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

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

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

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

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

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

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

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

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

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

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

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

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

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

Response:
EPA
appreciates
this
support
for
the
proposed
rule.

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

Response:
EPA
appreciates
this
support
for
the
proposed
rule.

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

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

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

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

Response:
See
response
to
comment
A.
1.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Response:
We
agree.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Response:
See
response
to
previous
comment.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2.
Complete
ban
on
dioxins
is
unreasonable
(NUL)

Response:
We
agree.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Response:
See
response
to
comment
#4,
above.

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

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

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

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

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

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

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

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

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

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

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

Response:
See
response
to
comment
#2,
above.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Key
to
Commenters:

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