previously,
hazardous
wastes
that
were
recycled
to
make
fertilizers
were
subject
to
the
full
suite
of
hazardous
waste
regulatory
requirements,
including
the
requirement
to
obtain
a
RCRA
permit
for
storage
of
wastes
prior
to
fertilizer
production.
This
permitting
requirement
in
particular
has
dissuaded
a
number
of
fertilizer
manufacturers
from
using
valuable
secondary
materials
as
feedstocks,
since
RCRA
permits
can
be
time
and
resource­
intensive
to
obtain
and
maintain,
and
a
number
of
alternative
materials
are
readily
available
that
are
not
subject
to
subtitle
C
regulation,
either
because
they
are
not
hazardous
(i.
e.,
are
not
listed
and
do
not
exhibit
a
characteristic),
or
are
raw
materials.
By
allowing
companies
to
manage
these
hazardous
secondary
materials
in
accord
with
the
conditions
which
are
established
in
today's
final
rule,
EPA
expects
that
the
rate
of
legitimate
recovery
of
zinc
values
in
these
materials
will
increase
considerably,
which
should
be
environmentally
beneficial
and
result
in
lower
costs
to
farmers
for
zinc
fertilizers.
Once
this
rule
becomes
effective,
those
who
wish
to
begin
managing
hazardous
secondary
materials
according
to
the
conditional
exclusion
will
first
need
to
notify
EPA
or
the
authorized
state
of
their
intent
to
do
so.
This
will
provide
overseeing
agencies
information
as
to
who
will
be
operating
under
this
alternative
regulatory
system,
when
they
will
start,
and
the
type
of
materials
involved.
In
EPA's
view,
for
this
particular
recycling
practice,
this
is
the
minimum
information
needed
to
ascertain
that
legitimate
recycling
of
the
zinc­
bearing
materials
will
occur,
and
by
whom.
The
other
conditions
that
must
be
met
to
use
and
maintain
the
conditional
exclusion
address
the
proper
storage
of
materials
prior
to
recycling,
and
documentation
of
all
offsite
shipments
of
excluded
materials.
In
addition,
fertilizer
manufacturers
will
need
to
submit
an
annual
report
to
the
overseeing
agency
that
identifies
the
type,
quantity
and
origin
of
all
excluded
materials
that
were
used
in
the
previous
year.
Again,
EPA
believes
that
for
this
recycling
practice,
these
conditions
are
needed
to
assure
that
the
materials
will
be
recycled
legitimately.

1.
Applicability
Several
changes
have
been
made
to
the
final
rule
with
regard
to
its
applicability.
For
one,
the
final
rule
has
been
modified
with
regard
to
how
it
applies
to
intermediate
handlers
who
act
as
brokers
or
middlemen
between
generators
and
fertilizer
manufacturers.
The
proposed
regulatory
language
did
not
specify
any
requirements
or
conditions
specifically
for
intermediate
handlers,
though
EPA
discussed
the
issue
and
solicited
comments
on
it
in
the
preamble
(65
FR
at
70962–
3).
Several
commenters
observed
that
the
use
of
intermediate
handlers
in
this
industry
is
not
uncommon,
with
one
commenter
suggesting
that
in
the
final
rule
an
intermediate
handler
should
have
the
same
responsibilities
as
a
manufacturer
who
uses
the
conditional
exclusion.
The
conditions
in
the
final
rule
for
excluding
hazardous
secondary
materials
are
intended
to
reflect
normal,
responsible
practices
for
management
of
valuable
material
commodities,
rather
than
waste
management.
Since
intermediate
handlers
may
be
an
integral
part
of
the
management
chain
for
these
materials
prior
to
recycling,
we
believe
it
is
reasonable
to
also
establish
conditions
for
them.
If
intermediate
handlers
had
no
responsibilities
for
maintaining
the
excluded
status
of
materials
they
receive,
the
materials
could
potentially
be
mixed
or
consolidated
with
other
materials,
or
could
in
some
other
way
lose
their
regulatory
identity
and
escape
the
chain
of
custody
that
provides
accountability
to
the
government
and
the
public
to
ensure
that
these
materials
are
being
handled
in
way
that
is
consistent
with
the
handling
of
a
valuable
commodity.
They
also
could
simply
be
stored
haphazardly
and
create
the
types
of
damage
associated
with
improper
management
of
discarded
materials,
as
has
occurred
in
past
damage
incidents
within
the
zinc
fertilizer
recycling
industry
(records
of
these
damage
cases
are
in
the
docket
for
this
rulemaking).
EPA
sees
no
reason
to
prohibit
excluded
materials
from
being
shipped
through
intermediate
handlers,
since
they
may
provide
a
useful
service
to
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/
Vol.
67,
No.
142
/
Wednesday,
July
24,
2002
/
Rules
and
Regulations
both
generators
and
manufacturers
in
this
industry.
Moreover,
use
of
such
middle­
men
is
relatively
common
in
the
industry,
and
so
is
consistent
with
the
idea
of
an
exclusion
conditioned
to
conform
to
industry
commercial
practice.
However,
their
use
must
not
compromise
the
protections
that
have
been
built
into
this
conditional
exclusion.
We
believe
that
intermediate
handlers
have
incentives
for
managing
conditionally
excluded
materials
that
are
very
similar
to
the
generators',
and
thus
should
have
similar
responsibilities
(i.
e.,
any
exclusion
for
intermediate
handlers
should
be
conditioned
in
the
same
manner
as
for
generators).
The
final
rule
therefore
specifies
that
intermediate
handlers
who
wish
to
use
the
conditional
exclusion
must
meet
the
same
set
of
conditions
that
apply
to
the
generators
of
the
materials
[see
§
261.4(
a)(
20)(
ii)].
In
effect,
any
intermediate
handler
who
elects
to
receive
conditionally
excluded
materials
and
wishes
to
maintain
their
excluded
status
under
the
terms
of
today's
rule
would
need
to
provide
prior
notice
to
the
appropriate
regulatory
agency,
store
the
materials
in
accordance
with
the
conditions
in
the
rule,
and
meet
all
other
conditions
that
would
otherwise
apply
to
the
generator
of
the
material.
Alternatively,
it
is
possible
that
an
intermediate
handler
might
choose
not
to
use
the
conditional
exclusion,
in
which
case
any
excluded
materials
received
by
the
handler
would
lose
their
excluded
regulatory
status.

2.
Conditions
to
the
Exclusion
In
general,
the
conditions
established
in
today's
final
rule
for
storage
and
documentation
of
excluded
material
are
designed
to
reflect
normal
fertilizer
industry
handling
practices
for
zincbearing
feedstock
materials.
They
are
the
same
basic
conditions
that
were
proposed
for
establishing
and
maintaining
a
regulatory
exclusion
for
hazardous
secondary
materials
used
to
make
zinc
fertilizers,
with
several
relatively
minor
changes.
Under
this
rule,
in
order
to
begin
managing
hazardous
secondary
materials
that
will
be
used
to
make
zinc
fertilizers
without
being
subject
to
the
current
hazardous
waste
regulatory
system,
the
responsible
party
(i.
e.,
the
secondary
material
generator,
the
fertilizer
manufacturer
or
an
intermediate
handler)
must
initially
notify
the
appropriate
regulatory
agency
that
he
or
she
intends
to
begin
doing
so,
and
must
then
meet
the
conditions
set
out
in
this
regulation.
These
conditions
address
proper
storage
of
the
excluded
secondary
material,
notification
of
regulatory
agencies,
and
documenting
and
maintaining
records
of
any
off­
site
shipments
of
such
material.
Fertilizer
manufacturers
who
wish
to
use
the
conditional
exclusion
will
also
need
to
submit
an
annual
report
to
EPA
or
the
authorized
state
agency
on
the
types,
origins
and
quantities
of
excluded
materials
used
in
the
previous
year.
The
storage
conditions
in
today's
rule
are
based
on
normal
industry
practices
for
storing
zinc­
bearing
feedstock
materials
used
to
make
fertilizers,
and
thus
are
analogues
to
the
hazardous
constituent
specification
levels
for
the
fertilizers,
which
likewise
are
drawn
from
existing
industry
practice.
The
conditions
generally
serve
to
prevent
these
materials
from
being
discarded
via
wholesale
release
into
the
environment.
The
conditions
also
reflect
the
fact
that
zinc
fertilizer
feedstock
materials
are
typically
valued
commodities,
and
are
thus
stored
so
as
to
prevent
releases
or
other
losses
of
the
material.
EPA's
review
of
feedstock
storage
practices
by
zinc
fertilizer
manufacturers
indicated,
for
example,
that
bulk
feedstock
materials
are
usually
stored
outdoors
in
hoppers
or
other
types
of
tanks,
while
indoor
storage
is
typically
in
supersack
containers
or
in
piles.
We
are
not
aware
of
any
zinc
fertilizer
manufacturer
currently
storing
feedstock
materials
in
ways
that
readily
allow
dispersal
via
wind
or
precipitation
runoff
(e.
g.,
open,
outdoor
piles).
See
the
memorandum
``
Industry
Storage
Practices,
''
in
the
docket
for
this
rulemaking.
Thus,
we
believe
that
the
conditions
in
today's
rule
reflect
this
industry's
feedstock
storage
practices,
and
thus
reasonably
serve
to
demarcate
valuable
feedstocks
from
wastes.
EPA
has
made
several
changes
from
the
proposed
rule
to
the
specific
conditions
that
must
be
met
in
order
to
be
eligible
for
the
exclusion.
These
changes
address
outside
storage
of
material
in
supersack
containers,
initial
notifications
to
regulatory
agencies,
certifications
for
off­
site
shipments
of
excluded
material,
and
enforcement
of
the
conditions,
as
discussed
in
more
detail
below.
Outdoor
storage
in
supersack
containers.
Supersacks
are
flexible,
woven
resin
containers
designed
to
hold
approximately
one
ton
of
dry
material,
and
are
commonly
used
by
generators,
manufacturers
and
others
to
store
various
types
of
solid
zinc
fertilizer
feedstock
materials.
Several
commenters
objected
to
the
proposed
condition
that
would
have
allowed
only
indoor
storage
of
excluded
materials
in
this
type
of
container,
asserting
that
such
a
restriction
could
be
a
hardship
for
smaller
facilities
that
may
not
have
sufficient
indoor
storage
capacity,
and
that
with
a
few
simple
safeguards
supersacks
can
be
safely
and
reliably
used
to
store
this
type
of
material
out
of
doors.
EPA
agrees
with
the
commenters'
assertions
that
outdoor
storage
of
excluded
material
in
supersack
containers
can
be
safe
and
does
not
automatically
indicate
the
material
is
being
discarded,
and
therefore
should
be
allowed
under
certain
conditions.
We
are
unaware
of
any
environmental
damage
cases
associated
with
storage
of
zinc
fertilizer
feedstock
materials
in
supersack
containers.
The
final
rule
therefore
specifies
that
storage
of
excluded
material
in
non­
rigid
containers
(e.
g.,
supersacks)
will
be
allowed
outdoors,
as
long
as
they
are
kept
closed
and
are
in
sound
condition,
and
are
managed
within
storage
units
(e.
g.,
on
concrete
pads)
that
can
contain,
drain
and
allow
removal
of
leaks,
spills,
and
accumulated
precipitation,
and
can
prevent
run­
on
into
the
unit.
These
conditions
are
intended
to
assure
management
commensurate
with
the
secondary
material's
classification
as
a
valuable
feedstock,
rather
than
as
a
waste.
Put
another
way,
the
conditions
assure
both
that
the
material
is
being
managed
comparably
to
other
material
inputs
used
in
fertilizer
manufacture,
and
that
the
secondary
materials
will
not
be
discarded
via
haphazard
management
that
allows
wholesale
environmental
release
of
the
material,
so
becoming
``
part
of
the
waste
disposal
problem''.
American
Mining
Congress
v.
EPA,
824
F.
2d
1177,
1193
(D.
C.
Cir.
1987);
Association
of
Battery
Recyclers
v.
EPA,
298
F.
3d
1047,
1056
n.
6
(D.
C.
Cir.
2000).
One­
time
notice.
Under
the
proposed
rule,
generators
would
have
had
to
identify
in
their
one­
time
notices
to
regulatory
agencies
the
estimated
annual
quantities
of
excluded
materials
that
they
expected
to
ship
to
each
fertilizer
manufacturer.
Some
commenters
objected
to
this
condition
on
the
grounds
that
such
information
would
be
speculative,
commercially
sensitive,
and
of
questionable
use
to
regulatory
agencies.
EPA
agrees,
largely
for
the
reasons
offered
by
the
commenters,
and
has
removed
this
element
of
the
one­
time
notice
condition
from
the
final
rule.
Certification.
The
proposed
rule
specified
that
generators
using
the
conditional
exclusion
in
today's
rule
would
need
to
ensure
that
each
shipment
of
excluded
material
off­
site
to
another
state
was
accompanied
by
a
certification
stating
that
the
receiving
state
is
authorized
to
administer
the
provisions
of
this
rule.
The
implication
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24,
2002
/
Rules
and
Regulations
of
this
proposed
provision
was
that
outof
state
shipments
of
excluded
material
would
only
have
been
allowed
if
the
receiving
state
had
adopted
and
obtained
authorization
from
EPA
to
implement
these
rules.
Several
commenters
objected
to
this
provision,
arguing
that
shipments
to
states
not
authorized
for
this
rule
should
be
allowed,
provided
the
materials
are
managed
as
hazardous
wastes
once
they
enter
the
receiving
state.
EPA
agrees
with
these
commenters,
and
has
removed
this
certification
provision
from
the
final
rule
language.

