Chemical Wastes Management V Epa

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Chemical Wastes Management V Epa Powered By Docstoc
					                                                                                          Tuesday,
                                                                                          November 20, 2001




                                                                                          Part III

                                                                                          Environmental
                                                                                          Protection Agency
                                                                                          40 CFR Part 148 et al.
                                                                                          Hazardous Waste Management System;
                                                                                          Identification and Listing of Hazardous
                                                                                          Waste: Inorganic Chemical Manufacturing
                                                                                          Wastes; Land Disposal Restrictions for
                                                                                          Newly Identified Wastes; and CERCLA
                                                                                          Hazardous Substance Designation and
                                                                                          Reportable Quantities; Final Rule




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     58258            Federal Register / Vol. 66, No. 224 / Tuesday, November 20, 2001 / Rules and Regulations

     ENVIRONMENTAL PROTECTION                                261, to add manganese to the UTS and                  Acronyms Used in the Rule
     AGENCY                                                  to the BDAT standards for F039, and to                AWQC—Ambient Water Quality Criteria
                                                             set an RQ standard in § 302.4 for                     BDAT—Best Demonstrated Available
     40 CFR Parts 148, 261, 268, 271, and                    manganese.                                              Technology
     302                                                                                                           BHP—Biodegradation, hydrolysis, and
                                                             EFFECTIVE DATE: This rule is effective on
     [SWH–FRL–7099–2]                                        May 20, 2002.                                           photolysis
                                                                                                                   CERCLA—Comprehensive
     RIN 2050–AE49                                           ADDRESSES: Supporting materials to this
                                                                                                                     Environmental Response,
                                                             final rule are available for viewing in
                                                                                                                     Compensation, and Liability Act
     Hazardous Waste Management                              the RCRA Information Center (RIC),                    CFR—Code of Federal Regulations
     System; Identification and Listing of                   located at Crystal Gateway I, First Floor,            CMBST—Combustion
     Hazardous Waste: Inorganic Chemical                     1235 Jefferson Davis Highway,                         CWA—Clean Water Act
     Manufacturing Wastes; Land Disposal                     Arlington, VA. The Docket                             DAF—Dilution and attenuation factor
     Restrictions for Newly Identified                       Identification Number is F–2001–ICMF–                 ED—Environmental Defense
     Wastes; and CERCLA Hazardous                            FFFFF. The RIC is open from 9 a.m. to                 EPA/USEPA—United States
     Substance Designation and Reportable                    4 p.m., Monday through Friday,                          Environmental Protection Agency
     Quantities                                              excluding federal holidays. To review                 HSWA—Hazardous and Solid Waste
                                                             docket materials, it is recommended                     Amendments
     AGENCY: Environmental Protection
                                                             that the public make an appointment by                HWIR—Hazardous Waste Identification
     Agency.                                                 calling (703) 603–9230. The public may                  Rule
     ACTION: Final rule.                                     copy a maximum of 100 pages from any                  HQ—Hazard quotient
                                                             regulatory docket at no charge.                       HBL—Health-based level
     SUMMARY: The Environmental Protection                                                                         ICP—Inductively Coupled Plasma
                                                             Additional copies cost $0.15/page. The
     Agency (EPA) is listing as hazardous                                                                          IRIS—Integrated Risk Information
                                                             docket index and some supporting
     three wastes generated from inorganic                                                                           System
                                                             materials are available electronically.
     chemical manufacturing processes. EPA                                                                         Kd—Soil-water distribution coefficients
                                                             See the beginning of the Supplementary
     is promulgating these regulations under                                                                       kg—Kilogram
                                                             Information section for information on
     the Resource Conservation and                                                                                 LDR—Land Disposal Restrictions
                                                             accessing them.
     Recovery Act (RCRA), which directs                                                                            mg—Milligrams
     EPA to determine whether certain                        FOR FURTHER INFORMATION CONTACT: For                  MT—Metric ton
     wastes generated by inorganic chemical                  general information, contact the RCRA/                MTR—Minimum technology
     manufacturing industries may present a                  Superfund Hotline at (800) 424–9346 or                  requirement
     substantial hazard to human health or                   TDD (800) 553–7672 (hearing impaired).                ng—Nanograms
     the environment. The effects of listing                 In the Washington, DC, metropolitan                   NPDES—National Pollutant Discharge
     these three wastes as hazardous are to                  area, call (703) 920–9810 or TDD (703)                  Elimination System
     subject them to: comprehensive                          412–3323. For information on specific                 NPRM—Notice of Proposed Rulemaking
     management and treatment standards                      aspects of the rule, contact Ms. Gwen                 NRC—National Response Center
     under Subtitle C of RCRA; and                           DiPietro, Office of Solid Waste (5304W),              NTTAA—National Technology Transfer
     emergency notification requirements for                 U.S. Environmental Protection Agency,                   and Advancement Act of 1995
     releases to the environment under the                   1200 Pennsylvania Avenue, NW.,                        OSWER—Office of Solid Waste and
     Comprehensive Environmental                             Washington, DC 20460. [E-mail address                   Emergency Response
     Response, Compensation, and Liability                   and telephone number:                                 PDF—Probability density function
     Act (CERCLA). This final rule also adds                 dipietro.gwen@epa.gov (703–308–                         ppm—Parts per million
                                                             8285).] For technical information on the              RFA—Regulatory Flexibility Act
     the toxic constituents found in the
                                                             CERCLA aspects of this rule, contact                  RfD—Reference dose
     wastes being listed as hazardous to the                                                                       RQ—Reportable Quantity
     list of constituents that serves as the                 Ms. Lynn Beasley, Office of Emergency
                                                             and Remedial Response (5204G), U.S.                   RCRA—Resource Conservation and
     basis for classifying wastes as hazardous                                                                       Recovery Act
     and establishing treatment standards for                Environmental Protection Agency, 1200
                                                             Pennsylvania Avenue, NW.,                             RIC—RCRA Information Center
     the wastes. Additionally, EPA is making                                                                       SBREFA—Small Business Regulatory
     final determinations not to list the                    Washington, DC 20460, [E-mail address
                                                                                                                     Enforcement Fairness Act of 1996
     remainder of wastes generated by                        and telephone number:
                                                                                                                   SPLP—Synthetic Precipitation Leaching
     inorganic chemical manufacturing                        beasley.lynn@epa.gov (703–603–9086).]
                                                                                                                     Procedure
     processes that were described in our                    SUPPLEMENTARY INFORMATION: Whenever                   TCDD—2,3,7,8-Tetrachlorodibenzo-p-
     proposed listing determination.                         ‘‘we’’ is used throughout this document,                dioxin
        Finally, EPA is applying universal                   it refers to the Environmental Protection             TEQ—Toxicity equivalence
     treatment standards (UTS) under the                     Agency (EPA).                                         TC—Toxicity Characteristic
     Land Disposal Restrictions program to                      The docket index and some                          TCLP—Toxicity Characteristic Leaching
     the inorganic chemical manufacturing                    supporting documents in the docket for                  Procedure
     wastes listed in this rulemaking. The                   this proposal are available in electronic             TSDF—Treatment, storage, and disposal
     listed wastes must be treated to meet                   format on the Internet at:<http://                      facility
     these treatment standards for specific                  www.epa.gov/epaoswer/hazwaste/id/                     µg—Micrograms
     constituents prior to land disposal.                    inorchem/pr2000.htm>.                                 UMRA—Unfunded Mandates Reform
        At this time, however, we are                           We will keep the official record for                 Act of 1995
     deferring final action on all elements of               this action in paper form. The official               UTS—Universal treatment standards
     the proposal related to manganese,                      record is the paper record maintained at              USC—United States Code
     including the proposal to add                           the RCRA Information Center, also                     WHO—World Health Organization
     manganese to Appendix VII of 40 CFR                     referred to as the Docket, at the address             Contents of this Final Rule
     261 as a basis for listing K178, to add                 provided in the ADDRESSES section at
     manganese to Appendix VIII of 40 CFR                    the beginning of this document.                       I. Overview



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                      Federal Register / Vol. 66, No. 224 / Tuesday, November 20, 2001 / Rules and Regulations                                             58259

        A. Who Will be Affected by this Final                  G. Is There Treatment Capacity for the              CERCLA hazardous substances. These
           Rule?                                                  Newly Listed Wastes?                             potentially-affected entities are
        B. What is the ‘‘Readable Regulations’’                1. Introduction                                     described in detail in the Economics
           Format?                                             2. What are the Capacity Analysis Results
                                                                                                                   Background Document placed in the
        C. What are the Statutory Authorities for                 for K176, K177, and K178?
           this Final Rule?                                    3. What is the Capacity Analysis Result             docket in support of today’s final rule.
        D. How does the ED v. Whitman Consent                     due to the Proposed Revision of the F039         A summary is shown in Table I—1
           Decree Impact this Final Rule?                         Standard?                                        below:
     II. Summary of Today’s Action                           V. When Must Regulated Entities Comply
     III. Summary of Proposed Rule                             With the Provisions in Today’s Final Rule?          TABLE I—1: SUMMARY OF FACILITIES
        A. What Wastes Associated with the                     A. Effective Date                                     POTENTIALLY AFFECTED BY THE US
           Inorganic Chemicals Manufacturing                   B. Section 3010 Notification
           Industries Were Determined to be                    C. Generators and Transporters                        EPA’S 2000 INORGANIC CHEMICAL
           Outside the Scope of the Consent Decree             D. Facilities Subject to Permitting                   MANUFACTURING WASTE LISTING
           for the Proposed Rule?                              1. K176 and K177: Facilities Newly Subject            FINAL RULE
        B. Which Wastes Did EPA Propose to List                   to RCRA Permit Requirements
           as Hazardous?                                       2. K178: Facilities Newly Subject to RCRA                                                Number of
        1. Baghouse Filters from the Production of                Permit Requirements                                 SIC                                U.S. Rel-
                                                                                                                     Code/            Industry Sector
           Antimony Oxide                                      3. K176 and K177: Existing Interim Status                                                evant Inor-
                                                                                                                     NAIC                 Name
        2. Antimony Slag that is Speculatively                    Facilities                                                                            ganic Mfg.
                                                                                                                     Code
           Accumulated or Disposed                             4. K178: Existing Interim Status Facilities                                               Facilities
        3. Non-wastewaters from the Production of              5. K176 and K177: Permitted Facilities
           Titanium Dioxide by the Chloride-                   6. K178: Permitted Facilities                       2816/     Inorganic Pig-                       1
           ilmenite Process                                    7. K176, K177 and K178: Units                         325131.   ments/Ingoranic
        C. Which Constituents Did EPA Propose to               8. K176 and K177: Closure                                       Dye and Pigment
           Add to Appendix VIII of 40 CFR part                 9. K178: Closure                                                Manufacturing.
                                                                                                                   2819/     Industrial Inorganic                13
           261?                                              VI. How Will This Rule be Implemented at
        D. What Was the Proposed Status of                     the State Level?                                      325188.   Chemicals, not
           Landfill Leachate from Previously                   A. Applicability of Rule in Authorized                          elsewhere classi-
           Disposed Wastes?                                       States                                                       fied/Other.
        E. What Were the Proposed Treatment                    B. Authorization of States for Today’s Final          1 Other SIC/NAICS codes may be used by
           Standards Under RCRA’s Land Disposal                   Rule                                             impacted facilities (e.g., 3339/3331419).
           Restrictions Standards?                           VII. What are the Reportable Quantity
        F. What Risk Assessment Approach Was                   Requirements for the Newly-Listed Wastes               The list of potentially affected entities
           Used for the Proposed Rule?                         under the Comprehensive Environmental               in the above table may not be
        IV. What is the Rationale for Today’s Final            Response, Compensation, and Liability               exhaustive. Our aim is to provide a
           Rule?                                               Act?                                                guide for readers regarding entities
        A. Final ‘‘No List’’ Determinations                    A. When do I have to Report my Releases?            likely to be regulated by this action.
        B. Deferral of Final Action on Manganese-              B. What was the Basis for the RQ
                                                                  Adjustment?                                      This table lists those entities that we are
           related Elements of Proposed Rule
                                                               C. What if I know the Concentration of the          aware of that potentially could be
        C. Final Antimony Oxide Listing
           Determinations                                         Constituents in my Waste?                        affected by this action. However, this
        1. K176 Baghouse Filters                             VIII.Administrative Assessments                       action may affect other entities not
        2. K177 Slag                                           A. Executive Order 12866                            listed in the table. To determine
        3. Scope Issues—production of                          1. Methodology Section                              whether your facility is regulated by this
           intermediates                                       2. Results                                          action, you should examine 40 CFR
        4. Scope—offsite recycling                             B. Regulatory Flexibility Act (RFA), as             parts 260 and 261 carefully in concert
        D. Final Titanium Dioxide Listing                         amended by the Small Business
                                                                  Regulatory Enforcement Fairness Act of           with the final rules amending these
           Determination                                                                                           regulations that are found at the end of
        1. Overview of Listing Determination                      1996 (SBREFA)
                                                               C. Paperwork Reduction Act                          this Federal Register document. If you
        2. Overview of K178 Comments
        3. Overview of K178 Waste Subcategories                D. Unfunded Mandates Reform Act                     have questions regarding the
        4. Management Scenarios                                E. Executive Order 12898: Environmental             applicability of this action to a
        5. Scope Issues—Exempt Mineral                            Justice                                          particular entity, consult the person
           Processing Wastes                                   F. Executive Order 13045: Protection of             listed in the preceding section entitled
        6. Comments Related to the Constituents of                Children From Environmental Health               FOR FURTHER INFORMATION CONTACT.
           Concern and Modeling Issues                            Risks and Safety Risks
        7. Wastewater Treatment Sludge                         G. Executive Order 13175: Consultation              B. What Is the ‘‘Readable Regulations’’
        8. Ferric Chloride Residues                               and Coordination with Indian Tribal              Format?
        9. Conclusions                                            Governments
                                                               H. Executive Order 13132: Federalism                   Today’s preamble and regulations are
        10. RCRA versus HSWA Listing
        E. What is the Status of Landfill Leachate
                                                               I. National Technology Transfer and                 written in ‘‘readable regulations’’
                                                                  Advancement Act                                  format. The authors tried to use active
           Derived From Newly-listed K176, K177,
                                                               J. Congressional Review Act                         rather than passive voice, plain
           and K178 Wastes?
                                                               K. Executive Order 13211: Energy Effects            language, a question-and-answer format,
        F. What are the Final Treatment Standards
           Under RCRA’s Land Disposal                        I. Overview                                           the pronouns ‘‘we’’ for EPA and ‘‘you’’
           Restrictions for the Newly-Listed                                                                       for the owner/generator, and other
           Hazardous Wastes?                                 A. Who Will Be Affected by This Final                 techniques to make the information in
        1. What are EPA’s Land Disposal                      Rule?                                                 today’s rule easier to read and
           Restrictions (LDRs)?                                Today’s final action will affect those              understand. This format is part of our
        2. What are the Treatment Standards for
           K176?
                                                             who handle the wastes that we are                     efforts toward regulatory improvement.
        3. What are the Treatment Standards for              adding to EPA’s list of hazardous wastes              We believe this format helps readers
           K177?                                             under the RCRA program. This action                   understand the regulations, which
        4. What are the Treatment Standards for              also will affect entities that need to                should then increase compliance, make
           K178?                                             respond to releases of these wastes as                enforcement easier, and foster better


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     58260            Federal Register / Vol. 66, No. 224 / Tuesday, November 20, 2001 / Rules and Regulations

     relationships between EPA and the                       determinations need not include any wastes                cases we used quantitative or qualitative
     regulated community.                                    which are excluded from hazardous waste                   screening methods. For 18 wastes we
                                                             regulation under section 3001(b)(3)(A)(ii) of             conducted full-scale modeling to predict
     C. What Are the Statutory Authorities                   RCRA and for which EPA has determined                     risks.
     for This Final Rule?                                    that such regulation is unwarranted pursuant
                                                                                                                          After assessing public comments
        Today’s hazardous waste regulations                  to section 3001(b)(3)(C) of RCRA.
                                                                                                                       submitted in response to our proposal,
     are promulgated under the authority of                  Today’s final rule satisfies EPA’s duty                   we are finalizing hazardous waste
     sections 2002(a), 3001(b), 3001(e)(2),                  under paragraph 1.g to promulgate                         listings for the three wastes noted above.
     3004(d)–(m) and 3007(a) of the Solid                    listing determinations for inorganic                      Two of the wastes were evaluated using
     Waste Disposal Act, 42 U.S.C. 6912(a),                  chemical industry wastes. Moreover,                       full-scale risk assessment modeling and
     6921(b) and (e)(2), 6924(d)–(m) and                     compliance with the Consent Decree                        the resultant hazardous waste listings
     6927(a), as amended several times, most                 fulfills EPA’s duty to make listing                       for these wastes are finalized based on
     importantly by the Hazardous and Solid                  determinations for the inorganic                          40 CFR 261.11(a)(3). The remaining
     Waste Amendments of 1984 (HSWA).                        chemical industry under section                           waste (K176) warrants listing based on
     These statutes commonly are referred to                 3001(e)(2) of RCRA.                                       40 CFR 261.11(a)(1) because it exhibits
     as the Resource Conservation and                                                                                  hazardous waste characteristics.
                                                             II. Summary of Today’s Action
     Recovery Act (RCRA), and are codified                                                                                Upon the effective date of today’s
     at Volume 42 of the United States Code                     In today’s notice, EPA is promulgating                 final rule, wastes meeting the listing
     (U.S.C.), sections 6901 to 6992(k) (42                  regulations that add three wastes                         descriptions will become hazardous
     U.S.C. 6901–6992(k)).                                   generated by or closely related to the                    wastes and must be managed in
        Section 102(a) of the Comprehensive                  inorganic chemicals industries to the                     accordance with RCRA subtitle C
     Environmental Response,                                 list of hazardous wastes in 40 CFR                        requirements. (Based on our data,
     Compensation, and Liability Act of 1980                 261.32. Below are the wastestreams EPA                    residuals newly listed as K176 exhibited
     (CERCLA), 42 U.S.C. 9602(a) is the                      is listing as hazardous with their                        one or more of the hazardous waste
     authority under which the CERCLA                        corresponding EPA Hazardous Waste                         characteristics prior to the effective date
     aspects of this rule are promulgated.                   Numbers.                                                  of today’s rule, and, as such, currently
     D. How Does the ED v. Whitman                           K176 Baghouse filters from the                            are subject to hazardous waste control.)
     Consent Decree Impact This Final Rule?                        production of antimony oxide,                       Also, please note that the listing for
                                                                   including filters from the                          K178 becomes has a different effective
        The 1984 Hazardous and Solid Waste                         production of intermediates (e.g.,                  date; it does not become effective until
     Amendments (HSWA) to RCRA require                             antimony metal or crude antimony                    authorized states revise their programs
     EPA to make listing determinations for                        oxide). (E) 1–2                                     to add the listing. With certain limited
     several specified categories of wastes,                 K177 Slag from the production of                          exceptions, residuals from the
     including ‘‘inorganic chemical industry                       antimony oxide that is                              treatment, storage, or disposal of these
     wastes’’ (see RCRA section 3001(e)(2)).                       speculatively accumulated or                        newly listed hazardous wastes also will
     In 1989, Environmental Defense (ED)                           disposed, including slag from the                   be classified as hazardous wastes
     filed a lawsuit to enforce the statutory                      production of intermediates (e.g.,                  pursuant to the ‘‘derived-from’’ rule (40
     deadlines for listing decisions in RCRA                       antimony metal or crude antimony                    CFR 261.3(c)(2)(i)). Also, with certain
     section 3001(e)(2) (ED v. Whitman;                            oxide). (T)                                         limited exceptions, any mixture of a
     D.D.C. Civ. No. 89–0598). To resolve the                K178 Solids from manufacturing and                        listed hazardous waste and a solid waste
     listing issues in the case, ED and EPA                        manufacturing-site storage of ferric                is itself a RCRA hazardous waste (40
     entered into a consent decree, which                          chloride from acids formed during                   CFR 261.3(a)(2)(iii) and (iv), ‘‘the
     has been amended several times to                             the production of titanium dioxide                  mixture rule’’).
     revise deadlines for EPA action.                              using the chloride-ilmenite process.                   Today’s rule also takes final action on
     Paragraph 1.g (as amended) of the                             (T)                                                 decisions not to list as hazardous, as
     Consent Decree addresses the inorganic                                                                            discussed in the proposal, the wastes
                                                                EPA is listing these wastes as
     chemical industry:                                                                                                from the following sectors:
                                                             hazardous based on the criteria set out
       EPA shall promulgate a final listing                  in 40 CFR 261.11. As described in the                     —wastes from the production of
     determination for inorganic chemical                    September 14, 2000 proposed rule (65                         antimony oxide (with the exception of
     industry wastes on or before October 31,                                                                             baghouse filters—K176, and slag—
     2001. This listing determination shall be               FR 55684), we assessed and considered
                                                             these criteria for each of the residuals                     K177)
     proposed for public comment on or before
     August 30, 2000. The listing determination              generated by the inorganic chemicals                      —wastes from the production of barium
     shall include the following wastes: sodium              industries to determine which wastes                         carbonate
     dichromate production wastes, wastes from               warranted listing. This process involved                  —wastes from the production of boric
     the dry process for manufacturing                       reviewing more than 170 categories of                        acid
     phosphoric acid, phosphorus trichloride                 residuals generated in the 14 inorganic                   —wastes from the production of
     production wastes, phosphorus pentasulfide
                                                             chemical manufacturing sectors.                              cadmium pigments
     production wastes, wastes from the                                                                                —wastes from the production of
     production of sodium phosphate from wet                 Because of the large number of
                                                                                                                          hydrogen cyanide
     process phosphoric acid, sodium chlorate                residuals, we first determined whether                    —wastes from the production of phenyl
     production wastes, antimony oxide                       any of these residuals fell outside the                      mercuric acetate
     production wastes, cadmium pigments                     scope of our Consent Decree obligations.                  —wastes from the production of
     production wastes, barium carbonate                     We then evaluated the risks posed by                         phosphoric acid
     production wastes, potassium dichromate                 each of the remaining residuals. In some
     production wastes, phenyl mercuric acetate
                                                                                                                       —wastes from the production of
     production wastes, boric acid production                                                                             phosphorous trichloride
                                                               1–2 As per 40 CFR 261.3(b), the code (E) indicates
     wastes, inorganic hydrogen cyanide                                                                                —wastes from the production of
                                                             that this waste is being listed because it exhibits the
     production wastes, and titanium dioxide                 toxicity characteristic; the code (T), designated for        phosphorous pentasulfide
     production wastes (except for chloride                  K176 and K177, indicates that these wastes are            —wastes from the production of
     process waste solids). However, such listing            being listed because they are toxic wastes.                  potassium dichromate


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                      Federal Register / Vol. 66, No. 224 / Tuesday, November 20, 2001 / Rules and Regulations                                                  58261

        —wastes from the production of                          Also as a result of this final rule, these           We proposed to add the three
     sodium chlorate                                         listed wastes become hazardous                        candidate hazardous wastes to the list of
        —wastes from the production of                       substances under CERCLA. Therefore,                   CERCLA hazardous substances. We also
     sodium dichromate                                       in today’s rule we are designating these              proposed adjusted Reportable
        —wastes from the production of                       wastes as CERCLA hazardous                            Quantities (RQs) for two of the wastes
     sodium phosphate                                        substances, and adjusting the one-                    (K176 and K177).
        —wastes from the production of                       pound statutory default RQs for two of
     titanium dioxide (with the exception of                 these wastestreams (K176 and K177).                   A. What Wastes Associated With the
     a related waste from subsequent                         The CERCLA RQ adjustments for the                     Inorganic Chemicals Manufacturing
     manufacture of ferric chloride acid—                    K176 and K177 wastes were proposed in                 Industries Were Determined To Be
     K178)                                                   the September 14, 2000 proposed rule                  Outside the Scope of the Consent Decree
     Descriptions of the specific                            (65 FR 55684, 55773–55774). We did                    for the Proposed Rule?
     wastestreams can be found in the listing                not propose an adjusted RQ for K178 at
     background documents for each sector,                                                                            As explained in the preamble to the
                                                             that time because we had not yet
     available in the docket for the                         developed a ‘‘waste constituent RQ’’ for              proposed rule, the Consent Decree does
     rulemaking. Responses to relevant                       manganese, one of the constituents of                 not tell EPA which specific inorganic
     comments regarding these listings can                   concern in the K178 waste. Thus we are                chemical manufacturing wastes it must
     be found in the Response to Comments                    finalizing the statutory default RQ for               evaluate, although it does identify
     Background Document, also available in                  K178 and are not finalizing an RQ                     sectors to be assessed. Paragraph 1.g of
     the docket.                                             adjustment for K178 in today’s rule.                  the Consent Decree contains one
        We also are promulgating other                       These changes are described in section                exemption (from the Agency’s listing
     changes to the RCRA regulations as a                    VII of today’s final rule.                            determination obligation) for wastes
     result of the final listing determinations.                                                                   found to be exempt from hazardous
     These changes include adding                            III. Summary of Proposed Rule                         waste regulation in previous EPA
     constituents to Appendix VII of part                       In the September 14, 2000 proposed                 actions implementing the so-called
     261, and setting land disposal                          rule (65 FR 55684), EPA proposed to list              ‘‘Bevill exemptions’’ for mineral
     restrictions for the newly listed wastes.               three wastes generated by the inorganic               processing wastes.
     We are adding the following                             chemicals manufacturing industries as                    After identifying all of the residuals
     constituents to Appendix VII of 40 CFR                  hazardous wastes under RCRA. The                      associated with inorganic chemical
     261 due to the fact that these                          wastes that we proposed to list as                    manufacturing through data collection
     constituents serve as the basis for new                 hazardous were:                                       and facility investigations, we reviewed
     listings and can pose hazards to human                     • K176—Baghouse filters from the                   the list of residuals and determined the
     health and the environment: arsenic and                 production of antimony oxide.                         scope of our efforts. We found that some
     lead (K176), antimony (K177), and                          • K177—Slag from the production of                 residuals are exempt ‘‘Bevill’’ wastes
     thallium (K178). Section IV.E of today’s                antimony oxide that is disposed of or                 and we, therefore, did not need to
     rule describes the changes to the land                  speculatively accumulated.                            address them.3 We found that other
     disposal restrictions establishing                         • K178—Non-exempt,
                                                                                                                   wastes are associated with the
     treatment standards for the specific                    nonwastewaters from the production of
                                                                                                                   manufacture of other materials and not
     constituents in the newly-listed                        titanium dioxide by the chloride-
                                                                                                                   associated with the inorganic chemical
     hazardous wastes.                                       ilmenite process (this listing does not
        As explained below in section IV.B.,                 apply to chloride process waste solids                manufacturing processes identified in
     we are deferring final action on all                    from titanium tetrachloride production                the Consent Decree. With few
     elements of our proposal that are                       exempt under section 261.4(b)(7)).                    exceptions, we chose not to evaluate
     specifically related to the waste                       A summary of these proposed listing                   any wastes that are outside the scope of
     constituent manganese. We received                      determinations is presented below.                    the Consent Decree.
     numerous comments related to the risk                   More detailed discussions are provided                   Wastes generated by each of the
     associated with manganese and the                       in the preamble to the proposed rule                  inorganic chemical manufacturing
     economic impact to many industries,                     and in the Background Documents                       industries that we determined to be
     including the steel industry, of adding                 included in the docket for the proposed               outside the scope of the Consent Decree
     manganese to the Universal Treatment                    rule.                                                 and, therefore, did not evaluate for the
     Standards requirements and to 40 CFR                       In connection with the proposed K178               proposed rule are identified and
     261, Appendix VIII. Although we                         listing, EPA proposed to amend                        described in the discussions of sector-
     continue to believe that manganese                      Appendix VIII of 40 CFR 261 to add                    specific listing determination rationales
     poses significant issues that ultimately                manganese to the list of hazardous                    presented in section III.F of the
     should be resolved, the court-ordered                   constituents.                                         proposed rule (65 FR 55701, September
     schedule under which we are operating                      We proposed to establish treatment                 14, 2000). Except as discussed below in
     provides us with no flexibility to take                 standards for each of the three candidate             this preamble, we received no
     additional time to explore these topics                 listings. We also proposed to add                     comments that persuaded us to change
     more fully. As a result, we have chosen                 manganese to the Universal Treatment                  our positions on any of our proposed
     to defer final action on adding                         Standards (UTS) Table in 268.48 and to                findings on the scope of the Consent
     manganese to Appendix VII of 40 CFR                     the F039 treatment standards applicable               Decree.
     261 as a basis for listing K178; on                     to hazardous waste landfill leachate.
     adding manganese to Appendix VIII of                    The effect of adding manganese to the                   3 Bevill exempt wastes include wastes generated
     40 CFR 261; on adding manganese to the                  UTS Table would be to require all                     by mining operations that are produced during
     treatment standards for K178, to the                    characteristic hazardous wastes that                  extraction and beneficiation operations and an
     UTS and to the BDAT standards for                       contain manganese as an underlying                    additional 20 categories of wastes generated during
                                                                                                                   mineral processing operations that EPA has
     F039; and on setting an RQ standard in                  hazardous constituent above the UTS                   determined meet ‘‘high volume/low toxicity’’
     § 302.4 for K178 that addresses                         level to be treated for manganese prior               criteria. The ‘‘Bevill’’ exemptions are codified at 40
     manganese.                                              to land disposal.                                     CFR 261.4(b)(7).



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     B. Which Wastes Did EPA Propose To                      scenario and a ground-water exposure                  of chemical manufacturing and/or
     List as Hazardous?                                      pathway. Our modeling showed                          ancillary operations; and (3) wastewater
                                                             significant risk for antimony with a                  treatment sludges, to the extent they are
     1. Baghouse Filters From the Production
                                                             hazard quotient 4 of 9.4 for life-time                generated from oxidation and finishing
     of Antimony Oxide
                                                             non-cancer risk for an exposed child.                 wastewaters.
        We proposed to list as hazardous                     The antimony hazard quotient for adult                   Our risk assessment showed potential
     baghouse filters from the production of                 non-cancer risk is 4.5.                               significant risks to human health and
     antimony oxide. We proposed to list                        As explained in the preamble to the                the environment from two constituents
     this waste because it exhibits one or                   proposed rule, our modeling approach                  in these wastes, manganese and
     more of the characteristics of hazardous                for the risk assessment assumed that the              thallium, when managed in an
     waste, and the waste is not consistently                antimony slag is placed in an unlined,                industrial solid waste landfill. In the
     managed as a hazardous waste in                         industrial landfill. At the time of                   case of manganese, the high-end hazard
     compliance with RCRA Subtitle C                         proposal, we knew of one antimony                     quotient for risks to a child was 3.3. The
     regulations. The hazardous waste listing                oxide production facility that was                    high-end hazard quotient for risk to a
     criterion at 40 CFR 261.11(a)(1) provides               speculatively accumulating the slag,                  child from thallium was 2.4. Our
     that EPA may list a waste as hazardous                  storing the waste in drums over several               qualitative assessment of risks
     based upon the fact that it exhibits any                years. The facility operating permit                  associated with a municipal solid waste
     of the hazardous waste characteristics.                 issued by the state mining program                    landfill indicated these risks might be
     Sampling and analysis undertaken by                     required construction of a lined on-site              higher by an order of magnitude.
     EPA for this rule show that baghouse                    land-based unit for storing the waste in              Similarly, we qualitatively expressed
     filters from the production of antimony                 the future. We did not take into account              concerns regarding measured levels of
     oxide exhibit the toxicity characteristic               the liner described in the mining permit              chlorinated dioxins and furans in these
     for lead and/or arsenic. Information                    because our most recent information at                wastes.
     gathered from RCRA § 3007                               that time indicated that construction                    We proposed to limit the scope of the
     questionnaire responses indicated that                  had not yet been initiated and we                     listing to the non-exempt portions of
     of the four antimony oxide production                   believed that it was feasible that the                these wastes (i.e., the portions of the
     facilities generating baghouse filters,                 facility could instead choose to landfill             wastes not covered by the Bevill
     none designate their baghouse filters as                the waste offsite. We also noted more                 exemption). We did not extend the
     hazardous waste. Two of the facilities                  general concerns regarding the                        scope of the listing to include exempt
     send their baghouse filters to                          uncertain efficacy of engineered liners               mineral processing wastes associated
     nonhazardous waste disposal facilities.                 over the modeled risk assessment                      with the chloride-ilmenite process
     The other two recycle the baghouse                      period, which covers 10,000 years. (See               (‘‘chloride process waste solids from
     filters.                                                65 FR 55703 for additional details.)                  titanium tetrachloride production,’’ see
        EPA proposed to list baghouse filters                   In addition to the risk assessment                 40 CFR 261.4(b)(7)(S))5. As explained in
     from the production of antimony oxide                   results, our proposed listing                         the preamble to the proposed rule, all
     solely based upon the fact that the waste               determination was based on the high                   exempt mineral processing wastes
     exhibits the toxicity characteristic and                total concentrations of antimony in this              generated by inorganic chemical
     generators are not complying with                       waste. Our sampling and analysis                      manufacturing facilities are outside the
     hazardous waste regulations. The                        results showed that the antimony levels               scope of the Consent Decree and were
     Agency did not conduct risk assessment                  in the slag exceed ten percent (up to                 not evaluated as part of the Agency’s
     modeling to estimate potential risks to                 127,000 mg/kg) of one waste, by weight.               listing determination for wastes
     human health from plausible waste                       The SPLP antimony concentration                       generated by this industry.
     management practices. We did not need                   exceeds the drinking water HBL by a                   C. Which Constituents Did EPA Propose
     to model risks posed by lead and arsenic                factor greater than 35,000. We also                   To Add to Appendix VIII of 40 CFR part
     because leachate levels for these                       considered the fact that antimony is                  261?
     constituents exceeded the toxicity                      persistent in the environment and will
     characteristic levels. Moreover, in                                                                             EPA proposed to add one constituent,
                                                             not degrade.                                          manganese, to the list of hazardous
     analyzing samples of the waste collected
     by EPA, we determined that antimony                     3. Non-wastewaters From The                           constituents at 40 CFR part 261,
     levels in the waste are high (total                     Production of Titanium Dioxide by the                 Appendix VIII. We proposed to find that
     concentrations can equate to 12% of the                 Chloride-Ilmenite Process                             manganese was a constituent of concern
     waste). Leachate levels for antimony in                                                                       in the titanium dioxide waste that EPA
                                                                We proposed to list as hazardous
     baghouse filters are up to 48,000 times                                                                       proposed to list as hazardous. Based on
                                                             waste certain solid wastes generated
     the drinking water HBL. In the preamble                                                                       our assessment of the available toxicity
                                                             from the production of titanium dioxide
     to the proposed rule, we indicated that                                                                       data, we believed that manganese met
                                                             using the chloride-ilmenite process. The
     such high levels of antimony would                                                                            the § 261.11(a) criteria for inclusion on
                                                             proposed listing covered wastes
     provide a long-term source of the metal                                                                       Appendix VIII. Therefore, we proposed
                                                             generated at three facilities and
     for leaching into ground water and                                                                            to add manganese to Appendix VIII of
                                                             included three components in the
     would likely result in risk if modeled.                                                                       40 CFR 261.
                                                             commingled solids stream: (1) Coke and
     2. Antimony Slag That Is Speculatively                  ore solids removed from the gaseous                   D. What Was the Proposed Status of
     Accumulated or Disposed                                 titanium tetrachloride process stream                 Landfill Leachate From Previously
                                                             commingled with a non-exempt                          Disposed Wastes?
        We proposed to list as hazardous                     vanadium waste; (2) solids removed
     waste slag from the production of                                                                               We proposed to amend the existing
                                                             from ferric chloride acid, if removed                 exemption from the definition of
     antimony oxide that is disposed of or                   from the acid stream after the initiation
     speculatively accumulated. We based                                                                              5 See 65 FR 55750 for a more detailed explanation
     our decision to list this waste as                        4 Hazard  quotient is defined as the ratio of the   of which wastes generated during the production of
     hazardous on the results of modeling of                 estimated dose of a given chemical to an individual   titanium dioxide are exempt mineral processing
     an on-site industrial landfill disposal                 to the reference dose for that chemical.              wastes.



