[Federal Register Volume 67, Number 142 (Wednesday, July 24, 2002)]
[Rules and Regulations]
[Pages 48393-48415]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 02-18405]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 261, 266, 268 and 271

[FRL-7248-3]
RIN 2050-AE69


Zinc Fertilizers Made From Recycled Hazardous Secondary Materials

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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

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

ADDRESSES: Public comments and supporting materials are available for 
viewing in the RCRA Docket Information Center (RIC), located at Crystal 
Gateway I, First Floor, 1235 Jefferson Davis Highway, Arlington, VA. 
The RIC is open from 9 a.m. to 4 p.m., Monday through Friday, excluding 
Federal holidays. To review docket materials, it is recommended that 
the public make an appointment by calling 703-603-9230. The index and 
some supporting materials are available electronically. See the 
SUPPLEMENTARY INFORMATION section for information on accessing them.

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

SUPPLEMENTARY INFORMATION:

I. General Information

A. Regulated Entities

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

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

1. Docket
    EPA has established an official public docket for this action under 
Docket ID No. RCRA-2000-0054. The official public docket consists of 
the documents specifically referenced in this action, any public 
comments received, and other information related to this action. 
Although a part of the official docket, the public docket does not 
include Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. The official public docket 
is the collection of materials that is available for public viewing at 
the OSWER Docket, 1235 Jefferson Davis Hwy, 1st Floor, Arlington, VA 
22201. You may copy up to 100 pages from any docket at no charge. 
Additional copies cost $0.15 each.
2. Electronic Access
    You may access this Federal Register document electronically 
through the EPA Internet under the ``Federal Register'' listings at 
http://www.epa.gov/fedrgstr/. An electronic version of the

[[Page 48394]]

public docket is available through EPA's electronic public docket and 
comment system, EPA Dockets. You may use EPA Dockets at http://
www.epa.gov/edocket/ to access the index listing of the contents of the 
official public docket, and to access those documents in the public 
docket that are available electronically. Although not all docket 
materials may be available electronically, you may still access any of 
the publicly available docket materials through the docket facility 
identified above. Once in the system, select ``search,'' then key in 
the appropriate docket identification number.
    The index of comments received and supporting materials for this 
rulemaking are available from the RCRA Information Center. The official 
record for this action is in paper form. EPA has transferred all 
comments received electronically into paper form and has placed them in 
the official record, which also includes all comments submitted 
directly in writing. The official record is the paper record maintained 
at the address in ADDRESSES at the beginning of this document.
    EPA's responses to the major comments received on this rulemaking 
are presented in the preamble to this final rule; other comments are 
addressed in a separate ``Response to Comments'' document which is also 
part of the official record for this rulemaking.
    The contents of today's action are listed in the following outline:

I. Statutory Authority
II. Background
    A. What Is the purpose of today's final rule?
    B. Who will be affected by today's final rule?
    C. How were public comments on the proposal considered by EPA?
    D. How does this final rule compare to the proposal?
    E. Why does EPA believe this is the best approach for regulating 
this recycling practice?
III. Detailed description of today's final rule
    A. Applicability
    B. Removal of exemption for fertilizers made from electric arc 
furnace dust (K061)
    C. Conditional exclusion for hazardous secondary materials used 
to make zinc fertilizers
    1. Applicability
    2. Conditions to the exclusion
    3. Other provisions
    4. Implementation and enforcement
    5. Response to comments
    D. Conditional exclusion for zinc fertilizers made from excluded 
hazardous secondary materials
    1. Hazardous constituent levels for excluded zinc fertilizers
    2. Limits on metal contaminants
    3. Limit on dioxins
IV. Mining wastes used to make fertilizers
V. State fertilizer regulatory programs
VI. State authority
    A. Applicability of Federal RCRA Rules in Authorized States
    B. Authorization of States for Today's Proposal
VII. Administrative Assessments
    A. Executive order 12866
    B. Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 
U.S.C. 601 et. seq.
    C. Paperwork Reduction Act
    D. Unfunded Mandates Reform Act
    E. Federalism--Applicability of Executive Order 13132
    F. Executive Order 13084: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from 
Environmental Risks and Safety Risks
    H. National Technology Transfer and Advancement Act of 1995
    I. Executive Order 12898
    J. Executive Order 13211 (Energy Effects)
    K. Congressional Review Act

I. Statutory Authority

    These regulations are promulgated under the authority of sections 
3001, 3002, 3003, and 3004 of the Solid Waste Disposal Act of 1970, as 
amended by the Resource Conservation and Recovery Act of 1976 (RCRA), 
as amended by the Hazardous and Solid Waste Amendments of 1984 (HSWA), 
42 U.S.C 6921, 6922, 6923 and 6924.