3.
Other
Provisions
Burden
of
Proof.
The
proposed
rule
contained
a
provision
stating
that
in
an
enforcement
action,
the
burden
of
proof
in
establishing
conformance
with
the
conditions
in
§
261.4(
a)(
20)
shall
be
on
the
generator,
intermediate
handler
or
manufacturer
claiming
the
exclusion.
One
commenter
correctly
noted
that
this
provision
is
redundant
with
the
provision
in
§
261.2(
f),
which
also
addresses
assigning
burdens
of
proof
(both
the
burden
of
going
forward
and
the
ultimate
burden
of
persuasion,
see
50
FR
at
642)
when
conditional
exclusions
are
involved.
The
proposed
provision
has
therefore
been
deleted
from
the
final
rule.
Unit
Closure.
Today's
final
rule
specifies
that
storage
units
(e.
g.,
tanks
and
containers)
used
only
to
store
zincbearing
hazardous
wastes
before
a
conditional
exclusion
takes
effect
(i.
e.,
before
the
facility
owner/
operator
submits
the
one­
time
notice
provided
under
§
261.4(
a)(
20)(
ii)(
B)),
and
that
will
be
used
thereafter
only
to
store
secondary
material
excluded
under
today's
rule,
will
not
be
subject
to
the
closure
requirements
of
40
CFR
part
264
(for
units
at
permitted
facilities)
or
Part
265
(for
units
at
interim
status
facilities).
This
provision
is
intended
to
address
situations
where
units
such
as
tanks
that
have
been
used
to
store
hazardous
wastes
would
be
required
under
the
existing
regulations
to
go
through
RCRA
closure
before
storage
of
the
excluded
material
could
commence.
As
explained
in
the
preamble
to
the
proposed
rule,
the
existing
regulations
require
closure
of
units
within
90
days
of
receiving
the
final
volume
of
hazardous
waste
(see
§
264.113(
a)
and
§
265.113(
a)).
In
the
case
of
facilities
affected
by
today's
rule,
this
would
mean
that
for
units
such
as
tanks
that
have
been
storing
zinc­
bearing
hazardous
wastes,
the
owner/
operator
would
need
to
remove
all
waste
residues
and
other
contamination
from
the
unit,
in
order
for
the
unit
to
then
commence
storing
the
identical
material
under
the
terms
of
the
conditional
exclusion.
We
believe
that
requiring
closure
under
these
circumstances
would
serve
little,
if
any
environmental
purpose,
and
today's
rule
explicitly
provides
that
in
these
situations
storage
units
will
not
be
subject
to
RCRA
closure
requirements.
Although
these
storage
units
will
not
be
required
to
undergo
closure
according
to
the
RCRA
hazardous
waste
regulations,
when
the
use
of
such
a
unit
for
this
purpose
is
ultimately
discontinued
for
some
reason,
the
Agency
expects
that
owner/
operators
will
take
common­
sense
steps
to
decontaminate
and
decommission
the
unit.
We
encourage
owner/
operators
in
these
situations
to
consult
with
regulatory
agencies
as
to
the
best
way
to
ensure
that
such
units
and
their
surroundings
are
cleaned
up
properly.
EPA
wishes
to
emphasize
that
relieving
storage
units
from
closure
requirements
in
these
situations
will
not
relieve
facility
owner/
operators
of
their
responsibility
to
respond
to
any
releases
from
such
units
during
their
operational
life.
As
explained
elsewhere
in
this
preamble,
not
responding
to
such
releases
could
be
considered
an
act
of
illegal
disposal
under
RCRA,
and
could
thus
be
subject
to
enforcement
action
under
RCRA
section
3008(
a),
which
could
impose
penalties,
as
well
as
require
any
necessary
cleanup
actions.
The
conditional
exclusion
also
will
not
affect
a
facility
owner/
operator's
corrective
action
obligations
under
RCRA
section
3004(
u)
or
section
3008(
h).
If
necessary,
other
federal
or
state
remedial
authorities
may
also
be
used
to
address
such
releases.
We
also
note
that
the
facilities
operating
under
the
terms
of
today's
conditional
exclusion
will
remain
subject
to
regulatory
oversight
by
authorized
states
and
EPA,
and
as
such
we
expect
that
environmental
conditions
at
these
facilities
will
continue
to
be
scrutinized
by
regulatory
personnel.
Another
consideration
for
not
requiring
RCRA
closure
in
today's
rule
is
that
storage
in
land­
based
units
(e.
g.,
outdoor
piles)
will
not
be
allowed
under
the
conditional
exclusion.
Generally,
landbased
units
are
more
likely
to
have
releases
and
are
often
more
difficult
to
remediate.
We
thus
believe,
for
the
reasons
cited
above,
that
eliminating
the
closure
requirement
for
storage
units
at
facilities
affected
by
today's
rule
will
not
compromise
environmental
protections
at
these
facilities.

4.
Implementation
and
Enforcement
Implementation.
The
preamble
to
the
proposed
rule
discussed
and
requested
comments
on
several
issues
relating
to
implementation
of
this
rule
once
it
takes
effect
(65
FR
at
70966–
70967).
These
issues
addressed
the
potential
regulatory
consequences
of
the
rule
on
permitted
and
interim
status
RCRA
facilities,
and
how
the
rule
would
be
enforced.
EPA
has
not
made
any
specific
regulatory
changes
in
the
final
rule
to
address
these
issues,
since
we
believe
they
can
be
satisfactorily
resolved
by
the
following
explanation.
One
key
issue
has
to
do
with
the
effects
of
the
rule
on
facilities
that
currently
have
RCRA
permits
or
interim
status,
and
are
managing
hazardous
wastes
that
will
become
conditionally
excluded
under
this
rule.
Under
one
scenario,
a
facility
that
manages
a
variety
of
hazardous
waste
materials,
including
some
that
become
excluded
under
this
rule,
would
be
affected
only
to
the
extent
that
certain
units
or
procedures
at
the
facility
would
no
longer
be
subject
to
hazardous
waste
regulations.
A
somewhat
different
scenario
could
involve
a
facility
whose
hazardous
wastes
all
become
conditionally
excluded
from
regulation
when
this
rule
takes
effect
(i.
e.,
the
facility
no
longer
operates
any
hazardous
waste
management
units).
One
idea
discussed
in
the
proposal
was
to
amend
the
current
regulations
to
automatically
terminate
permit
conditions,
permits
and/
or
interim
status
at
facilities
where
hazardous
waste
management
units
or
activities
become
de­
regulated
under
today's
rule.
This
could
eliminate
the
need
for
regulatory
agencies
to
process
permit
modifications
or
administratively
terminate
permits
or
interim
status
for
those
facilities.
One
state
agency
commenting
on
the
proposal
argued,
however,
for
maintaining
a
government
role
in
managing
these
facility
transitions,
asserting
that
automatically
terminating
permit
conditions
would
not
provide
adequate
oversight
over
facilities
in
these
situations.
Although
cases
like
this
are
expected
to
be
relatively
few
in
number
(perhaps
only
one
facility
in
the
nation
will
potentially
be
able
to
have
its
RCRA
permit
terminated
because
of
this
rule),
we
agree
with
the
state
agency
commenter
that
making
the
transition
to
non­
permitted
status
may
not
be
entirely
straightforward,
especially
when
such
facilities
are
undergoing
cleanup
actions
under
RCRA
authorities.
Thus,
we
concur
that
there
should
be
some
regulatory
agency
oversight
in
changing
a
facility's
permit
or
interim
status
obligations
under
these
regulations,
and
today's
rule
does
not
contain
any
regulatory
provision
for
automatically
terminating
permits,
permit
conditions
or
interim
status
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Vol.
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No.
142
/
Wednesday,
July
24,
2002
/
Rules
and
Regulations
2
EPA
promulgated
the
rules
requiring
products
placed
on
the
land
which
are
produced
from
hazardous
wastes
to
meet
LDR
requirements
in
1988,
which
rules
also
contained
the
provision
exempting
K
061­
derived
zinc
fertilizers
from
this
requirement.
53
FR
at
31212
(August
17,
1988).
There
were
likewise
no
challenges
to
these
rules
raising
the
question
of
EPA's
jurisdiction
to
adopt
the
provisions.
facilities
affected
by
this
final
rule.
We
believe
that
making
these
changes
at
affected
facilities
can
be
done
efficiently
under
current
authorized
state
administrative
procedures
for
modifying
or
terminating
a
facility's
RCRA
permit
or
interim
status.
Another
potential
implementation
issue
that
could
arise
has
to
do
with
ensuring
cleanup
of
historic
contamination
problems
at
facilities
that
may
no
longer
need
permits
or
interim
status
once
the
conditional
exclusion
takes
effect.
An
example
might
be
a
facility
with
a
RCRA
operating
permit
that
is
working
to
remediate
ground
water
contamination
under
the
conditions
of
the
permit.
While
the
facility's
operating
permit
may
no
longer
be
needed
(since
it
is
no
longer
actively
managing
hazardous
waste),
the
owner/
operator's
obligations
to
remediate
the
contamination
problems
at
the
facility
would
not
be
affected
by
a
change
in
the
facility's
operating
status.
In
these
situations,
the
authorized
states
would
have
the
flexibility
to
address
the
facility's
cleanup
obligations
by
either
maintaining
in
effect
the
corrective
action­
related
provisions
of
the
permit,
or
by
using
alternative
federal
or
state
enforcement
mechanisms
that
may
be
available.
Enforcement.
The
exclusion
in
today's
rule
for
hazardous
secondary
materials
(§
261.4(
a)(
20))
will
take
effect
once
a
generator,
intermediate
handler
or
manufacturer
provides
notice
to
the
appropriate
regulatory
agency
of
his/
her
intent
to
begin
using
the
exclusion.
There
is
no
requirement
for
the
regulatory
agency
to
formally
approve
or
otherwise
act
on
such
notices,
though
some
state
agencies
may
wish
to
do
so.
The
party
claiming
the
conditional
exclusion
will
be
responsible
for
maintaining
the
exclusion
by
ensuring
that
all
of
the
conditions
are
met.
In
the
event
that
a
condition
is
not
met,
the
facility
owner/
operator
will
need
to
remedy
the
situation
as
soon
as
possible
in
order
not
to
jeopardize
the
exclusion.
Should
there
be
any
questions
as
to
whether
the
facility
has
properly
maintained
its
exclusion,
it
will
be
the
responsibility
of
the
owner/
operator
to
demonstrate
that
the
conditions
have
been
and
are
being
met.
See
section
261.2(
f),
discussed
earlier.
If
necessary,
the
overseeing
regulatory
agency
may
use
RCRA
inspection
and
information
collection
authorities
to
assist
in
establishing
whether
or
not
a
facility
is
meeting
the
exclusion
conditions.
Facilities
that
claim
the
exclusion
but
fail
to
meet
one
or
more
of
its
conditions
may
be
subject
to
enforcement
action.
For
example,
if
a
facility
claiming
the
conditional
exclusion
failed
to
store
secondary
material
in
accordance
with
one
or
more
of
the
conditions,
the
facility
would
in
effect
automatically
lose
its
exclusion,
and
EPA
or
an
authorized
state
agency
could
take
enforcement
action
(under
RCRA
section
3008(
a)),
since
the
facility
would
likely
then
be
violating
hazardous
waste
regulatory
requirements.
In
these
situations
a
range
of
specific
enforcement
actions
might
be
taken.
In
less
serious
cases
the
facility
might
simply
be
required
to
promptly
remedy
the
situation,
though
fines
or
other
penalties
could
also
be
assessed
if
appropriate.
In
especially
serious
cases
the
facility
could
be
ordered
to
obtain
a
RCRA
permit
and
comply
with
all
applicable
hazardous
waste
regulations.
As
a
general
matter,
if
a
facility
fails
to
meet
a
condition
of
the
exclusion
it
will
not
necessarily
affect
the
regulatory
status
of
the
secondary
material
at
other
facilities.
For
example,
if
a
fertilizer
manufacturer's
facility
were
to
lose
its
exclusion,
the
facility
generating
the
secondary
material
would
typically
be
allowed
to
retain
its
exclusion,
provided
that
he
or
she
continues
to
meet
the
applicable
conditions.
In
such
a
case,
the
manufacturer
would
need
to
be
in
compliance
with
applicable
hazardous
waste
regulations
in
order
to
accept
any
further
shipments
of
excluded
(or
nonexcluded
material
from
a
generator.
With
regard
to
enforcement,
it
should
also
be
noted
that
the
conditional
exclusion
in
today's
rule
will
not
affect
a
facility
owner/
operator's
obligation
to
promptly
respond
to
and
remediate
any
releases
of
excluded
secondary
material
that
may
occur
at
the
facility.
An
accident,
for
example,
could
rupture
or
otherwise
damage
a
tank
or
container,
causing
spillage
of
material
onto
soils.
If
such
released
material
were
not
cleaned
up
promptly,
the
owner/
operator
would
be
subject
to
enforcement
action
for
illegal
disposal
of
waste.
See
§
264.1(
g)(
8)(
iii).
Today's
conditional
exclusion
will
not
affect
the
rights
of
concerned
citizens
to
bring
to
regulators'
attention
any
circumstance
that
might
aid
authorities
in
their
monitoring
and
enforcement
efforts.
A
concerned
citizen
also
may
file
a
suit
under
RCRA
section
7002
against
a
party
for
violations
that
may
result
from
failure
to
meet
any
of
the
conditions
in
this
rule.
Moreover,
imminent
and
substantial
endangerment
provisions
under
Section
7003
of
RCRA
will
continue
to
apply
to
conditionally
excluded
secondary
materials
as
a
safeguard,
since
those
materials
remain
a
statutory
solid
waste.
Thus,
EPA
or
an
authorized
State
can
act
in
the
unlikely
event
of
circumstances
which
may
endanger
human
health
or
environment.

5.
Response
to
Comments
EPA
received
a
number
of
comments
addressing
the
general
issue
of
whether
or
not
a
conditional
exclusion
from
hazardous
waste
regulations
is
appropriate
in
the
context
of
this
rulemaking.
One
set
of
commenters
presented
arguments
contending
that
EPA
has
no
legal
jurisdiction
at
all
under
RCRA
to
establish
conditions
or
otherwise
regulate
hazardous
secondary
materials
that
are
recycled
to
make
zinc
fertilizers.
On
the
other
hand,
a
substantial
number
of
commenters
expressed
support
for
EPA
continuing
to
regulate
these
materials
as
hazardous
wastes,
and
called
for
adding
a
number
of
new,
more
stringent
regulatory
controls
and
restrictions
over
these
waste
materials.
With
respect
to
comments
challenging
EPA's
authority
to
classify
hazardous
secondary
materials
used
as
ingredients
in
fertilizer
as
solid
wastes
at
all,
EPA
notes
first
that
this
issue
has
been
longsettled
and
was
not
reopened
in
this
rule.
EPA's
rules
classifying
hazardous
secondary
materials
used
in
a
manner
constituting
disposal—
which
includes
use
as
fertilizers,
or
as
ingredients
in
fertilizers—
were
promulgated
in
1985.
50
FR
at
664,
666–
67.
These
use
constituting
disposal
rules
were
never
challenged.
2
EPA
did
not
reopen
the
issue
of
jurisdiction
for
comment
in
this
proceeding.
65
FR
at
70959
n.
2.
Thus,
EPA
believes
that
these
comments
are
untimely.
In
the
event
that
response
is
considered
necessary,
however,
EPA
believes
that
it
has
ample
jurisdiction
to
classify
hazardous
secondary
materials
used
to
produce
zinc
fertilizers
as
solid
wastes.
We
also
note
that
the
following
discussion
applies
to
authority
over
uses
constituting
disposal
as
defined
in
section
261.2(
c)(
1),
and
does
not
deal
with,
or
apply
to,
any
other
type
of
recycling.
First,
the
generator
of
the
hazardous
secondary
material
is
an
unrelated
entity
getting
rid
of
its
secondary
materials
to
a
different
industry
sector.
Thus,
when
one
entity
takes
a
secondary
material
for
which
it
has
no
continuing
use
and
transfers
it
to
an
unrelated
entity,
the
materials
can
be
viewed
as
discarded
by
that
first
entity.