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     hazardous waste for landfill leachate                   (CMBST) for the chlorinated dibenzo-p-                percent reduction in initial constituent
     generated from certain previously                       dioxin and dibenzofuran constituents in               concentrations) or the proposed
     disposed hazardous waste (40 CFR                        K178. Since K178 has metal                            standards in 40 CFR 268.40.
     261.4(b)(15)) to include leachate                       constituents of concern which would
                                                                                                                   F. What Risk Assessment Approach Was
     collected from non-hazardous waste                      not be treated by the combustion
                                                                                                                   Used for the Proposed Rule?
     landfills that previously accepted the                  process and would remain in the
     three proposed listed wastes (K176,                     combustion treatment residual, we                        We conducted human health risk
     K177, K178). We proposed to                             proposed to retain metal treatment                    analyses to support our proposed listing
     temporarily defer the application of the                standards for all circumstances                       determination decisions for those
     proposed new waste codes to such                        (regardless of whether or not the waste               inorganic chemical wastes where initial
     leachate to avoid disruption of ongoing                 is treated by combustion). This                       screening analyses indicated that further
     leachate management activities.                         approach would require facilities to                  assessment of potential human health
        The Agency proposed the deferral                     conduct compliance testing and analysis               risks was necessary. We used a variety
     because information available to EPA at                 for all regulated metal constituents in               of screening methodologies to assess a
     the time indicated that each of the                     the combustion treatment residuals                    large number of wastes. This approach
     wastes proposed to be listed as                         prior to disposal.                                    was necessary because of the time
     hazardous may have been managed                            Universal treatment standards were                 constraints imposed by the Consent
     previously in non-hazardous waste                       not previously developed for                          Decree schedule and the large number
     landfills. Leachate derived from the                    manganese. We proposed a manganese                    of wastes that needed to be assessed.
     treatment, storage, or disposal of listed               treatment standard of 3.6 mg/L TCLP,                  However, we believe that the screening
     hazardous wastes is classified as                       based on high temperature metals                      methodologies assessed risks very
     hazardous waste by the derived-from                     recovery technology. We also requested                conservatively and that wastes that were
     rule in 40 CFR 261.3(c)(2). Without such                comment on an option of setting a                     ‘‘screened out’’ are not likely to present
     a deferral, we were concerned about                     treatment standard for manganese in                   significant risks.
     forcing pretreatment of leachate even                   nonwastewater forms of K178 that is                      We estimated risks using both
     though pretreatment is neither required                 identical to the UTS level for thallium               ‘‘deterministic’’ and ‘‘probabilistic’’
     by nor needed under the CWA.                            (0.20 mg/L TCLP, based on                             human health risk analyses. A
                                                             stabilization). In the case of wastewater             deterministic analysis produces a point
     E. What Were the Proposed Treatment                                                                           estimate of risk or hazard by assigning
                                                             forms of K178, we proposed a treatment
     Standards Under RCRA’s Land Disposal                                                                          a single value to each parameter used in
                                                             standard of 17.1 mg/L manganese, based
     Restrictions Standards?                                                                                       the analysis. A probabilistic analysis
                                                             upon sedimentation technology.
        We proposed to apply existing                           We proposed to add the proposed                    generates a distribution of risk or hazard
     universal treatment standards (UTS) for                 manganese treatment standard to the                   by allowing one or more of the
     the hazardous constituents of concern                   existing treatment standards for multi-               parameters to take on more than one
     that were found to be present at                        source leachate (F039). In addition, we               value, as determined by a probability
     concentrations exceeding the UTS in the                 proposed to add manganese to the UTS                  distribution. We used probabilistic
     proposed listed wastes. We proposed to                  Table at 40 CFR 268.48. These changes                 analysis to allow us to quantify
     apply the UTS to these wastes because                   would require that all characteristic                 individual risk at selected percentiles of
     the waste compositions were found to                    hazardous wastes that contain                         the risk distribution (for example, 50th
     be similar to other wastes for which                    manganese as an underlying hazardous                  percentile, 90th percentile, 95th
     applicable treatment technologies have                  constituent above the UTS are treated                 percentile). We based our listing
     been demonstrated.                                      for manganese before land disposal.                   decisions on the probabilistic risk
        For K176 (baghouse filters from                         In the case of hazardous debris                    estimates. The human health risks
     production of antimony oxide), we                       contaminated with proposed K176,                      represent incremental risks to an
     proposed treatment standards requiring                  K177, and K178, we proposed that the                  individual and are expressed as
     treatment to the UTS levels for                         provisions in 40 CFR 268.45 apply to                  estimates of excess lifetime cancer risk
     antimony, arsenic, cadmium, lead, and                   treatment and disposal of hazardous                   for carcinogenic (cancer-causing)
     mercury. For K177 (slag from the                        debris. Hazardous debris treated in                   contaminants and hazard quotients
     production of antimony oxide that is                    accordance with the provisions of 40                  (HQs) for those contaminants that
     disposed of or speculatively                            CFR 268.45 may be land disposed in a                  produce other, non-cancer, health
     accumulated), we proposed to apply the                  hazardous waste disposal facility. As a               effects.
     UTS as treatment standards for                          result, debris contaminated with                         The human health risk assessments
     antimony, arsenic and lead. In the case                 proposed K176, K177, and K178 have to                 that we conducted to support the
     of both K176 and K177, we requested                     be treated prior to land disposal, using              inorganic chemicals listing
     data and comment on the stabilization                   specific debris treatment technologies                determination included five primary
     of antimony, given that available data                  such as extraction, destruction, or                   tasks: (1) Conducting screening analyses
     indicated stabilization was effective                   immobilization. Residuals generated                   and establishing whether there are
     treatment for wastes with initial                       from the treatment of contaminated                    constituents of concern in the wastes
     antimony concentrations below those                     debris would have to meet the                         that warrant further analysis to
     found in K176 and K177.                                 applicable UTS limits for proposed                    determine their risk to human health;
        For K178 (nonwastewaters from the                    K176, K177, and K178.                                 (2) establishing a scenario under which
     production of titanium dioxide by the                      In addition, we proposed to apply the              constituents of concern are released
     chloride-ilmenite process), we proposed                 regulations at 40 CFR 268.49 to                       from a waste management unit and
     to apply the UTS as treatment standards                 hazardous soil contaminated with                      subsequently are transported in the
     for thallium and the chlorinated                        proposed K176, K177, and K178. Soil                   environment to a human receptor; (3)
     congeners of dibenzo-p-dioxin and                       contaminated with these wastes would                  estimating the concentrations of
     dibenzofuran. In addition, we proposed                  have to be treated prior to land disposal,            constituents to which the receptor might
     the option of complying with the                        meeting either alternative treatment                  be exposed; (4) quantifying the
     technology standard of combustion                       standards (i.e., 10 times UTS or 90                   receptor’s exposure to constituents; and


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     (5) based on the constituent’s toxicities,              manufacturing sectors. A few                          or not secondary materials were solid
     assessing the risks to the receptor. The                commenters asked us to clarify issues                 wastes, since we believed that we could
     establishment of exposure scenario                      relating to these determinations that                 more quickly determine whether they
     assumptions depended on the way a                       might have impacts outside the scope of               pose a listable risk. As a result of our
     particular waste is managed. For wastes                 this rulemaking. Responses to these                   risk-based evaluation, we decided not to
     managed on-site (e.g., disposed of in an                comments appear in the Response to                    list most of the wastes that we
     on-site industrial landfill), we based our              Comments document.                                    evaluated. It was not necessary for these
     assessment of human exposures on the                       The Agency mistakenly referred to a                decisions to interpret these cases, which
     plausibility of ground water being used                 selenium ‘‘standard’’ (0.0050 mg/L) in                include Association of Battery Recyclers
     for drinking water within the vicinity of               the barium carbonate section of the                   v. EPA, (208 F. 3d 1047 (D.C. Cir 2000)).
     the facility. Where possible, we                        preamble for the proposed rule (65 FR                    We are promulgating listings for three
     identified site-specific hydrogeological                55701, September 14, 2000). This                      wastes. None of these decisions required
     information and we determined actual                    selenium level is more appropriately                  us to address the limits of our statutory
     distances from the facility, or waste                   referred to as EPA’s recommended                      jurisdiction. In all cases we have
     management unit, to the nearest ground-                 Ambient Water Quality Criteria (AWQC)                 information showing that some facilities
     water drinking water well. If we                        for protection of freshwater organisms                dispose of the materials covered by the
     determined that no drinking water wells                 from chronic effects (63 FR 68353 as                  listings. Moreover, our listings do not
     could plausibly be impacted by releases                 corrected at 64 FR 19781). EPA issues                 apply to secondary materials that we
     from the facility (e.g., we found that                  the criteria for selenium and other                   currently consider to be outside of our
     ground water was not a viable current                   constituents under the authority of the               Subtitle C jurisdiction (e.g., materials
     or future drinking water resource), we                  section 304(a) of the Clean Water Act                 used as an effective substitute for
     assumed no human exposure via the                       (CWA), 33 U.S.C. 1314(a)(1). These                    commercial products, commercial
     ground-water pathway. In the case of                    recommended criteria provide guidance                 chemical products being reclaimed,
     wastes that could plausibly be managed                  for States and Tribes in adopting water               etc.). In one case (slag associated with
     off-site, we assumed that ground water                  quality standards under section 303(d)                antimony oxide production, listed as
     is used for drinking water (or could be                 of the CWA (EPA–822–F–98–006,                         K177), we expressly conditioned the
     in the future) and we used national data                Compilation of National Recommended                   listing to make it clear that slags
     on the distribution of distances from                   Water Quality Criteria and EPA’s                      recycled by reclamation, an activity that
     land disposal units to residential wells                Process for Deriving New and Revised                  we have traditionally considered to fall
     to assess human exposures and risk.                     Criteria, December 1998).
                                                                                                                   within our jurisdiction, will not be
        The preamble to the proposed rule                       We also explained in the proposal
                                                                                                                   regulated by the listing, unless the
     provided a detailed discussion of EPA’s                 that we had evaluated risks posed by a
                                                             number of residual materials that appear              entities involved engage in speculative
     risk assessment for the inorganic                                                                             accumulation. This, however, was a
     chemicals listing determination (see 65                 to be recycled; we did not first
                                                             determine whether these materials were                risk-based decision, and did not require
     FR 55684). A full description of all risk                                                                     us to re-examine the limits of our
     analyses conducted in support of our                    ‘‘solid wastes’’ under the statute and
                                                             implementing regulations. We received                 jurisdiction over solid wastes.
     listing determinations finalized in                                                                              Finally, as mentioned above, we took
     today’s rule can be found in the risk                   both supportive and critical comments
                                                             on our approach to evaluating                         the position in the proposal that various
     assessment background documents                                                                               wastes were exempt from regulation—
                                                             secondary materials that may be reused
     available in the rulemaking docket. (See                                                                      and outside of the scope of the Consent
                                                             or recycled. As discussed in the
     ‘‘Risk Assessment for the Listing                                                                             Decree—under the Bevill amendment
                                                             proposed rule, these determinations are
     Determinations for Inorganic Chemical                                                                         regulations. We chose not to evaluate
                                                             complex, time consuming and best
     Manufacturing Wastes,’’ August 2000.)                                                                         risks from these wastes. With the
                                                             made on a site-specific basis. We
     IV. What Is the Rationale for Today’s                   continue to believe that the approach                 exception of comments relating to
     Final Rule?                                             used in the proposal is appropriate and,              titanium dioxide wastes discussed
                                                             thus, have not made site-specific                     below, we received no comments
     A. Final ‘‘No List’’ Determinations                                                                           persuading us to change our position on
                                                             determinations on whether secondary
        The Agency proposed not to list as                   materials are or are not solid wastes if              the applicability of the Bevill exemption
     hazardous any of the wastes from twelve                 we could more quickly determine that                  to any of the wastes discussed in the
     of the inorganic chemical manufacturing                 they did not pose a risk significant                  proposal.
     sectors we evaluated for the proposed                   enough to warrant listing them as                     B. Deferral of Final Action on
     rule. These sectors are: Barium                         hazardous. The decision not to move                   Manganese-Related Elements of
     carbonate, boric acid, cadmium                          forward with further evaluation of a                  Proposed Rule
     pigments, hydrogen cyanide, phenyl                      specific secondary material because the
     mercuric acetate, phosphorous acid                      risk is not within the range determined                 We are deferring final action on all
     from the dry process, phosphorous                       to be significant does not imply that the             elements of our proposal that are
     pentasulfide, phosphorous trichloride,                  material is or is not a solid waste.                  specifically related to the waste
     potassium dichromate, sodium chlorate,                  Rather, this approach represents an                   constituent manganese. We received
     sodium dichromate and sodium                            efficient way for EPA to make listing                 numerous comments related to the risk
     phosphate from wet phosphoric acid                      determinations and ensure we meet the                 associated with manganese and the
     production. We received no adverse                      requirements of the Consent Decree.                   economic impact to many industries,
     comment on the proposed decisions for                      We received comments regarding                     including the steel industry, of adding
     these wastes and did not independently                  recent case law regarding the definition              manganese to 40 CFR 261, Appendix
     learn of any information requiring us to                of solid waste, which limits our                      VIII. In addition, a number of
     change our position on any of these                     jurisdiction under Subtitle C of RCRA.                commenters argued against our proposal
     waste categories. Therefore, we are                     However, as discussed above and in the                to establish a Universal Treatment
     making final decisions not to list any                  proposal, we did not make site-specific               Standard (UTS) for manganese because
     wastes from these inorganic chemical                    or waste-specific decisions on whether                they believe that our proposal provided


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                      Federal Register / Vol. 66, No. 224 / Tuesday, November 20, 2001 / Rules and Regulations                                                 58265

     insufficient notice of this action and                     antimony metal or crude antimony                      We do not agree that we should
     that we had not adequately assessed the                    oxide). (E)                                        exclude from the listing filters from the
     potential impact to industries other than               K177 Slag from the production of                      commenter’s oxidation furnace because
     those generating K178. Commenters also                     antimony oxide that is                             our sample of these filters did not
     opposed our proposal to add manganese                      speculatively accumulated or                       exhibit the TC. Our sampling data for
     to the Appendix VIII list for the same                     disposed, including slag from the                  the Montana oxidation filters shows
     reasons. They were particularly                            production of intermediates (e.g.,                 TCLP lead levels (2.8 mg/L) that are
     concerned about potential impacts on                       antimony metal or crude antimony                   very close to the TC regulatory lead
     corrective action efforts at RCRA sites                    oxide). (T)                                        level (5.0 mg/L). The commenter
     where manganese may be present.                                                                               submitted no additional data supporting
     Although we continue to believe that                    1. K176     Baghouse Filters                          the assertion that its oxidation furnace
     manganese poses significant issues that                   We are finalizing the K176 listing for              filters do not fail the TC. Given likely
     ultimately should be resolved, the court-               baghouse filters from antimony oxide                  variability in the waste, it is quite
     ordered schedule under which we are                     production, which includes filters from               possible that other samples would have
     operating provides us with no flexibility               the production of intermediates (e.g.,                exhibited the TC for lead. Further, we
     to take additional time to explore these                antimony metal or crude antimony                      sampled filters from a similar oxidation
     topics more fully. As a result, we have                 oxide) (see section 3 below for further               furnace at a second production facility
     chosen to defer final action on adding                  details about production of                           in La Porte, TX. The La Porte filters
     manganese to Appendix VII of 40 CFR                     intermediates).                                       contain lead at levels exceeding the TC
     261 as a basis for listing K178; on                                                                           (8.5 mg/L). The lead levels for both the
     adding manganese to Appendix VIII of                    a. Proposed Rule                                      La Porte facility and the Montana
     40 CFR 261; on adding manganese to the                     In the proposal, we stated that the                facility are close, within the same order
     treatment standards for K178, to the                    baghouse filters are generated by all four            of magnitude. Therefore, based on these
     UTS and to the BDAT standards for                       of the antimony oxide manufacturers                   factors, we think it is reasonable to
     F039; and on setting an RQ standard in                  that were producing antimony oxide at                 assume that the filters from oxidation
     § 302.4 for K178 that addresses                         the time of proposal. Two of the three                furnaces will exceed the TC for lead
     manganese.                                              filter samples we collected exhibit the               frequently enough to warrant listing,
        By deferring final action on                                                                               even at the Montana facility. The
                                                             toxicity characteristic (TC) for either
     manganese, we can take additional time                                                                        criteria in 261.11(a)(1) provide generally
                                                             arsenic or lead. However, none of the
     to review and analyze the risk and                                                                            that EPA can list a solid waste as
                                                             manufacturers acknowledged that the
     impact issues raised by commenters                                                                            hazardous if it exhibits any of the
     without compromising our obligations                    waste exhibits the TC. According to
                                                             responses received from § 3007                        characteristics of hazardous waste. We
     under our consent decree to finalize our                                                                      believe our data sufficiently
     listing determinations for the inorganic                questionnaires, two of the four facilities
                                                             were not handling the waste as                        demonstrate that the oxidation filters
     chemical manufacturing industry. In                                                                           meet the 261.11(a)(1) test.
     today’s rule we are finalizing our                      hazardous and were sending the filters
                                                             to non-hazardous incineration or a                       Although not directly relevant to a
     proposal to list K176, K177, and K178.                                                                        listing under 261.11(a)(1), we also note
     The final K178 listing is based solely on               Subtitle D (non-hazardous waste)
                                                             landfill. The remaining two facilities                that the leachable antimony content of
     thallium risks as a result of our deferral                                                                    the baghouse filters from both oxidation
     of the elements of the proposal                         were recycling all of their filters.
                                                             Because the TC is not effectively                     furnaces exceed EPA’s antimony health-
     associated with manganese.                                                                                    based level (HBL) for human drinking
                                                             ensuring proper management for this
     C. Final Antimony Oxide Listing                         waste across the industry, we proposed                water consumption by a significant
     Determinations                                          to list the baghouse filters under                    margin. The Montana oxidation furnace
        In the proposal, we identified three                 261.11(a)(1) on the basis that the waste              filters contain up to 15% antimony and
     waste categories associated with the                    exhibits a characteristic.                            leach 700 times above the drinking
     production of antimony oxide that we                                                                          water HBL. The La Porte oxidation
                                                             b. Significant Comments and Final Rule                filters contain up to 9% antimony and
     determined warranted evaluation. We
     proposed to list two of these waste                       One commenter supported our                         leach 1,550 times above the drinking
     categories: baghouse filters from the                   proposal to list this waste based on the              water HBL.6
     production of antimony oxide and slag                   potential for it to exhibit the toxicity                 Second, the commenter stated that it
     from the production of antimony oxide                   characteristic. Another commenter                     recycled all antimony-containing
     that is disposed of or speculatively                    disagreed with the proposed listing as                baghouse filters from both the oxidation
     accumulated. We concluded that the                      applied to the filters produced at its                and reduction furnaces to its reduction
     third waste category (empty supersacks)                 Montana facility. This commenter raised               furnace to recover antimony and argued
     did not pose a substantial present or                   three types of objections. First, the                 that the listing should not apply to such
     potential threat to human health or the                 commenter stated that our sample of                   filters. However, as described above, at
     environment and, therefore, did not                     baghouse filters from the oxidation                   least two facilities reported disposing of
     warrant listing.                                        furnace did not fail the threshold limits             their baghouse filters as non-hazardous
        We are promulgating final listings for               for any element on the TCLP analysis                  wastes. Therefore, we continue to view
     the two antimony oxide wastes that we                   and, therefore, should not be included                non-hazardous disposal of baghouse
     proposed to list. As explained below,                   within the scope of the listing. They                 filters as a plausible management
     we are revising the listing language                    noted that the only baghouse filter                   scenario for the antimony oxide
     slightly in response to comments. The                   samples from the Montana facility to fail             industry. As EPA acknowledged in the
     final listing descriptions are:                         the TC were from the reduction furnace,               preamble to the proposed rule, some
     K176 Baghouse filters from the                          not the oxidation furnace (see scope                    6 See Waste Characterization Reports for U.S.
          production of antimony oxide,                      discussion under section 3 below for a                Antimony, Thompson Falls, MT and Laurel
          including filters from the                         discussion on the different types of                  Industries, La Porte, TX that are in the docket for
          production of intermediates (e.g.,                 furnaces).                                            the proposed rule.



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     antimony-containing filters may be                                 c. Impact of Recent Revisions to the                              details about production of
     recycled in certain ways that would                                Mixture and Derived-From Rules on                                 intermediates).
     make them not solid wastes (and hence                              K176
                                                                                                                                          a. Proposed Rule
     not regulated hazardous wastes). For                                  The mixture rule (originally codified
     example, when facilities process the                               at 40 CFR 261.3 (a)(2(iii) and (iv))                                 At the time we proposed this listing,
     antimony oxide product captured in                                 subjects mixtures of listed hazardous                             all four operating antimony oxide
     these filters by reinserting the product-                          and nonhazardous wastes to hazardous                              production facilities produced slags
     containing filters back into the furnace                           waste regulation. The rule, however,                              from their oxidation furnaces during the
     where the antimony oxide originated,                               exempted wastes listed under                                      production of the final antimony oxide
     without reclamation, these materials                               261.11(a)(1) because they exhibit a                               product. All of the facilities reported
     would not be solid wastes.7 If any or all                          hazardous waste characteristic.                                   further processing at least a portion of
     of the commenter’s filters are recycled                            Mixtures of such listed wastes generally                          these slags on-site in different types of
     in ways that make them not solid wastes                            cease to be regulated as hazardous                                furnaces to obtain additional antimony
     under the definition of solid waste                                wastes as soon as the mixture ceases to                           to produce additional antimony oxide.
     regulations (see 40 CFR 261.2), they will                          exhibit the characteristic that caused                            In addition, three of the four facilities
     not be subject to this listing.                                    EPA to list the waste. (Mixtures of                               ultimately produced slags that were sent
        Finally, the same commenter argued                              nonwastewaters listed because they                                off-site for use in secondary lead
     that its baghouse filters from the                                 exhibit a characteristic, however,                                smelting or antimony production. The
     reduction furnace were from the                                    needed to meet LDR requirements                                   remaining facility (Montana) ultimately
     production of antimony metal, not the                              before being land disposed.)                                      produced a slag from its reduction
     production of antimony oxide. As                                      In 1999, EPA proposed to eliminate                             furnace that had been accumulating on-
     explained below in section 3, we                                   this mixture-rule exemption for wastes                            site in drums for several years. At the
     concluded that all of the baghouse                                 listed under 261.11(a)(1) because they                            time of proposal, this facility’s mining
     filters associated with antimony oxide                             exhibit the Toxicity Characteristic. See                          permit required the facility to construct
     production remain within the scope of                              64 FR 63382 (November 19, 1999). In                               an on-site engineered and lined ‘‘slag
                                                                        other words, mixtures of wastes listed                            storage pit’’ for the accumulated slag.
     the listing, whether the filters are from
                                                                        because they exhibited the TC would
     the furnace producing the final                                                                                                         In the proposal, we assessed the risks
                                                                        continue to be regulated even if the
     antimony oxide or from the production                                                                                                posed by the on-site accumulation and
                                                                        mixture stopped exhibiting the TC.
     of a process intermediate used during                                                                                                the potential future use of the ‘‘storage
                                                                        When EPA proposed to list K176, we
     the production of antimony oxide.                                  noted that this proposed narrowing of                             pit’’ by modeling an on-site unlined
     However, as discussed below, if the                                the mixture rule exemption, if                                    landfill at the Montana facility. We
     facility produces a batch of antimony                              promulgated, would affect the K176                                documented domestic ground-water use
     metal which is not used in antimony                                wastes.                                                           in the area (four wells in the vicinity),
     oxide production, the wastes from that                                EPA promulgated the revision to the                            and noted the presence of a residential
     particular batch are not within the scope                          mixture rule exception in May 2001. See                           drinking water well 1.4 miles directly
     of the listing. If the facility adequately                         66 FR 27266 (May 16, 2001) and new                                down-gradient from the Montana
     segregates these batches of antimony                               section 40 CFR 261.3(g). As a result,                             facility. We stated that residences and
     metal wastes from the listed wastes                                mixtures of K176 and nonhazardous                                 wells might be built closer to the facility
     associated with antimony oxide                                     wastes ultimately will not be exempt if                           in the future. This approach was
     production, they would not be listed                               the mixture ceases to exhibit the TC.                             consistent with our modeling
     wastes.                                                            The K176 listing, however, will take                              assumptions elsewhere in the proposed
        After considering all comments, we                              effect before the narrowing of the                                rule where we modeled potential
     continue to consider all filters                                   mixture rule exemption. See the                                   ground-water exposure based on the
     associated with antimony oxide                                     discussion of state authorization issues                          potential for ground-water wells to exist
     production as a single class of waste and                          in section VI below.                                              and be impacted by on-site waste
     to find that they warrant listing under                                                                                              management practices (e.g., 65 FR
                                                                        2. K177 Slag                                                      55755). Thus, while our modeling was
     261.11(a)(1), as follows:
                                                                           We are promulgating the K177 listing                           conservative for the current ground-
     K176 Baghouse filters from the                                     for slag from antimony oxide production                           water usage patterns, it predicted risk
        production of antimony oxide,                                   that is speculatively accumulated or                              for potential future receptors. The
        including filters from the                                      disposed, including slag from the                                 results of the risk assessment for the on-
        production of intermediates (e.g.,                              production of intermediates (e.g.,                                site disposal scenario for antimony and
        antimony metal or crude antimony                                antimony metal or crude antimony                                  arsenic, as stated in the proposal, are
        oxide). (E)                                                     oxide) (see section 3 below for further                           presented in Table IV–1:

             TABLE IV–1.—PROBABILISTIC RISK ASSESSMENT RESULTS FOR SPECULATIVELY ACCUMULATED ANTIMONY SLAG
                                                               Antimony hazard quotient                                               Arsenic—Cancer risk
                         Percentile
                                                               Adult risk      Child risk                          Adult risk                                           Child risk

     90% ...................................................           2.2                4.6   4 E–07 ..............................................    3 E–07
     95% ...................................................           4.5                9.4   1 E–06 ..............................................    9 E–07


        7 As noted above, these filters capture product                 products and intermediates, off-specification                     recycled in ways that differ from their normal use—
     materials. EPA does not regulate reclamation of                    variants, spill residues, and container residues                  namely, when they are burned for energy recovery
     these products. See 50 FR 14216, April 11, 1985:                   listed in 40 CFR 261.33 are not considered solid                  or used to produce a fuel.’’
     ‘‘Under the final rules, commercial chemical                       wastes when recycled except when they are



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        Because the modeled hazard quotient                   gradient from the facility, as well as the            recycling operations. Two of the
     for antimony exceeded our listing                        property 1.5 miles up-gradient. In                    facilities (La Porte, TX and New Jersey),
     threshold of one for both children and                   addition, as we noted in the proposal,                both of which are still in operation,
     adults at both the 90th and 95th                         we do not see any barriers to people                  send their slag for use in secondary lead
     percentiles, we proposed to list this                    moving closer to the facility in the                  smelting, either for the high lead
     waste. For a more complete description                   future, thereby becoming potential                    content in the slag or because the
     of this analysis, see ‘‘Risk Assessment                  receptors. Should people move closer to               antimony is used as a hardening agent
     for the Listing Determinations for                       the facility, ground water almost                     in lead. The third facility (Laredo, TX)
     Inorganic Chemical Manufacturing                         certainly will be used for drinking                   reported that they sent their slag to an
     Wastes’’ (August 2000) in the docket for                 water. We note that the facility’s mining             antimony recovery facility in Mexico.
     the proposed rule.                                       permit indicates that on-site water                   The Laredo facility is no longer
        As noted in the proposal, the waste                   production wells are used to supply the               operating. The fourth facility (Montana)
     has high levels of total antimony and                    laboratory and administrative buildings,              had been holding slag in drums on-site,
     arsenic, and the leachable levels of                     which also indicates that the use of                  as described above.
     antimony from this slag exceed the                       ground water in the immediate area is                    Since the release of the proposal, we
     human oral ingestion HBL by a factor                     plausible. Therefore, we believe that the             have been informed by representatives
     greater than 35,000. In addition, the                    management scenario we modeled for                    of the Montana facility and the State
     modeling showed risk at the 90th and                     the proposal is still plausible.                      that the facility has begun to send slag
     95th percentiles even with elevated                        In addition to wastes that are                      that it cannot reclaim on-site to an off-
     dilution and attenuation factors that are                disposed, the listing captures those                  site facility for recycling. As noted
     associated with this site (DAFs of 1,960                 wastes that are speculatively                         above, slags that are legitimately
     to 3,811 at the 5th and 10th                             accumulated. As noted in the proposal,                recycled without speculative
     percentiles).8. We reasoned that risks                   current regulations classify some                     accumulation will not be affected by the
     could be even greater in other potential                 potentially recyclable materials that are             listing. However, stockpiling of slags
     management locations (e.g., if plans to                  stored on-site for more than certain                  has occurred and we believe the listing
     place the drummed slag in the onsite                     timeframes set forth in 40 CFR                        is still needed to ensure that continued
     ‘‘storage pit’’ were to change).                         261.1(c)(8) as speculative accumulation               or future storage will not threaten
                                                              and classify materials held in excess of              human health and the environment.
     b. Significant Comments and Final Rule                   these time frames as solid wastes. We                    Moreover, we believe the listing is
        One commenter questioned our risk                     believe that the length of time secondary             warranted because recycling in the
     assessment scenario for the slag. The                    materials are accumulated before being                future may be uncertain for facilities
     commenter stated that, contrary to data                  recycled is an important indicator of                 still producing antimony oxide in the
     we obtained from the Montana Ground                      whether or not they are wastes. This is               United States. The current market for
     water Information Center database, there                 supported by damage cases where                       antimony oxide is weak. The world
     are no residential wells within 4.5 miles                secondary materials that were                         commodity price for antimony metal
     down-gradient of the Montana facility.                   accumulated over time caused harm.                    (the principal raw material for antimony
     The commenter noted there is a private                   (See 50 FR 614.) EPA has consistently                 oxide production) has been volatile but
     residential property with a well 1.5                     taken this approach towards long-term                 has mainly increased due to restrictions
     miles up-gradient of the facility. In                    storage of potentially recyclable                     on Chinese exports. At the same time,
     response to this comment, we further                     materials. ‘‘Under RCRA and the                       the market price for antimony oxide
     investigated the land use of the area                    implementing regulations, permanent                   remained relatively flat.11 If the industry
     surrounding the facility and determined                  placement of hazardous waste,                         experiences continued economic
     that the commenter is correct that there                 including perpetual ‘‘storage’’ falls into            distress, individual facilities that remain
     is no current residential well in the                    the regulatory category of land                       in operation may decide to accumulate
     down-gradient location described in the                  disposal.10 (See also American                        slag on-site rather than incurring the
     proposal.9 However, as noted in the                      Petroleum Institute v. EPA, 216 F. 3d 50              costs of shipping the slags off-site for
     proposal, we did not model releases to                   (D.C. Cir. 2000)). If slags have been                 processing. In fact, we have learned that
     a particular well. We used the presence                  speculatively accumulated (i.e., held                 the still-operating New Jersey facility,
     of the well we identified to indicate that               beyond the timeframes specified in 40                 which had reported recycling its slag in
     ground water is used as a resource in                    CFR 261.1(c)(8) without recycling) as of              its response to our § 3007 questionnaire,
     the area. The commenter provided                         the effective date of this final rule, these          shipped slag off-site to a landfill for
     documentation that ground water is                       slags meet the listing description                    disposal in 1999 and is presently
     used as a resource in the area.                          immediately.                                          accumulating new slag on-site. The
     According to the commenter, eight to                       As long as facilities legitimately                  facility told EPA Regional personnel
     ten residential wells are in use in the                  recycle slags without speculatively                   that it hopes to recycle this on-site slag
     area approximately 5 miles down-                         accumulating them as defined in 40 CFR                if antimony prices rise.12
                                                              261.1(c)(8), they will not be impacted by                Finally, the two commenters that use
        8 See Table 4–66, ‘‘Ground Water DAFs for Low         the listing. In the proposal, we                      two-step processes to produce antimony
     Antimony Slag Managed in an Onsite Landfill—             discussed the fact that three of the four             oxide argued that slags from the first
     Thompson Falls, MT,’’ in Risk Assessment for the         antimony oxide production facilities                  type of furnace in their processes should
     Listing Determinations for Inorganic Chemical                                                                  not be listed because the slags are not
     Manufacturing Wastes, August, 2000. Note that
                                                              were sending slag that they could no
     although there is not a direct correspondence            longer process on-site to off-site                    generated during the production of
     between DAFs and risk, lower DAFs result in higher
     risk. Therefore, the 5th and 10th percentile DAFs          10 ‘‘Above Ground Land Emplacement Facility,          11 See U.S. Geological Survey, Mineral Industry

     are of particular interest relative to high end risks,   N.J. Law,’’ Letter to Honorable James J. Florio,      Surveys dated June 2000, December 2000 and June
     e.g., at the 90th and 95th percentiles of the risk       Chairman, Subcommittee on Commerce,                   2001 in the docket for the rulemaking.
     distribution.                                            Transportation, and Tourism, Committee on Energy        12 See phone log for conversation between Sue
        9 See docket—notes from calls with U.S. Forest        and Commerce, House of Representatives, from J.       Burnell, EPA OSW and EPA Region 2 enforcement
     Service at Lolo National Forest and Montana DEQ          Winston Porter, Administrator, EPA, dated March       official, dated 7/3/01 in the docket for today’s
     staff dated January 2001–February 21, 2001.              26, 1986.                                             rulemaking.