II. Background

A. What Is the Purpose of Today's Final Rule?

    Today's final rule puts in place a new, more coherent system for 
regulating the practice of manufacturing zinc fertilizers from 
hazardous secondary materials, and establishes conditions under which 
such materials can be recycled to produce fertilizers without the 
materials or the fertilizers being regulated as hazardous wastes. The 
rule, which was proposed on November 28, 2000 (65 FR 70954), is the 
Agency's response to concerns expressed by public interest groups, 
citizens, industry and state environmental agencies with regard to the 
RCRA regulations that have previously applied to this practice. We 
believe that these new regulations will create a more consistent and 
comprehensive regulatory framework for such recycling activities, will 
make industry more accountable for those activities, will establish 
more appropriate limits on contaminants in zinc fertilizers made from 
hazardous secondary materials, and in general will promote safe, 
beneficial recycling in the zinc fertilizer industry.
    EPA wishes to emphasize that today's regulatory action addresses 
only one aspect of the larger issue of contaminants in fertilizers. 
Fertilizers made from recycled hazardous wastes (which are the only 
types of fertilizers subject to regulation under EPA's RCRA 
authorities) represent a very small segment-less than one half of one 
percent--of the total fertilizer market. To our knowledge, virtually 
all of these are zinc micronutrient fertilizers. Currently, less than 
half of all zinc fertilizers on the market are made from such recycled 
materials. In any case, EPA's studies of contaminants in fertilizers 
have indicated that the great majority of fertilizers are safe when 
used properly. This general finding is consistent with similar studies 
done by states such as Washington and California.
    Because fertilizers are generally safe, EPA sees no compelling 
reason to launch a broad new federal regulatory program to address 
fertilizer contaminants generally (such regulatory authority is 
potentially available under the Toxic Substances Control Act). This is 
not to say, however, that there is no need at all to regulate 
fertilizer contaminants. A wide range of fertilizers and soil 
amendments, including many products that are not made from recycled 
wastes, contain appreciable levels of heavy metal contaminants. In 
addition, EPA's fertilizer studies concluded that a few of these 
products may contain contaminants at levels approaching those which 
could pose unacceptable risks to human health and the environment. 
There is also the potential for tainted feedstocks to be introduced 
into the market unknowingly, particularly when such materials are 
imported into the country from unknown sources. A recent incident in 
the Pacific Northwest involving imported shipments of zinc sulfate 
material with extremely high cadmium levels is evidence that such 
problems can occur (see Washington Department of Ecology fact sheet at 
http://www.ecy.wa..gov/pubs/004025.pdf).
    Traditionally, state agriculture agencies have had responsibility 
for regulating the content of fertilizers, and in recent years several 
states (so far, Washington, Texas and California) have developed 
comprehensive programs to control contaminants in fertilizers and soil 
amendments. We believe that these state programs have been largely 
successful, and the Agency supports further state efforts in this area. 
Additional discussion of state fertilizer regulations and how they 
relate to this

[[Page 48395]]

RCRA rulemaking is presented in section V. of this preamble.

B. Who Will Be Affected by Today's Final Rule?

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

C. How Were Public Comments on the Proposal Considered by EPA?

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

D. How Does This Final Rule Compare to the Proposal?

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

E. Why Does EPA Believe This Is the Best Approach for Regulating This 
Recycling Practice?

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

[[Page 48396]]

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

A. Applicability

    Today's rule establishes a new regulatory framework for legitimate 
recycling of ``hazardous secondary materials'' in the manufacture of 
zinc micronutrient fertilizers. A secondary material is a sludge, by-
product, or spent material. See 50 FR at 616 n. 4 (Jan. 4, 1985). A 
hazardous secondary material is a secondary material that would be a 
hazardous waste (i.e., is listed or exhibits a characteristic of 
hazardous waste) if it is first a solid waste. Hazardous secondary 
materials are presently classified as hazardous wastes when recycled to 
produce