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Federal
Register
/
Vol.
67,
No.
142
/
Wednesday,
July
24,
2002
/
Rules
and
Regulations
3
Commenters
argued
that
API
I
was
not
on
point
because
EPA
there
had
compelled
recovery
of
K
061
by
establishing
a
treatment
standard
mandating
metals
recovery,
and
so
had
simply
forced
the
recycling
of
material
that
would
otherwise
be
disposed
of,
so
that
the
material
could
be
regarded
as
``
discarded''.
Although
it
is
correct
that
the
opinion
states
that
K061
was
subject
to
a
treatment
standard
of
mandatory
metal
reclamation,
906
F.
2d
at
741,
it
is
incorrect
that
steel
mills
were
otherwise
disposing
of
their
electric
arc
furnace
dust,
or
that
EPA
had
through
its
treatment
standard
converted
a
disposed­
of
waste
into
a
recycled
secondary
material.
Metals
reclamation
of
K
061
was
widespread
at
the
time
EPA
adopted
the
treatment
standard,
and
EPA
based
the
standard
on
this
wellestablished
existing
practice.
See
53
FR
11742,
11752
(April
8,
1988)
(high
temperature
metal
recovery
currently
in
use
by
at
least
four
domestic
facilities
to
recover
zinc
from
K061,
and
the
proposed
treatment
standard
is
taken
from
measurements
from
one
of
those
existing
operations).
It
also
should
be
noted
that
the
recycling
practice
at
issue
in
API
I
is
arguably
more
continuous
than
the
types
of
practices
involved
in
this
rulemaking.
When
electric
arc
furnace
dust
is
smelted
for
zinc
recovery,
it
is
captured
as
a
dust
by
steel
mill
baghouses,
conveyed
to
a
storage
bin
at
the
mill
(usually
by
conveyor
belt,
but
sometimes
pneumatically),
and
then
shipped
directly
by
truck
or
rail
to
the
purchasing
smelter.
Typical
storage
time
at
the
generating
steel
mill
is
two
days
or
less,
due
to
limited
storage
bin
capacity.
In
contrast,
storage
times
at
generators
of
secondary
materials
used
eventually
as
a
zinc
source
for
fertilizer
often
is
up
to
90
days.
These
generators
also
often
deal
through
intermediary
brokers
who
find
an
end
use
for
the
secondary
material.
4
Since
dioxin
is
a
chemical
contaminant,
and
is
not
itself
a
waste,
section
3004
(l)
thus
states
that
use
of
contaminated
used
oil
which
is
recycled
via
use
as
a
dust
suppressant—
an
example
of
a
use
constituting
disposal—
is
prohibited.
Congress,
by
placing
this
prohibition
within
section
3004
(which
applies
only
to
solid
and
hazardous
wastes)
could
take
this
action
only
if
it
considered
this
form
of
recycling
to
involve
a
solid
waste.
It
also
bears
mention
that
use
of
used
oil
contaminated
with
dioxin
as
a
dust
suppressant
is
not
per
se
a
type
of
sham
recycling.
Dioxins
bind
tenaciously
with
soils,
and
so
contribute
to
the
dust
suppression
use.
The
Congressional
prohibition
in
section
3004
(l)
thus
applies
to
a
form
of
recycling,
not
to
illicit
disposal.
Note
also
that
today's
rule
deals
(in
part)
with
the
issue
of
dioxin
contamination
in
the
secondary
materials
used
to
produce
zinc
fertilizers.
See
Owen
Electric
Steel
Co.,
v.
EPA,
37
F.
3d
146,
150
(4th
Cir.
1994)
EPA
properly
classified
secondary
material
as
a
solid
waste
``
because
the
slag
is
sold
to
others
for
use
in
roadbed
construction,
it
is
not
`destined
for
beneficial
reuse
or
recycling
in
a
continuous
process
by
the
generating
industry
itself
',
quoting
AMC
I,
824
F.
2d
at
1186
(emphasis
in
original).
See
generally
American
Petroleum
Institute
v.
EPA
(``
API
II''),
216
F.
3d
50    
,
58
(D.
C.
Cir.
2000);
Association
of
Battery
Recyclers
v.
EPA,
208
F.
3d
1047,
1059–
60
(D.
C.
Cir.
2000);
American
Petroleum
Institute
v.
EPA,
906
F.
2d
729,
741
(D.
C.
Cir.
1990)
3
;
Specialty
Steel
Mfrs.
Assn
v.
EPA,
27
F.
3d
642,
646
(D.
C.
Cir.
1994).
Recycling
via
land
application
is
a
further
indication
of
discarding.
As
EPA
has
stated
years
ago,
``
Use
constituting
disposal
involves
as
a
practical
matter
the
disposal
of
wastes.
The
wastes
are
being
gotten
rid
of
by
placing
them
directly
on
the
land.
''
53
FR
at
31198;
see
also
48
FR
at
14484
(April
4,
1983)
(``
these
practices
are
virtually
the
equivalent
of
unsupervised
land
disposal'').
When
placed
on
the
land,
hazardous
secondary
materials
and
the
hazardous
constituents
they
contain
(few,
if
any,
of
which
contribute
to
the
recycling
activity)
could
escape
via
all
conceivable
exposure
pathways—
air,
runoff,
leaching,
even
(as
here)
foodchain
uptake.
Such
activities
can
certainly
be
viewed
as
discarding
that
is
``
part
of
the
waste
disposal
problem.
''
The
statute
supports
this
position.
See
RCRA
section
3004
(l)
(use
of
``
waste
or
used
oil
or
other
material,
which
is
contaminated
with
dioxin
or
any
hazardous
waste
*
*
*
for
dust
suppression
or
road
treatment
is
prohibited'')
4
;
H.
R.
Rep.
No.
198,
98th
Cong.,
1st
Sess.
at
46,
67–
68
(hazardous
waste­
derived
products
that
are
placed
on
the
land
are
to
be
the
special
object
of
EPA
scrutiny
in
implementing
subtitle
C);
see
also
Association
of
Battery
Recyclers
v.
EPA,
208
F.
3d
1047,
1059–
60
(recycling
via
uses
constituting
disposal
pose
even
greater
potential
risks
than
conventional
land
disposal,
and
thus
justify
stricter
regulation).
As
the
Agency
concluded
in
1988
(in
another
determination
that
was
never
challenged),
``
To
say
that
Congress
did
not
intend
to
control
these
use
constituting
disposal
situations
under
RCRA
is
to
say
that
Congress
had
no
intention
of
controlling
such
damage
incidents
as
the
Times
Beach
dioxin
spreading
incident
where
a
group
of
communities
were
rendered
uninhabitable
as
a
result
of
use
of
a
distillation
botto[
m]
mixed
with
used
oil
as
a
dust
suppressant.
No
credible
reading
of
the
statute
would
authorize
this
type
of
conduct.
''
53
FR
at
31198.
Indeed,
some
of
the
fertilizers
addressed
by
today's
rule
contain
dioxin,
which
comes
from
the
hazardous
secondary
materials
used
as
a
source
of
zinc.
EPA
does
not
consider
it
plausible
that
Congress
prohibited
the
use
of
dioxincontaining
secondary
materials
as
dust
suppressants,
but
denied
EPA
the
authority
to
even
consider
the
question
of
dioxin­
containing
hazardous
secondary
materials
used
as
fertilizers—
the
more
potentially
harmful
practice
given
the
possibility
of
food
chain
contamination.
EPA
notes,
in
addition,
that
many
of
the
conditions
in
today's
rule
serve
to
demarcate
legitimate
recycling.
The
hazardous
constitutent
levels
for
fertilizers,
for
example,
are
drawn
from
typical
levels
in
commercial
zinc
micronutrient
fertilizers.
To
the
extent
that
fertilizers
contain
non­
nutritive
hazardous
constituents
which
come
from
hazardous
secondary
materials
in
concentrations
significantly
in
excess
of
these
levels,
the
recycling
practice
can
be
viewed
as
simply
discarding
those
materials
and
constituents.
American
Petroleum
Inst.
II,
216
F.
3d
at
58.
This
is
not
to
say
that
EPA
lacks
discretion
to
classify
some
hazardous
secondary
materials,
and
products
derived
therefrom,
which
are
used
in
a
manner
constituting
disposal
as
not
being
solid
wastes.
The
facts
justifying
such
discretion
here
(stated
broadly)
are
(a)
the
usefulness
of
the
materials
as
a
source
of
zinc
for
fertilizer;
(b)
the
similarity
of
hazardous
constituent
levels
in
hazardous
and
non­
hazardous
feedstock
materials,
and
the
fact
that
zinc
fertilizers
made
from
hazardous
secondary
materials
are
indistinguishable
from
those
made
from
non­
hazardous
materials,
and
are
processed
identically
(see,
e.
g.
46
FR
at
44971
(Aug.
8,
1981)
(EPA's
first
announcement
of
the
principle
that
identity
of
waste­
derived
and
non­
waste
derived
products
justifies
cessation
of
RCRA
regulation);
and
(c)
management
practices
commensurate
with
the
idea
that
the
secondary
materials
are
being
managed
as
a
valuable
commodity
rather
than
as
a
waste.
The
conditions
adopted
in
today's
rule
are
designed
to
assure
that
this
fact
pattern
actually
occurs,
and
(as
noted
above)
are
further
designed
to
assure
that
legitimate
rather
than
sham
recycling
occurs.
As
mentioned
previously,
a
number
of
commenters
did
not
support
a
regulatory
exclusion
of
any
kind
for
hazardous
secondary
materials
used
to
make
fertilizers,
and
instead
favored
maintaining
and
expanding
the
current
hazardous
waste
regulatory
controls
over
these
materials.
Among
the
suggestions
for
increased
regulatory
controls
were
greatly
enhanced
reporting
by
waste
generators,
middlemen
and
fertilizer
manufacturers
with
regard
to
all
shipments
of
hazardous
wastes,
including
reporting
on
the
composition
of
both
the
wastes
that
are
used
and
of
the
fertilizers
that
are
produced
from
those
wastes.
These
additional
reports
would
be
required
as
part
of
the
RCRA
biennial
reporting
system
(see
§
262.41).
More
thorough
testing
for
a
wider
range
of
hazardous
constituents
was
also
suggested,
as
was
labeling
of
fertilizer
packaging
to
indicate
that
the
fertilizer
was
made
from
hazardous
waste.
As
discussed
earlier,
we
believe
that
maintaining
RCRA
regulatory
controls
over
all
hazardous
secondary
materials
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/
Vol.
67,
No.
142
/
Wednesday,
July
24,
2002
/
Rules
and
Regulations
used
to
make
zinc
fertilizer
is
counterproductive
in
that
it
discourages
legitimate,
safe
recycling
of
these
valuable
materials,
and
can
actually
encourage
production
of
fertilizers
with
higher
contaminant
levels
.
Adding
further
regulatory
requirements
would
almost
certainly
ensure
that
this
recyling
practice
would
be
eliminated
completely,
which
we
do
not
believe
would
be
beneficial
environmentally.
With
regard
specifically
to
requiring
additional
testing
of
wastes
and
materials,
the
commenters
did
not
supply
any
data
to
demonstrate
why
such
additional
testing
is
necessary,
or
any
evidence
indicating
that
fertilizers
which
meet
today's
exclusion
levels
are
likely
to
contain
meaningful
levels
of
contaminants
other
than
those
for
which
we
have
established
limits.
EPA
thus
sees
no
reason
to
impose
such
additional
requirements
without
a
clear
rationale
for
doing
so.
With
regard
to
commenters
who
supported
labeling
of
hazardous
waste
derived
fertilizer
products,
we
note
that
there
is
no
legal
authority
under
RCRA
to
impose
such
a
labeling
requirement
on
products
that
are
made
from
legitimately
recycled
hazardous
wastes
or
conditionally
excluded
secondary
materials.
We
also
question
the
appropriateness
of
requiring
such
labels,
since
they
would
likely
unnecessarily
stigmatize
products
that
are
identical
in
composition
to
fertilizers
made
from
other
types
of
materials.

D.
Conditional
Exclusion
for
Zinc
Fertilizers
Made
From
Excluded
Hazardous
Secondary
Materials
As
mentioned
previously,
today's
rule
finalizes
the
same
basic
approach
as
was
proposed
with
regard
to
setting
conditional
limits
on
contaminants
in
zinc
fertilizers
made
from
recycled
hazardous
secondary
materials.
This
rule
therefore
establishes
specific
limits
on
heavy
metals
and
dioxins
that
may
be
contained
in
these
zinc
fertilizers
(the
limits
serving
as
the
means
for
distinguishing
wastes
from
fertilizer
products
under
the
conditional
exclusion),
and
sets
conditions
for
sampling,
analysis
and
recordkeeping
to
verify
compliance
with
these
limits
(i.
e.,
to
verify
that
excluded
recycling
is
occurring).
In
effect,
these
conditions
must
all
be
met
in
order
for
zinc
fertilizers
made
from
hazardous
secondary
materials
to
be
considered
products,
rather
than
wastes.