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     58268            Federal Register / Vol. 66, No. 224 / Tuesday, November 20, 2001 / Rules and Regulations

     antimony oxide. As explained below in                   produced in the reduction furnace as                  used as an intermediate to produce
     section 3, we were only partially                       feedstock to produce antimony oxide                   antimony oxide. All of the slag
     persuaded by this argument. We are                      product. The commenter’s production                   associated with these batches falls
     listing all slags associated with the                   process runs on a batch basis and the                 within the scope of the listing. Further,
     production of antimony oxide,                           facility tracks the antimony metal                    all but a tiny fraction (less than one
     including slags from the production of                  production output from the reduction                  percent) of the antimony metal that is
     process intermediates for antimony                      furnace based on where it is used.13                  not used to make antimony oxide is
     oxide. However, we are excluding from                   Approximately 90% of the antimony                     produced on a contract furnace basis for
     the listing slags from batches where                    metal produced in the reduction furnace               another company. The two companies
     none of the material produced is used                   is sent to the oxidation furnace for the              have an agreement that the metal and
     in the production of antimony oxide.                    production of antimony oxide.14 In this               the slag generated during this contract
     See section 3 for further details.                      case, when the antimony metal goes on                 production are sent to the second
        Because of the documented practice                   to the oxidation furnace for antimony                 company. This agreement was in place
     of slag accumulation for long periods of                oxide production, we consider the                     when we sampled the reduction furnace
     time, the lack of certainty that any                    antimony metal to be a process                        slag and we received no information at
     current recycling practices will continue               intermediate in the production of                     the time (or subsequently) indicating
     absent this listing, and the results of our             antimony oxide and we consider the                    that the material was sampled was to be
     risk analysis, the listing is warranted to              two furnaces to be steps in a single,                 shipped off-site. Therefore, we believe
     ensure that disposal of all slags                       integrated process designed to produce                we have a reasonable basis for
     associated with the production of                       antimony oxide. We consider the                       concluding that the reduction furnace
     antimony oxide as nonhazardous waste                    reduction furnace slag and the filters                slags that we sampled were associated
     does not occur. Therefore, we are                       from these batches to be wastes from the              with antimony oxide production.15
     finalizing the listing under 40 CFR                     production of antimony oxide falling                     If the facility commingles listed and
     261.11(a)(3) as:                                        within the scope of the Consent Decree                nonlisted slags or filters, the mixture
     K177 Slag from the production of                        and the listing determination. To                     will be subject to regulation as
          antimony oxide that is                             eliminate any possible confusion, we                  hazardous waste under the RCRA
          speculatively accumulated or                       have amended the language of the                      mixture rule, 40 CFR 261.3(a)(2)(iii) and
          disposed, including slag from the                  listings to expressly include filters and             (iv). If the facility can segregate slags
          production of intermediates (e.g.,                 slag from the production of                           and filters that are not associated with
          antimony metal or crude antimony                   intermediates, although we think a                    antimony oxide production, however,
          oxide). (T)                                        straightforward reading of the proposed               those wastes will not be regulated under
                                                             language would have included these                    this listing. To segregate the wastes, the
     3. Scope Issues—Production of                           wastes anyway.                                        facility should take steps such as
     Intermediates                                              However, in the less frequent case,                changing filters before and after
        Two commenters raised questions                      when none of the antimony metal from                  producing a batch of antimony metal
     with regard to the scope of the antimony                a particular batch produced in the                    produced on a contract basis.
     oxide listings as they pertain to the                   reduction furnace is sent to the                         The second commenter, associated
     generation of intermediates in the                      oxidation furnace for antimony oxide                  with the facility that has ceased
     production of antimony oxide. Both of                   production, we do not consider this                   operating since the time of proposal,
     these commenters operate two-step                       batch of antimony metal to be a process               asserted that the listing should not cover
     antimony oxide processes and both                       intermediate associated with antimony                 slag formerly produced in the blast
     claim that slag from the furnace                        oxide production. Likewise, the                       furnace at the recently closed Laredo,
     producing the process intermediate                      wastes—both slags and filters—                        Texas facility. The commenter
     should not be included within the scope                 generated during such batches would                   explained that the blast furnace
     of the listing.                                         not be associated with the production of              produced low grade or ‘‘crude’’
        The first commenter, which operates                  antimony oxide. Although we have                      antimony oxide that was then inserted
     the Montana facility, questioned                        authority to consider such wastes for                 into the main antimony oxide furnace to
     whether the waste materials generated                   listing, we are not taking final action to            produce salable antimony oxide.16 To
     from its reduction furnace fall within                  list these wastes today. We note that we              the best of our knowledge, this is the
     the scope of the listing. The                           are not required to do so under the                   only other facility that produced
     commenter’s position is that these                      Consent Decree.                                       antimony oxide using a two-step
     wastes are generated during the                            As noted above, the commenter also                 process involving the production of an
     production of antimony metal rather                     asserted that our samples of the                      intermediate (e.g., metal or crude
     than antimony oxide and, therefore, are                 reduction furnace slag from this facility             antimony oxide). The commenter
     outside the scope of the listing. The                   did not represent slag from the                       argued that EPA had not evaluated blast
     commenter makes a subsequent                            production of antimony oxide.                         furnace type operations within the
     argument that because the wastes from                   However, we believe that it is                        proposed rule. The commenter stated
     this furnace are outside the scope of the               reasonable to assume that our sample                  that ‘‘a blast furnace is designed to
     listing, our samples of the filters and                 came from slags associated with the
     slags from the reduction furnace should                 production of antimony oxide. As noted                   15 This same Montana facility has a historic slag

     not be used to support either waste                     above, 90% of the antimony metal                      pile. Current information suggests that the slag is
                                                                                                                   from the production of antimony metal that was not
     listing.                                                produced in the reduction furnace is                  in any way associated with the production of
        We were partially persuaded by the                                                                         antimony oxide. (It was generated prior to initiation
     commenter’s views. This commenter’s                       13 See Montana DEQ Hard Rock Program,               of antimony oxide production at the facility.) If the
     facility includes both reduction and                    Operating Permit/Field Inspection Report of U.S.      information proves to be correct, the pile would not
     oxidation furnaces. The reduction                       Antimony, dated June 7, 2000 in the docket for        be subject to the listing, even if actively managed
                                                             today’s rulemaking.                                   after the effective date. See docket for notes on call
     furnace uses a variety of feedstocks to                   14 See docket for notes from calls with U.S.        with U.S. Antimony dated March 8, 2001.
     produce antimony metal. The oxidation                   Antimony dated February 28, 2001 and March 29,           16 See docket for notes from call with Cookson,

     furnace uses the antimony metal                         2001.                                                 dated March 14, 2001.



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                      Federal Register / Vol. 66, No. 224 / Tuesday, November 20, 2001 / Rules and Regulations                                                   58269

     liberate antimony from its source;                        asserted that its blast furnace slag does             25.9 mg/L. These SPLP and TCLP levels
     therefore, the resulting slag is much                     not present risks warranting listing. We              are 350–4,100 times EPA’s antimony
     lower in antimony content than the                        disagree with this characterization of                HBL for drinking water (0.006 mg/L).
     slags produced at later stages of the                     the Laredo slag as being significantly                The magnitude of these HBL
     process.’’                                                different from the modeled slag. The                  exceedences suggests that, had we
        In response, we first note that the                    commenter indicated that the total level              modeled the Laredo slag using the site
     company operating the Laredo facility                     of antimony in the Laredo slags was in                conditions at Laredo or a regional off-
     did not identify the historic pile in its                 the range of 1 to 3% of the waste, by                 site area, we likely would have found
     § 3007 survey. Thus, we did not collect                   weight. In our risk modeling of the                   significant risks to human health.
     data on this pile and did not assess it                   Montana site, we used two samples of                     Second, our analysis of the Montana
     in the proposal. Next, we note that all                   the Montana slag that contained 1%                    site used site-specific parameters due to
     of the crude antimony oxide from the                      antimony (sample AC–1–AO–01) and                      the on-site waste management practice.
     Laredo blast furnace was used on-site to                  12% antimony (sample AC–1–AO–06),                     The unique conditions at the Montana
     produce salable antimony oxide.                           respectively. Both samples were                       site resulted in extremely large dilution
     Therefore, its slag is a waste associated                 included in the distribution used to                  and attenuation factors (DAFs) for the
     with antimony oxide production.                           develop the probabilistic risk                        risk assessment (for antimony, the DAFs
     Moreover, we believe that the Laredo                      assessment results, upon which the                    were 1,960 to 3,811 at the 5th and 10th
     blast furnace closely resembles the                       listing is based. There is approximately              percentiles 18). A DAF represents the
     Montana reduction furnace whose slag                      a factor of 2 difference in the SPLP                  ratio of the leachate concentration to the
     we evaluated for listing. Both the Laredo                 measurements between the 1%                           model-predicted ground-water
     blast furnace and the Montana reduction                   antimony slag and the 12% antimony                    concentration. The Montana site has
     furnace use antimony source materials                     slag samples from the Montana facility.               high DAFs because it has a porous sand
     plus coke or coal to make an                              Since the results from our risk                       and gravel aquifer that readily dilutes
     intermediate product. The coke and coal                   assessment exceed our level of concern                the antimony concentrations in the
     serve as fuel and reducing agent. Kirk-                   (HQ=1) by considerably more than a                    waste leachate. This situation at the
     Othmer’s Encyclopedia of Chemical                         factor of 2, there would still be risks of            Montana site favors lower risk results.
     Technology categorizes both types of                      concern had we used only the slag with                Therefore, had the modeling been
     furnaces as pyrometallurgical processes                   the lower amount of antimony (i.e., 1%).              conducted using different
     for the recovery of antimony, supporting                  Therefore, we find the Laredo slag has                hydrogeological parameters, such as
     our belief that these processes operate                   the potential to pose significant risk.               those described for the Laredo facility
     on very similar principles, using similar                 This, in concert with the site differences            by the commenter, we expect the risks
     raw materials and creating similar                        in hydrogeologic conditions as                        would be higher than the results from
     wastes.17 In the course of making listing                 described below and in the Response to                the Montana site. For example, given
     determinations, we rely on process                        Comments Background Document,                         the maximum antimony leachate levels
     descriptions, functions, and waste                        supports including the Laredo slag                    reported by the commenter for the
     characterization to determine whether                     within the K177 listing.                              Laredo slag, a DAF of over 4,000 would
     processes are sufficiently similar to be                     The commenter provided a                           be required to bring the exposure level
     evaluated together. We have never taken                   comparison of the input parameters for                below the HBL (0.006 mg/L). The
     the position that all facilities covered by               our risk assessment at the Montana                    hydrogeologic conditions described by
     a single listing investigation must have                  facility and the parameters which could               the commenter are less favorable than
     identical operations; rather, we                          be applied to the facility in Laredo. The             those at the Montana site for generating
     evaluate, as a category, facilities that                  commenter first argued that the                       rapid dilution of the waste leachate and,
     engage in similar operations. Based on                    maximum Laredo TCLP value was at                      therefore, such a large DAF is unlikely
     this general practice we looked at the                    least an order of magnitude below the                 either at the commenter’s site or at any
     function of the Laredo blast furnace and                  SPLP levels used in the Montana risk                  reasonable regional off-site location.
     the type and composition of its waste                     assessment and, therefore, antimony                      In addition, we do not believe that the
     compared to the Montana process and                       risks from the Laredo facility would also             analysis of risks from the Laredo slag
     slag that we modeled for the antimony                     be an order of magnitude lower than the               can be limited to on-site disposal. The
     oxide slag listing. As stated above, both                 Montana risks. They believed these                    off-site disposal scenario is plausible
     the Laredo and Montana furnaces                           lower risks would fall below our                      based on the commenter’s previous off-
     produce an antimony intermediate                          threshold for listing (i.e., HQ of one).              site use of the slag in roadbed
     which is used in further production of                    The commenter then discussed the site                 construction, as well as discussions
     antimony oxide. In addition, both                         conditions at the Laredo facility and                 with the commenter and the State of
     processes produce a similar waste, slag,                  argued that those conditions would                    Texas regarding the potential use of
     containing the same type of                               lower the risk results even further.                  additional slag in off-site roadbed
     constituents. Therefore, we have                             We believe that there are some                     aggregate as part of a site-wide
     concluded that it is reasonable to                        important factors that the commenter                  remediation effort. Therefore,
     consider the Laredo blast furnace to be                   did not consider in its analysis and the              considering only the on-site factors at
     in the same general category of                           combined effect of these factors may not              the Laredo facility as discussed by the
     antimony oxide operations that we                         result in the lower risks assumed by the
     assessed for listing.                                     commenter. First, the leachate                           18 See Table 4–66, ‘‘Ground Water DAFs for Low

        The commenter argues that its blast                    concentrations of antimony from the                   Antimony Slag Managed in an Onsite Landfill—
                                                                                                                     Thompson Falls, MT,’’ in Risk Assessment for the
     furnace produced slags with lower                         Laredo slag are significant and exceed                Listing Determinations for Inorganic Chemical
     antimony content than the slags we                        health-based levels by orders of                      Manufacturing Wastes, August, 2000. Note that
     assessed for the listing and that their                   magnitude. The single SPLP level                      although there is not a direct correspondence
     slag, therefore, should not be covered by                 reported by the commenter for antimony                between DAF’s and risk, lower DAF’s result in
                                                                                                                     higher risk. Therefore, the 5th and 10th percentile
     the K177 listing. The commenter                           in the Laredo slag is 2.1 mg/L. The                   DAF’s are of particular interest relative to high end
                                                               antimony TCLP levels reported by                      risks, e.g., at the 90th and 95th percentiles of the
       17 Kirk-Othmer   citation.                              commenter for the slag range from 2.8–                risk distribution.



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     commenter does not address all our                       considered any wastes produced by a                   range of topics pertaining to the
     concerns for the slag. Typical off-site                  second facility manufacturing a                       proposed K178 listing, including
     scenarios do not support large DAFs, as                  different product to be wastes from a                 interpretations of our Bevill
     evidenced by the modeling results for                    different industrial process, and chose               determination, choice of management
     other sectors in this listing rule. For                  not to evaluate them. Consequently,                   scenarios for modeling, the validity of
     example, the modeling of titanium                        wastes produced by lead smelters that                 specific elements of our modeling,
     dioxide wastes in off-site landfills                     use antimony oxide slags as feedstocks                scope of the listing, and toxicity of
     resulted in DAFs for antimony on the                     are not part of today’s listing. Since                manganese. One commenter submitted
     order of 3 to 9 at the 5th and 10th                      antimony oxide slags that are recycled                extensive new analytical data
     percentiles.19 It is unlikely that the                   without speculative accumulation are                  characterizing the materials potentially
     hydrogeological conditions for the                       not within the scope of the listing, the              impacted by the listing. This commenter
     regional area near Laredo will result in                 antimony oxide slags sent to the lead                 also developed additional Kd
     a DAF that will support the                              smelters are not subject to the listing.              measurements for thallium. After
     commenter’s claim that the risks from                    However, if the antimony oxide slags                  closure of the comment period, this
     the Laredo slag would be lower than                      are speculatively accumulated prior to                same commenter provided important
     what was modeled for the listing.                        use at a lead smelter, than the antimony              new information regarding its
        The Laredo slag also accounts for a                   oxide slags would be subject to the                   management practices for the materials
     much greater volume compared to the                      listing and the lead smelter slags would              potentially impacted by the listing (all
     volume modeled for the Montana slag.                     be captured by the derived from rule.                 post-comment period communications
     According to the commenter, the waste                                                                          are available in the docket for today’s
     volume for the Laredo slag is 60,000 MT                  D. Final Titanium Dioxide Listing
                                                                                                                    rule).
     (plus an additional 60,000 MT of                         Determination                                           We discuss the key comments
     contaminated soil), whereas we                           1. Overview of Listing Determination                  influencing our final decision in the
     modeled a total of 600 MT for the                           Our proposed rule described our                    following discussion. We developed a
     Montana facility. We would expect this                   assessment of the various wastes                      separate document containing our
     greater volume of waste to contribute to                 generated by the three titanium dioxide               responses to all public comments (see
     increased risks from disposal both on-                   processes used in the United States.20                Response to Public Comments: Final
     site and off-site. Finally, the State of                 We proposed to list one waste,                        Listing Determination for Inorganic
     Texas has independently determined                       nonwastewaters from the production of                 Chemical Manufacturing Wastes in the
     that this facility poses significant risk                titanium dioxide by the chloride-                     docket for today’s rule).
     and has issued a corrective action order                 ilmenite process, with an exemption for               3. Overview of K178 Waste
     to clean up the site because of antimony                 solids previously identified in                       Subcategories
     contamination. As part of this order, the                261.4(b)(7) as exempt mineral
     State is requiring remediation of the                                                                             At proposal, we indicated that three
                                                              processing waste. We proposed not to                  subcategories of solids (non-exempt
     historic pile, suggesting that the waste                 list all other titanium dioxide wastes.
     poses risks.                                                                                                   nonwastewaters) from the chloride-
                                                              These wastes are described further in                 ilmenite process would be captured by
        Based on the combination of factors                   the proposal and in the Titanium
     described above, we believe that the                                                                           the K178 listing. These three
                                                              Dioxide Listing Background Document                   subcategories of solids were identified
     commenter did not present a sufficient                   (August 2000) which is available in the
     basis for excluding the historic slag from                                                                     as: (1) Exempt coke and ore solids
                                                              docket for the proposed rule.
     the blast furnace in Laredo from the                                                                           (condenser solids for the purposes of
                                                                 Today’s final rule lists some of the
     K177 listing.                                            waste material encompassed by the                     this discussion) removed from the
                                                              proposed K178 listing. The final rule                 gaseous titanium tetrachloride product
     4. Scope—Offsite Recycling                                                                                     stream that are commingled with a non-
                                                              focuses on solids removed from ferric
        A third commenter requested                           chloride after the initiation of ferric               exempt vanadium stream, (2) solids
     clarification that slags from lead                       chloride production and does not, as                  generated during wastewater treatment
     smelters who had taken antimony oxide                    originally proposed, include the                      which are not exempt to the extent they
     slag to recycle the lead content would                   wastewater treatment sludge or the                    are derived from oxidation and finishing
     not be subject to the listing. In response,              vanadium portion of the reactor solids                wastewaters, and (3) non-exempt ferric
     we note that throughout the proposed                     generated during the production of                    chloride solids removed from the ferric
     rule, we chose not to evaluate risks of                  titanium dioxide by the chloride-                     chloride acid stream. Three U.S. plants,
     wastes generated by facilities that used                 ilmenite process. Moreover, as                        all owned by E.I. du Pont de Nemours
     secondary materials from Consent                         explained above, we no longer base this               (DuPont), operate the chloride-ilmenite
     Decree processes in their production                     listing on risks posed by manganese.                  process. The three plants, located in
     processes. (We did, however, evaluate                                                                          Edge Moor, Delaware; Johnsonville,
     risks posed when recycling of secondary                  2. Overview of K178 Comments                          Tennessee; and DeLisle, Mississippi,
     materials involved use as a fuel or ‘‘use                   Comments relating to manganese are                 each generate the condenser solids and
     constituting disposal.’’) Generally, we                  discussed above in section IV.B.                      wastewater treatment sludge
                                                              Comments on other issues are                          subcategories. The Delaware facility is
        19 See Table 6–24, ‘‘Comparison of DAFs for
                                                              summarized here. Three titanium                       the only facility currently generating the
     Antimony in Ilmenite Process Wastewater                  dioxide manufacturers, one trade                      non-exempt ferric chloride residues.
     Treatment Sludge for 100 Percent and 10 Percent
     Waste Quantities,’’ in Risk Assessment for the           organization, and one ferric chloride                 4. Management Scenarios
     Listing Determinations for Inorganic Chemical            acid distributer submitted comments on
     Manufacturing Wastes, August, 2000. Note that            our proposed listing determination for                   We based our proposal to list K178
     although there is not a direct correspondence            the titanium dioxide manufacturing                    wastes on the ground-water ingestion
     between DAF’s and risk, lower DAF’s result in                                                                  risks shown in our analysis of plausible
     higher risk. Therefore, the 5th and 10th percentile      sector. The comments addressed a wide
     DAF’s are of particular interest relative to high end
                                                                                                                    management scenarios for the
     risks, e.g., at the 90th and 95th percentiles of the       20 The three processes include the chloride,        nonexempt wastes contained in the
     risk distribution.                                       sulfate and the chloride-ilmenite processes.          combined solids (Iron Rich TM)


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                      Federal Register / Vol. 66, No. 224 / Tuesday, November 20, 2001 / Rules and Regulations                                      58271

     generated at the Delaware facility. Prior               was identified as a potential disposal                previously had thought, commingled
     to the proposal, the Delaware facility                  site).                                                with the coke and ore solids after they
     reported actual or intended use of the                     Given the recent indications from                  are removed from the condenser.
     Iron Rich TM at landfills and in other                  DuPont that it no longer intends to try               Commenters clarified that the vanadium
     types of land-based uses in the general                 to market the Iron Rich TM, and that they             impurities stream contains significant
     vicinity of the plant. Such uses included               are now landfilling the material off-site,            levels of titanium tetrachloride;
     use as daily or final cover at various                  we believe that our initial assumptions               insertion of this stream into the
     landfills, use in construction of berms                 for management of these wastes are                    condenser allows for the recovery of this
     and dikes, and use as fill material at                  valid. Thus, our evaluation of the risks              product value. Solid impurities from the
     municipal landfills and elsewhere. We                   presented by the waste solids in an                   vanadium stream drop out of the
     chose to model risks for disposal in an                 industrial or municipal landfill is                   condenser with the solids from the
     off-site industrial landfill because this               appropriate and represents a reasonable               initial coke and ore reaction.
     seemed a reasonable representation of                   approach to assessing risks for a listing             Commenters also clarified that the
     the varied potential disposal or land-                  determination.                                        cooler temperature of the vanadium
     based use scenarios. We modeled                            DuPont also argued that EPA ignored                impurities stream facilitates the
     hydrogeological conditions                              the fact that the two other plants (in                operation of the condenser unit.
     representative of conditions within a                   Tennessee and Mississippi) disposed of                Further, they explained that chloride
     100-mile radius of the Delaware facility.               their solids in on-site landfills, and that           and chloride-ilmenite plants have been
     We also qualitatively assessed an off-site              EPA’s analysis of the wastes at the                   configured in this manner for at least 20
     municipal landfill scenario. We found                   Tennessee plant showed no risks of                    years. Based on these factors, they
     risks of concern via the ground-water                   concern. As described in more detail                  argued that the vanadium impurities
     pathway for both the industrial and the                 below, we are finalizing a listing only               stream is not a waste until it exits the
     municipal landfill practices. Although                  for the ferric chloride residues and not              condenser with the solids from the coke
     the Delaware plant had been stockpiling                 the wastewater treatment sludge or                    and ore reaction.
     their Iron Rich TM onsite, the facility has             condenser solids. This means that the                    We now understand that the residuals
     no active landfill capacity, and thus we                only plant that generates the listed                  from the vanadium impurities stream
     focused our assessment on the off-site                  waste is the Delaware facility.                       leaves the process as an integral
     disposal scenario. Both the Tennessee                   Therefore, the management practices at                component of the coke and ore solids.
     and Mississippi facilities operate on-site              the Tennessee or Mississippi plants are               Consequently, we no longer consider
     landfills. Moreover, both of these                      not directly relevant to the potential                the vanadium impurities stream to be a
     facilities segregate their wastewater                   risks from the listed solids and we did               separate waste. Moreover, because the
     treatment solids from their condenser                   not need to determine whether or not it               residuals from the vanadium impurities
     solids. We modeled risks from the                       was likely that these plants would                    stream are not a separable stream when
     disposal of wastewater treatment sludge,                dispose of their solids off-site.                     they leave the process, it is now clear
     comprised of exempt and non-exempt                                                                            that they are Bevill-exempt because they
                                                             5. Scope Issues—Exempt Mineral                        are an integral component of the coke
     solids, in an on-site landfill at the                   Processing Wastes
     Tennessee facility for potential releases                                                                     and ore solids.
                                                             a. Condenser Solids                                      For these reasons, we have decided to
     to surface water, but we did not find
                                                                                                                   modify our proposed position on the
     risks of concern for this scenario (see 65                 As explained in the proposal, we                   Bevill status of the vanadium impurities
     FR 55761).                                              consider the solids from the initial                  stream. The residuals that exit the
        In meetings and comments submitted                   reaction of coke and ore which are                    condenser are part of the solids from the
     after the close of the comment period,                  separated from the gaseous product                    production of titanium tetrachloride
     DuPont stated that it had reevaluated                   stream in the condenser unit to be                    exempt under 40 CFR 261.4(b)(7)(S).
     the potential for beneficial off-site uses              Bevill-exempt. However, at the time of                This supersedes all earlier positions
     of the Iron Rich TM. DuPont indicated                   proposal we thought that facilities                   expressed on the Bevill status of the
     that, in contrast to their plans described              commingled these exempt solids after                  vanadium impurities stream as we now
     prior to proposal and in their initial                  they had been removed from the process                are aware that we previously
     comments, the company now would not                     with a separate, non-exempt waste                     misunderstood the details of the
     pursue these beneficial use options                     stream containing vanadium impurities                 process.
     because of the potential risks that their               (generated during titanium tetrachloride                 However, as noted in the proposed
     modeling had predicted could arise                      purification). We thought gaseous                     rule, we may in the future consider
     from dioxin contaminants in the                         titanium tetrachloride was recovered                  whether we should reassess the status of
     material as it is currently formulated.21               from this mixture of commingled wastes                these wastes as exempt mineral
     DuPont stated that it is looking into the               and returned to the process, and that                 processing wastes. We believe that there
     availability of effective treatment                     solid materials, consisting of the                    may be a need to assess whether future
     processes to reduce the concentrations                  condenser coke and ore solids, as well                regulatory action is justified for the
     of organics in the material and                         as the non-titanium tetrachloride                     solids from titanium dioxide
     confirmed that the Delaware facility was                portion of the vanadium impurities                    manufacturing because they contain
     planning to dispose of the Iron Rich TM                 stream, remained outside the process                  significant concentrations of manganese
     in an off-site landfill located outside of              and were ultimately disposed of as a                  and dioxin. The impacts associated with
     the corridor near the plant (e.g., a                    waste. We proposed that the solids                    the presence of these two constituents
     commercial landfill in South Carolina                   derived from the vanadium impurities                  were not considered at the time the
                                                             stream would be covered by the K178                   Bevill exemptions were promulgated.
       21 ‘‘Summary of Meeting Between EPA’s Office of       listing.
     Solid Waste and Representatives from DuPont,               DuPont and other commenters                        b. Wastewater Treatment Sludge
     April 3, 2001. See also letters dated April 16, 2001
     and April 27, 2001 to Lillian Bagus, EPA from Gregg
                                                             clarified that the vanadium impurities                   In the proposal, we explained that the
     Martin, DuPont regarding ‘‘Edge Moor Iron Rich TM       stream is returned via closed pipes to                Bevill exemption extends to the portion
     Staging Area Screening Assessment.’’                    the condenser unit, and is not, as we                 of the wastewater treatment sludge


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     58272            Federal Register / Vol. 66, No. 224 / Tuesday, November 20, 2001 / Rules and Regulations

     derived from treatment of titanium                       exempt residues we planned to list                    from any of the 20 specific mineral
     tetrachloride wastewaters (and                           under this authority.                                 processing wastes exempted under
     conversely does not exempt the portion                      In public comments, DuPont argued                  261.4(b)(7)(ii). As explained in the
     of the sludge derived from treatment of                  that the addition of chlorine does not                proposal, we believe that once the
     titanium dioxide wastewaters). Our                       affect the chemical composition of the                Delaware facility adds chlorine to the
     position on this issue remains                           resultant filtered residues and that the              waste acid stream, it is engaged in the
     unchanged. Comments supporting this                      simple addition of chlorine is not a                  manufacture of ferric chloride, not the
     position were submitted by various                       significant enough chemical step to                   manufacture of titanium tetrachloride,
     manufacturers and trade organizations.                   determine that the processing of acid                 the material for which wastes are
     We did not receive any negative                          has begun. DuPont contends that we                    exempt under 261.4(b)(7)(ii)(S).
     comments on this topic. We continue to                   mistakenly assumed that the addition of                  In support of our position, we note
     believe that this interpretation is                      chlorine to the ferric chloride stream                that the manufacture of ferric chloride is
     consistent with the language of the 1989                 generates or affects the unreacted coke               in no way necessary to the manufacture
     Bevill exemption. Consequently, sludge                   and ore solids that are separated from                of titanium tetrachloride or titanium
     containing solids from the production of                 that solution. DuPont noted that these                dioxide. The facility does not use any of
     titanium tetrachloride are exempt.                       solids already have been separated from               the ferric chloride in any step of the
     Sludge containing solids from oxidation                  titanium tetrachloride in the titanium                process that produces either of the two
     and finishing operations are non-                        dioxide production process, are carried               titanium products.
     exempt. All three facilities commingle                   along with the ‘‘waste acid’’ through the                Regarding the Delaware plant, the
     their wastewaters and, therefore,                        point of chlorine injection, are not                  commenter asserts that the addition of
     generate commingled sludges that are                     affected by the chlorine injection, and               chlorine in the process of making ferric
     partially Bevill exempt and partially                    are Bevill-exempt whether separated                   chloride does not alter the solids in the
     non-exempt. The portion of the                           from the ferric chloride solution before              waste acid that it later filters out and
     wastewater treatment sludge that is non-                 or after chlorine injection. DuPont                   mingles with all of its other process
     exempt varies at each facility.                          believes we should recognize that the                 solids. This is irrelevant. The issue for
                                                              ferric chloride solids retain their same              the purpose of the Bevill exemption is
     c. Ferric Chloride Residues                              character and exempt status after the                 whether the facility is making titanium
                                                              addition of chlorine.                                 tetrachloride or some other product. In
        Solids are removed from ferric
                                                                 DuPont also contends that the                      determining whether a waste falls
     chloride acid at all three DuPont
                                                              proposal to include the solids from the               within the scope of Bevill exemption for
     facilities. At the Mississippi and
                                                              ferric chloride, which are added to the               one of the 20 mineral processing wastes,
     Tennessee plants, the solids are the                     Iron Rich TM and also collect in ferric               we have never engaged in extending the
     condenser solids described previously.                   chloride product storage tanks and                    Bevill applicability to the production of
     They are removed from the ferric                         impoundments, would contradict EPA’s                  a different product based on an analysis
     chloride acid prior to any additional                    prior Bevill determinations. DuPont                   of the similarities or dissimilarities of
     processing of the acid and are exempt                    noted that during prior Bevill                        the waste material.
     mineral processing wastes.22 The                         determinations, EPA sampled these                        Moreover, we disagree with this
     Delaware facility’s process is slightly                  solids and agreed that they were                      assertion. The waste matrix of concern
     different, generating two separate solids                exempt. They argue the exempt status of               contains both solids and a measurable
     streams, the exempt condenser solids, as                 these solids was understood not only by               amount of liquid waste acid. While we
     well as ferric chloride residues                         the facility and EPA but also by the                  are not convinced that the solids are
     generated from subsequent manufacture                    regulating state agency.                              unaffected by the addition of chlorine,
     of ferric chloride. The Delaware plant                      DuPont further contends that the                   clearly the liquid acid portion of the
     sells its ferric chloride as a wastewater                proposal also would contradict the                    waste solids has been chemically altered
     and water treatment agent. Prior to                      Agency’s standards for distinguishing                 by the addition of chlorine (i.e., the
     sales, the Delaware plant adds a                         mineral processing from chemical                      purpose of the chlorine addition is to
     processing chemical (chlorine) to the                    manufacturing, 54 FR 36592, 36616                     shift the balance between ferrous and
     acid stream, then filters the acid to                    (September 1, 1989), and its clarification            ferric chloride in the acid.23 Therefore,
     remove solids. As described in our                       of ‘‘uniquely associated’’ wastes in the              we believe that at a minimum the acid
     proposal, the residue removed from the                   Phase IV LDR rule. DuPont argued that                 component of the ferric chloride residue
     ferric chloride after chlorine addition is               the solids, when disposed of, are solid               waste matrix does undergo some
     generated from the production of ferric                  wastes that originate from mineral                    chemical change as a result of the ferric
     chloride. DuPont is no longer engaged                    processing operations.                                chloride manufacturing process.
     in the manufacture of titanium                              We disagree with these comments. We                   The commenter also observes that we
     tetrachloride at this point. The residue,                believe that wastes from the production               sampled the waste solids from the
     therefore, is not a mineral processing                   of ferric chloride are not wastes that are            production of ferric chloride in the mid-
     waste exempt under 261.4(b)(7)(ii)(S).                   exempt under the Bevill exemption                     1980’s, and, when we established the
        Although we did not consider the                      regulations. They are not extraction and              exemption for solid titanium
     ferric chloride residues to be wastes                    beneficiation wastes because the input                tetrachloride wastes in 1991, we did not
     generated during the process of                          material (waste acid containing solids                assert that these solids were not covered
     producing titanium dioxide, we                           from the titanium dioxide                             by the exemption. The commenter may
     included them within the scope of the                    manufacturing process) has gone                       be correct that our mid-1980’s sample of
     proposed K178 listing to be                              through mineral processing. Once                      commingled solids included some
     promulgated under section 3001(e) of                     mineral processing begins, all
     RCRA because these residues were                         subsequent operations are not                           23 See section 4.1 of DuPont’s November 13, 2000

     being commingled with other non-                         considered extraction/beneficiation. See              comments, as well as letter dated May 8, 2001 to
                                                                                                                    Lillian Bagus, EPA, and Stephen Hoffman, EPA,
                                                              54 FR at 36619, September 1, 1989.                    from Gregg Martin, DuPont, regarding ‘‘Proposed
       22 § 261.4(b)(7)(ii)(S): Chloride process waste        Even if they were considered mineral                  K178 Hazardous Waste Listing of Ferric Chloride
     solids from titanium tetrachloride production.           processing wastes, they are not wastes                Solids’’.



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                       Federal Register / Vol. 66, No. 224 / Tuesday, November 20, 2001 / Rules and Regulations                                                                          58273

     solids filtered out of ferric chloride                          the production of titanium tetrachloride.                                   a basis for listing. DuPont criticized our
     production. However, we did not know,                           Residues removed after the facility                                         analysis for thallium in the Delaware
     at the time that we promulgated the                             begins the manufacture of the distinct                                      Iron Rich TM sample, arguing that our
     titanium tetrachloride exemption, that                          ferric chloride product (by the addition                                    thallium TCLP value for Iron Rich TM is
     the plant filtered out the solids after it                      of chlorine) are not solids from the                                        artificially high and that our thallium
     added chlorine to the waste acid (i.e.,                         manufacture of titanium tetrachloride.                                      SPLP value for Iron Rich TM is suspect.
     began the manufacture of ferric                                    After the close of the comment period,                                   In light of these comments, we re-
     chloride). The regulatory language,                             representatives of the commenter told                                       examined our analysis and determined
     however, is sufficiently clear: EPA                             us that the Delaware plant planned to                                       that our thallium TCLP and SPLP
     defined the exemption as applying to                            reconfigure its operations.24 The plant                                     results are valid. See Response to
     solids from the manufacture of titanium                         plans to remove the bulk of the residues                                    Comment Background Document for a
     tetrachloride, not ferric chloride                              from the waste acid prior to adding                                         more detailed discussion of our
     production.                                                     chlorine. The plant also might remove a                                     evaluation of the validity of DuPont’s
        Finally, the commenter asserts that                          much smaller amount of solids from the                                      criticism of our analysis for thallium.
     the ferric chloride residues meet our                           ferric chloride product stream after it
     three criteria for classification as an                         adds chlorine. Under such a                                                    DuPont also argued that its own
     exempt manufacturing waste. The                                 configuration, we would not consider                                        sampling and analysis of Iron Rich TM
     criteria as noted at 54 FR 36614–36620                          solids removed from the waste acid                                          shows that thallium is not present in the
     (September 1, 1989) are: (1) Excluded                           prior to the addition of chlorine to be                                     levels suggested by EPA. DuPont
     Bevill wastes must be a solid waste as                          residues from the manufacturing of                                          provided analytical data characterizing
     defined by EPA; (2) excluded solid                              ferric chloride. They would be solids                                       eight Iron Rich TM samples (plus one
     waste must be uniquely associated with                          from the manufacturing of titanium                                          duplicate). These samples were
     mineral industry operations; and (3) the                        tetrachloride and would be exempt                                           collected from the filter press where we
     solid waste must originate from mineral                         under 261.4(b)(7)(ii)(S). They would not                                    collected our sample of Iron Rich TM
     processing operations as defined by five                        be subject to today’s listing. Any                                          (DPE–SO–01) and thus are comparable
     specific criteria.                                              residues that the facility removed after                                    to our sample. All 8 samples and the
        We disagree. We agree with the                               it added chlorine to the waste acid                                         duplicate were analyzed for total, TCLP
     commenter that the ferric chloride                              stream, however, would continue to be                                       and SPLP concentrations of 20 metals,
     residues are ‘‘solid wastes’’ under the                         residues from the production of ferric                                      including thallium. We carefully
     first criterion. However, the waste ferric                      chloride and would continue to be                                           reviewed DuPont’s data package.
     chloride residues do not meet the                               subject to today’s listing.                                                 DuPont conducted metals analyses
     second criterion. For a waste to be                                                                                                         using two analytical methods:
                                                                     6. Comments Related to the Constituents                                     inductively coupled plasma with mass
     ‘‘uniquely associated’’ with the titanium
                                                                     of Concern and Modeling Issues                                              spectroscopy (ICP–MS, SW–846 Method
     tetrachloride mineral processing
     operation, the process that generates the                       a. Toxicity of Manganese                                                    6020B) and inductively coupled plasma
     waste must be necessary to the                                     We received comments from DuPont                                         (ICP, SW–846 Method 6010B). Our
     production of titanium tetrachloride. As                        and other commenters on our proposal                                        review of these data for DuPont’s Iron
     explained above, the Delaware plant                             to list K178 on the basis of human                                          Rich TM samples showed that there are
     does not need to make ferric chloride to                        health risks stemming from manganese                                        numerous analytical problems with
     manufacture titanium tetrachloride, the                         toxicity. These comments are available                                      DuPont’s ICP–MS analyses (see
     only material produced there that gives                         in the docket for today’s rule. EPA is                                      Assessment of Analytical Data
     rise to Bevill-exempt wastes. The plant                         deferring those elements of our proposal                                    Submitted by DuPont in Response to
     uses no portion of the ferric chloride                          related to manganese. See section IV.B.                                     Proposed Inorganic Chemical Industry
     produced. Since the ferric chloride                             of the preamble for further clarification.                                  Hazardous Waste Determination for
     residues fail to meet this criterion, we                                                                                                    K178 (October 2001), available in
     have no need to determine whether they                          b. Presence of Thallium in DuPont                                           today’s docket). Due to these problems,
     meet the third criterion. Moreover, we                          Wastes                                                                      we chose not to consider the ICP–MS
     would take the position that the ferric                            DuPont submitted comments arguing                                        results and have assessed only DuPont’s
     chloride residues were not exempt even                          that thallium is not present in its wastes                                  more reliable ICP results. Table IV–2
     if we agreed that they ‘‘originated’’ in                        and that thallium should not be used as                                     compares our ICP results.

                                                         TABLE IV–2.—THALLIUM IN IRON RICH TM, DELAWARE
                              Analysis                                                           EMI–1 ∼ 8                                                 EPA Sample (DPE–SO–01)

     Total–6010 B (mg/kg) ........................................   <7.1 ...................................................................    3.7
                                                                        ......................................................................   (23.6 DuPont split)
     TCLP–6010 B (mg/L) ........................................     <0.250 ...............................................................      0.28
                                                                        ......................................................................   (0.27 EPA duplicate)
     SPLP–6010 B (mg/L) ........................................     <0.050 ..............................................................       0.012



       As Table IV–2 indicates, DuPont did                           laboratory did not achieve detection                                        levels that are lower than DuPont’s
     not detect total or TCLP/SPLP thallium                          limits as low as our laboratory achieved.                                   detection limits for total and SPLP
     in its Iron Rich TM samples (EMI–1 to                           We detected total and SPLP thallium in                                      thallium analysis; we also detected
     EMI–8 and EMI–6–Dup), although their                            our Iron Rich TM sample (DPE–SO–01) at                                      TCLP thallium at a level close to

      24 Letter to Lillian Bagus, EPA from Gregg W.                  Staging Area Screening Assessment’’, dated April                            16, 2001. See also DuPont/EPA April 3, 2001
     Martin, DuPont regarding ‘‘Edge Moor Iron Rich TM                                                                                           meeting notes.



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     DuPont’s detection limit for TCLP                       c. Thallium Distribution Coefficient                  d. Ground-Water Mounding
     thallium analysis. Thus, DuPont’s data                     DuPont submitted comments                             DuPont submitted comments
     fail to demonstrate that our SPLP                       challenging our assumptions for the                   regarding the assumptions we used in
     analyses are suspect with regard to                     thallium soil-water distribution                      our ground-water modeling for
     thallium. DuPont’s newly submitted ICP                  coefficient (Kd). We found that these                 infiltration and recharge rates. We agree
     total, TCLP and SPLP thallium results                   comments had merit. As a result, we                   that these assumptions are somewhat
     are very similar to our ICP total, TCLP                 have modified our proposed findings for               problematic, although we disagree with
     and SPLP thallium results. The results                  the non-exempt wastewater treatment                   the remedies suggested by the
     of earlier analytical work by DuPont                    sludge and ferric chloride residues with              commenter. This issue was important in
     also show that our values were not                      respect to the industrial solid waste                 our formulation of our final decisions
     artificially high. DuPont’s split total                 landfill scenario. The impact of these                for both the non-exempt wastewater
     thallium value (23.6 mg/kg) for Iron                    comments was less marked for the                      treatment sludge and ferric chloride
     Rich TM (collected and analyzed at the                  municipal solid waste landfill scenario               residues for the industrial landfill
     same time our sample was collected                      for ferric chloride residues.                         scenario, but not for the municipal
     prior to proposal) was even higher than                    The Risk Assessment Background                     landfill scenario.
     our total thallium result (3.7 mg/kg).                  Document for the proposed rule stated                    As explained in the Risk Assessment
     Note that our laboratory, in the course                 that a literature search of sorption                  Background Document for the proposed
     of analyzing the Iron Rich TM sample,                   studies found no published data on the                rule, the ground-water modeling
     conducted a second thallium analysis                    Kd for thallium. In lieu of published                 analysis at proposal for the combined
     with a 10-fold dilution which resulted                  data, we relied on a graphical                        nonexempt nonwastewaters from the
     in a total thallium concentration of 18.4               presentation of data shown in an                      Delaware facility used a set of
     mg/kg.                                                  unpublished draft report in order to                  infiltration and recharge rates that were
        DuPont also argues that, based on                    establish a range over which to vary Kd               generated based on a water balance
     process knowledge, DuPont does not                      and then assumed a log uniform                        through an assumed unlined landfill
     expect thallium to be present in its                    distribution within that range. Out of                under a variety of climatic and soil
     wastes at the levels suggested by EPA                   concern for the absence of published                  conditions. However, depending on the
     for any of the three chloride-ilmenite                  data, DuPont conducted a study of                     characteristics of the underlying aquifer,
     facilities. DuPont said its analyses of                 thallium Kd and submitted the data and                the infiltration and recharge rates
     ores used in the prior year indicate that               study documentation to EPA. The                       derived from the water balance may
     thallium generally is not present at                    DuPont study was done on three                        exceed the capacity of the subsurface to
     levels above 0.050 mg/kg. The highest                   different soil types representing a range             absorb the water. As a result, mounding
     thallium level in ore detected by DuPont                of soil conditions. Although the data are             of the water table may occur in the
     was 0.171 mg/kg, which DuPont                           not inconsistent with the range of Kd                 ground-water model beneath the
     estimates would correspond to a solids                  values we used in the risk assessment,                landfill. DuPont submitted comments
     level of 0.350 mg/kg. DuPont’s                          the DuPont data fall in the upper half of             on the proposed rule stating that this
     arguments are not convincing because:                   the Kd distribution. Moreover, the                    model-induced mounding is excessive
     (1) No ore analyses were presented for                  DuPont data exhibit a clear                           and can lead to ground-water velocities
     review; (2) DuPont did not describe                     concentration dependence and, for two                 that are unrealistically high. In their
     whether it’s limited review was                         of the three soil types, the data lie in the          comments, DuPont implemented several
     representative of the ores associated                   upper quartile of the Kd distribution at              different approaches to mitigate the
     with our sampling event or ongoing                      the relatively low concentrations                     impact of mounding on the model-
     operations; and (3) DuPont did not                      actually found in the Iron RichTM                     predicted ground-water concentrations,
     assess its other primary raw material,                  leachate. In addition, DuPont submitted               including modifying the EPACMTP
     petroleum coke, for thallium. Sampling                  modeling analyses that show that the                  ground-water model. These alternative
     data from prior analyses submitted by                   model-predicted ground-water                          approaches give larger dilution and
     DuPont confirm that thallium has been                   concentrations are relatively sensitive to            attenuation factors (DAF’s) than the
     present in the Iron Rich TM 25 and                      the value of Kd within the range of Kd’s              approach used in the unmodified model
     similar wastes 26 at levels significantly               of the DuPont data, with higher Kd                    for the proposed rule.
                                                             values producing lower ground-water                      We evaluated DuPont’s comments and
     above what DuPont estimated from its
                                                             thallium concentrations.                              conclude that excessive mounding of
     ore analyses.
                                                                After examining the data presented by              ground water can, in fact, occur with the
        In summary, we disagree with                         DuPont, we agree that the Kd values                   model. However, as discussed in the
     DuPont’s assertion that thallium is not                 from this study appear to be more                     comment response document for today’s
     present in its waste.                                   appropriate to use in assessing risks                 rule, we disagree with the alternative
                                                             from the wastes in question. Given this,              approaches suggested by the
        25 See Attachment to DuPont Edge Moor’s § 3007
                                                             the dilution and attenuation of thallium              commenter. These approaches primarily
     survey entitled ‘‘Split Metals Analyses from Region     in the waste leachate from the non-                   involve substantial reductions in the
     III Package,’’ Sample No. 3228296, Iron Rich, with
     total thallium concentration reported at 23.6 mg/kg.    exempt ferric chloride residues and the               rate of waste leachate infiltration and,
     See also January 6, 2000 letter to Michael (sic, Max)   non-exempt wastewater treatment                       for this reason, they result in higher
     Diaz, EPA from Jonathan Bacher, VFL, regarding          sludge is likely to be greater than (and              DAF’s. We think a preferable approach
     DuPont Iron-Rich Utilization, VFL Technology            consequently, the risks less than) that               within the current model framework is
     Approval Application, Attachment I: STL Product
     Analysis, Sample Number 91941001, with total            estimated in the risk assessment for the              to implement a screening procedure to
     thallium concentration reported at 28.6 mg/kg.          proposed rule. However, as explained                  eliminate incompatible combinations of
        26 See Exhibit 13–4 of ‘‘Report to Congress on       elsewhere in today’s notice, we                       infiltration and recharge rates and
     Special Wastes from Mineral Processing,’’ July          continue to believe that the ferric                   aquifer characteristics. To evaluate what
     1990. See also Tables 3.19, 3.21, and 3.27 of the
     Titanium Dioxide Listing Background Document for
                                                             chloride residues pose risk due to                    the impact of one such procedure might
     the Inorganic Chemical Listing Determination,           thallium in municipal solid waste                     be, we implemented a simple procedure
     August 2000.                                            landfills.                                            on a trial basis whereby all instances in


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     which the water table was calculated to                          Wastewater treatment sludges are                        wastestream, the wastewater treatment
     rise above the ground surface were                            generated at each of DuPont’s chloride-                    sludges do not present significant risks,
     eliminated. As described in the                               ilmenite facilities from the treatment of                  and we are not taking final action to list
     Response to Comments Background                               commingled wastewaters. The                                them.
     Document, this procedure resulted in a                        wastewaters are generated from the
     large number of combinations being                            production of titanium tetrachloride, as                   b. What Was the Technical Basis for the
     eliminated. However, the DAF’s at the                         well as from the production of titanium                    Proposed Listing?
     5th and 10th percentiles of the                               dioxide. As described previously in this                      To support our proposed listing
     distribution were not greatly affected                        notice, we proposed an interpretation of                   determination, we collected one sample
     (i.e., they were within a factor of two of                    the Bevill exemption for this sludge that                  of chloride-ilmenite wastewater
     the DAF’s modeled in the proposed                             stated that the portion of the wastewater                  treatment sludge from the Tennessee
     rule).27 Therefore, we believe that the                       treatment sludge derived from treatment                    facility. This sample was taken from a
     mounding phenomena, while not                                 of titanium tetrachloride wastewaters                      pond used to dewater wastewater
     infrequent, also is not of such                               would be eligible for exemption, while                     treatment sludge prior to landfilling
     magnitude that it modifies our primary                        the portion of the sludge derived from                     (i.e., the ‘‘Hillside Pond’’). This sample
     conclusion regarding the potential risks                      titanium dioxide wastewaters (e.g.,
                                                                                                                              contains both exempt and non-exempt
     posed by these wastes. As indicated                           oxidation and finishing wastewaters)
                                                                                                                              wastewater treatment sludge. In
     elsewhere in today’s notice, EPA                              would be nonexempt and subject to the
                                                                                                                              addition, we collected a sample of the
     continues to be concerned by potential                        proposed listing determination.
                                                                      DuPont submitted comments arguing                       commingled Iron RichTM from the
     risks from co-disposal with municipal                                                                                    Delaware facility. This sample also
     solid waste in a municipal solid waste                        that the combined solids listing should
                                                                   not include wastewater treatment                           contains both exempt and non-exempt
     landfill, given the TCLP test results.                                                                                   wastewater treatment sludge.
                                                                   sludges because they have lower levels
     7. Wastewater Treatment Sludge                                of hazardous constituents and,                             Wastewater treatment sludge accounts
                                                                   therefore, do not contribute significantly                 for ten percent of the commingled Iron
     a. What Was Our Proposed Listing                                                                                         RichTM. We did not sample the
     Determination?                                                to the risk posed by the combined
                                                                   wastestream. Moreover these wastes are                     wastewater treatment sludge generated
        Wastewater treatment sludge is one                         generated separately from the condenser                    at the Mississippi facility. As stated in
     component of the proposed listing for                         solids and ferric chloride solids. The                     the proposal, we believe that our
     non-exempt nonwastewaters generated                           Delaware facility commingles them with                     sampling and modeling of the sludges
     from the chloride-ilmenite process. We                        the other two types of solids. The                         generated at the Tennessee and
     based our proposal to list this waste                         Tennessee and Mississippi facilities                       Delaware sites provides an appropriate
     component as hazardous on our                                 dispose of them separately, as could the                   surrogate for the waste generated at the
     modeling of the combined                                      Delaware site (as we assume that they                      Mississippi facility, given the similar
     nonwastewaters generated at the                               would do if we excluded them from the                      nature of the processes at all three
     Delaware facility, which showed that                          listing due to cost savings).                              facilities.
     manganese and thallium leach from the                         Consequently, we assessed these                               Table IV–3 provides a summary of the
     combined waste at levels that may pose                        sludges as if they were a separate                         analytical data for the Iron RichTM and
     significant risk to human health from                         wastestream. As explained below, we                        Hillside Pond samples that were used to
     ground-water ingestion.                                       concluded that, as a separate                              support the proposed listing.

          TABLE IV–3.—CHARACTERIZATION OF WASTEWATER TREATMENT SLUDGE FROM THE CHLORIDE-ILMENITE PROCESS,
                                                 TITANIUM DIOXIDE
                                                      Iron RichTM (Delaware)                          Hillside Pond                                           AWQC (mg/L)
                                                         (10% WWT solids)                         WWT solids (Tennessee)
       Constituent of concern                                                                                                       HBL (mg/L)           Human
                                                 Total          TCLP             SPLP               Total            SPLP                                                   Aquatic life
                                                                                                                                                         health
                                                (mg/kg)         (mg/L)           (mg/L)            (mg/kg)           (mg/L)

     Antimony ..........................              0.9          2 0.021               0.02              0.7            0.021            0.006                0.014                n/a
     Arsenic .............................            2.2        <0.0035              2 0.001              2.8       <1 0.0035            0.0007            1.8E–05                 0.15
     Barium ..............................           178              2 2.4               0.92           49.6              0.12               1.1                   n/a              n/a
     Boron ................................           30                1.7               0.61           24.5              0.45               1.4                   n/a              n/a
     Lead .................................          309           2 0.032           2 0.0032            42.4           2 0.002            0.015     ....................        0.0025
     Manganese ......................             10,600               252                16.3          2,890                1.5              0.7                 0.05               n/a
     Nickel ...............................         91.8                0.5            <0.005            59.8             0.007             0.31                  0.61            0.052
     Thallium ............................            3.7             0.28              0.012              7.2        <0.0022              0.001              0.0017                 n/a
     Vanadium .........................              240         2 0.0003              <0.005           1,060           <0.005              0.14                    n/a              n/a
        n/a: not applicable
        1 One half the detection limit was used as a screening level.
        2 Results are less than the typical laboratory reporting limit, but are greater than the calculated instrument detection limits.




        We used our SPLP results for the                           and impoundments). The primary                             these constituents to ground-water,
     Hillside Pond sample to screen the on-                        constituents of concern in the SPLP                        which would discharge into the nearby
     site waste management scenarios at the                        extract were antimony and manganese.                       river did not show sufficient risk to
     Tennessee site (i.e., industrial landfill                     Our assessment of potential releases of                    human health or aquatic life to serve as
       27 Although there is not a direct correspondence            risks. Therefore, the 5th and 10th percentile DAFs         e.g., at the 90th and 95th percentiles of the risk
     between DAFs and risk, lower DAFs result in higher            are of particular interest relative to high end risks,     distribution.



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     a basis for listing. In addition, we used                 DuPont also provided sampling and                   results for thallium, we cannot agree
     our SPLP results for the Iron RichTM                    analytical data for its wastewaters from              that DuPont’s data demonstrate that
     which contained 10 percent wastewater                   oxidation and finishing in an attempt to              thallium is not present in the
     treatment sludge to model an off-site                   demonstrate that the non-exempt                       wastewater treatment sludges. For
     industrial landfill scenario for the                    sludges derived from treatment of these               example, DuPont’s ICP (SW6010)
     Delaware waste. Based on the risk                       wastewaters would not contain                         thallium data for the Tennessee plant
     associated with this scenario for                       significant levels of manganese or                    showed thallium detected at levels
     manganese and thallium, and the                         thallium.                                             below the method detection limit; the
     commingled nature of the wastes, we                       We assessed these new data in the                   average concentration of these tentative
     proposed to include the non-exempt                      context of the management scenarios we                detections is 0.014 mg/L. While we
     portion of the wastewater treatment                     evaluated for the proposal and in light               generally would not rely on these type
     sludge within the scope of the listing,                 of the other comments (described above)               of tentative data for the purposes of
     which would have applied to all three                   that we believed had merit (e.g.,                     listing a waste, these results contradict
     facilities.                                             thallium Kd, ground-water mounding).                  DuPont’s claim that the wastewater
        As described in the Titanium Dioxide                 We reassessed the industrial landfill                 treatment sludge does not contain
     Background Document, our analytical                     scenario using DuPont’s new SPLP data                 thallium at levels comparable to those
     data also showed that chlorinated                       for off-site management of the Delaware               we detected in the Iron RichTM sample.
     dioxins and furans are present in the                   wastewater treatment sludge and on-site               Therefore, we are continuing to use our
     Hillside Pond wastewater treatment                      management of the Tennessee and                       measurement of 0.012 mg/L in Iron
     sludge (402 ppt TCDD TEQ), as well as                   Mississippi wastewater treatment                      RichTM as the thallium concentration for
     in the Iron RichTM (57 ppt TCDD TEQ).                   sludges. We reassessed the municipal                  our risk assessment. Table IV–4
     However, we concluded, based on                         landfill scenario using DuPont’s new                  provides a summary of the validated
     engineering assessment of the process,                  totals data for off-site management of                thallium SPLP data.
     that the vast majority of the dioxins and               the Delaware wastewater treatment
     furans were associated with the Bevill-                 sludge. Because, however, of our                      TABLE IV.–4.—THALLIUM SPLP RE-
     exempt portions of the wastewater                       decision to defer action on manganese                   SULTS FOR DUPONT WASTEWATER
     treatment sludges. Therefore, we did not                (see section IV.B), the following                       TREATMENT SLUDGES AND IRON
     assess potential risks from the dioxins                 discussion focuses instead on thallium,                 RICHTM (MG/L)
     and furans from the non-exempt                          antimony and arsenic. The results of
     wastewater treatment sludge.                            these assessments are set out below.                    Waste description            DuPont     EPA
                                                               We also assessed DuPont’s oxidation
     c. What Is the Basis for the Final ‘‘No                 and finishing wastewater data but                     Delaware wastewater
     List’’ Determination?                                   determined that we could not draw                       treatment sludge ...           <0.053       NA
        In its comments, DuPont argued that                  meaningful conclusions about the                      Tennessee pond
     its wastewater treatment sludges do not                 hypothetical concentration of                           sludges ..................   * <0.053   <0.0022
     have the same composition as the Iron                   constituents of concern in theoretical                Mississippi pond
     RichTM which served as the basis for the                wastewater treatment sludges that might                 sludges ..................     <0.053        NA
     proposed listing. DuPont argued that the                                                                      Delaware Iron RichTM             <0.050     0.012
                                                             form from separate disposal of oxidation
     analytical data for the Iron RichTM                     and finishing wastewater treatment                      Thallium HBL = 0.001 mg/L.
     sample is not characteristic of                         sludges, if DuPont were to isolate them.                NA: not analyzed.
     wastewater treatment sludge because                                                                             * Thallium was detected in some samples at
                                                             (1) Assessment of Industrial Landfill                 levels below the method detection limit.
     Iron RichTM consists predominantly of
     coke and ore solids. DuPont argued that                 Scenario for Wastewater Treatment                        As described previously, DuPont
     the coke and ore solids and the                         Sludges                                               argued that our thallium modeling
     wastewater treatment sludges are not                       Thallium: In its comments, DuPont                  results overestimate mobility,
     chemically similar.                                     contends that thallium is not present in              particularly as impacted by the thallium
        In particular, DuPont argued that the                its wastewater treatment sludges.                     Kd values we used. DuPont’s data
     wastewater treatment sludges generated                  DuPont provided data intended to                      indicate that at low concentrations (e.g.,
     at its three chloride-ilmenite facilities               support its claim that its wastewater                 on the order of 0.01 mg/L), thallium Kd’s
     do not contain manganese or thallium                    treatment sludges do not contain                      lie within the upper end of the range we
     (the two constituents for which we                      thallium. Analytical results submitted                used in the risk assessment for the
     proposed to list the waste as hazardous)                by DuPont for the wastewater treatment                proposed rule (>300 to ∼800 L/kg for the
     at levels of concern. To support its                    sludges generated at all three facilities             DuPont data vs. 1 to 1000 in the
     conclusion, DuPont collected 53                         indicate that samples analyzed by                     proposed rule). Taking these data into
     samples of its wastewater treatment                     DuPont contain no leachable thallium at               account, we expect that the hazard
     sludges and conducted total and SPLP                    levels above the HBL. However, as                     quotient for thallium in the wastewater
     leachate analyses of the samples for 20                 explained in our report, Assessment of                treatment sludges (which we had
     metals, including manganese and                         Analytical Data Submitted by DuPont in                estimated in the Iron Rich reduced
     thallium. DuPont used these analytical                  Response to Proposed Inorganic                        volume analysis for the proposed rule as
     results to argue that our risk assessment               Chemical Industry Hazardous Waste                     0.9 and 1.6 for a child at the 90th and
     would show significantly less risk if we                Determination for K178 (October 2001)                 95th percentiles, respectively) would be
     were to assess the wastewater treatment                 which can be found in the docket for                  reduced to below our listing threshold
     sludges alone (rather than as a                         today’s rule, we have significant                     for the industrial landfill scenario.
     component of the Iron RichTM). (As                      concerns with the laboratory results                  Consequently, we have changed our
     explained below, DuPont’s new totals                    provided by DuPont with regard to the                 position on thallium risks from
     and SPLP leachate data contained new                    presence of total and leachable thallium              wastewater treatment sludges in
     information on arsenic and antimony                     in the wastewater treatment sludges.                  industrial landfill scenarios. We no
     that caused us to reassess risks from                   Due to our concerns regarding the                     longer believe that thallium in these
     those constituents as well.)                            validity of DuPont’s SPLP analytical                  wastes poses significant risks.


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        Arsenic: The data that we collected to                  Antimony: As with arsenic, the data                increased the 10th percentile DAF that
     support the proposal at the Delaware                    we collected in support of the proposal               corresponds to our modeling run of 3.9
     and Tennessee facilities showed arsenic                 at the Delaware and Tennessee facilities              to 119, a 30-fold increase; this DAF
     levels exceeding the HBLs. However,                     showed antimony levels exceeding the                  would reduce the theoretical TCLP
     arsenic screened out when we assessed                   HBLs. Antimony screened out when we                   concentration well below the thallium
     the ground water to surface water                       assessed the ground water to surface                  HBL of 0.001 mg/L. Therefore, we are
     pathway at the Tennessee facility.                      water pathway at the Tennessee facility;              not concerned that thallium in the
     Similarly, our modeling of ground-water                 our modeling of ground-water risks at                 Delaware wastewater treatment sludges
     risks at the Delaware facility did not                  the Delaware facility did not predict                 is likely to pose risk in a municipal
     predict risks of concern.                               risks of concern.                                     solid waste landfill scenario.
        Analytical data DuPont submitted in                     Analytical data submitted by DuPont                   Antimony: In lieu of TCLP antimony
     its comments indicate that the                          in comments indicate that the combined                data, we assessed the total antimony
     combined wastewater treatment sludges                   wastewater treatment sludges generated                levels in DuPont’s SW–846 Method
     generated at the company’s DeLisle,                     at the DeLisle plant have average                     6010 analyses of combined exempt and
     Mississippi facility have arsenic levels                antimony levels (0.026 mg/L, as                       non-exempt wastewater treatment
     (as measured by the SPLP) significantly                 measured by the SPLP) comparable to                   sludge: antimony levels ranged from 1.9
     above those that we observed from our                   those we observed in our sampling and                 to 3.8 mg/kg and were detected in all
     sampling and analysis of the Iron                       analysis of the Iron RichTM (0.02 mg/L)               eight of the sludge samples. Each of
     RichTM generated at the Delaware                        and Johnsonville wastewater treatment                 these values was detected above the
     facility and the Hillside Pond sludge                   sludge (0.021 mg/L). We do not believe                instrument detection limits, but below
     generated at the Tennessee facility. (See               these levels pose risk that warrants                  the method detection limit. See
     our review of these data in Appendix C                  listing as hazardous waste.                           Appendix C of Assessment of Analytical
     of Assessment of Analytical Data                                                                              Data Submitted by DuPont in Response
                                                             (2) Assessment of Municipal Landfill
     Submitted by DuPont in Response to                                                                            to Proposed Inorganic Chemical
                                                             Scenario for Wastewater Treatment
     Proposed Inorganic Chemical Industry                                                                          Hazardous Waste Determination for
                                                             Sludges
     Hazardous Waste Determination for                                                                             K178, October 2001. Although we
     K178, October 2001.) DuPont’s data                         We assessed the municipal landfill                 generally would not rely on this type of
     show that the average arsenic SPLP                      scenario as plausible for the Delaware                tentative data for the purposes of listing
     levels in the wastewater treatment                      wastewater treatment sludges. (See the                a waste, we used these values as worst
     sludges generated at the Mississippi                    discussion below related to the                       case concentrations for the purposes of
     facility range between 0.031 and 0.11                   plausibility of this scenario for ferric
                                                                                                                   screening out the municipal solid waste
     mg/L, while the HBL for arsenic is                      chloride solids, another component of
                                                                                                                   landfill scenario for the non-exempt
     0.0007 mg/L.                                            the combined solids generated by the
                                                                                                                   portion of the wastewater treatment
        We do not predict that these data                    Delaware facility.) For the reasons set
                                                                                                                   sludge.
     would support a hazardous waste listing                 out above, we assumed that the                           Initially, we calculated a maximum
     determination. Based on other modeling                  comparable Tennessee and Mississippi                  theoretical TCLP value using the
     for potential ground-water releases at                  sludges will continue to be managed on                maximum total antimony value reported
     the Mississippi site, the wastes are                    site in existing DuPont landfills.
                                                                                                                   for the wastewater treatment sludge (i.e.,
     unlikely to present significant risks. The              Although DuPont did not conduct TCLP
                                                                                                                   3.8 mg/L divided by 20), yielding a
     Mississippi site-specific modeling for                  analyses of the Delaware wastewater
                                                                                                                   worst case TCLP value of 0.19 mg/L.
     the proposed rule yielded relatively                    treatment sludges, we were able to
                                                                                                                   While this value clearly exceeds the
     high dilution and attenuation factors                   assess the total constituent analyses and
                                                                                                                   antimony HBL of 0.006 mg/L, we
     (DAF) for metals. For example, the 10th                 conclude that these solids would not
                                                                                                                   recognized that the wastewater
     percentile DAFs ranged from 865 to                      likely pose risk if managed in a
                                                                                                                   treatment sludge is comprised of exempt
     8,859 (see Table 4–64 in the risk                       municipal landfill.
                                                                Thallium: DuPont did not detect                    and non-exempt components, and that
     assessment background document in the                                                                         some proportion of this HBL exceedance
     docket for the proposal, Risk                           thallium in any of its eight samples of
                                                             the Delaware wastewater treatment                     would be associated with the exempt
     Assessment for the Listing
                                                             sludges, with the exception of one value              solids that are outside the scope of this
     Determinations for Inorganic Chemical
                                                             of 0.22 mg/kg that was qualified as                   listing determination. To isolate the
     Manufacturing Wastes: Background
                                                             questionable due to detection of                      portion of the risk that is associated
     Document, August 2000). Therefore, it is
                                                             thallium in associated analytical blanks.             with the non-exempt wastewater
     unlikely that the arsenic levels found in
                                                             For the purposes of a worst case                      treatment sludges derived from
     the Mississippi facility’s wastewater
                                                             screening analysis, we used this                      treatment of oxidation and finishing
     treatment sludges would present a
                                                             qualified value as a theoretical                      wastewaters, we used DuPont’s
     significant risk, particularly given that
                                                             maximum concentration, and then                       antimony analytical data for its major
     we believe these wastewater treatment
                                                             calculated a corresponding maximum                    oxidation and finishing wastewater (RIN
     sludges will continue to be managed on-
     site. The facility reported in its § 3007               theoretical TCLP concentration of 0.011               13, dryer scrubber water) 28 to estimate
     survey that the landfill is not scheduled               mg/L. To determine whether the                        what the concentration of antimony
     to close until 2014. Given this readily                 commenter’s concerns regarding the                    would be in the wastewater treatment
     available management capacity, we do                    thallium distribution coefficient would               sludge if (1) all of the antimony in this
     not expect the facility would change                    reduce this hazard quotient below the                 wastewater were concentrated in the
     their current practices and incur costs                 listing threshold, we assessed the                    sludge, and (2) this wastewater was the
     associated with shipment and offsite                    commenter’s modeling runs. In their                   only source of antimony contributing to
     commercial waste management.                            late comments, DuPont provided the                    the sludge antimony concentration. We
     Therefore, we have decided not to list                  results of a Monte Carlo run for thallium               28 See Appendix C of Assessment of Analytical
     the wastewater treatment sludges based                  using a Kd of 300 L/kg (which DuPont                  Data Submitted by DuPont in Response to Proposed
     on the presence of arsenic in the sludges               stated was the appropriate value for this             Inorganic Chemical Industry Hazardous Waste
     generated at the Mississippi plant.                     leachate concentration), which                        Determination for K178, October 2001.