1.
Hazardous
Constituent
Levels
for
Excluded
Zinc
Fertilizers
Today's
rule
establishes
a
new
set
of
product
specification
limits
for
contaminants
in
zinc
fertilizers
made
from
hazardous
secondary
materials.
Zinc
fertilizers
that
meet
these
specification
limits
will
in
effect
be
considered
products,
rather
than
wastes.
The
new
exclusion
limits
in
today's
final
rule
address
five
metal
contaminants—
i.
e.,
metals
coming
from
zinc­
containing
hazardous
secondary
materials
that
are
both
non­
nutritive
and
toxic
(lead,
cadmium,
arsenic,
mercury
and
chromium)—
and
dioxins
(likewise
non­
contributing).
In
absolute
terms,
the
exclusion
limits
for
the
five
metals
are
numerically
higher
than
the
LDR
treatment
standards
for
those
metals
(i.
e.,
the
``
universal
treatment
standards''
specified
at
§
268.48).
However,
direct
comparisons
between
the
two
sets
of
limits
are
difficult
to
make.
This
is
because
the
LDRs
are
measured
according
to
a
leachate
extraction
procedure
(the
toxicity
characteristic
leaching
procedure,
or
TCLP—
see
§
261.24),
while
the
new
exclusion
levels
are
expressed
as
total
concentrations.
Since
the
leachability
of
metal
constituents
varies
according
to
a
number
of
factors,
it
is
difficult
to
predict
the
relationship
between
TCLPmeasured
levels
vs.
total
concentration
levels
with
any
degree
of
certainty.
To
illustrate,
the
new
exclusion
level
for
lead
in
a
20%
zinc
fertilizer
formulation
would
be
56
ppm,
while
the
universal
treatment
standard
for
lead
is
0.75
ppm
(milligrams
per
liter).
If
in
this
case
the
tested
sample
contained
56
ppm
total
lead,
the
TCLP
result
could
be
either
higher
than
0.75
ppm,
or
lower
if
the
lead
was
in
(for
example)
a
relatively
insoluble
compound
form.
The
exclusion
limit
for
dioxins
in
today's
rule
is
more
stringent
than
the
LDR
standards,
since
dioxins
are
typically
not
``
underlying
constituents''
subject
to
treatment
in
the
secondary
materials
that
are
likely
to
be
excluded
under
today's
rule
(i.
e.,
secondary
materials
that
exhibit
a
hazardous
characteristic—
see
§
268.40(
e)).
Because
of
this,
and
in
light
of
the
uncertainties
inherent
in
comparing
LDR
standards
for
metals
with
the
new
exclusion
levels,
EPA
considers
today's
exclusion
levels
to
be
generally
more
stringent
than
the
LDR
standards.
The
product
specifications
in
today's
rule
must
be
met
for
any
zinc
fertilizer
that
is
made
from
excluded
secondary
materials.
In
this
sense
the
two
exclusions
are
linked—
a
manufacturer
who
uses
the
exclusion
for
hazardous
secondary
materials
must
meet
the
new,
more
stringent
exclusion
levels
for
the
zinc
fertilizers
he
or
she
produces.
The
LDR
standards
will
continue
to
apply
to
any
non­
zinc
fertilizer
that
is
made
from
recycled
hazardous
waste.
It
is
possible
under
some
circumstances
that
a
zinc
fertilizer
manufacturer
might
choose
not
to
use
the
conditional
exclusion
for
hazardous
secondary
materials,
and
instead
use
fully
regulated
hazardous
wastes
as
feedstock
materials.
This
might
happen,
for
instance,
if
the
manufacturer
has
already
obtained
a
RCRA
permit
and
made
the
necessary
investments
to
comply
with
hazardous
waste
regulations.
In
such
a
case
the
LDR
standards
would
apply
to
the
hazardous
waste
derived
fertilizers.
Such
a
manufacturer
would
have
the
option,
however,
of
meeting
the
generally
more
stringent
product
specifications
in
today's
rule
if
there
were
some
incentive
(e.
g.,
a
marketing
advantage)
to
do
so.
To
reiterate,
today's
conditional
exclusions
apply
only
to
zinc
fertilizers
and
the
secondary
materials
used
to
produce
them.
Thus,
if
hazardous
wastes
are
used
to
make
non­
zinc
fertilizers,
both
the
wastes
and
the
fertilizers
will
be
subject
to
applicable
hazardous
waste
regulations
(see
§
262.20(
a)).

2.
Limits
on
Metal
Contaminants
Table
1
presents
the
final
limits
on
five
metal
contaminants
in
zinc
fertilizers
that
are
made
from
hazardous
secondary
materials:

TABLE
1.—
LIMITS
ON
METAL
CONTAMINANTS
Metal
Constituent
Maximum
allowable
total
concentration
in
fertilizer,
per
unit
(1%)
of
zinc
content
Arsenic
......................
0.3
ppm
Cadmium
...................
1.4
ppm
Chromium
..................
0.6
ppm
Lead
..........................
2.8
ppm
Mercury
.....................
0.3
ppm
As
noted
in
the
table,
these
limits
are
expressed
as
total
concentrations
of
the
metal
in
the
fertilizer
product.
The
alternative
of
establishing
limits
based
on
a
different
type
of
test
procedure,
such
as
the
TCLP
used
in
the
RCRA
program
to
identify
hazardous
wastes,
was
not
supported
by
any
of
the
commenters
on
the
proposal
(one
obvious
reason
being
that
satisfying
a
leach
test
would
normally
mean
that
the
material
is
unusable
as
a
fertilizer,
since
the
nutritive
metal
would
be
bound
up
along
with
the
hazardous
constitutents).
It
should
also
be
noted
that
the
limits
are
tied
to
the
percentage
of
zinc
in
the
fertilizer.
This
is
primarily
because
the
zinc
content
of
fertilizers
varies
widely.
If
the
limits
were
not
tied
to
the
percentage
of
zinc
in
the
product,
it
is
possible
that
manufacturers
could
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Register
/
Vol.
67,
No.
142
/
Wednesday,
July
24,
2002
/
Rules
and
Regulations
comply
with
the
limits
simply
by
lowering
the
zinc
content
of
the
product,
in
effect
diluting
the
contaminants
with
other
ingredients.
55
FR
at
70969.
These
limits
on
metals
are
based
on
the
levels
of
contaminants
in
commercial
zinc
fertilizers
that
have
been
well
demonstrated
as
technically
and
economically
practical,
by
using
sound,
relatively
simple
manufacturing
techniques.
They
thus
are
reasonable
levels
for
demarcating
products
from
wastes.
As
explained
in
the
preamble
to
the
proposed
rule,
a
widely­
marketed
zinc
fertilizer
formulation
known
as
zinc
sulfate
monohydrate,
or
ZSM,
was
used
as
the
basis
for
developing
these
limits.
55
FR
at
70969.
EPA
has
made
three
substantive
changes
in
finalizing
the
conditional
limits
for
metal
contaminants.
One
change
was
made
in
response
to
a
commenter
who
suggested
that
additional
sampling
and
testing
for
metal
contaminants
should
be
required
whenever
a
change
in
manufacturing
processes
or
ingredients
is
made
that
could
significantly
affect
the
amounts
of
contaminants
in
the
fertilizer
product.
The
Agency
has
added
this
condition
to
the
final
rule,
since
we
believe
it
to
be
a
reasonable
precaution
that
prudent
manufacturers
would
likely
take
in
the
normal
course
of
production,
even
without
such
a
regulatory
provision.
As
such,
we
believe
it
a
reasonable
condition
to
demarcate
products
from
wastes
and
to
assure
that
legitimate
recycling
occurs.
Another
substantive
change
that
has
been
made
to
the
proposed
limits
on
metal
contaminants
is
that
the
final
rule
does
not
include
a
limit
for
nickel.
Several
commenters
expressed
the
view
that
the
proposed
limit
on
nickel
(1.4
ppm
per
percent
of
zinc
in
the
fertilizer)
was
unnecessary
from
an
environmental
perspective,
in
that
nickel
is
generally
less
toxic
than
the
five
other
metal
contaminants,
and
EPA's
background
data
did
not
reveal
especially
high
levels
of
nickel
in
any
of
the
fertilizer
products
that
were
studied
[see
``
Background
Document
on
Fertilizer
Use,
Contaminants
and
Regulation''
(EPA
747–
R–
98–
003,
January,
1999)].
Some
of
these
commenters
also
opined
that
setting
a
limit
on
nickel
in
the
context
of
this
EPA
rulemaking
could
create
an
unnecessary
and
unwarranted
perception
that
exposure
to
nickel
generally
poses
serious
human
health
and/
or
environmental
risks.
EPA
agrees
that
nickel
is
generally
less
toxic
to
humans
than
metals
such
as
lead,
cadmium,
arsenic
and
others,
and
we
acknowledge
that
our
review
of
fertilizer
contaminant
data
did
not
identify
any
fertilizer
product
with
nickel
at
levels
that
could
pose
significant
health
or
ecological
risks.
Further,
the
processing
and
filtering
steps
that
are
required
to
manufacture
high­
purity
zinc
fertilizers
(such
as
ZSM
fertilizers)
remove
nickel
along
with
other
metal
contaminants.
It
is
therefore
highly
unlikely
that
fertilizers
which
meet
the
RCRA
contaminant
limits
for
other
metals
(lead,
cadmium,
arsenic,
mercury
and
chromium)
would
contain
elevated
levels
of
nickel.
Given
that
excessive
levels
of
nickel
are
unlikely
in
zinc
fertilizers
that
meet
the
limits
for
the
other
five
metals
in
today's
rule,
and
given
the
relatively
lower
toxicity
of
nickel
as
compared
with
those
metals,
the
Agency
is
persuaded
that
specifying
a
limit
for
nickel
in
today's
final
rule
would
serve
no
real
environmental
or
regulatory
purpose.
We
have
therefore
removed
the
limit
for
nickel
in
today's
final
rule.
The
third
change
that
has
been
made
to
the
proposed
limits
for
metals
is
that
the
final
conditional
limit
for
arsenic
has
been
lowered,
from
0.6
ppm
per
unit
of
zinc,
to
0.3
ppm.
This
change
was
made
in
response
to
a
commenter
who
questioned
the
validity
of
certain
data
that
were
used
to
derive
the
numerical
limit
for
arsenic.
Specifically,
the
commenter
noted
that
the
proposed
limit
appeared
to
be
based
on
test
results
that
represented
analytical
detection
limits,
rather
than
actual
measured
levels
of
arsenic
in
tested
fertilizers.
Our
further
review
of
the
data
confirmed
this
to
be
the
case,
and
we
have
therefore
established
an
arsenic
limit
that
more
accurately
reflects
what
we
believe
to
be
the
actual
levels
of
arsenic
in
ZSM
fertilizers.
Response
to
comments.
EPA
received
comments
reflecting
a
wide
range
of
viewpoints
(in
addition
to
those
described
above)
regarding
the
proposed
limits
on
metals
in
recycled
zinc
fertilizers.
One
group
of
commenters
questioned
the
Agency's
legal
authority
to
establish
any
limits
at
all
on
contaminants
in
these
fertilizers,
arguing
that
recent
court
decisions
have
narrowed
the
scope
of
EPA's
regulatory
jurisdiction
over
this
type
of
hazardous
waste
recycling
(an
issue
addressed
earlier
in
this
preamble).
Some
of
these
commenters
also
argued
that,
legal
issues
aside,
it
is
unnecessary
to
set
any
limits
on
fertilizer
contaminants,
since
EPA's
own
studies
have
concluded
that
fertilizers
are
generally
safe
when
used
properly.
Other
commenters
expressed
the
view
that
the
technology­
based
limits
(i.
e.
conditional
levels
reflecting
demonstrated
fertilizer
production
process
capabilities)
as
proposed
were
unnecessarily
stringent
from
a
risk
perspective,
and
that
any
such
contaminant
limits
should
be
risk­
based
(i.
e.,
set
at
levels
that
are
``
safe,
''
based
on
an
assessment
of
potential
risks
to
humans
and
ecosystems).
Some
of
these
commenters
further
suggested
that
the
risk­
based
guidelines
for
metal
contaminants
in
fertilizers
that
were
recently
adopted
by
the
Association
of
American
Plant
Food
Control
Officials
(AAPFCO)
(see
http://
aapfco.
org/
SUIP25Aug08.
htm)
could
be
used
for
this
purpose.
Other
commenters
expressed
the
view
that
the
proposed
limits
for
metals
were
not
stringent
enough,
and
should
be
set
at
the
lowest
levels
that
can
be
technically
achieved.
Some
of
these
commenters
further
suggested
that
limits
should
be
set
for
additional
metals
(e.
g.,
selenium,
vanadium,
beryllium,
antimony).
One
commenter
further
argued
that
the
limit
on
chromium
should
apply
only
to
the
more
toxic,
hexavalent
form
of
chromium,
rather
than
to
total
chromium
as
proposed.
EPA
chose
not
to
use
risk­
based
limits
in
this
final
rule,
primarily
because
we
continue
to
believe
that
technologybased
limits
are
more
appropriate
in
the
context
of
this
rulemaking.
Our
rationale
for
using
technology­
based
limits
for
metals
in
fertilizers—
viz.
as
explained
above,
establishing
a
specification
based
on
contaminant
levels
found
in
normal
commercial
fertilizers
in
order
to
reasonably
distinguish
products
from
wastes—
was
explained
in
detail
in
the
preamble
to
the
proposal,
and
many
commenters
supported
the
approach.
Given
that
today's
rule
is
an
exclusion
of
these
materials
from
being
solid
wastes,
rather
than
an
exclusion
from
being
a
hazardous
waste
(which
would
more
naturally
call
for
a
risk­
based
justification),
EPA
continues
to
believe
that
this
approach
is
reasonable.
We
did
not
receive
any
comments
persuading
us
that
the
use
of
technology­
based
limits
in
the
context
of
this
rulemaking
is
inappropriate,
technically
difficult
or
unduly
burdensome
for
industry.
Moreover,
developing
risk­
based
limits
for
zinc
fertilizers
would
be
a
highly
complex
and
resource
intensive
undertaking,
and
risk­
based
limits
might
actually
allow
contaminant
levels
in
fertilizers
to
increase
substantially,
which
we
do
not
believe
is
an
environmentally
desirable
result.
To
illustrate,
Table
2
compares
today's
exclusion
levels
with
AAPFCO's
recommended
standards
(which
were
developed
from
risk
assessment
studies)
for
five
metals
in
micronutrient
fertilizers,
assuming
a
35.5%
zinc
content
that
is
typical
for
zinc
sulfate
monohydrate
fertilizers:

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Regulations
TABLE
2.—
COMPARISON
OF
RCRA
EXCLUSION
LEVELS
WITH
AAPFCO
RECOMMENDED
GUIDELINES
Metal
RCRA
Exclusion
Levels
(ppm)
AAPFCO
Guideline
(ppm)