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     58278            Federal Register / Vol. 66, No. 224 / Tuesday, November 20, 2001 / Rules and Regulations

     estimated this maximum theoretical                      actual risk associated with arsenic in                chloride residues also have been
     total concentration of antimony from                    this waste would likely not exceed the                accumulating at the Delaware site in the
     oxidation and finishing wastewaters in                  listing threshold if we conducted full-               facility’s Cherry Island staging area as a
     the wastewater treatment sludge to be                   scale risk assessment without so many                 component of Iron RichTM. To the extent
     0.036 mg/kg (see Response to Comments                   compounding conservative                              that the accumulated Iron RichTM is
     Background Document in the docket for                   assumptions. These assumptions                        actively managed after the effective date
     today’s rule for the details of this                    include: (1) We do not have actual TCLP               of today’s rule, those residues also will
     calculation). This concentration is                     data for this wastewater treatment                    be subject to the listing.
     significantly lower than the measured                   sludge and have made worst case                          In addition, while the Delaware
     antimony levels in the total wastewater                 assumptions by assuming all the arsenic               facility is the only site currently
     treatment sludge samples, indicating                    would leach out; (2) this screening                   impacted by this final listing, if other
     that the non-exempt portion of the                      analysis overestimates risk because it                chloride-ilmenite plants began
     wastewater treatment sludge does not                    was based on the entire volume of Iron                manufacturing ferric chloride for sales,
     contribute much antimony loading to                     Rich, while the wastewater treatment                  any residues separated from their ferric
     the overall sludge volume. Finally, to                  sludge volume only accounts for 10                    chloride after initiation of ferric
     complete this screening analysis, we                    percent of the Iron Rich, and the non-                chloride manufacturing also would be
     projected a maximum theoretical TCLP                    exempt portion of the wastewater                      subject to the listing.
     value of 0.002 mg/L from the maximum                    treatment sludge volume is very small;                   Several commenters requested that we
     non-exempt antimony sludge                              (3) this analysis relies on total arsenic             clarify whether the listing will impact
     concentration by dividing the total                     concentrations that we estimated from                 solids that may settle out of or be
     value by 20. This TCLP maximum value                    analytical results that were below the                removed from ferric chloride after the
     is below the HBL of 0.006 mg/L. We                      method detection limit, which increases               acid has been sold and transferred off-
     conclude from this analysis that it is                  their uncertainty; (4) correcting the                 site. We intended to list only solids
     unlikely that the non-exempt portion of                 ground-water mounding problem                         from the manufacture of ferric chloride.
     the wastewater treatment sludge would                   identified by the commenter (see section              Our listing covers only residues
     pose risk from antimony if the waste                    6.d above) also would tend to lower the               generated while ferric chloride is being
     were placed in a municipal solid waste                  estimated risk. After considering all of              made and additional residues that settle
     landfill.                                               these factors, we do not believe we have              out while the product is stored on-site
                                                             sufficient evidence to list the non-                  at the ferric chloride manufacturing
        Arsenic: Although we have TCLP data                                                                        facilities (since that on-site storage is
     for the combined Delaware facility                      exempt portion of the wastewater
                                                             treatment sludge based on arsenic risk.               associated so closely with the
     wastestreams that make up Iron Rich,                                                                          manufacturing of the product). We did
     we have no TCLP data for the                            The details of this analysis are provided
                                                             in the docket for today’s rule.                       not intend for the listing to extend to
     wastewater treatment sludge component                                                                         residues that might be generated after
     of this waste. Also, DuPont did not                     (3) What Is the Final Listing                         this product is sent off-site. We have no
     conduct TCLP analysis of this waste in                  Determination for Wastewater                          data on management practices used off-
     its post-proposal sampling effort. In lieu              Treatment Sludges?                                    site to ascertain how frequently ferric
     of such data, we estimated TCLP                            We have made a final decision not to               chloride purchasers or intermediates
     leachate values for the sludge by starting              list the non-exempt wastewater                        store ferric chloride purchased from
     with the total arsenic levels in DuPont’s               treatment sludges because we do not                   various sources in the same tank. Nor do
     data for Delaware wastewater treatment                  believe this waste is likely to pose risk             we have any analytical data to
     sludge and calculating a theoretical                    in either an industrial solid waste                   characterize any residues that might
     maximum TCLP value. Specifically,                       landfill or a municipal solid waste                   settle out from these off-site storage
     DuPont’s ICP analysis indicated that                    landfill, the plausible management                    tanks. Therefore, we are clarifying that
     arsenic was present in four of eight                    scenarios for this waste.                             the listing does not include residues
     samples at levels above the instrument                                                                        removed from ferric chloride after sale
     detection limit, but below the method                   8. Ferric Chloride Residues                           and transfer off-site. Note that residues
     detection limit. The average of these                      Since we concluded that the                        generated off-site from storage and use
     four values was 4.0 mg/kg. Although we                  vanadium component of the combined                    of the ferric chloride acid product are
     generally would not rely on this type of                waste solids was Bevill-exempt, and                   not subject to the Consent Decree
     tentative data for the purposes of listing              found that the wastewater treatment                   requirements for today’s final rule
     a waste, we used these values as worst                  sludge component did not pose risks                   because ferric chloride use was not
     case concentrations for the purposes of                 justifying a listing, we assessed the last            covered by the Consent Decree. We also
     our screening analysis. The theoretical                 component of the combined solids                      note that such residues would be subject
     maximum TCLP value associated with                      separately. As explained below, we                    to regulatory control if they exhibit any
     this average total concentration is 0.2                 concluded that this component does                    of the hazardous waste characteristics.
     mg/L (4.0 mg/kg /20). We then used this                 pose significant risks, and we are taking
     value (instead of the measured Iron                                                                           b. Summary of Available Data
                                                             action to list it today.
     RichTM TCLP value) to extrapolate risk                                                                           We conclude that the ferric chloride
     from the risk values calculated for the                 a. Where Are Non-Exempt Ferric                        residues closely resemble the Iron
     proposal. This worst case analysis                      Chloride Residues Generated?TM                        RichTM samples that we collected, as
     indicated that there could be risk (i.e.,                  Ferric chloride residues that are                  well as those Iron RichTM samples
     2E–04) higher than our listing threshold;               subject to today’s listing are generated at           collected by DuPont. Coke and ore
     however, this analysis seriously                        the Delaware plant wherever solids                    solids are removed from the titanium
     overstated the potential risk associated                settle or are removed from the acid                   tetrachloride process in several steps at
     with placing the non-exempt portion of                  stream after initiation of ferric chloride            the Delaware facility (all other chloride
     the Delaware wastewater treatment                       manufacturing. Examples include                       and chloride-ilmenite plants generate
     sludge in a municipal solid waste                       residues that accumulate in acid storage              these solids in one step). The bulk of the
     landfill for a number of reasons. The                   tanks or surface impoundments. Ferric                 solids are removed in a primary solids


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                          Federal Register / Vol. 66, No. 224 / Tuesday, November 20, 2001 / Rules and Regulations                                                                            58279

     separation step at the Delaware facility,                             effect that the ferric chloride residues                this final rule (antimony, arsenic, and
     and the ferric chloride residues are                                  were more or less contaminated than the                 thallium).30
     removed in the subsequent condenser                                   primary solids. We, therefore, conclude                    As explained below, DuPont’s new
     step.29 The only difference between                                   that the data characterizing the                        data do not persuade us that this waste
     these streams is that: (1) The ferric                                 commingled Iron RichTM, which is 80                     does not present significant risks. Even
     chloride residue contains the                                         percent primary solids and 10 percent                   with DuPont’s data, we continue to
     contribution of vanadium impurities                                   ferric chloride residues, is an
                                                                                                                                   predict significant risks in offsite
     (described previously in section 5.a                                  appropriate surrogate for the ferric
                                                                                                                                   municipal landfills.
     above); and (2) the ferric chloride                                   chloride residues. (The remaining 10
     residue would also contain potentially                                percent of the total volume consists of                    Finally, we noted that DuPont’s data
     higher concentrations of iron chlorides.                              the wastewater treatment sludges                        on antimony and arsenic show higher
     The risks we are assessing are not                                    discussed above).                                       concentrations than our data. We
     related to either vanadium or iron                                       Table IV–5 summarizes the available                  reviewed this data and concluded that
     chloride compounds. Both categories of                                and valid EPA and DuPont analytical                     it did not support a listing based on an
     waste are commingled to form Iron                                     data (focusing on ICP analytical results,               offsite industrial landfill scenario.
     RichTM. DuPont described both                                         as described previously) for Iron RichTM                DuPont’s TCLP data for antimony and
     categories of waste as being ‘‘coke and                               for the three metals that we modeled for                arsenic are somewhat uncertain, if valid,
     ore’’ and provided no arguments to the                                the proposed listing and are assessing in               it would tend to corroborate our listing.
                                                          TABLE IV–5. SUMMARY OF ANALYTICAL DATA FOR IRON RICHTM
                                                                                 [As surrogate for ferric chloride residues]

                                                                                               DuPont analyses
                                                                                                                                                      EPA sample DPE–                   Health based
           Constituent                  Analysis                                                                                                           SO–01                        level (mg/L)
                                                           EMI–1       EMI–2       EMI–3       EMI–4      EMI–5       EMI–6    EMI–7    EMI–8

     Antimony ..................     Total ...........     3.5         3.66         3.55       <2.2       <2.2         3.96     3.11     3.17        0.9 ............................   ......................
                                     TLCP ..........       0.17       <0.155       <0.155      <0.155     <0.155      <0.155   <0.155   <0.155       0.021 ........................                0.006
                                     SPLP ..........       0.0571     <0.031        0.044       0.041      0.056       0.048   <0.031    0.0248      0.02 ..........................    ......................
     Arsenic .....................   Total ...........    <3.1         4.33        <3.1        <3.1       <3.1        <3.1      4.96    <3.1         2.2 ............................   ......................
                                     RCLP ..........      <0.22       <0.22        <0.22       <0.22      <0.22       <0.22    <0.26    <0.22        <0.0035 ....................                  0.0007
                                     SPLP ..........      <0.043      <0.043       <0.043      <0.043     <0.043      <0.043   <0.043   <0.043       0.001 (1) ..................       ......................
     Thallium ....................   Total ...........    <7.1        <7.1         <7.1        <7.1       <7.1        <7.1     <7.1     <7.1         3.7 ............................   ......................
                                                                                                                                                     23.6 Dupont split
                                                                                                                                                       analysis.
                                                                                                                                                     18.4, EPA analysis
                                                                                                                                                       at 10x dilution.
                                     TCLP ..........      <0.250      <0.250       <0.250      <0.250     <0.250      <0.250   <0.250   <0.250       0.28 ..........................               0.001
                                                                                                                                                     0.27 EPA duplicate
                                                                                                                                                       analysis.
                                     SPLP ..........      <0.050      <0.050       <0.050      <0.050     <0.050      <0.050   <0.050   <0.050       0.012 ........................     ......................
       (1) Results are less than the typical laboratory reporting limit, but are greater than the calculated instrument detection limits.


     c. Assessment of Industrial Solid Waste                               industrial landfill scenario. DuPont                    thallium Kd’s lie within the upper end
     Landfill Scenario for Ferric Chloride                                 reported that the ferric chloride residues              of the range we used in the risk
     Residues                                                              account for 10 percent of the Iron                      assessment for the proposed rule.
                                                                           RichTM volume. Therefore, we believe                    Specifically, DuPont’s data indicate that
        To respond to DuPont’s comments,                                   that the reduced volume analysis                        the Kd’s range from >300 to ∼800 L/kg,
     we reexamine our proposed findings                                    conducted for the proposed rule (see 65                 while the Kd values we used in our
     regarding significant risk in an off-site                             FR 55763) is an appropriate framework
     industrial solid waste landfill scenario                                                                                      modeling for the proposal ranged from
                                                                           to use in reexamining risks for the ferric              1 to 1,000, with a median of 30. Taking
     for the ferric chloride residues generated                            chloride residues.
     at the Delaware facility. As discussed                                                                                        these data into account, we expect that
                                                                              Our reexamination, using DuPont’s                    the hazard quotient for thallium in the
     earlier, this plant is the only generator                             SPLP results is presented below.
     of the ferric chloride residues from the                                                                                      ferric chloride residues (which we had
                                                                              Thallium: DuPont’s thallium SPLP
     production of ferric chloride and this                                                                                        estimated in the Iron RichTM reduced
                                                                           detection limits (<0.050 mg/L) exceed
     plant has no on-site capacity for                                     our analytical result of 0.012 mg/L. We                 volume analysis for the proposed rule as
     landfilling. The plant is currently                                   do not believe DuPont’s data refutes                    0.9 and 1.6 for a child at the 90th and
     shipping the waste off-site for Subtitle D                            ours. While we found risk at proposal                   95th percentiles, respectively) would be
     landfilling; clearly our modeled                                      associated with our analytical results,                 reduced to below our listing threshold
     management scenario continues to be                                   we believe the commenter’s previously                   for the industrial landfill scenario
     relevant.                                                             discussed concerns regarding the                        because the higher Kd’s measured by
        The proposal described risk                                        thallium distribution coefficient (see                  DuPont would result in more
     associated with the entire volume of                                  section 6.c above) have merit. DuPont’s                 attenuation in the modeled aquifer, and
     Iron RichTM, as well as with a reduced                                data indicate that at low concentrations                consequently lower ground-water
     volume (10%) of waste, in an off-site                                 (e.g., on the order of 0.01 mg/L),                      concentrations and, therefore, less risk.
        29 DuPont described the process at p. 3.4 of their                 separation. Following this separation, the hot gas is   suspended solids (e.g., iron chloride and un-reacted
     11/13/2000 comments as follows: ‘‘In equipment                        then condensed to obtain a crude liquid titanium        coke and ore).’’
     downstream of the reactor, crude gaseous titanium                     tetrachloride. The crude liquid must be further            30 As discussed in section IV.B, we are not taking
     tetrachloride is extracted from the majority of high                  purified to extract titanium tetrachloride from the
                                                                                                                                   final action on manganese in today’s rule.
     boiling metal chlorides and un-reacted coke and ore                   remaining non-titanium metal chlorides
     solids by condensation, drying, and gravity                           (particularly vanadium chlorides) and remaining



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     58280                 Federal Register / Vol. 66, No. 224 / Tuesday, November 20, 2001 / Rules and Regulations

        Antimony: DuPont’s average SPLP                                          particular, if we had run our                                                landfill scenario. We continue to believe
     antimony results for eight samples of                                       probabilistic model using DuPont’s                                           this scenario supports our decision to
     Iron RichTM was 0.038 mg/L, which is                                        eight values in our leachate                                                 list this waste. The practical difference
     slightly higher than but consistent with                                    concentration distribution, the impact of                                    between the Agency’s modeling of a
     our result of 0.02 mg/L. Using this                                         the maximum value would have been                                            municipal landfill scenario and an
     average value in our modeling                                               reduced and the resultant hazard                                             industrial solid waste landfill scenario
     framework, we estimate that we would                                        quotient likely would not have                                               is the leachate input parameter. As
     generate a hazard quotient of 0.76, still                                   exceeded one.                                                                described in the proposed rule (see 65
     below our listing threshold. (The                                              Arsenic: DuPont’s arsenic SPLP                                            FR 55695), we believe that the TCLP is
     ground-water model we used for the                                          detection limits (<0.043 mg/L) are too                                       the most appropriate leaching procedure
     proposed rule is linear with respect to                                     high to make any conclusions regarding                                       to use for wastes in the municipal
     leachate concentrations over a limited                                      risk or comparability to our 0.001 mg/                                       landfill scenario, while the industrial
     range, and thus when the only variable                                      L result for the Iron RichTM. Using our                                      landfill scenario is better modeled using
     being adjusted is leachate concentration,                                   data, we did not find risk supporting a                                      SPLP results.
     we can proportionately adjust the                                           proposed listing determination                                                  After the proposal, when we modified
     corresponding risk value to project what                                    associated with arsenic at the                                               our conclusion concerning the
     the risks would be if we were to re-run                                     concentrations we measured in the                                            industrial solid waste landfill scenario,
     the model.) While using DuPont’s                                            industrial solid waste scenario.                                             we took a closer look at risks from the
     maximum value likely would raise the                                                                                                                     municipal solid waste landfill. Using
     projected hazard quotient to 1.1, slightly                                  d. Assessment of Municipal Solid Waste                                       the reduced volume analysis described
     above the listing threshold of unity, we                                    Landfill Scenario for Ferric Chloride                                        in the proposal, as well as EPA’s TCLP
     do not feel that these results are                                          Residues                                                                     results described in Table IV–5, we
     sufficiently compelling to cause us to                                         The proposal also described                                               estimated risk results for the municipal
     expand the basis for listing to include                                     qualitatively that risks would be higher                                     solid waste landfill scenario, as
     antimony on Appendix VII for K178. In                                       if modeled in a municipal solid waste                                        presented in Table IV–6:

            TABLE IV–6.—GROUND-WATER PATHWAY RISK ASSESSMENT RESULTS FOR K178 MUNICIPAL LANDFILL SCENARIO
                             EXTRAPOLATED FROM REDUCED (10%) VOLUME ANALYSIS EPA DATA
                                                                                                                                                                                         Hazard quotients
                                                                     Constituents of concern                                                                                   90th%      90th%     95th%    95th%
                                                                                                                                                                                adult      child     adult    child

     Antimony ...........................................................................................................................................................        0.113      0.21      0.21     0.42
     Thallium ............................................................................................................................................................       9.3       21        18.7     37.3
        Note: Arsenic was not included in the reduced volume analysis for the proposal because of the low risk shown in the full volume analysis.


        We then examined DuPont’s new                                            late comments, DuPont provided the                                           by the commenter is of sufficient
     analytical data, and substituted it for                                     results of a Monte Carlo run for thallium                                    magnitude to change our conclusions.
     ours where warranted. We also took into                                     using a Kd of 300 L/kg, which increased                                      For these reasons, we continue to
     account the revisions to our ground-                                        the 10th percentile DAF that                                                 conclude that, in this scenario, thallium
     water modeling warranted by DuPont’s                                        corresponds to our modeling run of 3.9                                       still poses significant risks that serve as
     comments on the Kd for thallium and                                         to 119, a 30-fold increase; this DAF                                         a basis for listing.
     ground-water mounding (as described                                         would not reduce the hazard quotient                                            Antimony: One of DuPont’s Iron
     above). We still find significant risks                                     below the listing threshold. In previous                                     Rich TM samples (EMI–1) contained
     associated with thallium for a municipal                                    submittals, DuPont provided the results                                      antimony in the TCLP results (0.17 mg/
     landfill scenario. The following                                            of their Kd measurements, and identified                                     L) above DuPont’s analytical detection
     discussion expands upon this                                                one of the three soil matrices analyzed                                      limit and above the health-based limit
     conclusion.                                                                 as being particularly comparable to the                                      (0.006 mg/L), while the remaining seven
        Thallium: DuPont’s thallium TCLP                                         soils in the plant vicinity (i.e.,                                           DuPont samples did not contain
     detection limits (<0.250 mg/L) are too                                      Baptistown NJ loam). For the                                                 antimony above the detection limit
     high to make any conclusions regarding                                      concentration range of concern (i.e.,                                        (<0.155 mg/L). Because of the proximity
     risk or comparability to our 0.28 mg/L                                      0.28 mg/L), DuPont’s graphical analysis                                      of the detected value to the detection
     TCLP result. As discussed above in                                          of the measurement data indicates that                                       limit, it is not possible to determine
     section 6.b, we are unconvinced by                                          the thallium Kd for the Baptistown loam                                      whether the result is an anomaly.
     DuPont’s concerns regarding the                                             is approximately 200 L/kg. If DuPont                                         DuPont’s Sample EMI–1 results, if used
     validity of our analytical data.                                            had used this value in its Monte Carlo                                       in our modeling analysis, would
     Consequently, we have chosen to use                                         analysis, the resultant DAF would have                                       generate a hazard quotient above our
     our data in our reevaluating. The                                           been lower than 119, and the resultant                                       listing threshold (3.4 for the 95th%
     extrapolated hazard quotient of 37.3 in                                     hazard quotient would have still                                             child scenario). We are choosing not to
     the table above is well above our listing                                   exceeded the hazard quotient threshold                                       expand the basis for listing to include
     threshold of one. To determine whether                                      for listing of one. Furthermore, data for                                    antimony on Appendix VII for K178
     the commenter’s concerns regarding the                                      the Lynge, Denmark sandy loam show a                                         because of the uncertainty in the
     thallium distribution coefficient would                                     Kd that is even lower (∼140 L/kg) at this                                    analytical data provided by DuPont.
     reduce this hazard quotient below the                                       concentration level. In addition, as                                         Furthermore, the thallium results
     listing threshold, we assessed the                                          stated previously, we do not think that                                      provide sufficient basis to support a
     commenter’s modeling runs. In their                                         the ground-water mounding issue raised                                       hazardous waste listing.


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       Arsenic: The arsenic TCLP result for                   Island property to the adjacent Delaware              10. RCRA Versus HSWA Listing
     one of the eight DuPont samples (EMI–                    River. 33 Based on the dioxin risks                     At proposal, we took the position that
     7) exceeds the Agency’s HBL by a factor                  predicted by this modeling, DuPont                    we were promulgating all of the listings
     of 371. Because of the proximity of the                  indicated that it will undertake                      under section 3001(e) of RCRA, a
     detection limits for DuPont’s other                      significant changes in waste                          provision added by the Hazardous and
     samples to the detected value, we                        management practices to minimize                      Solid Waste Amendments of 1984
     cannot determine whether or not this                     potential releases of the Iron Rich TM to             (HSWA). Rules promulgated under
     result is an anomaly. In addition, we did                the environment, and is investigating                 HSWA authorities take effect in all
     not conduct modeling for arsenic in our                  the effectiveness of various process                  states at the same time. Because of the
     reduced volume analysis and, therefore,                  changes to reduce dioxin levels in its                changes to the scope of the K178 listing
     cannot (in the time remaining before the                 waste.                                                in response to public comments, we are
     consent decree deadline) project risk                       We continue to believe that the                    now classifying the K178 listing
     associated with the ferric chloride                      presence of dioxins and furans in the                 determination as a non-HSWA listing
     residues waste volume. We are choosing                   ferric chloride residues is a supporting              because, as explained above in the
     not to expand the basis for listing to                   basis for listing this waste as hazardous.            discussion of the Bevill exemption, we
     include arsenic on Appendix VII for                      While we have elsewhere stated that the               consider it to be a waste from the
     K178 because of the uncertainty in the
                                                              dioxin content in the titanium dioxide                production of ferric chloride, not a
     analytical data provided by DuPont.
                                                              wastes is closely linked to the Bevill                waste from the production of titanium
     Furthermore, the thallium results
                                                              exempt solids, the ferric chloride                    dioxide.
     provide sufficient basis to support a
                                                              residues subject to today’s listing would               Section 3001(e)(2) of RCRA, a HSWA
     hazardous waste listing.
       In summary, our modeling, using both                   be eligible for Bevill exemption if it                provision, specifies a list of industries
     our analytical data as well as DuPont’s                  were not for the processing (i.e.,                    for which the Agency is to assess and
     indicates that the ferric chloride                       addition of trim chlorine) that signifies             make listing determinations on the
     residues warrant being listed as                         that the facility has initiated production            wastes generated by those industries.
     hazardous waste due to potential                         of ferric chloride. Solids from                       The ED Consent Decree identifies the
     thallium risks associated with the                       production of ferric chloride are not                 scope of our obligations under section
     municipal landfill scenario.                             eligible for the special mineral                      3001(e)(2). It does not require EPA to
                                                              processing exemption provided for                     assess wastes from the production of
     e. Dioxin Content as an Additional                       solids from titanium tetrachloride                    ferric chloride. Consequently, EPA is
     Supporting Risk Factor                                   production. Therefore, we conclude that               using its ‘‘pre-HSWA’’ listing authority
        As described in the proposal, our data                the ferric chloride solids contain                    under section 3001(b)(1) to identify
     demonstrate that Iron Rich TM contains                   significant concentrations of dioxins                 these ferric chloride residues as listed
     levels of polychlorinated dibenzo-p-                     and furans.                                           hazardous wastes. As such, this non-
     dioxins and dibenzofurans that exceed                                                                          HSWA listing will become effective in
                                                              9. Conclusions
     our soil ingestion level for these                                                                             authorized states as a matter of state law
     compounds. Dioxin and furan                                 We believe we have sufficient basis to             once the states adopt the listing; it will
     concentrations are commonly converted                    list non-exempt ferric chloride residues              become effective under federal law
     to an equivalent concentration (TEQ) of                  as hazardous wastes. Our data indicate                when EPA approves revisions to the
     2,3,7,8-tetrachlorodibenzo-p-dioxin, the                 that thallium is readily mobilized from               states’ programs.
     most toxic of the PCDDs and PCDFs.                       this waste in a municipal landfill                    E. What Is the Status of Landfill
     Using the toxicity equivalent factors                    scenario, at levels that are likely to                Leachate Derived From Newly-Listed
     developed by the World Health                            exceed health-based thresholds in                     K176, K177, and K178 Wastes?
     Organization, 31 we estimate that Iron                   drinking water. While the commenter
     Rich TM contains 58 parts per trillion of                provided information that suggests the                   As noted in the proposed rule,
     TCDD equivalents, a concentration that                   risks may be somewhat reduced from                    actively managed landfill leachate and
     exceeds our soil ingestion health-based                  those we described at proposal, the risks             gas condensate generated at non-
     limit.                                                   for thallium in the municipal scenario                hazardous waste landfills derived from
        In a meeting with EPA 32, DuPont                      continue to exceed our listing                        previously-disposed and newly-listed
     indicated that the company’s analyses of                 thresholds. Therefore, we are finalizing              wastes could be classified as K176,
     its wastes showed an average TCDD                        the listing as:                                       K177, or K178. We proposed to
     equivalent concentration of 1.1 parts per                                                                      temporarily defer the application of the
     billion, twenty times higher than our                    K178 Residues from manufacturing                      new waste codes to such leachate to
     measured values in a sample collected                       and manufacturing-site storage of                  avoid disruption of ongoing leachate
     at the DuPont Delaware facility. DuPont                     ferric chloride from acids formed                  management activities while the Agency
     conducted a limited risk assessment of                      during the production of titanium                  decides if any further integration is
     potential releases of the Iron Rich TM                      dioxide using the chloride-ilmenite                needed of the RCRA and CWA
     currently stockpiled on DuPont’s Cherry                     process (T)                                        regulations consistent with RCRA
                                                              We view this separate waste as a waste                section 1006(b)(1).
       31 Van  den Berg, M.L. Birnbaum, A.T.C. Bosveld,       from the production of ferric chloride,                  We are finalizing the revisions to the
     et al. 1998. Toxic Equivalency Factors (TEFs) for
                                                              not a waste from the production of                    temporary deferral in § 261.4(b)(15) with
     PCBs, PCDDs, PCDFs for Humans and Wildlife.                                                                    no change from the proposed rule. One
     Environmental Health Perspectives 106: 775–792.          titanium dioxide. Therefore, we do not
        32 ‘‘Summary of Meeting Between EPA’s Office of       consider it to be subject to either the               commenter supported the proposed
     Solid Waste and Representatives from Dupont,             Consent Decree or section 3001(e)(2) of               deferral; however, the commenter was
     April 3, 2001. Also, see letters to Lillian Bagus, EPA   RCRA.                                                 concerned about uncertainties for
     from Gregg W. Martin, DuPont re ‘‘Edge Moor Iron                                                               landfill operators in leachate
     RichTM Staging Area Screening Assessment,’’ dated
     April 16, 2001, and ‘‘Edge Moor Iron Rich Staging          33 Letters to Lillian Bagus, EPA from Gregg W.      management requirements based on
     Area Screening Assessment Unit Correction,’’ dated       Martin, DuPont dated April 16, 2001 and April 27,     different approaches used in recent
     April 27, 2001.                                          2001.                                                 listings. The commenter sought a single


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     58282            Federal Register / Vol. 66, No. 224 / Tuesday, November 20, 2001 / Rules and Regulations

     solution to the derived-from issue for                  C hazardous waste landfills (40 CFR                   practices for wastes that will be listed
     leachate and suggested that the                         264, subpart N) and municipal solid                   by this action. These data can be found
     opportunity exists under either the                     waste landfills that accept hazardous                 in the administrative record for this
     CWA effluent guidelines or the                          wastes from conditional exempt small                  final rule. An examination of the
     Hazardous Waste Identification Rule                     quantity generators (40 CFR 258.40).                  constituents that are the basis of the
     (HWIR).                                                 The goal of those regulations is to                   listings shows that we have previously
        As we noted in the proposal, we                      prevent leachate from infiltrating                    developed numerical treatment
     believe a temporary deferral is                         ground water. Determining whether                     standards for most of the constituents.
     warranted. We believe that it is                        these or other types of landfills need                We have determined that it is
     appropriate to defer regulation on a                    additional controls addressing leak                   technically feasible and justified to
     case-by-case basis to avoid disrupting                  detection and leachate control systems                apply existing universal treatment
     leachate management activities, and to                  and their impact on their NPDES                       standards (UTS) to the hazardous
     allow us to decide whether any further                  discharges is a major effort well beyond              constituents in K176, K177, and K178
     integration of the two programs is                      the scope of this rulemaking.                         that were found to be present in these
     needed.34 While the commenter                                                                                 wastes at concentrations exceeding the
                                                             F. What Are the Final Treatment                       treatment standards, because the waste
     suggested there were ‘‘uncertainties’’ in
                                                             Standards Under RCRA’s Land Disposal                  compositions are similar to other wastes
     leachate management requirements, no
                                                             Restrictions for the Newly-Listed                     for which applicable treatment
     specific problems were identified. In
                                                             Hazardous Wastes?                                     technologies have been demonstrated.35
     any case, a broader exemption for
     landfill leachate under another                         1. What Are EPA’s Land Disposal                       A list of the regulated hazardous
     regulatory program is beyond the scope                  Restrictions (LDRs)?                                  constituents and their associated
     of the current rulemaking.                                                                                    treatment limits can be found below in
                                                                RCRA requires us to establish
        We also received one other related                                                                         Table IV–7 and in the regulatory Table
                                                             treatment standards for all hazardous
     comment concerning the existing                                                                               268.40—Treatment Standards for
                                                             wastes destined for land disposal. These
     exclusion for industrial wastewater                                                                           Hazardous Wastes.
                                                             are the ‘‘land disposal restrictions’’ or                We have provided in the BDAT
     discharges that are regulated under the                 LDRs. For any hazardous waste
     National Pollutant Discharge                                                                                  Background Document a review of
                                                             identified or listed after November 8,                technologies that can be used to meet
     Elimination System (NPDES) Permit                       1984, we must promulgate LDR
     Program. Such discharges are                                                                                  the numerical concentration limits for
                                                             treatment standards within six months                 K176, K177, and K178, assuming
     specifically excluded from regulation as                of the date of identification or final
     hazardous wastes under 40 CFR                                                                                 optimal design and operation. Where we
                                                             listing (RCRA section 3004(g)(4), 42                  are promulgating numerical
     261.4(a)(2). The commenter apparently                   U.S.C. 6924(g)(4)). RCRA also requires
     is concerned about discharges of landfill                                                                     concentration limits, the use of other
                                                             us to set as these treatment standards                technologies capable of achieving the
     leachate, and suggested that EPA should                 ‘‘* * * levels or methods of treatment,
     issue regulations to ensure that landfills                                                                    treatment standards is allowed, except
                                                             if any, which substantially diminish the              for those treatment or reclamation
     have adequate leak detection/leachate                   toxicity of the waste or substantially
     collection systems and that these                                                                             practices constituting land disposal or
                                                             reduce the likelihood of migration of                 impermissible dilution (see 40 CFR
     systems are not infiltrated by ground                   hazardous constituents from the waste
     water. The commenter is concerned that                                                                        268.3).
                                                             so that short-term and long-term threats                 EPA would like to take this
     leachate may be diluted with ground                     to human health and the environment
     water in these systems to meet discharge                                                                      opportunity to reiterate how treatment
                                                             are minimized.’’ (RCRA section                        standards are established and the role of
     standards.                                              3004(m)(1), 42 U.S.C. 6924(m)(1).)
        The regulation in 40 CFR 261.4(a)(2)                                                                       risk-based standards in treatment
                                                                Once a hazardous waste is prohibited               standard development. This policy is
     excludes any industrial wastewater                      from land disposal, the statute provides
     point source discharges that are ‘‘subject                                                                    well documented in past LDR
                                                             only two options for legal land disposal:             rulemakings, including the Phase IV
     to regulation under section 402 of the                  meet the treatment standard for the
     Clean Water Act, as amended.’’ This                                                                           rulemaking (May 26, 1998; 63 FR
                                                             waste prior to land disposal, or dispose              28556). Dilution and attenuation are
     language follows closely the statutory                  of the waste in a land disposal unit that
     exclusion from the definition of solid                                                                        typically considered in the risk
                                                             satisfies the statutory ‘‘no migration’’              assessment, but are not used in the
     waste (section 1004(27) of RCRA). The                   test. A ‘‘no migration’’ unit is one from
     regulations do not include any                                                                                development of treatment standards.
                                                             which there will be no migration of                   The treatment standards represent a
     limitations on the types of landfills that              hazardous constituents for as long as the
     might use such a permitted discharge.                                                                         calculation of the expected performance
                                                             waste remains hazardous. (RCRA                        range of an applicable technology
        The commenter did not present any                    sections 3004 (d), (e), (f), and (g)(5).) The
     reason why regulations might be needed                                                                        operating on a difficult to treat waste
                                                             antimony oxide wastes identified for                  such that 99 percent of the batches meet
     to ensure dilution from local ground                    listing as hazardous in this rule under
     water does not occur prior to collection.                                                                     the standard. All land disposal
                                                             HSWA authorities will be subject to all               restriction treatment standards must
     We also note that regulations are already               the land disposal restrictions on the
     in place for the design and operation of                                                                      satisfy the requirements of RCRA
                                                             date that the federal listing becomes                 section 3004(m) by specifying levels or
     leachate collection systems for Subtitle                effective (six months after promulgation              methods of treatment that
        34 EPA’s Office of Water recently examined the
                                                             of this final rule). The non-HSWA ferric              ‘‘’substantially diminish the toxicity of
     need for national effluent limitations guidelines and   chloride (K178) listing will not be                   the waste or substantially reduce the
     pretreatment standards for wastewater discharges        subject to LDR restrictions until                     likelihood of migration of hazardous
     (including leachate) from certain types of landfills    authorized states revise their regulations            constituents from that waste so that
     (see proposed rule at 63 FR 6426, February 6, 1998)     and obtain EPA approval of revisions to
     EPA decided such standards were not required and
     did not issue pretreatment standards for Subtitle D     their authorized state programs.                        35 Also see LDR Phase II final rule, 59 FR 47982,

     landfill wastewaters sent to POTWs (see 65 FR              We gathered data on waste                          September 19, 1994, for a further discussion of
     3008, January 19, 2000).                                characteristics and current management                UTS.



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                      Federal Register / Vol. 66, No. 224 / Tuesday, November 20, 2001 / Rules and Regulations                                                  58283

     short-term and long-term threats to                     treatment residuals from treatment of                       4. What Are the Treatment Standards for
     human health and the environment are                    K176 (which under the derived-from                          K178? (Solids From Manufacturing and
     minimized.’’’’ As EPA has discussed                     rule also will be considered K176), the                     Manufacturing-Site Storage of Ferric
     many times, the RCRA section 3004(m)                    wastewater treatment standards are as                       Chloride From Acids Formed During the
     requirements may be satisfied by                        follows: antimony is 1.9 mg/L; arsenic is                   Production of Titanium Dioxide Using
     technology-based standards or risk-                     1.4 mg/L; cadmium is 0.69 mg/L; lead                        the Chloride-Ilmenite Process)
     based standards. This conclusion was                    is 0.69 mg/L; and mercury is 0.15 mg/
     upheld in Hazardous Waste Treatment                     L.                                                             The constituents of concern in this
     Council v. EPA, 886 F.2d 355, 362–64                                                                                waste described in our proposal were
     (D.C. Cir. 1989), where technology-                     3. What Are the Treatment Standards for                     thallium, manganese, and the
     based LDR treatment standards were                      K177? (Slag From the Production of                          chlorinated congeners of dibenzo-p-
     upheld as a permissible means of                        Antimony Oxide that Is Speculatively                        dioxin and dibenzofuran. We proposed
     implementing RCRA section 3004(m)                       Accumulated or Disposed, Including                          to apply the UTS levels to thallium and
     provided they did not require treatment                 Slag From the Production of
                                                                                                                         the chlorinated congeners of dibenzo-p-
     beyond the point at which threats to                    Intermediates (e.g., Antimony Metal or
                                                                                                                         dioxin and dibenzofuran, as indicated
     human health and the environment are                    Crude Antimony Oxide))
                                                                                                                         in Table IV–7. In addition, we proposed
     minimized.                                                                                                          the option of complying with the
                                                                The identified constituents for which
     2. What Are the Treatment Standards for                 treatment is required prior to land                         technology standard of combustion
     K176? (Baghouse Filters From the                        disposing this waste are antimony,                          (CMBST) for the chlorinated dibenzo-p-
     Production of Antimony Oxide,                           arsenic, and lead. We proposed the UTS                      dioxin and dibenzofuran (dioxins and
     Including Filters From the Production of                levels for these constituents as the                        furans) constituents present in K178.
     Intermediates (e.g., Antimony Metal or                  treatment standards for K177 wastes. No                     For manganese we proposed, as our
     Crude Antimony Oxide))                                  commenters challenged either the                            leading option, a nonwastewater
        The identified constituents for which                applicability or achievability of the                       treatment standard of 3.6 mg/L TCLP
     treatment is required prior to land                     universal treatment standards proposed                      based upon a high temperature metals
     disposing this waste are antimony,                      to be transferred to K177 wastes. We are                    recovery technology and wastewater
     arsenic, cadmium, lead, and mercury.                    promulgating the proposed standards                         treatment standard of 17.1 mg/L
     No commenters challenged either the                     without change. The nonwastewater                           manganese, based upon sedimentation
     applicability or achievability of the                   treatment standard for antimony is 1.15                     technology. After considering the
     universal treatment standards proposed                  mg/L TCLP, for arsenic is 5.0 mg/L                          comments described below, today we
     for K176 wastes. We are promulgating                    TCLP, and for lead is 0.75 mg/L TCLP.                       are promulgating the treatment
     the proposed standards without change.                  In the event that there are wastewater                      standards as proposed for thallium and
     The nonwastewaters treatment standard                   treatment residuals from treatment of                       the chlorinated congeners of dibenzo-p-
     for antimony is 1.15 mg/L TCLP; arsenic                 K177 (which under the derived-from                          dioxin and dibenzofuran. We are
     is 5.0 mg/L TCLP; cadmium is 0.11 mg/                   rule also would be considered K177),
                                                                                                                         deferring action on all aspects of the
     L TCLP; lead is 0.75 mg/L TCLP; and                     the wastewater treatment standard for
                                                                                                                         regulation of manganese at this time as
     mercury is 0.025 mg/L TCLP. In the                      antimony is 1.9 mg/L, for arsenic is 1.4
     event that there are wastewater                         mg/L, and for lead is 0.69 mg/L.                            explained earlier in section IV.B.