Arsenic
..............
10.7
3,976
Cadmium
..........
49.7
2,947
Chromium
.........
21.3
No
limit
Lead
..................
99.4
16,437
Mercury
.............
10.7
213
It
should
be
noted
that
the
AAPFCO
recommended
standards
listed
in
Table
2
were
based
primarily
on
a
risk
assessment
study
commissioned
by
The
Fertilizer
Institute
(an
industry
trade
organization).
As
with
other
similar
risk
assessments,
including
EPA's
(``
Estimating
Risk
from
Contaminants
Contained
in
Agricultural
Fertilizers,
''
September
1,
1999;
Web
site
address
www.
epa.
gov/
epaoswer/
hazwaste/
recycle/
fertiliz/
risk/
report.
pdf),
a
number
of
simplifying
assumptions
and
models
were
used
to
address
data
gaps
and
other
uncertainties
inherent
in
that
analysis.
EPA
does
not
necessarily
accept
or
dispute
the
validity
of
the
AAPFCO
recommended
levels
as
accurate
indicators
of
potential
risks;
any
such
technical
judgment
would
of
necessity
have
to
be
based
on
additional
data
and
more
rigorous
analysis.
We
note,
however,
that
the
general
findings
of
EPA's
risk
assessment
did
not
differ
dramatically
from
those
of
the
TFIsponsored
study.
In
any
case,
we
simply
wish
to
underscore
the
point
that
any
risk­
based
standards
for
fertilizer
contaminants,
including
those
adopted
by
AAPFCO,
have
a
considerable
uncertainty
factor
associated
with
them.
The
comparison
in
Table
2
indicates
that
risk­
based
limits
for
zinc
fertilizers
are
likely
to
be
far
higher
than
the
levels
of
contaminants
that
are
now
found
in
many
commonly
marketed
products.
At
best,
therefore,
risk­
based
standards
would
have
very
little
effect
in
terms
of
actually
limiting
the
amounts
of
toxic
metals
in
fertilizer
products.
In
fact,
as
noted
already,
such
standards
could
allow
contaminant
levels
in
zinc
fertilizers
to
increase
substantially
over
current
levels.
From
an
environmental
perspective,
and
in
light
of
the
public
policy
debate
that
has
recently
taken
place
over
fertilizer
contamination,
we
believe
such
a
result
to
be
inappropriate
from
an
environmental
and
public
policy
perspective.
In
EPA's
view,
regulatory
efforts
to
control
contaminants
in
fertilizers
should
be
focused
mainly
on
ensuring
that
fertilizers
remain
relatively
clean,
rather
than
allowing
fertilizers
to
become
increasingly
contaminated
to
the
point
where
they
may
begin
to
pose
unacceptable
human
health
or
ecological
risks.
More
importantly
for
the
purposes
of
this
rulemaking,
riskbased
levels
are
inappropriate
as
a
measure
of
distinguishing
zinc
fertilizer
products
from
wastes,
since
they
bear
no
relation
to
the
levels
that
are
found
in
currently
marketed
zinc
fertilizers,
and
therefore
bear
no
relation
to
the
question
of
whether
the
waste­
derived
fertilizers
should
be
viewed
as
being
or
containing
waste.
As
for
the
comment
suggesting
that
it
is
unnecessary
to
place
any
limits
on
contaminants
in
fertilizers
because
EPA's
studies
indicate
fertilizers
are
generally
safe,
we
disagree.
In
our
view,
it
would
be
difficult,
if
not
unconscionable,
to
assure
the
public
and
other
stakeholders
as
to
the
safety
and
legitimacy
of
using
hazardous
secondary
materials—
i.
e.,
what
otherwise
are
hazardous
wastes—
to
make
fertilizers
without
having
any
means
of
limiting
contaminants
in
the
resulting
fertilizer
products.
Moreover,
opportunities
for
sham
recycling
obviously
would
become
rife
under
such
an
approach.
Some
commenters
expressed
support
for
EPA's
proposal
to
use
technologybased
limits
for
metals
in
recycled
zinc
fertilizers,
but
suggested
that
lower
limits
can
and
should
be
achieved.
One
industry
commenter
agreed,
noting
that
his
company
consistently
produces
pharmaceutical
grade
zinc
sulfate
monohydrate
with
lower
contaminant
levels
than
those
proposed,
and
that
other
companies
could
meet
similar
levels.
EPA
does
not
question
the
assertion
that
lower
contaminant
levels
than
those
proposed
are
technically
achievable
through
the
use
of
more
refined
(and
more
expensive)
manufacturing
processes.
However,
it
is
not
the
Agency's
intent
to
set
these
limits
at
the
very
lowest
levels
that
can
be
technically
achieved.
Cf.
63
FR
at
33784–
33785
(June
19,
1998)
(explaining
a
similar
benchmark
approach
for
establishing
levels
to
distinguish
products
from
waste
fuels
based
on
comtaminant
levels
found
in
normal
fossil
fuels,
rather
than
the
very
``
cleanest''
or
``
dirtiest''
fossil
fuels).
The
Agency's
fertilizer
risk
assessment
indicates
that
the
proposed
limits
are
considerably
below
levels
that
we
estimate
(albeit
roughly)
to
be
safe
for
humans
and
ecosystems.
Thus,
the
actual
environmental
benefit
to
be
gained
from
more
stringent
limits
would
likely
be
negligible.
Further,
we
find
highly
questionable
the
notion
that
there
would
be
any
real
public
benefit
in
requiring
zinc
fertilizers
to
be
suitable
for
pharmaceutical
use,
or
that
such
exceptional
purity
(necessary
for
such
a
specialized
use)
is
a
reasonable
means
of
demarcating
fertilizer
products
from
wastes.
Finally,
setting
stricter
limits
in
this
rule
would
almost
certainly
force
most
manufacturers
to
either
raise
prices
for
finished
zinc
fertilizer
products,
or
avoid
regulatory
requirements
altogether
by
simply
switching
to
alternative
feedstock
materials
that
are
unregulated
by
RCRA.
We
see
little
if
any
benefit
in
either
outcome.
We
have
therefore
not
adjusted
the
final
limits
for
metals
in
response
to
these
comments.
Some
commenters
expressed
the
view
that
this
rule
should
set
limits
for
additional
metals
such
as
selenium,
vanadium,
beryllium,
antimony
and
others,
citing
the
possibility
that
potentially
harmful
levels
of
such
metals
could
occur
in
zinc
fertilizers.
These
commenters
did
not,
however,
provide
any
data
to
establish
that
elevated
levels
of
such
metals
occur
in
ZSM
products
(or
any
other
types
of
fertilizers),
or
that
the
purification
techniques
used
in
manufacturing
ZSM
would
fail
to
remove
these
metals.
We
note,
too,
that
the
data
we
have
reviewed
to
date
on
fertilizer
contaminants
did
not
indicate
the
presence
of
elevated
levels
of
such
additional
contaminants
in
zinc
fertilizers
or
any
other
fertilizer
products.
We
are
therefore
not
persuaded
that
there
is
any
real
need
to
set
limits
on
additional
metals
in
this
rule,
and
the
final
rule
addresses
only
the
five
metal
constituents
listed
above.
A
few
commenters
questioned
the
proposed
limit
on
chromium
(0.6
ppm
per
unit
of
zinc),
contending
that
it
would
be
unnecessarily
stringent
since
it
does
not
differentiate
between
the
hexavalent
and
trivalent
forms
of
chromium,
and
only
the
hexavalent
form
is
a
potential
threat
to
human
health.
One
commenter
also
stated
that
there
is
no
basis
or
precedent
in
RCRA
to
establish
controls
on
the
less
toxic
forms
of
chromium.
That
commenter
argued
further
that
new
fertilizer
manufacturing
techniques
under
development
may
be
unable
to
meet
the
proposed
limit
if
it
applied
to
total
chromium,
but
could
presumably
meet
that
level
if
it
applied
only
to
the
hexavalent
form.
EPA
does
not
dispute
that
the
potential
adverse
health
effects
from
exposure
to
hexavalent
chromium
are
considerably
greater
than
for
trivalent
chromium,
although
we
do
not
agree
with
the
commenter's
assertion
that
RCRA
controls
only
apply
to
hexavalent
chromium.
As
one
example,
the
listing
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Regulations
of
chromium
as
a
``
hazardous
constituent''
in
Appendix
VIII
of
40
CFR
part
261
does
not
distinguish
between
the
hexavalent
and
trivalent
forms.
Similarly,
the
``
land
disposal
restrictions''
treatment
standard
for
chromium
(see
§
268.48)
applies
to
total
chromium.
There
are
a
number
of
other
examples,
as
well.
We
acknowledge,
however,
that
some
regulatory
provisions
of
RCRA
do
make
risk
distinctions
between
hexavalent
and
trivalent
chromium.
One
example
is
the
exemption
from
the
definition
of
hazardous
waste
for
certain
wastes
that,
upon
specific
demonstration,
are
shown
to
contain
only
trivalent
chromium
(see
§
261.4(
b)(
6)).
The
proposed
limit
for
total
chromium
(0.6
ppm
per
unit
of
zinc)
represents
the
level
that
has
been
demonstrated
as
readily
achievable
in
ZSM
fertilizers,
including
a
small
margin
to
account
for
variabilities
in
the
manufacturing
process.
The
commenter
who
proposed
applying
the
limit
only
to
hexavalent
chromium
did
not
question
EPA's
assertion
that
this
level
can
be
easily
achieved
in
ZSM
products,
but
instead
referred
to
an
unspecified
``
advanced
technology''
for
making
zinc
fertilizer
that
is
not
designed
to
remove
these
contaminants.
We
note
that
the
commenter
did
not
supply
any
description
of
this
advanced
process,
or
submit
any
data
to
substantiate
the
claim
that
this
technology
would
be
unable
to
meet
the
proposed
limit
for
total
chromium.
In
fact,
it
is
unclear
from
the
commenter's
discussion
that
this
unspecified
technology
has
been
actually
used
in
full­
scale
manufacture
of
zinc
fertilizers.
We
also
note
that
there
is
little,
if
any,
available
ZSM
analytical
data
that
differentiates
between
the
different
forms
of
chromium,
although
the
basic
chemical
properties
of
chromium
suggest
that
the
presence
of
hexavalent
chromium
in
ZSM
fertilizers
is
likely
to
be
relatively
rare.
In
any
case,
it
is
certainly
not
EPA's
intent
in
this
rule
to
stifle
development
of
new
technologies
for
legitimate
recycling
in
the
fertilizer
industry.
However,
without
additional
data
and/
or
considerably
more
substantiation
of
the
commenter's
claims
it
is
difficult
for
the
Agency
to
conclude
that
the
proposed
limit
on
chromium
is
inappropriate
or
will
otherwise
be
a
hardship
for
zinc
fertilizer
manufacturers.
The
final
limit
on
(total)
chromium
is
therefore
unchanged
from
the
proposal.

3.
Limit
on
Dioxins
Today's
rule
finalizes
the
proposed
limit
of
eight
(8)
parts
per
trillion
of
dioxins
in
zinc
fertilizers,
as
measured
according
to
the
``
toxicity
equivalence''
or
TEQ
method
(see
``
Estimating
Exposures
to
Dioxin­
like
Compounds''
(EPA
publication
#600/
6–
88/
005
Ca)).
The
eight
part
per
trillion
limit
is
based
on
EPA's
estimate
of
average
national
background
levels
of
dioxins
in
soils
(see
EPA
report
``
Estimating
Exposure
to
Dioxin­
Like
Compounds,
Review
Draft''
(EPA/
600/
6–
88/
000Ca;
June
1994)).
EPA
has
included
dioxins
in
its
list
of
priority
``
persistent,
bioaccumulative
and
toxic''
(PBT)
chemicals
that
are
of
particular
concern
environmentally
and
are
the
focus
of
new
control
strategies
being
developed
by
EPA.
Further
information
on
the
Agency's
overall
strategy
for
addressing
PBTs
can
be
found
on
our
Web
site
(see
www.
epa.
gov/
pbt.
htm).
Significant
levels
of
dioxins
(in
the
hundreds
of
parts
per
trillion
range)
have
been
found
in
zinc
oxysulfate
fertilizers
made
from
K061
hazardous
wastes.
EPA's
fertilizer
risk
assessment
concluded
that
exposure
to
dioxins
in
fertilizers
at
these
levels
is
unlikely
to
pose
unacceptable
risks,
based
on
currently
available
dioxin
health
effects
information.
However,
available
data
on
dioxin
levels
in
fertilizers
are
admittedly
very
limited,
so
it
is
possible
that
dioxin
levels
in
some
fertilizer
products
could
be
higher
than
the
current
data
suggest.
It
is
also
possible
that,
when
finished,
the
Agency's
ongoing
reassessment
of
dioxin
health
effects
could
conclude
that
even
more
aggressive
measures
to
control
this
class
of
PBT
compounds
are
warranted.
Because
of
these
uncertainties,
and
because
EPA
is
committed
generally
to
a
multifaceted
national
strategy
aimed
at
reducing
PBTs
in
the
environment,
we
believe
it
is
appropriate
and
prudent
to
limit
dioxins
in
fertilizers
in
today's
final
rule.
Moreover,
given
the
presence
of
dioxins
in
at
least
some
of
the
hazardous
secondary
materials
used
to
produce
zinc
fertilizers,
the
extreme
health
risks
associated
with
dioxins,
and
the
fact
that
they
contribute
nothing
to
the
efficacy
of
fertilizer
products,
some
limit
on
dioxins
is
necessary
for
distinguishing
product
fertilizers
from
wastes,
and
to
guard
against
sham
recycling.
As
explained
in
the
preamble
to
the
proposed
rule,
EPA
chose
to
use
a
``
background''
approach
to
setting
a
limit
for
dioxins
in
zinc
fertilizers
primarily
because
we
do
not
have
sufficient
data
on
dioxin
levels
in
zinc
fertilizers
to
establish
a
technologybased
limit,
which
would
be
consistent
with
the
approach
used
in
this
rulemaking
to
set
limits
for
metals.
The
limited
data
that
are
available
on
dioxin
concentrations
in
zinc
sulfate
monohydrate
(the
zinc
fertilizer
formulation
used
to
develop
the
technology­
based
limits
for
metals)
indicate
dioxin
levels
of
approximately
one
part
per
trillion
(TEQ)
or
less.
We
did
not
receive
any
additional
data
from
commenters
with
regard
to
dioxin
levels
in
ZSM
products,
nor
did
any
commenters
offer
persuasive
evidence
that
the
8
ppt
limit
would
be
technically
or
economically
difficult
for
ZSM
producers
to
achieve
in
their
products.
Thus,
we
believe
that
the
8
ppt
limit
can
be
(and
is
being)
easily
achieved
by
industry,
should
not
impose
any
significant
economic
burden
on
zinc
fertilizer
manufacturers,
and
serves
as
a
reasonable
level
for
distinguishing
fertilizer
products
from
wastes.
Response
to
comments.
Many
of
the
commenters
on
the
proposal
cited
the
need
to
limit
dioxins
in
fertilizers
as
one
of
their
primary
concerns
with
regard
to
this
rulemaking.
Most
of
these
commenters
argued
for
either
a
more
stringent
limit
than
was
proposed
(e.
g.,
a
technology­
based
limit),
or
a
complete
ban
on
the
recycling
of
any
dioxincontaining
waste
material
to
make
fertilizers.
Some
commenters
suggested
that
a
limit
based
on
average
national
soil
background
levels
would
be
appropriate
only
if
it
were
based
on
``
pre­
industrial''
background
levels
(which
would
presumably
be
lower
than
eight
parts
per
trillion).
In
contrast,
a
number
of
other
commenters
opposed
setting
any
limit
on
dioxins
in
this
rule,
arguing
that
it
would
increase
costs
to
industry
and
would
have
little
or
no
net
environmental
benefit.
Other
commenters
suggested
that
if
a
limit
on
dioxins
in
fertilizer
is
established
it
should
be
risk­
based,
rather
than
based
on
national
background
soil
levels.
One
commenter
suggested
that
a
dioxin
limit
of
100
parts
per
trillion
would
be
more
reasonable
and
appropriate
than
the
proposed
limit,
though
the
basis
for
that
specific
limit
was
not
provided.
None
of
the
commenters
who
argued
for
more
stringent
limits
on
dioxins
in
this
rule
offered
any
scientific
evidence
establishing
an
environmental
need
for
such
additional
controls,
or
questioning
EPA's
basic
risk
findings
with
regard
to
dioxins
in
zinc
fertilizers.
In
addition,
it
is
likely
that
more
stringent
limits
would
raise
costs
for
this
rule
considerably.
We
see
no
reason
to
impose
such
additional
costs
without
a
convincing
environmental
rationale
for
doing
so;
thus,
we
chose
not
to
adopt
more
stringent
controls
for
dioxins
in
this
final
rule.
We
disagree
with
the
commenters
who
questioned
the
need
for
any
limit
on
dioxins
in
this
rule.
As
explained
above,
we
believe
that
a
limit
on
dioxins
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/
Rules
and
Regulations
is
appropriate
as
part
of
the
Agency's
broader
strategy
to
control
PBT
chemicals
in
the
environment,
and
should
moreover
have
minimal
cost
impacts
on
industry.
We
also
believe
that
a
limit
on
dioxins
in
this
rule
is
useful
in
distinguishing
products
from
wastes,
and
in
guarding
against
sham
recycling
of
dioxin­
containing
secondary
materials
(dioxin
being
a
non­
contributing
hazardous
constituent
in
fertilizers).
We
do
not
agree
with
the
commenters
who
suggested
using
a
riskbased
approach
to
setting
limits
on
dioxins
in
this
rule,
for
reasons
similar
to
those
in
the
preceding
discussion
of
risk­
based
levels
for
metal
contaminants.
A
risk­
based
limit
on
dioxins
would
likely
be
much
higher
than
the
actual
levels
of
dioxins
in
highquality
zinc
fertilizer,
or
the
national
soil
background
level
of
eight
parts
per
trillion.
Thus,
a
risk­
based
limit
on
dioxins
would
likely
allow
dioxin
levels
in
these
fertilizer
products
to
increase
greatly,
to
the
point
where
they
could
pose
unacceptable
risks.
EPA
does
not
believe
this
to
be
a
desirable
environmental
result,
particularly
in
light
of
the
current
scientific
uncertainty
over
the
health
effects
of
dioxins.
We
also
chose
not
to
adopt
a
limit
of
100
parts
per
trillion,
as
was
suggested
by
one
commenter.
That
commenter
did
not
offer
any
scientific,
technical
or
economic
basis
for
this
particular
limit,
nor
did
the
commenter
offer
any
evidence
to
refute
our
assumption
that
the
eight
ppt
limit
would
be
easily
achievable
by
manufacturers
of
highquality
zinc
fertilizers.
We
thus
see
no
reason
to
adopt
this
higher,
alternative
limit
for
dioxins
in
this
rule.

IV.
Mining
Wastes
Used
To
Make
Fertilizers
In
the
preamble
to
the
proposed
rule,
EPA
discussed
and
requested
comment
as
to
the
regulatory
status
of
certain
fertilizers
that
are
made
from
mining
wastes
which
exhibit
a
hazardous
characteristic
(e.
g.,
are
toxic
when
tested
according
to
the
TCLP,
cited
earlier).
One
particular
iron
fertilizer
product,
which
is
widely
marketed
to
consumers
through
retail
outlets
under
the
name
``
Ironite,
''
has
been
identified
as
being
made
from
such
material.
This
product
is
notable
for
containing
approximately
4400
parts
per
million
of
arsenic—
to
our
knowledge,
the
highest
arsenic
levels
of
any
fertilizer,
by
several
orders
of
magnitude.
At
issue
is
the
fact
that
the
hazardous
mining
wastes
used
to
make
Ironite
are
presently
exempt
from
regulation
as
hazardous
wastes,
under
the
so­
called
Bevill
exemption
in
the
RCRA
statute
(section
3001(
b)(
3)(
A)(
ii)).
In
the
proposed
rule
we
invited
comment
as
to
whether
EPA
should
undertake
a
regulatory
initiative
to
remove
the
current
exemption
for
this
type
of
fertilizer.
Most
of
the
commenters
on
the
proposed
rule
supported
the
idea
of
regulating
Ironite
(and
other
similar
fertilizers,
though
we
are
not
aware
of
any)
under
the
same
set
of
regulations
that
apply
to
hazardous
waste
derived
fertilizers.
Several
commenters,
in
fact,
expressed
strong
concerns
as
to
the
potential
adverse
health
effects
of
Ironite,
particularly
acute
effects
that
could
result
from
direct
ingestion
(e.
g.,
by
children)
of
Ironite
products.
Some
of
these
commenters
also
questioned
the
validity
of
the
studies
that
have
been
cited
by
the
Ironite
Products
Company
as
demonstrating
the
safety
of
their
products.
One
commenter,
however
(the
American
Mining
Association),
disputed
the
idea
that
Ironite
is
unsafe,
suggesting
that
EPA's
actual
motive
in
this
regard
is
to
``
backdoor''
its
way
into
narrowing
the
scope
of
the
Bevill
exemption.
These
commenters
also
cited
the
argument
made
by
others
that
EPA
has
no
legal
authority
at
all
to
regulate
hazardous
wastes
that
are
recycled
to
make
fertilizers,
let
alone
mining
wastes
that
are
specifically
exempt
from
hazardous
waste
regulations.
EPA
continues
to
believe
that
concerns
regarding
exposure
to
arsenic
in
Ironite
products
are
worthy
of
serious
consideration,
particularly
since
it
is
a
widely
marketed
consumer
product
intended
for
use
by
home
gardeners
and
others.
As
such,
the
potential
for
misuse
and/
or
accidental
exposure
(especially
to
children)
cannot
be
discounted.
At
the
same
time,
however,
we
recognize
that
there
are
technical
issues
associated
with
estimating
risks
from
exposure
to
contaminants
in
Ironite
that
merit
further
study
before
the
Agency
can
reach
any
definitive
conclusions
as
to
the
potential
risks
of
the
product.
For
example,
there
has
been
some
controversy
regarding
the
bioavailability
of
the
arsenic
and
lead
compounds
in
Ironite
and
Ironiteamended
soils.
EPA's
Office
of
Solid
Waste
is
partnering
with
EPA's
Office
of
Research
and
Development
and
EPA's
Region
8
Office
to
further
evaluate
the
potential
human
health
and
environmental
risks
that
may
occur
from
the
use
of
Ironite
fertilizer.
We
expect
that
these
efforts
will
provide
the
Agency
with
a
much
clearer
sense
of
the
environmental
implications
of
Ironite
use,
and
whether
or
not
there
is
a
need
to
pursue
regulatory
action
to
impose
RCRA
controls.
The
Agency
will
be
coordinating
this
effort
with
state
environmental
and
public
health
agencies
and
others
who
may
have
conducted
similar
studies
or
may
have
supporting
analyses
underway.
Preliminary
results
of
EPA's
evaluation
should
be
available
in
calendar
year
2003.
We
hope
to
announce
the
Agency's
follow­
up
regulatory
strategy
with
regard
to
specific
mining
wastederived
fertilizers,
such
as
Ironite,
subsequently.

V.
State
Fertilizer
Regulatory
Programs
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.
A
key
feature
of
Washington's
program
is
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
http//
www.
wa.
gov/
agr/
pmd/
fertilizers.
The
States
of
Texas
and
California
have
also
recently
established
regulatory
programs
for
fertilizer
contaminants,
and
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
fraction
of
the
fertilizers
currently
on
the
market
(one
half
of
one
percent
or
less)
under
its
RCRA
authorities.
The
potential
certainly
exists,
however,
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,
and
we
thus
encourage
other
states
to
develop
similar
programs.

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2002
/
Rules
and
Regulations
5
In
Aug.
17,
1988,
through
a
rule
promulgated
pursuant
to
HSWA,
EPA
imposed
treatment
standards
prior
to
land
application
on
all
other
commercial
fertilizers
containing
recyclable
waste,
except
for
those
derived
from
K061
(53
FR
31198,
31202).
Today's
rule
simply
extends
the
application
of
treatment
standards
to
K061
derived
fertilizers.
VI.
State
authority
A.
Applicability
of
Federal
RCRA
Rules
in
Authorized
States
Under
section
3006
of
RCRA,
EPA
may
authorize
qualified
states
to
administer
the
RCRA
hazardous
waste
program
within
the
state.
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
in
40
CFR
part
271.
Part
271
of
40
CFR
also
describes
the
overall
standards
and
requirements
for
authorization.
After
a
state
receives
initial
authorization,
new
Federal
regulatory
requirements
promulgated
under
the
authority
in
the
RCRA
statute
which
existed
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
(this
does
not,
however,
preclude
a
state
from
adopting
and
implementing
such
new
regulations
under
state
law
only,
prior
to
being
authorized
for
them).
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
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,
either
HSWA
or
nonHSWA
that
are
considered
less
stringent.
B.
Authorization
of
States
for
Today's
Proposal
Today's
rule
is
promulgated
pursuant
in
part
to
HSWA
authority
and
in
part
to
non­
HSWA
authority.
The
conditional
exclusion
from
the
definition
of
solid
waste
for
hazardous
secondary
materials
used
in
zinc
fertilizers
is
promulgated
pursuant
to
non­
HSWA
authority,
and
is
also
less
stringent
than
the
current
Federal
requirements.
Therefore,
States
will
not
be
required
to
adopt
and
seek
authorization
for
the
conditional
exclusion.
EPA
will
implement
the
exclusion
only
in
those
States
which
are
not
authorized
for
the
RCRA
program.
EPA
believes,
however,
that
this
final
rulemaking
has
considerable
merit,
and
we
thus
strongly
encourage
States
to
amend
their
programs
and
become
federally
authorized
to
implement
these
rules.
The
elimination
of
the
exemption
from
LDR
treatment
standards
for
K061
derived
fertilizers
is
promulgated
pursuant
to
RCRA
section
3004(
g),
a
HSWA
provision.
5
Therefore,
the
Agency
is
adding
this
rule
to
Table
1
in
40
CFR
271.1(
j),
which
identifies
the
Federal
program
requirements
that
are
promulgated
pursuant
to
HSWA
and
take
effect
in
all
States,
regardless
of
their
authorization
status.
Table
2
in
40
CFR
271.1(
j)
is
modified
to
indicate
that
these
requirements
are
selfimplementing
Until
the
States
receive
authorization
for
these
more
stringent
HSWA
provisions,
EPA
will
implement
them.
Once
authorized
States
adopt
an
equivalent
rule
and
receive
authorization
for
such
rule
from
EPA,
the
authorized
state
rule
will
apply
in
that
State
as
the
RCRA
Subtitle
C
requirement
in
lieu
of
the
equivalent
federal
requirement.

VII.
Administrative
Assessments
A.
Executive
Order
12866
Under
Executive
Order
12866
(58
FR
51735),
the
Agency
must
determine
whether
this
regulatory
action
is
``
significant''
and
therefore
subject
to
formal
review
by
the
Office
of
Management
and
Budget
(OMB)
and
to
the
requirements
of
the
Executive
Order,
which
include
assessing
the
costs
and
benefits
anticipated
as
a
result
of
the
proposed
regulatory
action.
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
a
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
thereof;
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.
Pursuant
to
the
terms
of
Executive
Order
12866,
the
Agency
has
determined
that
today's
proposed
rule
is
a
significant
regulatory
action
because
this
proposed
rule
contains
novel
policy
issues.
As
such,
this
action
was
submitted
to
OMB
for
review.
Changes
made
in
response
to
OMB
suggestions
or
recommendations
are
documented
in
the
docket
to
today's
proposal.
EPA's
economic
analysis
suggests
that
this
rule
is
not
economically
significant
under
Executive
Order
12866.
Detailed
discussions
of
the
methodology
used
for
estimating
the
costs,
economic
impacts
and
the
benefits
attributable
to
today's
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
Final
Rulemaking,
''
which
is
in
the
docket
for
today's
final
rule.
Methodology.
To
estimate
the
cost,
economic
impacts
to
potentially
affected
firms
and
benefits
to
society
from
this
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
or
cost
savings
of
this
rule
making,
we
reviewed
baseline
management
practices
and
costs
of
potentially
affected
firms.
The
Agency
has
modeled
the
most
likely
post­
regulatory
scenario
resulting
from
this
action
(e.
g.,
shifts
to
non­
hazardous
fertilizer
feedstocks,
shifting
from
zinc
oxysulfate
to
zinc
sulfate
monohydrate
production)
and
the
estimated
cost
of
complying
with
it.

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/
Vol.
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No.
142
/
Wednesday,
July
24,
2002
/
Rules
and
Regulations
The
difference
between
the
baseline
management
cost
and
the
postregulatory
cost
is
either
the
incremental
cost
or
cost
savings
resulting
from
the
rulemaking.
To
estimate
the
economic
impact
of
today's
rule,
we
compared
the
incremental
cost
or
cost
savings
of
the
rule
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
rule,
we
evaluated
available
data
and
presented
a
qualitative
assessment
of
benefits
including
ecological
benefits
and
protection
of
natural
resources
such
as
groundwater.
Results.
Volume.
Data
reviewed
by
the
Agency
indicates
that
there
are
3
to
4
zinc
micronutrient
producers,
one
zinc
producer,
one
steel
mill,
and
23
brass
fume
dust
generators
(ingot
makers,
mills,
and
foundries)
potentially
affected
by
today's
rule.
Although
the
exact
amount
of
hazardous
waste
used
in
zinc
micronutrient
fertilizer
production
on
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.
Costs.
For
the
part
of
today's
rule
pertaining
to
zinc
micronutrient
fertilizers,
we
estimate
the
total
annual
cost
savings
from
today's
proposal
to
be
$2.14
million
for
all
facilities.
Costs
savings
for
different
groups
are
summarized
in
Table
1.

TABLE
1.—
ESTIMATED
INCREMENTAL
COSTS
AND
COST
SAVINGS
BY
FACILITY
CATEGORY
Potentially
affected
facility
Incremental
annual
costs
(cost
savings)
(1999$)

Zinc
Oxysulfate
Producers
($
0.49
million).

Zinc
Sulfate
Monohydrate
Producers
($
0.75
million).

Primary
Zinc
Producers
($
1.0
million).