                                                        TABLE IV–7.—TREATMENT STANDARDS FOR K178
                                  Regulated hazardous constituent                                              Wastewaters                   Nonwastewaters

                                                                                                               Concentration
                                                                                                                in mg/L 2, or     Concentration in mg/kg 4 unless noted
                          Common name                                            CAS 1 No.                       technology       as ‘‘mg/L TCLP’’, or technology Code
                                                                                                                   code 3

     1,2,3,4,6,7,8-Heptachlorodibenzo-p-dioxin ...............      35822–39–4 ............................      0.000035 or     0.0025 or CMBST 5
                                                                                                                    CMBST 5
     1,2,3,4,6,7,8-Heptachlorodibenzofuran .....................    67562–39–4 ............................      0.000035 or     0.0025 or CMBST 5
                                                                                                                    CMBST 5
     1,2,3,4,7,8,9-Heptachlorodibenzofuran .....................    55673–89–7 ............................      0.000035 or     0.0025 or CMBST 5
                                                                                                                    CMBST 5
     HxCDDs (All Hexachlorodibenzo-p-dioxins) .............         34465–46–8 ............................      0.000063 or     0.001 or CMBST 5
                                                                                                                    CMBST 5
     HxCDFs (All Hexachlorodibenzofurans) ...................       55684–94–1 ............................      0.000063 or     0.001 or CMBST 5
                                                                                                                    CMBST 5
     1,2,3,4,6,7,8,9-Octachlorodibenzo-p-dioxin (OCDD)              3268–87–9 ..............................     0.000063 or     0.005 or CMBST 5
                                                                                                                    CMBST 5
     1,2,3,4,6,7,8,9-Octachlorodibenzofuran (OCDF) ......           39001–02–0 ............................      0.000063 or     0.005 or CMBST 5
                                                                                                                    CMBST 5
     PeCDDs (All Pentachlorodibenzo-p-dioxins) ............         36088–22–9 ............................      0.000063 or     0.001 or CMBST 5
                                                                                                                    CMBST 5
     PeCDFs (All Pentachlorodibenzofurans) ..................       30402–15–4 ............................      0.000035 or     0.001 or CMBST 5
                                                                                                                    CMBST 5
     TCDDs (All tetrachlorodi-benzo-p-dioxins) ...............      41903–57–5 ............................      0.000063 or     0.001 or CMBST 5
                                                                                                                    CMBST 5
     TCDFs (All tetrachlorodibenzofurans) .......................   55722–27–5 ............................      0.000063 or     0.001 or CMBST 5
                                                                                                                    CMBST 5



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                                                         TABLE IV–7.—TREATMENT STANDARDS FOR K178—Continued
                                           Regulated hazardous constituent                                                       Wastewaters                   Nonwastewaters
                                                                                                                                 Concentration
                                                                                                                                  in mg/L 2, or     Concentration in mg/kg 4 unless noted
                                Common name                                                        CAS 1 No.                       technology       as ‘‘mg/L TCLP’’, or technology Code
                                                                                                                                     code 3

     Thallium .....................................................................   7440–28–0 ..............................              1.4    0.20 mg/L TCLP
        1 CAS  means Chemical Abstract Services. When the waste code and/or regulated constituents are described as a combination of a chemical
     with its salts and/or esters, the CAS number is given for the parent compound only.
       2 Concentration standards for wastewaters are expressed in mg/L and are based on analysis of composite samples.
       3 All treatment standards expressed as a Technology Code or combination of Technology Codes are explained in detail in 40 CFR 268.42
     Table 1—Technology Codes and Descriptions of Technology-Based Standards.
       4 Except for Metals (EP or TCLP) and Cyanides (Total and Amenable) the nonwastewater treatment standards expressed as a concentration
     were established, in part, based upon incineration in units operated in accordance with the technical requirements of 40 CFR part 264, subpart O
     or 40 CFR part 265, subpart O, or based upon combustion in fuel substitution units operating in accordance with applicable technical require-
     ments. A facility may comply with these treatment standards according to provisions in 40 CFR 268.40(d). All concentration standards for
     nonwastewaters are based on analysis of grab samples.
       5 For these wastes, the definition of CMBST is limited to: (1) combustion units operating under 40 CFR 266, (2) combustion units permitted
     under 40 CFR part 264, Subpart O, or (3) combustion units operating under 40 CFR 265, Subpart O, which have obtained a determination of
     equivalent treatment under 268.42(b).


     a. Comments Regarding Dioxins and                                        promulgated treatment standards for                          thallium will be necessary prior to land
     Furans                                                                   these underlying hazardous                                   disposal. Therefore, we are
        Comments were received on the                                         constituents. For example, OCDF was                          promulgating the inclusion of thallium
     appropriateness of the proposed                                          measured in EPA record sample of the                         in the final treatment standards.
     treatment standards for dibenzo-p-                                       combined Iron Rich TM wastestream at
                                                                                                                                           c. Comments Regarding Manganese
     dioxin and dibenzofuran, and                                             58 µg/kg dry weight, well above its
     manganese. However, no data were                                         treatment standard of 5 µg/kg (see                             For comments concerning manganese
     received or arguments made to                                            Tables 2–9 and 2–10 in EPA’s Best                            see the Response to Comment
     demonstrate that the proposed                                            Demonstrated Available Technology                            Background Document. Because EPA
     standards were not achievable.                                           (BDAT) Background Document for                               decided to defer final action on all
        A commenter argued that application                                   Inorganic Chemical Production                                aspects of manganese regulation at this
     of the octachlorodibenzo-p-dioxin                                        Wastes—K176, K177, K178 (for the final                       time, manganese related comments are
     (OCDD) and octachlorodibenzofuran                                        rule)). If OCDD and OCDF were to be                          not being addressed at this time.
     (OCDF) standards should be deferred                                      excluded from the K178 treatment
     pending anticipated lawsuits                                             standard, they would go untreated.                           d. What Final Changes Are Being Made
     challenging the Chlorinated Aliphatics                                   Absent treatment standards for dioxins,                      to F039?
     final rule (65 FR 67068, November 8,                                     the newly listed wastes would have less
                                                                              stringent treatment standards by                                The F039 waste code applies to
     2000) in which EPA promulgated                                                                                                        hazardous waste landfill leachates in
     Universal Treatment Standards for these                                  application of 40 CFR 268.9(b) than the
                                                                              wastes are currently subject to, because                     lieu of the treatment standards
     constituents. However, this aspect of the                                                                                             established for the original waste codes
     final rule was not challenged. EPA is                                    these wastes are generally corrosive.
                                                                              Having demonstrated the presence of                          associated with each of the wastes from
     promulgating treatment standards for                                                                                                  which the leachate is derived, when
     dioxin congeners, including OCDD and                                     these constituents at levels that require
                                                                              treatment, we are acting to protect                          multiple waste codes would otherwise
     OCDF, in K178 wastes as proposed,                                                                                                     apply. F039 wastes are subject to
     because treatment of these constituents                                  human health and the environment
                                                                              from the release of the significant levels                   numerical treatment standards. We
     is necessary to reduce the risks to                                                                                                   proposed to add manganese to the
     human health or the environment that                                     found in the untreated waste form.
                                                                                                                                           constituents regulated by F039 to
     these constituents pose.                                                 b. Comments Regarding Thallium                               maintain the implementation benefits of
        The commenter also stated that EPA
                                                                                 Comments relative to thallium                             having one waste code for multi-source
     should not set standards for OCDD and
                                                                              centered on its occurrence in the wastes.                    leachate. In today’s final rule, we have
     OCDF, because the constituents are not
     toxic. As explained in more detail in the                                If the occurrence of thallium is as the                      decided to defer regulation of
     Response to Comments document, we                                        commenter’s data indicates, then little                      manganese in F039 wastes at this time.
     disagree with the commenter and are                                      of the K178 generated waste would                            e. Manganese as an Underlying
     promulgating the proposed standards                                      require treatment for thallium. However,                     Hazardous Constituent
     for all dioxins and furans including the                                 we found that the commenter’s analysis
     OCDD and OCDF congeners. A full                                          obtained higher detection limits than we                        We had proposed to add manganese
     discussion of the toxicity of these                                      did. Our record sampling showed                              to the table of Universal Treatment
     compounds also was presented in the                                      thallium concentrations in this waste of                     Standards (UTS) at 40 CFR 268.48. We
     final chlorinated aliphatics final listing                               0.28 mg/L TCLP (65 FR 55761,                                 are not, however, promulgating the
     determination at 65 FR 67108. We                                         September 14, 2000). This is a level that                    addition of manganese to the UTS at 40
     conclude OCDD and OCDF are toxic.                                        would require treatment. Consequently,                       CFR 268.48 at this time. Had the
        We are promulgating treatment                                         we believe it is appropriate to set                          proposal been promulgated, all
     standards for dioxin and furan                                           treatment standards for thallium for                         characteristic wastes that have
     congeners in K178, because toxic dioxin                                  K178. In instances when the waste                            manganese as an underlying hazardous
     and furan congeners are present in this                                  exhibits thallium concentrations below                       constituent above the UTS levels listed
     waste at concentrations well above the                                   the treatment standard, no treatment for                     at 40 CFR 268.48 would have required


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     treatment of manganese before land                      the RCRA § 3007 Survey for the                        LDRs may not apply to these materials.
     disposal.                                               Inorganics listing determination                      Therefore, the facility may require little
                                                             distributed in the spring of 1999, record             off-site commercial treatment capacity
     G. Is There Treatment Capacity for the
                                                             sampling and site visits (see the docket              for its K177 waste and soil
     Newly Listed Wastes?
                                                             for today’s rule for more information on              contaminated with K177 waste.
     1. Introduction                                         these survey instruments and facility                 Additional information regarding these
        Under the land disposal restrictions                 activities), the available treatment                  wastes is presented in the Capacity
     (LDR) determinations, the Agency must                   capacity data submission that was                     Background Document.
     demonstrate that adequate commercial                    collected in the 1990’s, and the 1995                    With the above discussion, EPA
                                                             and 1997 Biennial Reports.                            determines that required alternative
     capacity exists to manage listed
                                                                For K176 and K177 wastes, we used                  treatment capacity for K177
     hazardous wastes in compliance with
                                                             the information from the surveys,                     nonwastewaters is estimated to be 20
     BDAT standards before the Agency can                    sampling, and site visits which indicate
     restrict the listed waste from further                                                                        tons per year. Additionally, there is a
                                                             that there is no quantity of the                      potential that capacity will be needed
     land disposal. The Agency performs                      wastewater form of K176 or K177 that
     capacity analyses to determine the                                                                            for the waste pile containing an
                                                             is expected to be generated and                       estimated 60,000 tons of slag (K177) and
     effective date of the LDR treatment                     therefore, there is no quantity of the
     standards for the proposed listed                                                                             estimated 60,000 tons of contaminated
                                                             wastewater form of K176 or K177 that                  soil from one facility. Even if the
     wastes. This section summarizes the                     will require alternative commercial
     results of EPA’s capacity analysis for the                                                                    additional 120,000 tons of K177 slag
                                                             treatment. These wastes are typically                 and contaminated soil from the facility
     wastes covered by today’s rule. For a                   present in a nonwastewater form. EPA
     detailed discussion of capacity analysis-                                                                     must be managed off-site as hazardous
                                                             determines that required alternative                  waste and the waste is not legitimately
     related data sources, methodology, and                  treatment capacity for K176
     detailed responses to comments for each                                                                       recycled or left in place, we anticipate
                                                             nonwastewaters is estimated to be eight               that commercially available
     waste covered in this rule, see                         tons per year. There is sufficient
     Background Document for Capacity                                                                              stabilization, as well as other
                                                             available capacity to manage the K176                 technologies, can be used to meet the
     Analysis for Land Disposal Restrictions:                waste.
     Inorganic Chemical Production Wastes                                                                          treatment standards applicable to the
                                                                For K177 waste, one commenter
     (Final Rule) (October 2001) (i.e., the                                                                        waste. We estimate that the
                                                             indicated that a facility of antimony
     Capacity Background Document).                                                                                commercially available stabilization
                                                             oxide production in Laredo, TX is
        EPA’s decisions on whether to grant                                                                        capacity is at least eight million tons per
                                                             currently storing approximately 60,000
     a national capacity variance are based                                                                        year based on the 1995 Biennial Report.
                                                             tons of slag in a pile. This facility has
     on the availability of alternative                                                                            Thus we find there is sufficient capacity
                                                             ceased operation in the United States.
     treatment or recovery technologies                                                                            to treat the K177 hazardous wastes that
                                                             As discussed earlier (section IV), EPA
     capable of achieving the prescribed                                                                           will require treatment.
                                                             has determined that this slag will
     treatment standards. Consequently, the                  qualify as K177 on the effective date of                 EPA proposed not to grant a national
     methodology focuses on deriving                         this rulemaking. In addition, the facility            capacity variance for K176 or K177
     estimates of the quantities of newly-                   has a volume of contaminated soil                     wastewaters or nonwastewaters. No
     listed hazardous waste that will require                roughly equivalent to the volume of the               commenters challenged either the
     either commercial treatment or the                      slag pile. If the slag and soil are                   variance determination or available
     construction of new on-site treatment or                excavated and handled after the                       treatment or disposal capacity for
     recovery as a result of the LDRs. The                   effective date, the volume of waste                   wastewater or nonwastewater forms of
     resulting estimates of required                         potentially subject to regulation is                  these wastes. Nor does the potential
     commercial capacity are then compared                   120,000 tons. This site is already under              treatment of the additional K177 slags
     to estimates of available commercial                    a corrective action order with the State              and soils described above appear to
     capacity. If adequate commercial                        of Texas to clean up the site because of              require a capacity variance. Therefore,
     capacity exists, the waste is restricted                antimony contamination. As part of this               EPA is finalizing its decision not to
     from further land disposal unless it                    effort, the State expects to require                  grant a capacity variance for wastewater
     meets the LDR treatment standards prior                 remediation of the historic waste pile. In            and nonwastewater forms of K176 and
     to disposal. If adequate capacity does                  cases involving corrective action, it is              K177.
     not exist, RCRA section 3004(h)(2)                      possible to treat and/or manage                          For ferric chloride residues (K178)
     authorizes EPA to grant a national                      hazardous waste without triggering LDR                waste, our data indicate that the waste
     capacity variance for the waste for up to               treatment standards. If the slag of                   is typically generated as a
     two years or until adequate alternative                 contaminated soil is not removed from                 nonwastewater. We did not identify any
     treatment capacity becomes available,                   the land via excavation (e.g., in situ                wastewater forms of these wastes and
     whichever is sooner.                                    treatment), then the LDR standards will               therefore did not anticipate that
                                                             not be applied to these wastes. In                    alternative management for wastewaters
     2. What Are the Capacity Analysis                                                                             is required. For nonwastewaters, when
                                                             addition, if hazardous slag or
     Results for K176, K177, and K178?                       contaminated soil is excavated, LDR                   listed as hazardous, the waste can no
       In conducting the capacity analysis                   standards will only apply if the                      longer be land disposed without
     for the wastes newly-listed by today’s                  subsequent management is considered                   meeting applicable treatment standards.
     rule, we examined data on waste                         ‘‘land disposal’’ for the purposes of the             In the proposed rule, we initially
     characteristics and management                          LDR program.                                          estimated that approximately 7,300 tons
     practices gathered for the inorganic                       The K177 listing is conditional: if a              per year may require alternative
     chemical hazardous waste listing                        facility legitimately recycles its wastes             treatment (derived from public
     determinations. We also examined data                   without speculatively accumulating                    information since data on amounts of
     on available treatment or recovery                      them and without use constituting                     treatment solids were originally
     capacity for these wastes. The sources                  disposal, it will not be regulated as a               reported as confidential in the § 3007
     for these data are the public comments,                 listed waste. Thus, the listing and the               Survey).


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     58286            Federal Register / Vol. 66, No. 224 / Tuesday, November 20, 2001 / Rules and Regulations

        In public comments to the proposed                   disposed in a prohibited manner. These                  Iron-Rich on-site, which would be listed
     rule, one commenter estimated that the                  impoundments can be retrofitted,                        as hazardous waste K178 following the
     quantity of K178 generated nationwide                   closed, or replaced with tank systems. If               effective date. According to the
     is as high as 167,000 tons per year,                    impoundments continue to be used to                     comment, the estimated quantity is
     which is much higher than that initially                manage K178 waste, the units will be                    500,000 tons. EPA believes that it is
     estimated by EPA in the proposed rule.                  subject to RCRA Subtitle C                              unlikely that the entire quantity will
     The commenter provided few details                      requirements. In addition, any                          require offsite treatment capacity after
     explaining the discrepancy, and                         hazardous wastes managed in the                         the effective date. For example, the
     therefore EPA cannot agree with the                     affected impoundment after the effective                facility could work with the State
     commenter regarding this estimate.                      date of today’s rule are subject to land                Implementing Agency to close the unit
     Further, the finalized listing definition               disposal prohibitions.37 However, a                     in place without actively managing the
     is narrower in scope than the proposed                  facility may continue to manage newly                   units. Even if the entire 500,000 ton
     listing, only one facility (rather than                 listed K178 in surface impoundments,                    quantity becomes subject to the K178
     three) is expected to generate the waste,               provided they are in compliance with                    listing after the effective date, we expect
     and the one facility may be able to                     the appropriate standards for surface                   that commercial facilities could store
     segregate its waste to reduce the total                 impoundments (40 CFR parts 264 and                      this quantity of material and
     quantity of K178 that must be treated.                  265 subpart K) and the special rules
                                                                                                                     subsequently manage it using treatment
     However, even if EPA used the                           regarding surface impoundments (40
                                                                                                                     such as combustion or non-combustion
     commenter’s higher waste quantity in                    CFR 268.14). EPA notes that those
                                                                                                                     technologies over a period of several
     its capacity assessment, sufficient                     provisions require basic ground-water
     capacity would be available to treat                    monitoring (40 CFR parts 264 and 265                    years should the demand for such
     generated K178 wastes.                                  subpart F) and recordkeeping. Surface                   capacity arise. In addition, because this
        The commenter also requested a                       impoundments that are newly subject to                  is a non-HSWA rule and will take effect
     national capacity variance for the                      RCRA subtitle C minimum technology                      only after authorized states adopt
     proposed K178 wastes. The commenter                     requirements due to promulgation of a                   parallel listings under state law and
     claimed that because K178 must be                       new hazardous waste listing are                         EPA authorizes revisions to the codified
     treated for dioxin, insufficient treatment              afforded up to 48 months after                          state programs, there will be additional
     capacity is available because only a                    promulgation of the new listing to                      time (beyond six months) for the facility
     single facility in the U.S. currently is                retrofit the surface impoundments to                    to identify and implement management
     permitted to treat dioxin-containing                    meet minimum technological                              options for the stored K178 waste. We
     wastes. EPA disagrees with this                         requirements (see RCRA section                          anticipate that commercially available
     assessment. EPA notes that the                          3005(j)(6)(A), 40 CFR 265.221 (h)). (Note               combustion capacity is adequate to meet
     proposed land disposal restrictions for                 that in this case, the listing is ‘‘non-                the demands. For more information on
     K178 are identical to those finalized for               HSWA,’’ so the minimum technology                       the Agency’s research on combustion
     F032 (wood preserving wastes, 62 FR                     deadline would be 48 months after EPA                   capacity for K178, please refer to the
     26000, May 12, 1997) and K174                           approves a revision to an authorized                    Capacity Background Document.
     (chlorinated aliphatics wastes, 65 FR                   state program that adopt this listing.)                    As discussed earlier for K178
     67110, November 8, 2000). These                            In our assessment for the proposed                   treatment standards, we are
     treatment standards (as well as the                     rule, we assumed that facilities can                    promulgating numerical treatment
     treatment standards proposed for K178)                  segregate waste-streams and separately                  standards for K178 wastes. We
     can be met by the technology-specific                   manage the newly-proposed K178                          anticipate that commercially available
     standard of CMBST, defined as, (1)                      waste. Based on the finalized listing                   incineration, followed by stabilization if
     combustion units operating under 40                     definition for K178, we continue to                     necessary, can be used to meet these
     CFR 266, (2) combustion units                           expect that the generating facility can
                                                                                                                     treatment standards. We also are
     permitted under 40 CFR part 264,                        segregate its waste-streams. However,
                                                                                                                     promulgating the specified technology
     subpart O, or (3) combustion units                      the quantity is far lower than discussed
                                                                                                                     standard of combustion (CMBST) as an
     operating under 40 CFR 265, subpart O,                  in the proposal since the final listing is
                                                                                                                     alternative compliance option for
     which have obtained a determination of                  narrower than the proposed listing and
                                                                                                                     hazardous organic constituents in the
     equivalent treatment under 268.42(b).                   only one facility is expected to generate
                                                             the waste. We now estimate that                         K178 wastes. The units treating the
     Additionally, EPA verified through                                                                              waste by using CMBST will be subject
     telephone conversations that several                    approximately 45 tons per year may
                                                             require alternative treatment. Even if the              to certain standards, and facilities will
     facilities can, in fact, accept wastes with                                                                     have to meet the treatment standard for
     such a treatment standard (this                         facility cannot segregate its
                                                             wastestreams (and, therefore, generates                 the regulated metal constituent prior to
     information is presented in the Capacity                                                                        disposal. We assume that facilities will
     Background Document). These facilities                  a higher quantity of waste requiring
                                                             treatment), we expect that available                    achieve compliance with the final
     have sufficient capacity to treat the                                                                           treatment standards using incineration,
     single generator’s ferric chloride                      treatment capacity exists to manage
                                                             such a higher quantity of generated                     stabilization, or both. Based on an
     residues.                                                                                                       evaluation of 1995 and 1997 BRS data,
        From the available information, the                  waste.
                                                                In addition to the amount generated                  well over one million tons of liquid,
     affected facility may manage K178 waste
                                                             from year to year, the facility that                    sludge, and solid commercial
     in surface impoundments (i.e., in
                                                             generates K178 commented that they                      combustion capacity are available. The
     wastewater treatment systems that
                                                             have stockpiled a significant quantity of               quantity of commercially available
     contain land based units). If the waste
                                                                                                                     stabilization capacity is at least eight
     is managed in unretrofitted                               37 See RCRA § 3004(m)(1) ‘‘Simultaneously with        million tons per year based on an
     impoundments,36 it would thus be land                   the promulgation of regulations under subsection        evaluation of 1995 Biennial Report data.
                                                             (d), (e), (f), or (g) prohibiting one or more methods
       36 A unretrofitted impoundment is one not             of land disposal of a particular hazardous waste
                                                                                                                     Additional discussion of the
     satisfying the minimum technology requirements          * * * promulgate regulations specifying those           applicability of these estimates for
     (MTR) specified in sections 3004(o) and 3005(j)(11).    levels or methods of treatment * * *’’                  treating wastes with characteristics


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                      Federal Register / Vol. 66, No. 224 / Tuesday, November 20, 2001 / Rules and Regulations                                       58287

     similar to K178 is presented in the                     newly-listed inorganic chemical wastes                management activities within 90 days
     Capacity Background Document.                           are generated. EPA did not receive                    after the wastes are identified or listed
        Based on the foregoing, we conclude                  comments indicating that these wastes                 as hazardous. This requirement may be
     that sufficient treatment capacity is                   are underground injected or that they                 applied even to those generators,
     available to manage newly-listed K178                   are mixed with radioactive wastes or                  transporters, and treatment, storage, and
     wastes. Therefore, EPA is finalizing its                with both radioactive wastes and soil or              disposal facilities (TSDFs) that have
     decision not to grant a capacity variance               debris. Therefore, EPA is not granting a              previously notified EPA with respect to
     for wastewater and nonwastewater                        national capacity variance for                        the management of other hazardous
     forms of K178. For K176, K177, and                      underground injected wastes, mixed                    wastes. The Agency has decided to
     K178 wastes, the customary time period                  radioactive wastes, or soil and debris                waive this notification requirement for
     of six months is sufficient to allow                    contaminated with these mixed                         persons who handle wastes that are
     facilities to determine whether their                   radioactive wastes. LDR treatment                     covered by today’s hazardous waste
     wastes are affected by this rule, to                    standards for K176, K177, and K178                    listings and already have (1) notified
     identify on-site or commercial treatment                underground injected and mixed wastes                 EPA that they manage other hazardous
     and disposal options, and to arrange for                (if any exists) will therefore become                 wastes, and (2) received an EPA
     treatment or disposal capacity, if                      effective when these listing                          identification number. The Agency has
     necessary. Moreover, since this listing is              determinations become effective.                      waived the notification requirement in
     a non-HSWA rule, the LDR standards                         Finally, EPA may consider a case-by-               this case because it believes that most,
     will take effect only after authorized                  case extension to the effective date                  if not all, persons who manage the
     states adopt parallel listings under state              based on the requirements outlined in                 wastes listed as hazardous in today’s
     law and EPA authorizes revisions to the                 40 CFR 268.5, which includes a                        rule already have notified the Agency
     codified state programs. Therefore, LDR                 demonstration that adequate alternative               and received an EPA identification
     treatment standards for the affected                    treatment, recovery, or disposal capacity             number. However, any person who
     wastes covered under today’s rule                       for the petitioner’s waste cannot                     generates, transports, treats, stores, or
     become effective when the listing                       reasonably be made available by the                   disposes of these newly listed wastes
     determinations become effective—the                     effective date due to circumstances                   and has not previously received an EPA
     earliest possible date. This conforms to                beyond the applicants’ control, and that              identification number must obtain an
     RCRA section 3004(h)(1), which                          the petitioner has entered into a binding             identification number pursuant to 40
     indicates that land disposal prohibitions               contractual commitment to construct or                CFR 262.12 to generate, transport, treat,
     must take effect immediately when                       otherwise provide such capacity.                      store, or dispose of these hazardous
     there is sufficient protective treatment                                                                      wastes by February 19, 2002 for K176
     capacity available for the waste.                       3. What Is the Capacity Analysis Result               and K177. In authorized states, for
        Further, soil and debris contaminated                due to the Proposed Revision of the                   K178, identification numbers will not be
     with these newly identified wastes may                  F039 Standard?                                        required until the state revises its rules
     be subject to the LDRs (see LDR                            With respect to the revision to F039,              to establish a K178 listing. After the
     Treatment Standards for Soil in LDR                     as discussed earlier in section IV.B., we             state regulations are revised,
     Phase IV Final Rule, 63 FR 28602, May                   are no longer adding manganese to the                 identification numbers would be
     26, 1998; 40 CFR 268.45 Treatment                       list of constituents for F039.                        obtained from the authorized state
     Standards for Hazardous Debris). EPA                    Consideration of capacity for treatment               pursuant to its applicable requirements.
     proposed not to grant a national                        of this waste is no longer relevant.
     capacity variance for soil and debris                                                                         C. Generators and Transporters
     contaminated with the newly listed                      V. When Must Regulated Entities                          Persons who generate newly
     wastes (K176, K177, and K178). EPA                      Comply With the Provisions in Today’s                 identified hazardous wastes may be
     received no comments regarding this                     Final Rule?                                           required to obtain an EPA identification
     issue. We believe that the vast majority                                                                      number if they do not already have one
                                                             A. Effective Date
     of contaminated soil and debris                                                                               (as discussed in section VIII.B, above).
     contaminated with these wastes, if                         The effective date of today’s rule is              If generating or transporting these
     generated, will be managed on-site and,                 May 20, 2002. Provisions promulgated                  wastes after the effective date of this
     therefore, will not require substantial                 under HSWA authorities will take effect               rule, generators of the wastes listed
     commercial treatment capacity.                          in both the federal regulations and                   today will be subject to the generator
     Therefore, we are not granting a national               authorized state programs at that time.               requirements set forth in 40 CFR part
     capacity variance for hazardous soil and                The K178 listing, promulgated under                   262. These requirements include
     debris contaminated with these newly                    section 3001(b), an non-HSWA                          standards for hazardous waste
     identified wastes. LDR treatment                        authority, will not take effect in any                determination (40 CFR 262.11),
     standards for K176, K177, and K178                      authorized state until that state                     compliance with the manifest (40 CFR
     hazardous soil and debris will therefore                promulgates a rule adopting the listing.              262.20 through 262.23), pre-transport
     become effective when these listing                     It will not take effect under federal law             procedures (40 CFR 262.30 through
     determinations become effective.                        until EPA authorizes the revision to the              262.34), generator accumulation (40
        Based on the 1999 RCRA § 3007                        state program. The LDR requirements                   CFR 262.34), record keeping and
     Survey for the Inorganics listing                       for K178 also will not apply                          reporting (40 CFR 262.40 to 262.44), and
     determination, followed by record                       immediately in authorized states. See                 import/export procedures (40 CFR
     sampling and site visits, no respondents                the discussion in the state authorization             262.50 through 262.60). We note that
     submitted any data about underground                    section below.                                        the generator accumulation provisions
     injection management of the newly-                                                                            of 40 CFR 262.34 allow generators to
     listed wastes. Also, based on the 1999                  B. Section 3010 Notification                          accumulate hazardous wastes without
     RCRA § 3007 Survey followed by record                     Pursuant to RCRA § 3010, the                        obtaining interim status or a permit only
     sampling and site visits, no respondents                Administrator may require all persons                 in certain specified units; the
     submitted any data indicating that                      who handle hazardous wastes to notify                 regulations also place a limit on the
     mixtures of radioactive wastes and the                  EPA of their hazardous waste                          maximum amount of time that wastes


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     58288            Federal Register / Vol. 66, No. 224 / Tuesday, November 20, 2001 / Rules and Regulations

     can be accumulated in these units. If                   November 20, 2002, land disposal                      newly listed hazardous wastes and may
     these wastes are actively managed in                    facilities newly qualifying for interim               not manage those wastes until the
     surface impoundments or other units                     status under section 3005(e)(1)(A)(ii)                facility receives either a permit or a
     that are not tank systems, containers,                  also must submit a Part B permit                      change in interim status allowing such
     drip pads, or containment buildings as                  application and certify that the facility             activity (40 CFR 270.10(g)).
     outlined in 40 CFR 262.34,                              is in compliance with all applicable
                                                                                                                   4. K178: Existing Interim Status
     accumulation of these wastes is subject                 ground-water monitoring and financial
                                                                                                                   Facilities
     to the permitting requirements of 40                    responsibility requirements. If the
     CFR parts 264 and 265, and the                          facility fails to submit these                           Pursuant to 40 CFR 270.72(a)(1), all
     generator is required to obtain interim                 certifications and a permit application,              existing hazardous waste management
     status and seek a permit (or modify                     interim status will terminate on that                 facilities (as defined in 40 CFR 270.2)
     interim status or a permit, as                          date.                                                 that treat, store, or dispose of the newly
     appropriate). Also, persons who                                                                               identified K178 waste and are currently
                                                             2. K178: Facilities Newly Subject to                  operating pursuant to interim status
     transport newly identified hazardous
                                                             RCRA Permit Requirements                              under section 3005(e) of RCRA, must
     wastes will be required to obtain an EPA
     identification number (if they do                          Facilities that treat, store, or dispose           file an amended Part A permit
     already have one) as described above                    of K178 waste that are subject to RCRA                application with EPA no later than the
     and will be subject to the transporter                  regulation for the first time by this rule            effective date of the K178 listing, (i.e.,
     requirements set forth in 40 CFR part                   (that is, facilities that have not                    once the state adopts or is authorized for
     263.                                                    previously received a permit pursuant                 the K178 listing). By doing this, the
                                                             to section 3005 of RCRA and are not                   facility may continue managing the
     D. Facilities Subject to Permitting                     currently operating pursuant to interim               newly listed waste. If the facility fails to
        The listings for antimony oxide                      status), might be eligible for interim                file an amended Part A application by
     wastes, K176 and K177, in today’s rule                  status (see section 3005(e)(1)(A)(ii) of              the required date, the facility will not
     are issued pursuant to HSWA authority.                  RCRA). To obtain interim status based                 receive interim status for management
     Therefore, EPA will regulate the                        on treatment, storage, or disposal of this            of the newly listed hazardous waste and
     management of the newly identified                      newly identified waste, eligible facilities           may not manage the waste until the
     hazardous wastes until states are                       are required to comply with 40 CFR                    facility receives either a permit or a
     authorized to regulate these wastes. EPA                270.70(a) and 270.10(e) by providing                  change in interim status allowing such
     will apply Federal regulations to these                 notice under section 3010 and                         activity (40 CFR 270.10(g)).
     wastes and to their management in both                  submitting a Part A permit application
                                                                                                                   5. K176 and K177: Permitted Facilities
     authorized and unauthorized states. The                 no later than 180 days after the K178
     listing for the titanium dioxide waste,                 listing becomes effective. Once the K178                 Facilities that already have RCRA
     K178, in today’s rule is issued pursuant                listing becomes effective, such facilities            permits must request permit
     to non-HSWA authority. Therefore, the                   are subject to regulation under 40 CFR                modifications if they want to continue
     listing will not become effective at the                part 265 until a permit is issued.                    managing newly listed K176 and K177
     state level until adopted by the state and                 In addition, under section 3005(e)(3)              wastes (see 40 CFR 270.42(g)). This
     at the federal level when the revision to               and 40 CFR 270.73(d), not later than 365              provision states that a permittee may
     the state program is authorized by EPA.                 days after the K178 listing becomes                   continue managing the newly listed
     Facilities located in states authorized for             effective, land disposal facilities newly             wastes by following certain
     the RCRA program should check with                      qualifying for interim status under                   requirements, including submitting a
     their state offices to determine when the               section 3005(e)(1)(A)(ii) also must                   Class 1 permit modification request by
     K178 listing becomes effective in the                   submit a Part B permit application and                the date on which the waste or unit
     state.                                                  certify that the facility is in compliance            becomes subject to the new regulatory
                                                             with all applicable ground-water                      requirements (i.e., the effective date of
     1. K176 and K177: Facilities Newly                      monitoring and financial responsibility               today’s rule), complying with the
     Subject to RCRA Permit Requirements                     requirements. If the facility fails to                applicable standards of 40 CFR Parts
        Facilities that treat, store, or dispose             submit these certifications and a permit              265 and 266 and submitting a Class 2 or
     of K176 and K177 wastes that are                        application, interim status will                      3 permit modification request within
     subject to RCRA regulation for the first                terminate on that date.                               180 days of the effective date.
     time by this rule (that is, facilities that                                                                      Generally, a Class 2 modification is
     have not previously received a permit                   3. K176 and K177: Existing Interim                    appropriate if the newly listed wastes
     pursuant to section 3005 of RCRA and                    Status Facilities                                     will be managed in existing permitted
     are not currently operating pursuant to                    Pursuant to 40 CFR 270.72(a)(1), all               units or in newly regulated tank or
     interim status), might be eligible for                  existing hazardous waste management                   container units and will not require
     interim status (see section                             facilities (as defined in 40 CFR 270.2)               additional or different management
     3005(e)(1)(A)(ii) of RCRA). To obtain                   that treat, store, or dispose of the newly            practices than those authorized in the
     interim status based on treatment,                      identified K176 and K177 wastes and                   permit. A Class 2 modification requires
     storage, or disposal of such newly                      are currently operating pursuant to                   the facility owner to provide public
     identified wastes, eligible facilities are              interim status under section 3005(e) of               notice of the modification request, a 60-
     required to comply with 40 CFR                          RCRA, must file an amended Part A                     day public comment period, and an
     270.70(a) and 270.10(e) by providing                    permit application with EPA no later                  informal meeting between the owner
     notice under section 3010 and                           than the effective date of today’s rule,              and the public within the 60-day period.
     submitting a Part A permit application                  (i.e., May 20, 2002). By doing this, the              The Class 2 process includes a ‘‘default
     no later than May 20, 2002. Such                        facility may continue managing the                    provision,’’ which provides that if the
     facilities are subject to regulation under              newly listed wastes. If the facility fails            Agency does not reach a decision within
     40 CFR Part 265 until a permit is issued.               to file an amended Part A application by              120 days, the modification is
        In addition, under section 3005(e)(3)                that date, the facility will not receive              automatically authorized for 180 days. If
     and 40 CFR 270.73(d), not later than                    interim status for management of the                  the Agency does not reach a decision by