Steel
Mill
...................
$1.5
million.
Brass
Fume
Dust
Generators.
($
1.4
million).

Total
.......................
($
2.14
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.
One
steel
mill
that
has
generated
baghouse
dust
used
in
fertilizer
manufacturing
is
expected
to
incur
additional
costs
from
having
to
shift
their
dust
from
fertilizer
production
to
land
disposal.
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.
Economic
Impact
Results.
To
estimate
potential
economic
impacts
resulting
from
today's
rule,
we
use
a
first
order
economic
impacts
measure:
the
estimated
incremental
costs
or
cost
savings
of
today's
rule
as
a
percentage
of
affected
firms
sales.
Because
of
data
limitations,
EPA
was
unable
to
obtain
profit
information
for
potentially
affected
firms.
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.
More
detailed
information
on
this
estimate
can
be
found
in
the
economic
analysis
placed
into
today's
docket.
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
final
rule.
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
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
USC
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
or
100
employees
per
firm
depending
upon
the
SIC
code
the
firm
primarily
is
classified;
(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;
and
(3)
a
small
organization
that
is
any
not­
for­
profit
enterprise
which
is
independently
owned
and
operated
and
is
not
dominant
in
its
field.

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Federal
Register
/
Vol.
67,
No.
142
/
Wednesday,
July
24,
2002
/
Rules
and
Regulations
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.
603
and
604).
Thus,
an
agency
may
certify
that
a
rule
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities
if
the
rule
relieves
regulatory
burden,
or
otherwise
has
a
positive
economic
effect
on
all
of
the
small
entities
subject
to
the
rule.
There
is
one
small
entity
incurring
incremental
costs
and
offsetting
increased
revenues
resulting
from
this
rulemaking.
This
firm
is
Frit
Inc,
a
zinc
oxysulfate
fertilizer
producer.
Frit
has
one
facility
co­
located
onsite
with
Nucor
Steel's
Norfolk,
Nebraska
facility.
Frit
has
been
producing
zinc
oxysulfate
fertilizer
from
Nucor's
baghouse
dust
(K061,
a
listed
hazardous
waste).
As
result
of
this
rulemaking,
Frit
will
no
longer
be
able
to
make
zinc
oxysulfate
from
Nucor's
dust.
This
is
due
to
both
the
removal
of
the
exemption
of
K061
derived
fertilizer's
from
LDR
requirements
and
metal
limits
on
zinc
fertilizers
made
from
hazardous
secondary
materials.
EPA
understands
that
Frit
is
ceasing
operations
at
the
Norfolk,
Nebraska
facility.
In
the
economic
analysis
of
the
proposed
rulemaking,
EPA
had
modeled
Frit
switching
from
zinc
oxysulfate
to
zinc
sulfate
monohydrate
at
Nucor's
facility
as
the
most
cost­
effective
postregulatory
alternative.
In
public
comment
on
the
proposed
rulemaking,
The
Fertilizer
Institute,
a
trade
association
of
which
Frit
is
a
member,
commented
that
EPA's
economic
analysis
had
not
accounted
for
costs
of
switching
and
operating
from
zinc
oxysulfate
to
zinc
sulfate
monohydrate.
Although
EPA
agrees
with
some
of
The
Fertilizer
Institute's
comments
and
disagrees
with
others
(for
more
information
see
the
Response
to
Comments
document
to
today's
rulemaking),
when
EPA
reevaluated
two
possible
alternative
regulatory
responses
for
Frit
to
this
rulemaking
(1.
switching
from
zinc
oxysulfate
to
zinc
sulfate
monohydrate,
and
2.
switching
from
hazardous
secondary
sources
to
nonhazardous
secondary
sources),
we
determined
that
switching
to
nonhazardous
sources
of
zinc­
bearing
secondary
materials
would
be
more
cost­
effective
for
Frit
than
switching
its
production
to
ZSM.
This
is
because
although
it
costs
more
to
purchase
nonhazardous
zinc­
bearing
secondaries,
the
fertilizers
produced
from
the
nonhazardous
sources
are
sold
at
a
higher
price
due
to
lower
nonnutritive
mineral
content
(i.
e.
lead
and
cadmium).
Because
Frit
is
ceasing
operations
at
the
Nucor
site,
EPA
has
modeled
the
firm
consolidating
its
operations
at
another
company
facility
to
produce
zinc
oxysulfate
from
nonhazardous
sources.
EPA
has
estimated
that
Frit's
costs
for
nonhazardous
feedstocks
will
increase
by
$2.9
million.
Also,
Frit
should
realize
increased
revenues
of
$3.4
million
that
offset
these
costs
and
increase
profit
by
$0.49
million.
Thus,
Frit
should
not
be
significantly
impacted
by
this
rule
even
though
it
will
be
required
to
incur
additional
costs
when
substituting
to
nonhazardous
sources.
Moreover,
EPA
does
not
believe
that
one
regulated
entity
constitutes
a
substantial
number
of
small
entities
in
the
zinc
micronutrient
industry.
There
are
several
other
firms
producing
zinc
micronutrient
fertilizers,
some
of
them
small
businesses.
As
discussed
below,
this
rule
will
benefit
many
of
these
firms.
It
is
also
likely
that
even
in
the
absence
of
this
rulemaking
that
opportunities
to
market
K061
derived
fertilizers
would
become
more
limited
in
response
to
decreased
consumer
demand
for
fertilizers
with
high
nonnutritive
mineral
content.
EPA
notes
that
there
is
currently
a
market
trend
away
from
zinc
fertilizers
with
high
heavy
metal
content
(see
www.
chemexpo.
com/
news/
newsframe.
cfm?
framebody=/
news/
profile.
cfm
as
obtained
April
12,
2002
for
zinc
sulfate).
Therefore,
it
is
likely
that
even
in
the
absence
of
this
rulemaking,
the
market
for
zinc
fertilizers
with
relatively
high
heavy
metal
content,
such
as
K061­
derived
zinc
oxysulfate,
is
declining
in
favor
of
cleaner
zinc
fertilizers.
And
in
the
past
3
years,
there
has
been
a
trend
away
from
using
K061
in
fertilizer
production.
Two
of
the
three
firms
that
had
used
K061
in
1997
in
zinc
oxysulfate
production
had
ceased
using
this
hazardous
feedstock
prior
to
EPA's
proposed
fertilizer
rulemaking.
EPA
also
notes
that
this
rulemaking
will
assist
many
small
businesses
that
either
generate
hazardous
zinc­
bearing
secondary
feedstocks
or
use
those
feedstocks
in
fertilizer
production
by
opening
up
markets
for
these
materials
including
brass
dust,
tire
ash,
and
zinc
oxides
from
steel
waste.
Brass
foundries,
brass
mills,
and
brass
ingot
makers
are
examples
of
the
types
of
small
business
generators
likely
to
benefit
from
today's
final
rule.
The
Agency
has
received
favorable
public
comments
from
trade
associations
representing
small
business
generators
of
hazardous
zinc­
bearing
secondaries.
Other
small
business
producers
of
zinc
sulfate
monohydrate
such
as
Big
River
Zinc,
and
Madison
Industries
will
benefit
from
increased
supplies
of
zinc­
bearing
secondaries.
For
more
information,
please
refer
to
the
background
document
entitled
``
Economic
Analysis
for
Regulatory
Modifications
to
the
Definition
of
Solid
Waste
For
Zinc­
Containing
Hazardous
Waste­
Derived
Fertilizers,
Notice
of
Final
Rulemaking,
''
which
was
placed
in
the
docket
for
today's
final
rule.
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.

C.
Paperwork
Reduction
Act
The
information
collection
requirements
in
this
final
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.
XX).
A
copy
of
this
ICR
may
be
obtained
from
Sandy
Farmer,
OPIA
Regulatory
Information
Division,
U.
S.
Environmental
Protection
Agency
(2137),
1200
Pennsylvania
Avenue,
NW.,
Washington
DC
20460,
or
by
calling
(202)
260–
2740
and
a
copy
may
be
obtained
from
Sandy
Farmer
by
mail
at
OPPE
Regulatory
Information
Division;
U.
S.
Environmental
Protection
Agency
(2137);
401
M
St.,
SW.;
Washington,
DC
20460,
by
e­
mail
at
farmer.
sandy@
epamail.
epa.
gov,
or
by
calling
(202)
260–
2740.
A
copy
may
also
be
downloaded
off
the
Internet
at
http:/
/www.
epa.
gov/
icr.
EPA
has
finalized
the
following
conditions
for
reporting
and
recordkeeping
by
generators
and
manufacturers:
The
rule
requires
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
will
be
required
to
submit
a
one­
time
notice,
retain
for
a
minimum
of
three
years
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/
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July
24,
2002
/
Rules
and
Regulations
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
will
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.
Additional
testing
will
be
required
when
changes
to
processes
or
feedstock
materials
are
made
that
could
significantly
alter
the
composition
of
the
fertilizer
products.
These
conditions
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
61
hours
per
year
and
the
annual
respondent
cost
for
the
new
paperwork
requirements
in
the
rule
is
approximately
$12,653.
However,
in
addition
to
the
new
paperwork
requirements
in
the
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
hazardous
waste
information
collection
requirements
for
the
excluded
materials.
This
cost
savings
of
$21,149
minus
the
$12,653
cost
for
the
new
paperwork
requirements
will
result
in
an
overall
cost
savings
$8,496.
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.

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
§
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
§
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.
Federalism—
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
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
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
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/
Vol.
67,
No.
142
/
Wednesday,
July
24,
2002
/
Rules
and
Regulations
Executive
Order
13132.
This
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
rule
preempts
State
and
local
law
that
is
less
stringent
for
these
zincbearing
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
(section
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.

F.
Executive
Order
13175:
Consultation
and
Coordination
With
Indian
Tribal
Governments
Executive
Order
13175,
entitled
``
Consultation
and
Coordination
with
Indian
Tribal
Governments''
(65
FR
67249,
November
9,
2000),
requires
EPA
to
develop
an
accountable
process
to
ensure
``
meaningful
and
timely
input
by
tribal
officials
in
the
development
of
regulatory
policies
that
have
tribal
implications.
''
This
final
rule
does
not
have
tribal
implications,
as
specified
in
Executive
Order
13175.
Today's
rule
does
not
significantly
or
uniquely
affect
the
communities
of
Indian
tribal
governments,
nor
would
it
impose
substantial
direct
compliance
costs
on
them.
Thus,
Executive
Order
13175
does
not
apply
to
this
rule.

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
final
rule
is
not
subject
to
the
Executive
Order
because
it
is
not
economically
significant
as
defined
in
Executive
Order
12866,
and
because
the
Agency
does
not
have
reason
to
believe
the
environmental
health
or
safety
risks
addressed
by
this
rule
present
a
disproportionate
risk
to
children.
EPA's
fertilizer
risk
assessment
modeled
a
number
of
pathways
by
which
farmers
and
their
children
could
be
exposed
to
metals
and
dioxins
in
fertilizer
products
applied
at
recommended
rates
and
frequencies.
Exposure
was
modeled
through
both
direct
and
indirect
pathways.
The
direct
pathways
considered
were
the
inhalation
pathway,
including
inhalation
of
windblown
emissions,
and
from
emissions
during
product
application
and
tilling.
Direct
ingestion
of
soils
amended
with
fertilizers
was
also
modeled.
The
indirect
exposure
pathways
considered
were
ingestion
of
plants
(vegetables,
fruits,
and
root
vegetables)
grown
on
soils
amended
with
fertilizer
products
containing
metals
and
dioxins,
ingestion
of
beef
and
dairy
products
produced
on
land
amended
with
these
products,
and
ingestion
of
home­
caught
fish
from
a
stream
adjacent
to
the
farmer's
agricultural
field.
EPA's
fertilizer
risk
assessment
used
a
probabilistic
methodology
to
estimate
incremental
lifetime
cancer
and
noncancer
risks
to
farmers
and
farm
children.
The
general
conclusion
of
the
risk
assessment
was
that
fertilizers
generally
do
not
pose
harm
to
human
health
or
the
environment.
Since
today's
final
rule
is
expected
to
reduce
the
overall
levels
of
contaminants
in
zinc
fertilizers
made
from
hazardous
secondary
materials,
the
Agency
expects
that
the
impacts
of
this
rule
on
childrens'
health
will
be
positive,
albeit
relatively
small.

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.
This
rule
establishes
a
conditional
exclusion
for
zinc
fertilizers
based
on
contaminant
levels
for
metals
and
dioxins.
After
considering
alternatives,
EPA
has
determined
that
it
would
be
impractical
and
inappropriate
to
use
voluntary
consensus
standards
in
this
rulemaking,
for
the
reasons
discussed
in
more
detail
in
in
Section
III.
D
of
this
preamble.

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
to
waste
programs
and
to
develop
an
overall
strategy
to
identify
and
address
these
issues
(OSWER
Directive
No.
9200.3–
17).
Today's
rule
pertains
to
hazardous
wastes
used
in
zinc
micronutrient
production,
and
is
intended
to
reduce
risks
of
excluded
hazardous
secondary
materials,
and
benefit
all
populations.
As
such,
this
rule
is
not
expected
to
cause
any
disproportionately
high
and
adverse
impacts
to
minority
or
lowincome
communities
versus
nonminority
or
affluent
communities.
Excluded
hazardous
secondary
materials
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
exclusion
may
affect
where
these
wastes
are
managed
in
the
future,
the
Agency's
decision
to
conditionally
exclude
these
materials
is
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24,
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/
Rules
and
Regulations
independent
of
any
decisions
regarding
the
location
of
waste
generators
and
the
siting
of
waste
management
facilities.
Today's
rule
will
reduce
loadings
of
toxic
non­
nutritive
constituents
to
the
soil,
and
will
ensure
proper
management
of
secondary
materials
at
affected
facilities.
EPA
believes
that
these
provisions
of
the
rule
will
benefit
all
populations
in
the
United
States,
including
low­
income
and
minority
communities.

J.
Executive
Order
13211
(Energy
Effects)

This
rule
is
not
a
``
significant
energy
action''
as
defined
in
Executive
Order
13211,
``
Actions
Concerning
Regulations
That
Significantly
Affect
Energy
Supply,
Distribution,
or
Use''
(66
FR
28355
(May
22,
2001))
because
it
is
not
likely
to
have
a
significant
adverse
effect
on
the
supply,
distribution,
or
use
of
energy.
This
rule
applies
to
a
discrete
sector
of
the
economy
and
potentially
adversely
affects
fewer
than
20
firms.
This
rule
reduces
regulatory
burden
and
creates
markets
for
hazardous
zinc­
bearing
secondary
materials.
It
thus
does
not
adversely
affect
energy
supply,
distribution
or
use.