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     the end of that period, the modification                the Agency does not reach a decision by               treatment units to cease managing
     is permanently authorized (see 40 CFR                   the end of that period, the modification              hazardous waste but to delay subtitle C
     270.42(b)).                                             is permanently authorized (see 40 CFR                 closure to allow the unit to continue to
        A Class 3 modification is generally                  270.42(b)).                                           manage non-hazardous waste for a
     appropriate if management of the newly                     A Class 3 modification is generally                period of time prior to closure of the
     listed wastes requires additional or                    appropriate if management of the newly                unit (see 54 FR 33376, August 14, 1989).
     different management practices than                     listed waste requires additional or                   Units for which closure is delayed
     those authorized in the permit or if                    different management practices than                   continue to be subject to all applicable
     newly regulated land-based units are                    those authorized in the permit or if                  40 CFR 264 and 265 requirements. Dates
     involved. The initial public notification               newly regulated land-based units are                  and procedures for submittal of
     and public meeting requirements are the                 involved. The initial public notification             necessary demonstrations, permit
     same as for Class 2 modifications.                      and public meeting requirements are the               applications, and revised applications
     However, after the end of the 60-day                    same as for Class 2 modifications.                    are detailed in 40 CFR 264.113(c)
     public comment period, the Agency will                  However, after the end of the 60-day                  through (e) and 265.113(c) through (e).
     grant or deny the permit modification                   public comment period, the Agency will
     request according to the more extensive                 grant or deny the permit modification                 9. K178: Closure
     procedures of 40 CFR Part 124. There is                 request according to the more extensive                  All units in which a newly identified
     no default provision for Class 3                        procedures of 40 CFR part 124. There is               hazardous waste is treated, stored, or
     modifications (see 40 CFR 270.42(c)).                   no default provision for Class 3                      disposed after the effective date of the
        Under 40 CFR 270.42(g)(1)(v), for                    modifications (see 40 CFR 270.42(c)).                 listing that are not excluded from the
     newly regulated land disposal units,                       Under 40 CFR 270.42(g)(1)(v), for                  requirements of 40 CFR 264 and 265 are
     permitted facilities must certify that the              newly regulated land disposal units,                  subject to both the general closure and
     facility is in compliance with all                      permitted facilities must certify that the            post-closure requirements of subpart G
     applicable 40 CFR Part 265 ground-                      facility is in compliance with all                    of 40 CFR 264 and 265 and the unit-
     water monitoring and financial                          applicable 40 CFR part 265 ground-                    specific closure requirements set forth
     responsibility requirements no later                    water monitoring and financial                        in the applicable unit technical
     than May 20, 2002. If the facility fails to             responsibility requirements no later                  standards subpart of 40 CFR 264 or 265
     submit these certifications, authority to               than the effective date of the K178                   (e.g., subpart N for landfill units). In
     manage the newly listed wastes under                    listing. If the facility fails to submit              addition, EPA promulgated a final rule
     40 CFR 270.42(g) will terminate on that                 these certifications, authority to manage             that allows, under limited
     date.                                                   the newly listed waste under 40 CFR                   circumstances, regulated landfills,
     6. K178: Permitted Facilities                           270.42(g) will terminate on that date.                surface impoundments, or LTUs to
                                                             7. K176, K177 and K178: Units                         cease managing hazardous waste but to
        Facilities that already have RCRA
                                                                                                                   delay Subtitle C closure to allow the
     permits must request permit                                Units in which newly identified                    unit to continue to manage non-
     modifications if they want to continue                  hazardous wastes are generated or                     hazardous waste for a period of time
     managing newly listed K178 waste (see                   managed will be subject to all                        prior to closure of the unit (see 54 FR
     40 CFR 270.42(g)). This provision states                applicable requirements of 40 CFR 264                 33376, August 14, 1989). Units for
     that a permittee may continue managing                  for permitted facilities or 40 CFR 265 for            which closure is delayed continue to be
     the newly listed waste by following                     interim status facilities, unless the unit
     certain requirements, including                                                                               subject to all applicable 40 CFR 264 and
                                                             is excluded from such permitting by                   265 requirements. Dates and procedures
     submitting a Class 1 permit                             other provisions, such as the wastewater
     modification request by the date on                                                                           for submittal of necessary
                                                             treatment tank exclusions (40 CFR                     demonstrations, permit applications,
     which the waste or unit becomes subject                 264.1(g)(6) and 265.1(c)(10)) and the
     to the new regulatory requirements (i.e.,                                                                     and revised applications are detailed in
                                                             product storage tank exclusion (40 CFR                40 CFR 264.113(c) through (e) and
     the effective date of the K178 listing),                261.4(c)). Examples of units to which
     complying with the applicable                                                                                 265.113(c) through (e).
                                                             these exclusions could never apply
     standards of 40 CFR parts 265 and 266                   include landfills, land treatment units,              VI. How Will This Rule Be
     and submitting a Class 2 or 3 permit                    waste piles, incinerators, and any other              Implemented at the State Level?
     modification request within 180 days of                 miscellaneous units in which these
     the effective date.                                                                                           A. Applicability of Rule in Authorized
                                                             wastes may be generated or managed.                   States
        Generally, a Class 2 modification is
     appropriate if the newly listed waste                   8. K176 and K177: Closure                               Under section 3006 of RCRA, EPA
     will be managed in existing permitted                      All units in which newly identified                may authorize a qualified State to
     units or in newly regulated tank or                     hazardous wastes are treated, stored, or              administer and enforce a hazardous
     container units and will not require                    disposed after the effective date of this             waste program within the State in lieu
     additional or different management                      regulation that are not excluded from                 of the federal program and to issue and
     practices than those authorized in the                  the requirements of 40 CFR 264 and 265                enforce permits in the State. A State
     permit. A Class 2 modification requires                 are subject to both the general closure               may receive authorization by following
     the facility owner to provide public                    and post-closure requirements of                      the approval process described under 40
     notice of the modification request, a 60-               subpart G of 40 CFR 264 and 265 and                   CFR 271.21. See 40 CFR part 271 for the
     day public comment period, and an                       the unit-specific closure requirements                overall standards and requirements for
     informal meeting between the owner                      set forth in the applicable unit technical            authorization. EPA continues to have
     and the public within the 60-day period.                standards subpart of 40 CFR 264 or 265                independent authority to bring
     The Class 2 process includes a ‘‘default                (e.g., subpart N for landfill units). In              enforcement actions under RCRA
     provision,’’ which provides that if the                 addition, EPA promulgated a final rule                sections 3007, 3008, 3013, and 7003. An
     Agency does not reach a decision within                 that allows, under limited                            authorized State also continues to have
     120 days, the modification is                           circumstances, regulated landfills,                   independent authority to bring
     automatically authorized for 180 days. If               surface impoundments, or land                         enforcement actions under State law.


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        After a State receives initial                          For the portions of the rule that are              mixture rule exemption is codified at
     authorization, new Federal                              promulgated pursuant to HSWA, a State                 261.3(g).
     requirements promulgated under RCRA                     submitting a program modification may                    As noted earlier in this preamble, the
     authority existing prior to the 1984                    apply to receive either interim or final              final listing for K178 includes wastes
     Hazardous and Solid Waste                               RCRA authorization under RCRA                         from the production of ferric chloride,
     Amendments (HSWA) do not apply in                       sections 3006(g) or (b) on the basis that             not wastes from the production of
     that State until the State adopts and                   State regulations are, respectively,                  titanium dioxide. Ferric chloride
     receives authorization for equivalent                   substantially equivalent or fully                     manufacturing is not one of 14 inorganic
     State requirements. In contrast, under                  equivalent to EPA’s regulations. The                  chemical sectors identified in the
     RCRA section 3006(g) (42 U.S.C.                         procedures and schedule for State                     Consent Decree. The decree describes
     6926(g)), new Federal requirements and                  program modifications for either interim              the full scope of EPA’s obligations to
     prohibitions promulgated pursuant to                    or final authorization are described in               assess wastes under section 3001(e)(2).
     HSWA provisions take effect in                          40 CFR 271.21 and 271.24. Note that all               Consequently, EPA is not exercising any
     authorized States at the same time that                 HSWA interim authorizations will                      authority under 3001(e)(2) to list
     they take effect in unauthorized States.                expire on January 1, 2003 (see 40 CFR                 residues from the production of ferric
     As such, EPA carries out HSWA                           271.24(c)).                                           chloride. EPA is promulgating this new
     requirements and prohibitions in                           As explained earlier in this preamble,             listing under its pre-HSWA listing
     authorized States, including the                        in May 2001 we promulgated a revision                 authority in section 3001(b)(1).
     issuance of new permits implementing                    to the mixture rule that revised an                   Therefore, the K178 listing only will
     those requirements, until EPA                           exemption previously available to                     become effective under RCRA in an
     authorizes the State to do so.                          wastes listed because they exhibited the              authorized State once the State amends
        Authorized States are required to                    toxicity characteristic. As a result,                 its regulations and the amended
     modify their programs when EPA                          mixtures of K176 and non-hazardous                    regulations are authorized by EPA. For
     promulgates Federal requirements that                   wastes will be regulated as hazardous                 States without RCRA authorization, the
     are more stringent or broader in scope                  wastes even if the mixture does not                   listing requirements for K178 become
     than existing Federal requirements.                     exhibit the TC. Although today’s K176                 effective on the effective date of today’s
     RCRA section 3009 allows the States to                  listing is being promulgated under a                  rule.
     impose standards more stringent than                    HSWA authority, so it will take effect in                All of the provisions of today’s final
     those in the Federal program. See also                  six months in all states (unless a state              rule are considered to be more stringent
     § 271.1(i). Therefore, authorized States                already has a more stringent listing                  than or broader in scope than the base
     are not required to adopt Federal                       rule), the revision to the mixture rule               RCRA program. Therefore, authorized
     regulations, both HSWA and non-                         was not promulgated under any HSWA                    States are required to adopt and become
     HSWA, that are considered less                          authority. That revision will not take                authorized for both the HSWA and non-
     stringent than existing Federal                         effect until authorized states revise their           HSWA portions of the rule.
                                                             programs to adopt the change to the                      All Land Disposal Restriction rules
     requirements.
                                                             mixture rule and EPA approves the                     are adopted under HSWA statutory
     B. Authorization of States for Today’s                  revision.                                             authority, regardless of the statutory
     Final Rule                                                 In the preamble to the May, 2001 rule,             authority for the corresponding waste
       EPA is promulgating today’s rule                      we stated that the mixture rule changes               listing. However, consistent with prior
     under both HSWA and non-HSWA                            were not more stringent than or broader               rules establishing LDR requirements for
     authorities. EPA is promulgating the                    in scope than existing rules, so that                 new, non-HSWA listings, the treatment
     two listings for antimony oxide wastes,                 authorized states were not required to                standards and prohibitions for K178
     K176 and K177, under section                            adopt them. In other words, no state is               will not have immediate regulatory
     3002(e)(2) of RCRA, which is a                          required to promulgate an exemption for               effect. LDR rules can only apply to
     requirement added by the HSWA                           wastes that were listed solely for a                  ‘‘hazardous wastes.’’ The ferric chloride
     amendments. In addition, the                            characteristic. Moreover, at that time,               solids will not be hazardous wastes
     requirements of the Land Disposal                       there were no wastes listed because they              under RCRA until a State adopts a rule
     Restriction (LDR) program promulgated                   exhibited the TC. The narrowing of the                listing them as hazardous wastes and
     today are imposed under sections                        mixture rule exemption for TC listed                  EPA authorizes the State’s new rule.
     3004(g)-(m), which also are HSWA                        wastes had no apparent impact. That                   Therefore, the LDR provisions for K178
     requirements. Therefore, we will add                    narrowing, however, will impact                       will become effective state-by-state,
     the new requirements for K176, K177                     mixtures containing today’s K176                      when EPA actions authorizing State
     and the LDRs to Table 1 at 40 CFR                       listing, keeping them in the Subtitle C               regulations that list K178 take effect.
     271.1(j), which identifies Federal                      regulatory program where previously                   See, e.g., 55 FR 22520, 22667 (June 1,
     program requirements promulgated                        they would have largely been exempt                   1990 (LDR ‘‘first third’’ rule)).
     pursuant to HSWA. After the effective                   from the program. The portion of the
                                                             May 2001 mixture rule that eliminated                 VII. What Are the Reportable Quantity
     date, EPA will implement these portions                                                                       Requirements for the Newly-Listed
     of the rule in all States, including                    the exemption for TC listed wastes is
                                                             more stringent than any state program                 Wastes Under the Comprehensive
     authorized States, until the States are                                                                       Environmental Response,
                                                             which includes a mixture rule
     authorized for the new provisions.                                                                            Compensation, and Liability Act?
                                                             exemption that gives relief to wastes
        Note: There will be a delay in the                   listed because they exhibit the TC.                     All hazardous wastes listed under
     effectiveness of the LDRs for K178, as                  Accordingly, authorized states that                   RCRA and codified in 40 CFR 261.31
     discussed further below.                                                                                      through 261.33, as well as all solid
                                                             exempt mixtures of wastes listed for a
        Once authorized States modify their
     programs to adopt equivalent rules and                  characteristic where the mixtures do not              waste that are not excluded from
     receive authorization for such rules from               exhibit a characteristic must narrow                  regulation as a hazardous waste under
     EPA, those rules become RCRA Subtitle C                 their exemptions to eliminate relief for              40 CFR 261.4(b) and that exhibits one or
     requirements that apply in the States in lieu           mixtures of TC listed wastes, as                      more of the characteristics of a RCRA
     of the equivalent federal requirements.                 provided by 271.21. The revised                       hazardous waste (as defined in 40 CFR


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     261.21 through 261.24), are hazardous                                     hazardous wastes; (2) designate these                                       further for their susceptibility to certain
     substances under the Comprehensive                                        wastestreams as CERCLA hazardous                                            degradative processes, which are used
     Environmental Response,                                                   substances; and (3) adjust the one-                                         as secondary adjustment criteria. These
     Compensation, and Liability Act of 1980                                   pound statutory RQs for two of these                                        natural degradative processes are
     (CERCLA), as amended (see CERCLA                                          wastestreams. The wastestreams are as                                       biodegradation, hydrolysis, and
     section 101(14)(C)). CERCLA hazardous                                     follows:                                                                    photolysis (BHP). If a hazardous
     substances are listed in Table 302.4 at                                   K176 Baghouse filters from the                                              substance, when released into the
     40 CFR 302.4 along with their reportable                                       production of antimony oxide,                                          environment, degrades relatively
     quantities (RQs). If a hazardous                                               including filters from the                                             rapidly to a less hazardous form by one
     substance is released in an amount that                                        production of intermediates (e.g.,                                     or more of the BHP processes, its RQ (as
     equals or exceeds its RQ, the release                                          antimony metal or crude antimony                                       determined by the primary RQ
     must be reported immediately to the                                            oxide).                                                                adjustment criteria), generally is raised
     National Response Center (NRC)                                            K177 Slag from the production of                                            one level. Conversely, if a hazardous
     pursuant to CERCLA section 103.                                                antimony oxide that is                                                 substance degrades to a more hazardous
                                                                                    speculatively accumulated or                                           product after its release, the original
     A. When Do I Have To Report My                                                 disposed, including slag from the
     Releases?                                                                                                                                             substance is assigned an RQ equal to the
                                                                                    production of intermediates (e.g.,                                     RQ for the more hazardous substance,
        Under CERCLA section 103(a), the                                            antimony metal or crude antimony                                       which may be one or more levels lower
     person in charge of a vessel or facility                                       oxide).                                                                that the RQ for the original substance.
     from which a hazardous substance has                                      K178 Solids from manufacturing and
                                                                                    manufacturing-site storage of ferric                                      The standard methodology used to
     been released in a quantity that is equal
                                                                                    chloride from acids formed during                                      adjust the RQs for RCRA hazardous
     to or exceeds its RQ must immediately
                                                                                    the production of titanium dioxide                                     wastestreams differs from the
     notify the NRC as soon as that person
                                                                                    using the chloride-ilmenite process.                                   methodology applied to individual
     has knowledge of the release. The toll-
     free telephone number of the NRC is 1–                                                                                                                hazardous substances. The procedure
                                                                               B. What Was the Basis for the RQ                                            for assigning RQs to RCRA wastestreams
     800–424–8802; in the Washington, DC,                                      Adjustment?
     metropolitan area, the number is (202)                                                                                                                is based on an analysis of the hazardous
                                                                                 Our methodology for adjusting the                                         constituents of the wastestreams. The
     267–2675. In addition to this reporting
                                                                               RQs of individual hazardous substances                                      constituents of each RCRA hazardous
     requirement under CERCLA, section 304
                                                                               begins with an evaluation of the                                            wastestream are identified in 40 CFR
     of the Emergency Planning and
                                                                               intrinsic physical, chemical, and                                           part 261, Appendix VII. We determine
     Community Right-to-Know Act of 1986
                                                                               toxicological properties of each                                            an RQ for each constituent within the
     (EPCRA) requires owners or operators of                                   hazardous substance. The intrinsic
     certain facilities to report releases of                                                                                                              wastestream and establish the lowest
                                                                               properties examined—called ‘‘primary                                        RQ value of these constituents as the
     extremely hazardous substances and                                        criteria’’—are aquatic toxicity,
     CERCLA hazardous substance to State                                                                                                                   adjusted RQ for the wastestream.
                                                                               mammalian toxicity (oral, dermal, and
     and local authorities. Immediately after                                  inhalation), ignitability, reactivity,                                         We proposed to promulgate a one
     the release of an RQ or more of an                                        chronic toxicity, and potential                                             pound RQ for constituents in K176 and
     extremely hazardous substance or a                                        carcinogenicity.                                                            a 5000 pound RQ level for constituents
     CERCLA hazardous substance, EPCRA                                           Generally, for each intrinsic property,                                   in K177. We did not propose any
     section 304 notification must be given to                                 EPA ranks hazardous substances on a                                         adjustment for K178 because we had not
     the community emergency coordinator                                       scale, associating a specific range of                                      yet developed a primary ‘‘waste
     of the local emergency planning                                           values on each scale with an RQ value                                       constituent RQ’’ for manganese, one of
     committee for any area likely to be                                       of 1, 10, 100, 1,000, or 5,000 pounds.                                      the constituents of concern. We did not
     affected by the release, and to the State                                 The data for each hazardous substance                                       receive any comments on our proposed
     emergency response commission of any                                      are evaluated using various primary                                         RQs. In today’s final rule, we assign a
     State likely to be affected by the release.                               criteria; each hazardous substance may                                      one-pound adjusted RQ to the K176
        Under section 102(b) of CERCLA, all                                    receive several tentative RQ values                                         wastestream, and an adjusted RQ of
     hazardous substances (as defined by                                       based on its particular intrinsic                                           5,000 pounds to the K177 wastestream.
     CERCLA section 101(14)) have a                                            properties. The lowest of the tentative                                     The adjusted RQs for these
     statutory RQ of one pound, unless and                                     RQs becomes the ‘‘primary criteria RQ’’                                     wastestreams are based on the lowest
     until the RQ is adjusted by regulation.                                   for that substance.                                                         RQ value of the constituents present in
     In today’s final rule, we: (1) List the                                     After the primary criteria RQ are                                         each wastestream and are presented in
     following three wastestreams as RCRA                                      assigned, substances are evaluated                                          Table VII–1 below.

                                                    TABLE VII—1. ADJUSTED RQS FOR WASTESTREAMS K176 AND K177
                                                                                                                                                                                  Wastestream      Wastestream
                                    Wastestream                                                                 Wastestream constituent                                          constituent RQ     RQ (lb.)
                                                                                                                                                                                      (lb.)

     K176 .............................................................................   arsenic ..........................................................................                 1                          1
                                                                                          lead ...............................................................................              10    ........................
     K177 .............................................................................   antimony .......................................................................               5,000                   5,000




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     58292            Federal Register / Vol. 66, No. 224 / Tuesday, November 20, 2001 / Rules and Regulations

       We are deferring action on the                        action’’ because it raises novel, legal or               We modeled the most likely post-
     manganese elements of the proposal, as                  policy issues arising out of legal                    regulatory waste management scenarios
     described in section IV.B. The statutory                mandates, the President’s priorities, or              resulting from the listings (e.g., disposal
     RQ of 1 for K178 may be adjusted in the                 the principles set forth in the Executive             in a Subtitle C hazardous waste landfill
     future.                                                 Order. As such, this action was                       for K178, recycling or land disposal for
                                                             submitted to OMB for review. Changes                  K176 and K177 ) and the estimated cost
     C. What if I Know the Concentration of
                                                             made in response to OMB suggestions or                of complying with these post-regulatory
     the Constituents in My Waste?
                                                             recommendations will be documented                    management scenarios. The difference
       If you know the concentration levels                  in the public record.                                 between the baseline management cost
     of all the hazardous constituents in a                    Detailed discussions of the                         and the post-regulatory cost is the
     particular inorganic chemical                           methodology used for estimating the                   incremental cost of the rulemaking.
     manufacturing waste you may apply the                   costs, economic impacts and the                          To estimate the economic impact of
     mixture rule (see 40 CFR 302.6(b)) to the               benefits attributable to today’s final rule           today’s final rulemaking, we compared
     actual concentrations. You would need                   for listing hazardous wastes from                     the incremental cost of the rulemaking
     to report a release of any of the wastes                inorganic chemical production,                        with model firm sales and either net
     when an RQ or more of any of their                      followed by a presentation of the cost,               profit or product value. The Agency also
     respective hazardous constituents is                    economic impact and benefit results,                  considered the ability of potentially
     released.                                               may be found in the background                        affected firms to pass on compliance
     VIII. Administrative Assessments                        document: Economic Analysis of the                    costs to customers in the form of higher
                                                             Final Rule For Listing Hazardous Waste                prices.
        A. Executive Order 12866
        Under Executive Order 12866, [58 FR                  From Inorganic Chemical Production,                   2. Results
     51,735 (October 4, 1993)] the Agency                    which was placed in the docket for
                                                                                                                      Volume Results. Data reviewed by the
     must determine whether the regulatory                   today’s final rule.
                                                                                                                   Agency indicates that there are three
     action is ‘‘significant’’ and therefore                 1. Methodology Section                                inorganic chemical producers affected
     subject to OMB review and the                                                                                 by today’s final rule. The data report
     requirements of the Executive Order.                       To estimate the cost and economic
                                                                                                                   that these firms generated 72.4 metric
     The Order defines ‘‘significant                         impacts to potentially affected firms and
                                                                                                                   tons of inorganic chemical production
     regulatory action’’ as one that is likely               benefits to society from this final
                                                                                                                   waste annually that are affected by
     to result in a rule that may: (1) Have an               rulemaking, we evaluated § 3007 survey
                                                                                                                   today’s final rule. Because today’s
     annual effect on the economy of $100                    responses from inorganic chemical
                                                                                                                   listing description for K178 is limited to
     million or more or adversely affect in a                producers, firm financial reports, and                nonexempt ferric chloride residues, the
     material way the economy, a sector of                   chemical production data. For the final               Agency believes that the affected
     the economy, productivity, competition,                 rule, we conducted a cost and economic                volume of K178 will be limited to 45.4
     jobs, the environment, public health or                 impact analysis for actual inorganic                  metric tons rather than the 11,797 tons
     safety, or State, local, or tribal                      chemical producing facilities rather                  of these solids that are generated
     governments or communities; (2) create                  than the model facilities we evaluated                annually.38 The estimated volume of
     a serious inconsistency or otherwise                    for the proposed rule. Also for the final             wastes associated with the production
     interfere with an action taken or                       rule, we evaluated a single scenario                  of antimony oxide has not changed.
     planned by another agency; (3)                          focused on actually affected facilities                  EPA is aware that there also are
     materially alter the budgetary impact of                rather than the two scenarios we                      historically generated materials the
     entitlements, grants, user fees, or loan                assessed for the proposal. The                        management of which could result in
     programs or the rights and obligations of               additional scenario in the proposal                   increased costs due to the K177 and
     recipients thereof; or (4) raise novel,                 included facilities where the Agency                  K178 listings, if these materials are
     legal or policy issues arising out of legal             completed quantitative risk assessment                actively managed after the effective date
     mandates, the President’s priorities, or                involving fate and transport modeling of              of this final rule. These materials
     the principles set forth in the Executive               potential releases of wastes generated by             include: 1) 120,000 tons of historically
     Order.                                                  these facilities to evaluate potential                generated antimony oxide slag and
        The Agency estimated the costs of                    effects on human health and the                       contaminated soil in Laredo, Texas, 2)
     today’s final rule to determine if it is a              environment but for which no listings                 500,000 tons of stockpiled Iron RichTM
     significant regulatory action as defined                were proposed.                                        in Edge Moor, Delaware, and 3) an
     by the Executive Order. The analysis                       To estimate the incremental cost of                unknown quantity of ferric chloride
     considered compliance costs and                         this rulemaking, we reviewed baseline                 surface impoundment solids in Edge
     economic impacts for inorganic                          management practices and costs to                     Moor, Delaware. EPA has not included
     chemical producers affected by this                     affected firms. Where more than one                   these volumes in its economic analysis
     rule. We estimate the total cost of the                 baseline management method was used                   of this rule because it is assumed that
     rule to be between $$115,200 to                         (e.g., municipal incineration and                     these materials will not be actively
     $171,000 annually. This analysis                        landfilling), we accounted for the costs              managed after the effective date of this
     suggests that this rule is not                          of either more than one form of baseline              rule.
     economically significant according to                   management or selected and accounted                     Cost Results. We estimate the total
     the definition in E.O. 12866. However,                  for the cost associated with the least                annual incremental costs from today’s
     pursuant to the terms of Executive                      expensive baseline management (which                  final rule to be between $115,200 to
     Order 12866, it has been determined                     would overestimate rather than                        $171,000 for all facilities. Sectors costs
     that this rule is a ‘‘significant regulatory            underestimate the cost of the rule).                  are summarized in Table VIII–1 .
       38 Prior to proposal, the commenter had provided      Inorganic Chemical Listing Determination, August      analysis supporting the proposal. During post-
     data that ferric chloride filter solids make up to 10   2000, p. 53. Using the midpoint of this range and     proposal meetings with EPA, the commenter
     percent of 120,000 to 140,000 tons of ‘‘Iron Rich’’’    the maximum percentage of Iron Rich’’                 indicated it would be technically feasible and cost-
     generated annually by the facility. See Titanium        composition, EPA used a value of 13,000 tons          effective to modify its process so that all but 45 tons
     Dioxide Listing Background Document for the             (11,797 metric tons) of solids for its economic       of solids would be Bevill-exempt post-rule.



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                          Federal Register / Vol. 66, No. 224 / Tuesday, November 20, 2001 / Rules and Regulations                                                                               58293

                                         TABLE VIII–1. ESTIMATED INCREMENTAL COST BY INORGANIC CHEMICAL SECTOR
                                                                                           Volume of Af-                                                                                    Number of Af-
                                         Sector                                            fected Waste             Estimated Incremental Annual Cost (1999 $)                              fected Facili-
                                                                                               (tons)                                                                                            ties

     Antimony Oxide ............................................................                      27      $730 to $14,000 ...........................................................                2
     Titanium Dioxide ...........................................................                    45.4     $114,500 to $157,000 ..................................................                    1

           Total .......................................................................             72.4     $115,200 to $171,000 ..................................................                    3



        Economic Impact Results. To estimate                                       One public commenter stated that                             B. Regulatory Flexibility Act (RFA), as
     potential economic impacts resulting                                       EPA had significantly underestimated                            Amended by the Small Business
     from today’s final rule, we used first                                     the cost of the proposed K178 listing to                        Regulatory Enforcement Fairness Act of
     order economic impacts measures such                                       the company. The commenter stated                               1996 (SBREFA)
     as the estimated incremental costs of                                      that our economic analysis failed to                               The RFA generally requires an agency
     complying with the new listing                                             include the costs of incinerating the                           to prepare a regulatory flexibility
     regulations and expressed these costs as                                   waste and retrofitting surface                                  analysis of any rule subject to notice
     a percentage of the affected firms’ sales                                  impoundments. The commenter also                                and comment rulemaking requirements
     and reported or estimated profits.39 We                                    stated that we did not estimate correctly                       under the Administrative Procedures
     used these measures to evaluate                                            the volume of waste affected by the                             Act or any other statute unless the
     potential impacts to affected inorganic                                    listing. EPA disagrees with these                               agency certifies that the rule will not
     chemical producers. For affected                                           comments because they do not reflect                            have a significant economic impact on
     inorganic chemical producers in the                                        cost-minimizing post-regulatory                                 a substantial number of small entities.
     antimony oxide and titanium dioxide                                        behavior on the part of the affected                            Small entities include small businesses,
     sectors, we estimated the incremental                                      entity. In our economic analysis for the                        small organizations, and small
     annual costs of this rulemaking to be                                      proposed rule, we modeled full                                  governmental jurisdictions.
     less than one percent of affected firms’                                                                                                      For purposes of assessing the impacts
                                                                                segregation of the ferric chloride
     sales. For one of the antimony oxide                                                                                                       of today’s rule on small entities, a small
                                                                                residues from the production of                                 entity is defined as: (1) A small business
     producers, the incremental costs of the
                                                                                titanium dioxide (chloride-ilmenite                             that has fewer than 1000 or 100
     rule are less than one percent of their
     profit. The other antimony oxide                                           process). EPA believes that the affected                        employees per firm depending upon the
     producer reports negative earnings. For                                    entity will undertake process                                   SIC code the firm primarily is classified
     the titanium dioxide producer, the                                         modifications to segregate the                                  in 40; (2) a small governmental
     incremental costs of rule are less than                                    potentially affected volumes of its                             jurisdiction that is a government of a
     one percent of the firm’s profit. More                                     wastes into Bevill-exempt (i.e., not                            city, county, town, school district, or
     detailed information on this estimate                                      hazardous waste) and nonexempt                                  special district with a population of less
     can be found in the economic analysis                                      components prior to the rule’s effective                        than 50,000; and (3) a small
     placed into today’s docket.                                                date. We, therefore, modeled the volume                         organization that is any not-for-profit
                                                                                of ferric chloride residues, which is a                         enterprise which is independently
     3. Public Comment                                                          relatively small volume of waste                                owned and operated and is not
                                                                                compared to the original material we                            dominant in its field.
        A number of commenters expressed                                                                                                           There is one potentially affected
     concern that EPA’s economic analysis                                       believed would be listed. Although we
                                                                                believe that incineration of the                                inorganic chemical producing firm that
     did not account for incremental costs                                                                                                      is a small entity. This firm is located in
     associated with adding manganese to                                        remaining volume would not have been
                                                                                                                                                the antimony oxide sector. We have
     the Universal Treatment Standard (UTS)                                     necessary, because non-thermal
                                                                                                                                                determined that this firm will incur
     table at 40 CFR § 268.48. Commenters                                       treatment technologies such as solvent
                                                                                                                                                costs of less than one percent of the
     stated that the addition of manganese to                                   extraction and chemical dechlorination                          firm’s sales. Although this firm has
     the UTS list could add substantial costs                                   present cost-effective alternatives to                          reported negative earnings, the
     to the treatment of characteristic wastes,                                 combustion, we modeled incineration as                          maximum incremental annual cost of
     delay hazardous waste site cleanups,                                       selected treatment for this waste for our                       the rule is approximately $430 which
     and adversely impact affected                                              upper-bound of the cost range. In the                           represents approximately 1 percent of
     generators of these wastes. Because EPA                                    event that the ferric chloride residues                         the negative earnings. This firm also has
     is not adding manganese to the UTS list                                    exhibit a hazardous waste characteristic                        the opportunity of recycling both its slag
     in this rulemaking, the commenters’                                        when generated, the generator would                             and baghouse filters which would
     concerns about these potential costs and                                   have an obligation to treat dioxins and
     impacts will not occur as a result of                                      furans, if any, present in the waste. In                          40 The Small Business Administration has

     today’s final rule.                                                        this case, the only incremental cost                            classified firms in the manufacturing sector (SIC
                                                                                                                                                Codes 20–39) and wholesale trade sector (SIC Codes
                                                                                attributable to the rule is the difference                      50–51) as small businesses within the sector based
        39 When profit information is either unavailable
                                                                                between Subtitle C hazardous waste                              on the number of employees per firm. See Small
     or highly variable from year to year, the Agency has                                                                                       Business Size Standards, 61 FR 3280, 3289 (January
     chosen to use a profit surrogate in completing the
                                                                                landfill and Subtitle D nonhazardous
                                                                                                                                                31, 1996). Thus, to determine if a inorganic
     economic impact analysis of this final rule.                               landfill disposal. The commenter did                            chemical producer is a small business, the primary
     According to Dun and Bradstreet’s Industry Norms                           not provide any data or reasoning about                         SIC code of the firm would have to be determined.
     and Key Business Indicators (1995) the average net                         why source segregation of this material                         The small entities in today’s rulemaking are in two
     after tax profit for inorganic chemical producers in                                                                                       SIC codes: (1) 2812 Alkalies and Chlorine, size
     the 2819 SIC code was 6.3 percent. When needed,                            is either technically infeasible or                             standard 1000 employees and (2) 5082 Construction
     this percentage is applied to reported sales of                            economically impractical.                                       and Mining (except Petroleum) Machinery and
     affected firms in order to estimate their profits.                                                                                         Equipment size standard 100 employees.



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     58294                Federal Register / Vol. 66, No. 224 / Tuesday, November 20, 2001 / Rules and Regulations

     remove these materials from the scope                                          The effect of listing the wastes                              collection requirements for their newly
     of today’s listing. The Agency does not                                     described earlier is to subject industry                         listed wastes. Burden means the total
     believe that these costs will impose a                                      to management and treatment standards                            time, effort, or financial resources
     significant impact on this firm’s                                           under the Resource Conservation and                              expended by persons to generate,
     operations. The Agency also believes                                        Recovery Act (RCRA). However, this                               maintain, retain, or disclose or provide
     that one firm in the antimony oxide                                         final rule represents only an                                    information to or for a Federal agency.
     sector does not constitute a substantial                                    incremental increase in burden for                               This includes the time needed to review
     number of small entities.                                                   generators and subsequent handlers of                            instructions; develop, acquire, install,
       After considering the impact of both                                      the newly listed wastes, and affects the                         and utilize technology and systems for
     of these factors from today’s final rule                                    following existing RCRA information                              the purposes of collecting, validating,
     on the small entity, I certify that this                                    collection requirements: Notification,                           and verifying information, processing
     action will not have a significant                                          Generator, Generator Standards, and                              and maintaining information, and
     economic impact on a substantial                                            Biennial Report (the chart below                                 disclosing and providing information;
     number of small entities.                                                   provides details). This final rule does                          adjust the existing ways to comply with
     C. Paperwork Reduction Act                                                  not contain any new information                                  any previously applicable instructions
                                                                                 collection requirements, nor does it                             and requirements; train personnel to be
       The information collection
                                                                                 modify any existing information                                  able to respond to a collection of
     requirements in this rule have been
                                                                                 collection requirements.                                         information; search data sources;
     submitted for approval to the Office of
                                                                                    As a result of the final rule, EPA                            complete and review the collection of
     Management and Budget (OMB) under
                                                                                 estimates that four (4) facilities will be                       information; and transmit or otherwise
     the Paperwork Reduction Act, 44 U.S.C.
     3501 et seq. An Information Collection                                      newly subject to existing RCRA                                   disclose the information.
     Worksheet (ICW) document has been                                           information collection requirements for                             An Agency may not conduct or
     prepared (ICR No. 1968.01) and a copy                                       the newly listed wastes. The exhibit                             sponsor, and a person is not required to
     may be obtained from Susan Auby,                                            below presents the estimated annual                              respond to a collection of information
     Collection Strategies Division; U.S.                                        hour and cost burden for these four                              unless it displays a currently valid OMB
     Environmental Protection Agency                                             facilities to comply with the existing                           control number. The OMB control
     (2822); 1200 Pennsylvania Ave. N.W.;                                        recordkeeping and reporting                                      numbers for EPA’s regulations are listed
     Washington, DC 20460 or by calling                                          requirements associated with generating                          in 40 CFR part 9 and 48 CFR Chapter
     (202) 260–2740. A copy may also be                                          and managing hazardous wastes. We                                15. The OMB control number for the
     downloaded off the internet at http://                                      estimate that the four facilities would                          information collection requirements in
     www.epa.gov/icr. The information                                            incur an annual burden of                                        this rule will be listed in an amendment
     requirements are not effective until                                        approximately 77 hours and $3,630 in                             to 40 CFR part 9 in a subsequent FR
     OMB approves them.                                                          carrying out existing information                                document after OMB approves the ICR.

            EXHIBIT 1.—ANNUAL HOUR AND COST BURDEN UNDER EXISTING ICRS FOR NEWLY LISTED INORGANIC CHEMICAL
                                                      WASTES 1
                                                                                                                                    Annual     Annual        Annual         Annual O       Total an-
                                                ICR name and number                                                                  labor   labor cost    capital cost     & M cost       nual cost
                                                                                                                                    hours

     Notification (261) ....................................................................................................             1       $68.00             $0.00          $0.00      $68.00
     Manifest (801) ........................................................................................................            25     1,182.00              0.00           6.00    1,186.00
     Generators (820) ....................................................................................................              49     2,212.00              0.00           4.00    2,218.00
     Biennial Report (976) .............................................................................................                 2       157.00              0.00           2.00      159.00

           Total ................................................................................................................       77     3,619.00              0.00          12.00    3,631.00
        1 EPA    has proposed to list these wastes as hazardous (see 65 FR 55684).


     D. Unfunded Mandates Reform Act                                             of the UMRA generally requires EPA to                            governments, it must have developed
                                                                                 identify and consider a reasonable                               under section 203 of the UMRA a small
       Title II of the Unfunded Mandates                                         number of regulatory alternatives and                            government agency plan. The plan must
     Reform Act of 1995 (UMRA), Public                                           adopt the least costly, most cost-                               provide for notifying potentially
     Law 104–4, establishes requirements for                                     effective, or least burdensome                                   affected small governments, enabling
     Federal agencies to assess the effects of                                   alternative that achieves the objectives                         officials of affected small governments
     their regulatory actions on State, local,                                   of the rule. The provisions of section                           to have meaningful and timely input in
     and tribal governments and the private                                      205 do not apply when they are                                   the development of EPA regulatory
     sector. Under section 202 of the UMRA,                                      inconsistent with applicable law.                                proposals with significant Federal
     EPA generally must prepare a written                                        Moreover, section 205 allows EPA to                              intergovernmental mandates, and
     statement, including a cost-benefit                                         adopt an alternative other than the least                        informing, educating, and advising
     analysis, for proposed and final rules                                      costly, most cost-effective, or least                            small governments on compliance with
     with ‘‘Federal mandates’’ that may                                          burdensome alternative if the                                    the regulatory requirements.
     result in expenditures to State, local,                                     Administrator publishes with the final                              Today’s rule contains no Federal
     and tribal governments, in the aggregate,                                   rule an explanation why that alternative                         mandates (under the regulatory
     or to the private sector, of $100 million                                   was not adopted. Before EPA establishes                          provisions of Title II of the UMRA) for
     or more in any one year. Before                                             any regulatory requirements that may                             State, local, or tribal governments or the
     promulgating an EPA rule for which a                                        significantly or uniquely affect small                           private sector. In any event, EPA has
     written statement is needed, section 205                                    governments, including tribal                                    determined that this rule does not


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                      Federal Register / Vol. 66, No. 224 / Tuesday, November 20, 2001 / Rules and Regulations                                        58295

     contain a Federal mandate that may                      we are not putting poor, rural, or                    (1) Is determined to be ‘‘economically
     result in expenditures of $100 million or               minority populations at any                           significant’’ as defined under E.O. 12866
     more for State, local, and tribal                       disadvantage with regard to our                       and (2) concerns an environmental
     governments, in the aggregate, or the                   evaluation of risk or with regard to how              health or safety risk that EPA has reason
     private sector in any one year. The total               the Agency makes its final hazardous                  to believe may have a disproportionate
     expenditure to the private sector in any                waste listing determinations.                         effect on children. If the regulatory
     one year is less than $2 million (for                      In deciding today to list wastes as                action meets both criteria, the Agency
     more information see the Economic                       hazardous (i.e., baghouse filters from the            must evaluate the environmental health
     Analysis of the Final Rule For Listing                  production of antimony oxide,                         or safety effects of the planned rule on
     Hazardous Waste From Inorganic                          including filters from the production of              children and explain why the planned
     Chemical Production) and less than                      intermediates (e.g., antimony metal or                regulation is preferable to other
     $300,000 per year for State, local and                  crude antimony oxide); slag from the                  potentially effective and reasonably
     tribal governments. Thus, today’s rule is               production of antimony oxide that is                  feasible alternatives considered by the
     not subject to the requirements of                      speculatively accumulated or disposed,                Agency. This final rule is not subject to
     sections 202 and 205 of the UMRA.                       including slag from the production of                 the Executive Order because it is not
                                                             intermediates (e.g., antimony metal or                economically significant as defined in
     E. Executive Order 12898:                               crude antimony oxide); and, residues                  E.O. 12866 and because the Agency
     Environmental Justice                                   from manufacturing and manufacturing-                 does not have reason to believe the
        EPA is committed to addressing                       site storage of ferric chloride from acids            environmental health or safety risks
     environmental justice concerns and is                   formed during the production of                       addressed by this action present a
     assuming a leadership role in                           titanium dioxide using the chloride-                  disproportionate risk to children.
     environmental justice initiatives to                    ilmenite process), all populations                    Today’s final rule is intended to avoid
     enhance environmental quality for all                   potentially exposed to these wastes or                releases of hazardous constituents to the
     populations in the United States. The                   potentially exposed to releases of the                environment at levels that will cause
     Agency’s goals are to ensure that no                    hazardous constituents in the wastes                  unacceptable risks. We considered risks
     segment of the population, regardless of                will benefit from the final listing                   to children in our risk assessment. The
     race, color, national origin, or income                 determination. In addition, listing                   more appropriate and safer management
     bears disproportionately high and                       determinations take effect at the                     practices in this final rule are projected
     adverse human health or environmental                   national level. The wastes being listed               to reduce risks to children potentially
     impacts as a result of EPA’s policies,                  as hazardous will be hazardous                        exposed to the constituents of concern.
     programs, and activities and that all                   regardless of where they are generated
     people live in safe and healthful                       and regardless of where they may be                   G. Executive Order 13175: Consultation
     environments. In response to Executive                  managed. Although the Agency                          and Coordination With Indian Tribal
     Order 12898 and to concerns voiced by                   understands that the final listing                    Governments
     many groups outside the Agency, EPA’s                   determinations may affect where these                    Executive Order 13175, entitled
     Office of Solid Waste and Emergency                     wastes are managed in the future (in                  ‘‘Consultation and Coordination with
     Response formed an Environmental                        that hazardous wastes must be managed                 Indian Tribal Governments’’ (65 FR
     Justice Task Force to analyze the array                 at subtitle C facilities), the Agency’s               67249, November 6, 2000), requires EPA
     of environmental justice issues specific                decision to list these wastes as                      to develop an accountable process to
     to waste programs and to develop an                     hazardous is independent of any                       ensure ‘‘meaningful and timely input by
     overall strategy to identify and address                decisions regarding the location of                   tribal officials in the development of
     these issues (OSWER Directive No.                       waste generators and the siting of waste              regulatory policies that have tribal
     9200.3–17).                                             management facilities.                                implications.’’ ‘‘Policies that have tribal
        Today’s final rule covers wastes from                   Similarly, in cases where the Agency               implications’’ is defined in the
     inorganic chemical production. It is not                is not listing a solid waste as hazardous             Executive Order to include regulations
     certain whether the environmental                       because the waste does not meet the                   that have ‘‘substantial direct effects on
     problems addressed by this rule could                   criteria for being identified as a                    one or more Indian tribes, on the
     disproportionately affect minority or                   hazardous waste, these decisions are                  relationship between the Federal
     low-income communities. Today’s final                   based upon an evaluation of potential                 government and the Indian tribes, or on
     rule is intended to reduce risks of                     individual risks located in proximity to              the distribution of power and
     hazardous wastes and to benefit all                     any facility handling the waste.                      responsibilities between the Federal
     populations. As such, this rule is not                  Therefore, any population living in                   government and Indian tribes.’’
     expected to cause any                                   close proximity to a facility that                       This final rule does not have tribal
     disproportionately high and adverse                     produces a solid waste that the Agency                implications. It will not have substantial
     impacts to minority or low-income                       did not list as hazardous would not be                direct effects on tribal governments, on
     communities versus non-minority or                      adversely affected either because the                 the relationship between the Federal
     affluent communities.                                   waste is already being managed as a                   government and Indian tribes, or on the
        In making hazardous waste listing                    hazardous waste in the Subtitle C                     distribution of power and
     determinations, we base our evaluations                 system or because the solid waste does                responsibilities between the Federal
     of potential risk from the generation and               not pose a sufficient risk to the local               government and Indian tribes, as
     management of solid wastes on an                        population.                                           specified in Executive Order 13175. No
     analysis of potential individual risk. In                                                                     Indian tribes own or operate facilities
     conducting risk evaluations, our goal is                F. Executive Order 13045: Protection of               generating wastes affected by this
     to estimate potential risk to any                       Children From Environmental Health                    rulemaking. Further, no regulated
     population of potentially exposed                       Risks and Safety Risks                                entities affected by this rulemaking are
     individuals (e.g., home gardeners, adult                  Executive Order 13045, ‘‘Protection of              located in areas subject to Indian tribal
     farmers, children of farmers, anglers)                  Children from Environmental Health                    government jurisdiction. Thus,
     located in the vicinity of any generator                Risks and Safety Risks’’ (62 FR 19885,                Executive Order 13175 does not apply
     or facility handling a waste. Therefore,                April 23, 1997), applies to any rule that:            to this rule.


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     58296            Federal Register / Vol. 66, No. 224 / Tuesday, November 20, 2001 / Rules and Regulations

     H. Executive Order 13132: Federalism                    I. National Technology Transfer and                   receive public comment on any
                                                             Advancement Act                                       voluntary consensus standards that
        Executive Order 13132, entitled                                                                            could be used in this regulation.
     ‘‘Federalism’’ (64 FR 43255, August 10,                    Section 12(d) of the National
                                                             Technology Transfer and Advancement                   J. Congressional Review Act
     1999), requires EPA to develop an
                                                             Act of 1995 (NTTAA), Public Law 104–
     accountable process to ensure                                                                                    The Congressional Review Act, 5
                                                             113, section 12(d) (15 U.S.C. 272 note)
     ‘‘meaningful and timely input by State                                                                        U.S.C. 801 et seq., as added by the Small
                                                             directs EPA to use voluntary consensus
     and local officials in the development of                                                                     Business Regulatory Enforcement
                                                             standards in its regulatory activities,
     regulatory policies that have federalism                                                                      Fairness Act of 1996, generally provides
                                                             unless to do so would be inconsistent
     implications.’’ ‘‘Policies that have                                                                          that before a rule may take effect, the
                                                             with applicable law or otherwise
     federalism implications’’ is defined in                                                                       agency promulgating the rule must
                                                             impractical. Voluntary consensus
     the Executive Order to include                                                                                submit a rule report, which includes a
                                                             standards are technical standards (e.g.,
     regulations that have ‘‘substantial direct                                                                    copy of the rule, to each House of the
                                                             materials specifications, test methods,
     effects on the States, on the relationship                                                                    Congress and to the Comptroller General
                                                             sampling procedures, and business
                                                                                                                   of the United States. EPA submitted a
     between the national government and                     practices) that are developed or adopted
                                                                                                                   report containing this rule and other
     the States, or on the distribution of                   by voluntary consensus standards
                                                                                                                   required information to the U.S. Senate,
     power and responsibilities among the                    bodies. The NTTAA directs EPA to
                                                                                                                   the U.S. House of Representatives, and
     various levels of government.’’                         provide Congress, through OMB,
                                                                                                                   the Comptroller General of the United
        This final rule does not have                        explanations when the Agency decides
                                                                                                                   States prior to publication of the rule in
                                                             not to use available and applicable
     federalism implications. It will not have                                                                     the Federal Register. A major rule
                                                             voluntary consensus standards. This
     substantial direct effects on the States,                                                                     cannot take effect until 60 days after it
                                                             final rulemaking involves technical
     on the relationship between the national                                                                      is published in the Federal Register.
                                                             standards. EPA has selected the Toxicity
     government and the States, or on the                                                                          This action is not a ‘‘major rule’’ as
                                                             Characteristic Leaching Procedure
     distribution of power and                                                                                     defined by 5 U.S.C. § 804(2). The
                                                             (TCLP) for treatment standards
     responsibilities among the various                                                                            portions of this rule that will take effect
                                                             associated with hazardous metal
     levels of government, as specified in                                                                         earliest will be effective May 20, 2002.
                                                             constituents in wastes listed in today’s
     Executive Order 13132. This final rule                  final rule. The TCLP is the standard test             K. Executive Order 13211: Energy Effects
     directly affects inorganic chemical                     method used to evaluate the toxicity                    This rule is not a ‘‘significant energy
     producers. There are no State and local                 characteristic for the definition of                  action’’ as defined in Executive Order
     government bodies that incur direct                     hazardous waste (see 40 CFR 261.24)                   13211, ‘‘Actions Concerning Regulations
     compliance costs by this rulemaking.                    and treatment standards for metal                     That Significantly Affect Energy Supply,
     State and local government                              constituents under the Land Disposal                  Distribution, or Use’’ (66 FR 28355 (May
     implementation expenditures are                         Restrictions (see 40 CFR 268.40 and                   22, 2001)) because it is not likely to
     expected to be less than $300,000 in any                268.48.). The Agency has used the TCLP                have a significant adverse effect on the
     one year.41 Thus, the requirements of                   in completing its treatment standards                 supply, distribution, or use of energy.
     section 6 of the Executive Order do not                 for the same hazardous metal                          The scope of this rule is limited in
     apply to this rule. This final rule would               constituents across a range of listed and             nature to three affected facilities. In
     preempt State and local law that is less                characteristic hazardous wastes. The                  addition the total annual cost of this
     stringent for these inorganic chemical                  performance level for leachability is                 rule is between $115,200 to $171,000.
     production wastes as hazardous wastes.                  based on the Best Demonstrated                        These costs represent less than 1
     Under the Resource Conservation and                     Commercially-Available Technology                     percent of the affected facilities sales
     Recovery Act (RCRA), 42 U.S.C. 6901 to                  (BDAT). The use of the TCLP for the                   and are not expected adversely impact
     6992k, the relationship between the                     same constituents assures uniformity                  energy use and management in the
     States and the national government with                 and consistency in the treatment of                   United States.
                                                             hazardous waste in fulfillment of the
     respect to hazardous waste management                                                                         List of Subjects
                                                             Congressional Mandate to minimize
     is established for authorized State
                                                             long-term threats to human health or the              40 CFR 148
     hazardous waste programs [42 U.S.C.                     environment. 42 U.S.C. § 6924(m). The
     6926 (§ 3006)] and retention of State                   use of any voluntary consensus standard                 Administrative practice and
     authority [42 U.S.C. 6929 (§ 3009)].                    would be impractical with applicable                  procedure, Hazardous waste, Reporting
     Under § 3009 of RCRA, States and their                  law because it would require a different              and recordkeeping requirements, Water
     political subdivisions may not impose                   leaching method than is currently used                supply.
     requirements less stringent for                         to determine hazardous characteristics.               40 CFR 261
     hazardous waste management than the                     The use of different chemical methods
     national government. By publishing and                                                                          Environmental protection, Hazardous
                                                             to assess hazardousness of the waste                  materials, Waste treatment and disposal,
     inviting comment on the proposed rule,                  and compliance with treatment                         Recycling.
     we provided State and local officials                   standards would create disparate results
     notice and an opportunity for                           between hazardous waste identification                40 CFR Part 268
     appropriate participation. Thus, we                     and effective treatment of land disposed                Environmental protection, Hazardous
     complied with the requirements of                       hazardous wastes. We have not,                        materials, Waste management,
     section 4 of the Executive Order.                       therefore, used any voluntary consensus               Reporting and recordkeeping
                                                             standards. In the proposed rulemaking,                requirements, Land disposal
       41 For more information, please refer to Chapter
                                                             EPA solicited public comment to                       restrictions, Treatment standards.
     6 of the background document Economic Analysis          identify potentially-applicable
                                                             voluntary consensus standards and to                  40 CFR Part 271
     of the Final Rule For Listing Hazardous Waste From
     Inorganic Chemical Production, which was placed         explain why such standards should be                    Environmental protection,
     in the docket for today’s final rule.                   used in this regulation. EPA did not                  Administrative practice and procedure,


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                         Federal Register / Vol. 66, No. 224 / Tuesday, November 20, 2001 / Rules and Regulations                                                              58297

     Confidential business information,                                    (k) Effective May 20, 2002, the wastes                disposed prior to the effective date of
     Hazardous material transportation,                                  specified in 40 CFR 261.32 as EPA                       the listing:
     Hazardous waste, Indians-lands,                                     Hazardous Waste Numbers K176, K177,                        (iii) The leachate or gas condensate do
     Intergovernmental relations, Penalties,                             and K178 are prohibited from                            not exhibit any characteristic of
     Reporting and recordkeeping                                         underground injection.                                  hazardous waste nor are derived from
     requirements, Water pollution control,                                (l) The requirements of paragraphs (a)                any other listed hazardous waste;
     Water supply.                                                       through (k) of this section do not apply:                  (iv) Discharge of the leachate or gas
                                                                           (1) If the wastes meet or are treated to              condensate, including leachate or gas
     40 CFR Part 302
                                                                         meet the applicable standards specified                 condensate transferred from the landfill
       Environmental protection, Air                                     in subpart D of 40 CFR part 268; or                     to a POTW by truck, rail, or dedicated
     pollution control, Chemicals,                                         (2) If an exemption from a prohibition                pipe, is subject to regulation under
     Emergency Planning and Community                                    has been granted in response to a                       sections 307(b) or 402 of the Clean
     Right-to-Know Act, Extremely                                        petition under subpart C of this part; or               Water Act.
     hazardous substances, Hazardous                                       (3) During the period of extension of                    (v) As of February 13, 2001, leachate
     chemicals, Hazardous materials,                                     the applicable effective date, if an                    or gas condensate derived from K169–
     Hazardous materials transportation,                                 extension has been granted under                        K172 is no longer exempt if it is stored
     Hazardous substances, Hazardous                                     § 148.4.                                                or managed in a surface impoundment
     waste, Intergovernmental relations,                                                                                         prior to discharge. After November 21,
     Natural resources, Reporting and                                    PART 261—IDENTIFICATION AND                             2003, leachate or gas condensate
     recordkeeping requirements, Superfund,                              LISTING OF HAZARDOUS WASTE                              derived from K176, K177, and K178 will
     Waste treatment and disposal, Water                                                                                         no longer be exempt if it is stored or
     pollution control, Water supply.                                      3. The authority citation for part 261                managed in a surface impoundment
                                                                         continues to read as follows:                           prior to discharge. There is one
       Dated: October 31, 2001.
     Christine T. Whitman,                                                 Authority: 42 U.S.C. 6905, 6912(a), 6921,             exception: if the surface impoundment
     Administrator.
                                                                         6922, 6924(y), and 6938.                                is used to temporarily store leachate or
                                                                                                                                 gas condensate in response to an
       For the reasons set forth in the                                    4. Section 261.4 is amended by                        emergency situation (e.g., shutdown of
     preamble, title 40, chapter I of the Code                           revising paragraph (b)(15) to read as                   wastewater treatment system), provided
     of Federal Regulations is amended as                                follows:                                                the impoundment has a double liner,
     follows:                                                                                                                    and provided the leachate or gas
                                                                         § 261.4     Exclusions.
                                                                         *      *    *     *    *                                condensate is removed from the
     PART 148—HAZARDOUS WASTE
                                                                           (b) * * *                                             impoundment and continues to be
     INJECTION RESTRICTIONS
                                                                           (15) Leachate or gas condensate                       managed in compliance with the
       1. The authority citation for part 148                            collected from landfills where certain                  conditions of this paragraph (b)(15)(v)
     continues to read as follows:                                       solid wastes have been disposed,                        after the emergency ends.
       Authority: Sec. 3004, Resource                                    provided that:                                          *       *    *    *      *
     Conservation and Recovery Act, 42 U.S.C.                              (i) The solid wastes disposed would
     6901 et seq.
                                                                                                                                    5. In § 261.32, the table is amended by
                                                                         meet one or more of the listing                         adding in alphanumeric order (by the
       2. Section 148.18 is amended by                                   descriptions for Hazardous Waste Codes                  first column) under the subgroup
     revising paragraph (k) and adding                                   K169, K170, K171, K172, K174, K175,                     ‘‘Inorganic Chemicals’’ to read as
     paragraph (l) to read as follows:                                   K176, K177, and K178, if these wastes                   follows:
                                                                         had been generated after the effective
     § 148.18 Waste-specific prohibitions—                               date of the listing;                                    § 261.32 Hazardous waste from specific
     newly listed and identified wastes.                                   (ii) The solid wastes described in                    sources.
     *     *         *        *        *                                 paragraph (b)(15)(i) of this section were               *        *       *        *    *

                     Industry and EPA                                                                                                                                 Hazardous
                                                                                                            Hazardous waste
                    hazardous waste No.                                                                                                                                 code


              *                                *                             *                      *                       *                          *                   *
     Inorganic chemicals:

             *                               *                             *                   *                    *                    *                                 *
         K176 ...................................................   Baghouse filters from the production of antimony oxide, including filters from the               (E)
                                                                      production of intermediates (e.g., antimony metal or crude antimony oxide).
         K177 ...................................................   Slag from the production of antimony oxide that is speculatively accumulated or dis-             (T)
                                                                      posed, including slag from the production of intermediates (e.g., antimony metal
                                                                      or crude antimony oxide).
         K178 ...................................................   Residues from manufacturing and manufacturing-site storage of ferric chloride from               (T)
                                                                      acids formed during the production of titanium dioxide using the chloride-ilmenite
                                                                      process.

                *                              *                             *                      *                       *                          *                   *


                                                       Appendix VII to Part 261—Basis for Listing Hazardous Waste
          6. Appendix VII to part 261 is amended by adding the following wastestreams in alphanumeric order (by the
     first column) to read as follows:


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     58298               Federal Register / Vol. 66, No. 224 / Tuesday, November 20, 2001 / Rules and Regulations

                                     EPA hazardous waste No.                                                                            Hazardous constituents for which listed


                *                                *                                 *                                *                      *                         *                         *
     K176 .......................................................................................................... Arsenic, Lead.
     K177 .......................................................................................................... Antimony.
     K178 .......................................................................................................... Thallium.



     PART 268—LAND DISPOSAL                                                   (b) The requirements of paragraph (a)                              the applicable treatment standards
     RESTRICTIONS                                                          of this section do not apply if:                                      specified in § 268.40, the initial
                                                                              (1) The wastes meet the applicable                                 generator must test a sample of the
       7. The authority citation for part 268                              treatment standards specified in subpart                              waste extract or the entire waste,
     continues to read as follows:                                         D of this part;                                                       depending on whether the treatment
       Authority: 42 U.S.C. 6905, 6912(a), 6921,                              (2) Persons have been granted an                                   standards are expressed as
     and 6924.                                                             exemption from a prohibition pursuant                                 concentrations in the waste extract or
                                                                           to a petition under § 268.6, with respect                             the waste, or the generator may use
     Subpart C—Prohibitions on Land                                        to those wastes and units covered by the
     Disposal                                                                                                                                    knowledge of the waste. If the waste
                                                                           petition;                                                             contains regulated constituents in
       8. Section 268.36 is added to read as                                  (3) The wastes meet the applicable
                                                                                                                                                 excess of the applicable subpart D
     follows:                                                              treatment standards established
                                                                                                                                                 levels, the waste is prohibited from land
                                                                           pursuant to a petition granted under
     § 268.36 Waste specific prohibitions—                                 § 268.44;                                                             disposal, and all requirements of this
     inorganic chemical wastes                                                (4) Hazardous debris has met the                                   part are applicable, except as otherwise
        (a) Effective May 20, 2002, the wastes                             treatment standards in § 268.40 or the                                specified.
     specified in 40 CFR part 261 as EPA                                   alternative treatment standards in                                      9. In § 268.40, the Table is amended
     Hazardous Wastes Numbers K176,                                        § 268.45; or                                                          by adding in alphanumeric order new
     K177, and K178, and soil and debris                                      (5) Persons have been granted an                                   entries for K176, K177, and K178 as
     contaminated with these wastes,                                       extension to the effective date of a                                  follows:
     radioactive wastes mixed with these                                   prohibition pursuant to § 268.5, with
     wastes, and soil and debris                                           respect to these wastes covered by the                                § 268.40 Applicability of treatment
     contaminated with radioactive wastes                                  extension.                                                            standards.
     mixed with these wastes are prohibited                                   (c) To determine whether a hazardous                               *      *        *        *        *
     from land disposal.                                                   waste identified in this section exceeds

                                                                 TREATMENT STANDARDS FOR HAZARDOUS WASTES
                                                                                     [Note: NA means not applicable]

                                                                                                                                               Common           Wastewaters              Nonwastewaters
                                                                                                                                                name
                                                                                                                                                                                         Concentration in
                              Waste description and treatment/
       Waste code                                                                  Regulated hazardous constituent                                            Concentration in            mg/kg 5 unless
                                 regulatory Subcategory 1                                                                                                     mg/L 3, or Tech-           noted as ‘‘mg/L
                                                                                                                                           CAS 2 No.           nology Code 4             TCLP’’, or Tech-
                                                                                                                                                                                           nology Code


               *                           *                   *                                          *                                *                       *                           *
     K176 ..............     Baghouse filters from the produc-                    Antimony .......................................             7440–36–0     1.9 .....................   1.15 mg/L TCLP
                               tion of antimony oxide, including                  Arsenic ..........................................           7440–38–2     1.4 .....................   5.0 mg/L TCLP
                               filters from the production of                     Cadmium .......................................              7440–43–9     0.69 ...................    0.11 mg/L TCLP
                               intermediates (e.g., antimony                      Lead ..............................................          7439–92–1     0.69 ...................    0.75 mg/L TCLP
                               metal or crude antimony oxide).                    Mercury .........................................            7439–97–6     0.15 ...................    0.025 mg/L
                                                                                                                                                                                           TCLP
     K177 ..............     Slag from the production of anti-                    Antimony .......................................             7440–36–0     1.9 .....................   1.15 mg/L TCLP
                               mony oxide that is speculatively                   Arsenic ..........................................           7440–38–2     1.4 .....................   5.0 mg/L TCLP
                               accumulated or disposed, in-                       Lead ..............................................          7439–92–1     0.69 ...................    0.75 mg/L TCLP
                               cluding slag from the production
                               of intermediates (e.g., antimony
                               metal or crude antimony oxide).
     K178 ..............     Residues from manufacturing and                      1,2,3,4,6,7,8- Heptachlorodibenzo-                       35822–39–4        0.000035 or                 0.0025 or
                               manufacturing-site storage of                        p-dioxin.                                                                  CMBST 11.                   CMBST 11
                               ferric chloride from acids formed                  (1,2,3,4,6,7,8-HpCDD)                                    67562–39–4        0.000035 or                 0.0025 or
                               during the production of titanium                  1,2,3,4,6,7,8- .................................                             CMBST 11.                   CMBST 11
                               dioxide using the chloride-ilmen-                  Heptachlorodibenzofuran                                  55673–89–7        0.000035 or                 0.0025 or
                               ite process.                                       (1,2,3,4,6,7,8-HpCDF)                                                        CMBST 11.                   CMBST 11
                                                                                  1,2,3,4,7,8,9- .................................
                                                                                  Heptachlorodibenzofuran
                                                                                  (1,2,3,4,7,8,9-HpCDF)
                                                                                  HxCDDs (All Hexachlorodibenzo-                           34465–46–8        0.000063 or                 0.001 or
                                                                                    p-dioxins).                                                                CMBST 11.                   CMBST 11




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                         Federal Register / Vol. 66, No. 224 / Tuesday, November 20, 2001 / Rules and Regulations                                                                          58299

                                                      TREATMENT STANDARDS FOR HAZARDOUS WASTES—Continued
                                                                                 [Note: NA means not applicable]

                                                                                                                                       Common           Wastewaters              Nonwastewaters
                                                                                                                                        name
                                                                                                                                                                                 Concentration in
                               Waste description and treatment/                                                                                                                   mg/kg 5 unless
       Waste code                                                              Regulated hazardous constituent                                        Concentration in
                                  regulatory Subcategory 1                                                                                            mg/L 3, or Tech-           noted as ‘‘mg/L
                                                                                                                                    CAS 2 No.          nology Code 4             TCLP’’, or Tech-
                                                                                                                                                                                   nology Code

                                                                              HxCDFs                                       (All     55684–94–1       0.000063 or                 0.001 or
                                                                                Hexachlorodibenzofurans).                                              CMBST 11.                   CMBST 11
                                                                              1,2,3,4,6,7,8,9-                                         3268–87–9     0.000063 or                 0.005 or
                                                                                Octachlorodibenzo-p-dioxin.                                            CMBST 11                    CMBST 11
                                                                              (OCDD)                                                                   0.005 or.
                                                                              1,2,3,4,6,7,8,9-                                      39001–02–0       0.000063 or                 0.005 or
                                                                                Octachlorodibenzofuran.                                                CMBST 11.                   CMBST 11
                                                                              (OCDF)
                                                                              PeCDDs (All ..................................        36088–22–9       0.000063 or                 0.001 or
                                                                              Pentachlorodibenzo-p-dioxins)                                            CMBST 11.                   CMBST 11
                                                                              PeCDFs (All ..................................        30402–15–4       0.000035 or                 0.001 or
                                                                              Pentachlorodibenzofurans)                                                CMBST 11.                   CMBST 11
                                                                              TCDDs (All tetrachlorodi-benzo-p-                     41903–57–5       0.000063 or                 0.001 or
                                                                                dioxins).                                                              CMBST 11.                   CMBST 11
                                                                              TCDFs                                        (All     55722–27–5       0.000063 or                 0.001 or
                                                                                tetrachlorodibenzofurans).                                             CMBST 11.                   CMBST 11
                                                                              Thallium .........................................       7440–28–0     1.4 .....................   0.20 mg/L TCLP

                  *                             *                         *                            *                           *                         *                         *
       Footnotes to Treatment Standard Table 268.40:
       1 The waste descriptions providedin this table do not replace waste descriptions in 49 CFR part 261. Descriptions of Treatment/Regulatory
     Subcategories are provided, as needed, to distinguish between applicability of different standards.
       2 CAS means Chemical Abstract Services. When the waste code and/or regulated constituents are described as a combination of a chemical
     with its salts and/or esters, the CAS number is given for the parent compound only.
       3 Concentration standards for wastewaters are expressed in mg/L and are based on analysis of composite samples.
       4 All treatment standards expressed as a Technology Code or combination of Technology Codes are explained in detail in 40 CFR 268.42
     Table 1—Technology Codes and Descriptions of Technology-Based Standards.
       5 Except for Metals (EP or TCLP) and Cyanides (Total and Amenable) the nonwastewater treatment standards expressed as a concentration
     were established, in part, based upon incineration in units operated in accordance with the technical requirements of 40 CFR part 264, Subpart
     O or 40 CFR part 265, Subpart O, or based upon combustion in fuel substitution units operating in accordance with applicable technical require-
     ments. A facility may comply with these treatment standards according to provisions in 40 CFR 268.40(d). All concentration standards for
     nonwastewaters are based on analysis of grab samples.
       11 For these wastes, the definition of CMBST is limited to: (1) Combustion units operating under 40 CFR 266, (2) combustion units permitted
     under 40 CFR part 264, Subpart O, or (3) combustion units operating under 40 CFR 265, Subpart O, which have obtained a determination of
     equivalent treatment under 268.42(b).


     PART 271—REQUIREMENTS FOR                                            Authority: 42 U.S.C. 6905, 6912(a), and                         and Table 2 in chronological order by
     AUTHORIZATION OF STATE                                             6926.                                                             date of publication to read as follows.
     HAZARDOUS WASTE PROGRAMS                                             11. Section 271.1(j) is amended by                              § 271.1    Purpose and scope.
       10. The authority citation for Part 271                          adding the following entries to Table 1                           *        *    *         *        *
     continues to read as follows:                                                                                                            (j) * * *
                        TABLE 1.—REGULATIONS IMPLEMENTING THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984
                                                                                                                                                                                       Effective
                      Promulgation date                                           Title of regulation                                    Federal Register reference                      date


              *                                *                          *                 *                                        *                 *                               *
     10/31/01 ................................................   Listing of Inorganic Chemical Manufacturing                       [insert Federal Register page num-                      5/20/02.
                                                                   Wastes.                                                             bers].

                  *                             *                         *                            *                           *                         *                         *




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     58300                Federal Register / Vol. 66, No. 224 / Tuesday, November 20, 2001 / Rules and Regulations

                                 TABLE 2.—SELF-IMPLEMENTING PROVISIONS OF THE SOLID WASTE AMENDMENTS OF 1984
                                                                                                                                                                                                              FEDERAL
                          Effective date                                           Self-implementing provision                                                    RCRA citation                              REGISTER
                                                                                                                                                                                                             reference


               *                                 *                             *                  *                                              *                  *                                        *
     5/20/02 .......................................................    Prohibition on land disposal of K176,                                3004(g)(4)(C) and 3004(m) ......................                    11/20/02.
                                                                          K177, and K178 wastes, and prohibi-
                                                                          tion on land disposal of radioactive
                                                                          waste mixed with K176, K177, and
                                                                          K178 wastes, including soil and debris.

                   *                              *                               *                               *                                *                               *                         *



     PART 302—DESIGNATION,                                                         Authority: 42 U.S.C. 9602, 9603, and 9604;                              alphanumeric order at the end of the
     REPORTABLE QUANTITIES, AND                                                  33 U.S.C. 1321 and 1361.                                                  table to read as follows:
     NOTIFICATION
                                                                                   13. In § 302.4, Table 302.4 is amended                                  § 302.4 Designation of hazardous
       12. The authority citation for Part 302                                   by adding the following new entries in                                    substances
     continues to read as follows:                                                                                                                         *         *        *        *         *
                                          TABLE 302.4—LIST OF HAZARDOUS SUBSTANCES AND REPORTABLE QUANTITIES
                                                                   [Note: All comments/notes are located at the end of this table]

                                                                                                                                                             Statutory                                 Final RQ
                                                                                                                      Regulatory
                         Hazardous substance                                             CASRN                                                                              RCRA
                                                                                                                      synomyms                                                                  Cat-         Pounds
                                                                                                                                                  RQ       Code †           waste              egory          (Kg)
                                                                                                                                                                             No.


               *                                 *                                 *                               *                               *                               *                         *
     K176 ....................................................................    ...........................   ...............................     *1               4     K176            X                      1 (0.454)
     Baghouse filters from the production of anti-
       mony oxide, including filters from the produc-
       tion of intermediates (e.g., antimony metal or
       crude antimony oxide)
     K177 ....................................................................    ...........................   ...............................     *1               4     K177            D               5,000 (2270)
     Slag from the production of antimony oxide that
       is speculatively accumulated or disposed, in-
       cluding slag from the production of intermedi-
       ates (e.g., antimony metal or crude antimony
       oxide)
     K178 ....................................................................    ...........................   ...............................     *1               4     K178            X                      1 (0.454)
     Residues from manufacturing and manufac-
       turing-site storage of ferric chloride from acids
       formed during the production of titanium diox-
       ide using the chloride ilmenite process.
                                                                                  ...........................   ...............................   ......   ............
                   *                              *                                *                               *                                *                              *                         *
        † Indicates the statutory source as defined by 1, 2, 3, and 4 below.
        4—Indicates that the statutory source for designation of this hazardous substance under CERCLA is RCRA section 3001.
        1* Indicates that the 1-pound RQ is a CERCLA statutory RQ.


     [FR Doc. 01–27833 Filed 11–19–01; 8:45 am]
     BILLING CODE 6560–50–P




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