K.
Congressional
Review
Act
The
Congressional
Review
Act,
5
U.
S.
C.
801
et
seq.,
as
added
by
the
Small
Business
Regulatory
Enforcement
Fairness
Act
of
1996,
generally
provides
that
before
a
rule
may
take
effect,
the
agency
promulgating
the
rule
must
submit
a
rule
report,
which
includes
a
copy
of
the
rule,
to
each
House
of
the
Congress
and
to
the
Comptroller
General
of
the
United
States.
EPA
will
submit
a
report
containing
this
rule
and
other
required
information
to
the
U.
S.
Senate,
the
U.
S.
House
of
Representatives,
and
the
Comptroller
General
of
the
United
States
prior
to
publication
of
the
rule
in
the
Federal
Register.
A
Major
rule
cannot
take
effect
until
60
days
after
it
is
published
in
the
Federal
Register.
This
action
is
not
a
``
major
rule''
as
defined
by
5
U.
S.
C.
804(
2).
This
rule
will
be
effective
on
July
24,
2002,
except
for
the
amendment
to
40
CFR
266.20(
b),
which
eliminates
the
exemption
from
treatment
standards
for
fertilizers
made
from
recycled
electric
arc
furnace
dust.
The
effective
date
for
that
provision
in
today's
final
rule
is
January
24,
2003.

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.

40
CFR
Part
271
Environmental
proteciton,
Hazardous
waste,
Reporting
and
recordkeeping
requirements.

Dated:
July
15,
2002.
Christine
Todd
Whitman,
Administrator.

For
the
reasons
set
forth
in
the
preamble,
title
40,
chapter
I
of
the
Code
of
Federal
Regulations
is
amended
as
follows:

PART
261—
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,
6924(
y),
and
6938.

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

§
261.4
Exclusions.

(a)
*
*
*
(20)
Hazardous
secondary
materials
used
to
make
zinc
fertilizers,
provided
that
the
following
conditions
specified
are
satisfied:
(i)
Hazardous
secondary
materials
used
to
make
zinc
micronutrient
fertilizers
must
not
be
accumulated
speculatively,
as
defined
in
§
261.1
(c)(
8).
(ii)
Generators
and
intermediate
handlers
of
zinc­
bearing
hazardous
secondary
materials
that
are
to
be
incorporated
into
zinc
fertilizers
must:
(A)
Submit
a
one­
time
notice
to
the
Regional
Administrator
or
State
Director
in
whose
jurisdiction
the
exclusion
is
being
claimed,
which
contains
the
name,
address
and
EPA
ID
number
of
the
generator
or
intermediate
handler
facility,
provides
a
brief
description
of
the
secondary
material
that
will
be
subject
to
the
exclusion,
and
identifies
when
the
manufacturer
intends
to
begin
managing
excluded,
zinc­
bearing
hazardous
secondary
materials
under
the
conditions
specified
in
this
paragraph
(a)(
20).
(B)
Store
the
excluded
secondary
material
in
tanks,
containers,
or
buildings
that
are
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
wind
dispersal
and
contact
with
rainwater.
Tanks
used
for
this
purpose
must
be
structurally
sound
and,
if
outdoors,
must
have
roofs
or
covers
that
prevent
contact
with
wind
and
rain.
Containers
used
for
this
purpose
must
be
kept
closed
except
when
it
is
necessary
to
add
or
remove
material,
and
must
be
in
sound
condition.
Containers
that
are
stored
outdoors
must
be
managed
within
storage
areas
that:
(1)
have
containment
structures
or
systems
sufficiently
impervious
to
contain
leaks,
spills
and
accumulated
precipitation;
and
(2)
provide
for
effective
drainage
and
removal
of
leaks,
spills
and
accumulated
precipitation;
and
(3)
prevent
run­
on
into
the
containment
system.
(C)
With
each
off­
site
shipment
of
excluded
hazardous
secondary
materials,
provide
written
notice
to
the
receiving
facility
that
the
material
is
subject
to
the
conditions
of
this
paragraph
(a)(
20).
(D)
Maintain
at
the
generator's
or
intermediate
handlers's
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
facility
that
received
the
excluded
material,
and
documentation
confirming
receipt
of
the
shipment;
and
(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
and
intermediate
handlers,
as
specified
in
paragraph
(a)(
20)(
ii)(
B)
of
this
section.
(B)
Submit
a
one­
time
notification
to
the
Regional
Administrator
or
State
Director
that,
at
a
minimum,
specifies
the
name,
address
and
EPA
ID
number
of
the
manufacturing
facility,
and
identifies
when
the
manufacturer
intends
to
begin
managing
excluded,
zinc­
bearing
hazardous
secondary
materials
under
the
conditions
specified
in
this
paragraph
(a)(
20).

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Rules
and
Regulations
(C)
Maintain
for
a
minimum
of
three
years
records
of
all
shipments
of
excluded
hazardous
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,
the
quantity
received,
and
a
brief
description
of
the
industrial
process
that
generated
the
material.
(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
fertilizers
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.
(v)
Interim
status
and
permitted
storage
units
that
have
been
used
to
store
only
zinc­
bearing
hazardous
wastes
prior
to
the
submission
of
the
one­
time
notice
described
inparagraph
(a)(
20)(
ii)(
A)
of
this
section,
and
that
afterward
will
be
used
only
to
store
hazardous
secondary
materials
excluded
under
this
paragraph,
are
not
subject
to
the
closure
requirements
of
40
CFR
Parts
264
and
265.
(21)
Zinc
fertilizers
made
from
hazardous
wastes,
or
hazardous
secondary
materials
that
are
excluded
under
paragraph
(a)(
20)
of
this
section,
provided
that:
(i)
The
fertilizers
meet
the
following
contaminant
limits:
(A)
For
metal
contaminants:

Constituent
Maximum
Allowable
Total
Concentration
in
Fertilizer,
per
Unit
(1%)
of
Zinc
(ppm)

Arsenic
......................................
0.3
Cadmium
..................................
1.4
Chromium
.................................
0.6
Lead
..........................................
2.8
Constituent
Maximum
Allowable
Total
Concentration
in
Fertilizer,
per
Unit
(1%)
of
Zinc
(ppm)

Mercury
.....................................
0.3
(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.
Testing
must
also
be
performed
whenever
changes
occur
to
manufacturing
processes
or
ingredients
that
could
significantly
affect
the
amounts
of
contaminants
in
the
fertilizer
product.
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)
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
paragraph
(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).
PART
266—[
AMENDED]

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

Authority:
42
U.
S.
C.
1006,
2002(
a),
3001–
3009,
3014,
6905,
6906,
6912,
6921,
6922,
6924–
6927,
6934,
and
6937.

Subpart
C—
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
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)
They
meet
the
applicable
treatment
standards
in
subpart
D
of
Part
268
of
this
chapter
for
each
hazardous
waste
that
they
contain.

PART
268—
[AMENDED]

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

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

Subpart
D—
Treatment
Standards
§
268.40
[Amended]

6.
Section
268.40
is
amended
by
removing
and
reserving
paragraph
(i).

PART
271—
REQUIREMENTS
FOR
AUTHORIZATION
OF
STATE
HAZARDOUS
WASTE
PROGRAMS
7.
The
authority
citation
for
Part
271
continues
to
read
as
follows:

Authority:
42
U.
S.
C.
6905,
6912(
a),
and
6926.
8.
In
§
271.1(
j),
tables
1
and
2
are
amended
by
adding
the
following
entries
in
chronological
order
by
date
of
publication
to
read
as
follows:

§
271.1
Purpose
and
scope.

*
*
*
*
*
(j)
*
*
*

TABLE
1.—
REGULATIONS
IMPLEMENTING
THE
HAZARDOUS
AND
SOLID
WASTE
AMENDMENTS
OF
1984
Promulgation
date
Title
of
regulation
Federal
Register
reference
Effective
date
*******
July
15,
2002
................................
Elimination
of
LDR
Treatment
Standards
Exemption
for
K061­
Derived
Fertlizers.
July
24,
2002,
FR
cite
...................
January
24,
2003.

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/
Vol.
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No.
142
/
Wednesday,
July
24,
2002
/
Rules
and
Regulations
TABLE
1.—
REGULATIONS
IMPLEMENTING
THE
HAZARDOUS
AND
SOLID
WASTE
AMENDMENTS
OF
1984—
Continued
Promulgation
date
Title
of
regulation
Federal
Register
reference
Effective
date
*******

TABLE
2.—
SELF
IMPLEMENTING
PROVISIONS
OF
THE
SOLID
WASTE
AMENDMENTS
OF
1984
Effective
date
Self­
implementing
provision
RCRA
citation
Federal
Register
reference
*******
January
24,
2003
..........................
Elimination
of
LDR
Treatment
Standards
Exemption
for
K061
Derived
Fertilizers.
3004(
g)(
6)
.....................................
July
24,
2002,
FR
cite.

*******

[FR
Doc.
02–
18405
Filed
7–
23–
02;
8:
45
am]

BILLING
CODE
6560–
50–
P
FEDERAL
COMMUNICATIONS
COMMISSION
47
CFR
Parts
15
and
18
[ET
Docket
No.
98–
80;
FCC
02–
157]

Conducted
Emission
Limits
AGENCY:
Federal
Communications
Commission.

ACTION:
Final
rule;
correction.

SUMMARY:
On
July
10,
2002
(67
FR
45666),
the
Commission
published
final
rules
in
the
Federal
Register,
which
amended
the
rules
for
Conducted
Emission
Limits.
This
document
contains
a
correction
to
the
effective
date
of
that
rule
which
was
inadvertently
published
incorrectly.

DATE:
Effective
August
9,
2002.

FOR
FURTHER
INFORMATION
CONTACT:
Anh
Wride,
Office
of
Engineering
and
Technology,
(202)
418–
0577,
TTY
(202)
418–
2989,
e­
mail:
awride@
fcc.
gov.

SUPPLEMENTARY
INFORMATION:
The
Federal
Communications
Commission
published
a
document
amending
parts
15
and
18
in
the
Federal
Register
of
July
10,
2002,
(67
FR
45666).
This
document
corrects
the
Federal
Register
as
it
appeared.
In
FR
Doc.
02–
17264
published
on
July
10,
2002,
(67
FR
45666),
the
Commission
is
correcting
the
``
DATES:
Effective
August
9,
2002
of
the
Commission's
rules
to
reflect
the
correct
DATES:
Effective
September
9,
2002.''
In
rule
FR
Doc.
02–
17264
published
on
July
10,
2002
(67
FR
45666)
make
the
following
correction:
On
page
45666,
in
the
third
column
correct
Dates:
Effective
August
9,
2002
to
read
as
DATES:
Effective
September
9,
2002.
Federal
Communications
Commission.
Marlene
H.
Dortch,
Secretary.
[FR
Doc.
02–
18626
Filed
7–
23–
02;
8:
45
am]

BILLING
CODE
6712–
01–
P
FEDERAL
COMMUNICATIONS
COMMISSION
47
CFR
Part
64
[CC
Docket
No.
98–
67;
DA
02–
1490]

Request
for
Comment
on
Petition
for
Clarification
on
the
Provision
of
and
Cost
Recovery
for
Captioned
Telephone
as
an
Improved
Voice
Carry­
Over
Service
for
Telecommunications
Relay
Services
AGENCY:
Federal
Communications
Commission.
ACTION:
Final
rule;
request
for
comments
on
petition
for
clarification.

SUMMARY:
This
document
seeks
public
comment
on
a
petition
requesting
clarification
of
the
Commission's
rules
on
telecommunications
relay
services
(``
TRS'')
with
respect
to
the
provision
and
reimbursement
of
captioned
telephone,
an
enhanced
voice
carry­
over
service
(published
at
65
FR
38432,
June
21,
2000.)
See
Petition
for
Clarification
Provision
of
and
Cost
Recovery
for
CapTel,
An
Enhanced
VCO
Service,
CC
Docket
No.
98–
67
filed
April
12,
2002
on
the
behalf
of
Ultratec,
Inc.
This
document
also
seeks
public
comment
on
Ultratec,
Inc.
's
request
for
clarification
that
certain
TRS
mandatory
minimum
standards
do
not
apply
to
this
service.
DATES:
Interested
parties
may
file
comments
in
this
proceeding
no
later
than
July
26,
2002.
Reply
comments
may
be
filed
no
later
than
August
12,
2002.

ADDRESSES:
Federal
Communications
Commission,
445
12th
Street,
SW,
Washington,
DC,
20554.
FOR
FURTHER
INFORMATION
CONTACT:
Dana
Jackson,
Disability
Rights
Office,
Consumer
and
Governmental
Affairs
Bureau,
at
(202)
418–
2247
(voice),
(202)
418–
7898
(TTY),
or
e­
mail
at
dljackso@
fcc.
gov.

SUPPLEMENTARY
INFORMATION:
When
filing
comments,
please
reference
CC
Docket
No.
98–
67.
Comments
may
be
filed
using
the
Commission's
Electronic
Comment
Filing
System
(ECFS)
or
by
filing
paper
copies.
See
Electronic
Filing
of
Documents
in
Rulemaking
Proceedings,
63
FR
24121
(1998).
Comments
filed
through
the
ECFS
can
be
sent
as
an
electronic
file
via
the
Internet
to
<http://
www.
fcc.
gov/
e­
file/
ecfs.
html>.
Generally,
only
one
copy
of
an
electronic
submission
must
be
filed.
If
multiple
docket
or
rulemaking
numbers
appear
in
the
caption
of
the
proceeding,
however,
commenters
must
transmit
one
electronic
copy
of
the
comments
to
each
docket
or
rulemaking
number
referenced
in
the
caption.
In
completing
the
transmittal
screen,
commenters
should
include
their
full
name,
Postal
Service
mailing
address,
and
the
applicable
docket
or
rulemaking
number.
Parties
may
also
submit
an
electronic
comment
by
Internet
e­
mail.
To
get
filing
instructions
for
e­
mail
comments,
commenters
should
send
an
e­
mail
to
ecfs@
fcc.
gov,
and
should
include
the
following
words
in
the
body
of
the
message,
``
get
form
<your
e­
mail
address>.
''
A
sample
form
and
directions
will
be
sent
in
reply.
Parties
who
choose
to
file
by
paper
must
file
an
original
and
four
copies
of
each
filing.
If
more
than
one
docket
or
rulemaking
number
appears
in
the
caption
of
the
proceeding,
commenters
must
submit
two
additional
copies
for
each
additional
docket
or
rulemaking
number.
Filings
can
be
sent
by
hand
or
messenger
delivery,
by
commercial
overnight
courier,
or
by
first­
class
or
overnight
U.
S.
Postal
Services
mail
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16:
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