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

B. Removal of Exemption for Fertilizers Made from Electric Arc Furnace 
Dust (K061)

    Today's rule eliminates the provision in Sec. 266.20 that has 
exempted zinc fertilizers made specifically from electric arc furnace 
dust (K061) from having to meet applicable land disposal restrictions 
(LDR) treatment standards (i.e., the treatment standards for K061). 
This exemption was originally promulgated in the ``First Third'' LDR 
rulemaking (August 17, 1988, 52 FR 31138), based on a determination by 
EPA that fertilizers made from K061 had metal contaminant levels 
comparable to those of substitute zinc fertilizers (including those 
made from non-hazardous waste feedstocks), and that the use of K061 
fertilizers did not appear to pose significant risks (see 53 FR 31164, 
August 17, 1998). However, in recent years zinc fertilizers of much 
higher purity (e.g., zinc sulfate monohydrate, or ZSM fertilizers) have 
become widely available, and K061 derived zinc fertilizers now have 
among the highest contaminant (i.e., hazardous constituent) levels of 
any zinc fertilizers. Thus, EPA believes that the original basis for 
the K061 exemption is no longer valid, and sees no reason why these 
fertilizer products should not have to meet the same contaminant limits 
as other fertilizers made from recycled hazardous wastes (or be 
excluded from regulation in the same way as other such fertilizers).
    Response to Comments. Numerous commenters expressed support for a 
complete ban on the use of K061 in fertilizer manufacture, often citing 
the relatively high levels of dioxins in K061 fertilizers compared to 
other fertilizer products. Others urged a ban on the use of all 
``dioxin laden wastes'' to make fertilizer. A few commenters opposed 
removing the current LDR exemption for K061 derived fertilizers.
    EPA chose not to ban the use of K061 to make zinc fertilizers, for 
several reasons. Most importantly, we believe that with the 
promulgation of today's rule the issue of dioxins in K061 derived 
fertilizers will effectively become moot, largely because the new rules 
will in all likelihood eliminate the use of K061 to make zinc 
oxysulfate fertilizers. Oxysulfate is a type of zinc fertilizer that is 
typically made by simply mixing zinc-bearing material (e.g., K061) with 
sulfuric acid. There is typically no processing step to remove 
contaminants--whatever impurities are in the feedstock material will 
usually remain in the finished product. Such products will be unable to 
meet the new exclusion levels in today's rule, or the

[[Page 48398]]

applicable LDR standards. Thus, we do not expect this type of 
fertilizer to be produced after the effective date of today's 
regulations.
    At the same time, it is possible to remove the contaminants in K061 
to make a different type of fertilizer, such as high-purity ZSM 
fertilizer, which can satisfy the conditional exclusion levels. Most of 
the zinc in K061 is bound with iron in a zinc ferrite compound that is 
relatively insoluble and, at normal temperatures, cannot be effectively 
digested with acids to precipitate and filter out contaminants such as 
lead and other metals. However, it has been demonstrated that raw K061 
can be first processed in high-temperature furnaces to form a zinc 
oxide material that can then easily be made into ZSM. Such thermal 
treatment, combined with subsequent manufacturing processes, is likely 
to destroy most or nearly all dioxins present in K061. The agency thus 
sees no dioxin-related reason to prohibit this use of K061. Further 
discussion of dioxins in hazardous waste derived fertilizers is 
presented in section III.D.3 of this preamble.
    A few comments were received that opposed removing the current 
exemption from LDR treatment standards for K061 derived zinc 
fertilizers. These commenters did not, however, challenge the Agency's 
logic for eliminating the exemption, but rather argued that EPA has no 
legal jurisdiction to regulate these fertilizers at all, based on 
recent court decisions. EPA rejects these arguments, for the reasons 
discussed later in this preamble.

C. Conditional Exclusion for Hazardous Secondary Materials Used To Make 
Zinc Fertilizers

    In this final rule, EPA has created a ``conditional exclusion'' 
from the RCRA definition of solid waste for hazardous secondary 
materials (which would otherwise be classified as hazardous wastes, as 
explained above) that are used as ingredients to make zinc 
micronutrient fertilizers. As mentioned previously, this feature of the 
final rule is consistent with the proposal, though a few specific 
changes have been made, as explained below.
    The conditional exclusion provided in today's rule is an exclusion 
only from the RCRA subtitle C regulations, and not from the emergency, 
remediation and information-gathering sections of the RCRA statute 
[sections 3004(u), 3007, 3013, and 7003]. This is consistent with the 
principle already codified for other excluded secondary materials--that 
the exclusion is only from RCRA regulatory provisions, and not from 
these statutory authorities. See Sec. 261.1(b). EPA is restating this 
principle here in the interests of clarity, not to reopen the issue. 
The legal basis for the distinction of the Agency's authority under 
these provisions is that they use the broader statutory definition of 
solid waste (and hazardous waste as well) and so need not (and should 
not) be read as being limited by the regulatory definition. See, for 
example, 50 FR at 627. See also Connecticut Coastal Fishermen's Assn. 
v. Remington Arms, 989 F. 2d 1305, 1313-15 (2d Cir. 1993) (EPA may 
permissibly ascribe different definitions to the term ``solid waste'' 
for regulatory and statutory purposes).
    Today's conditional exclusion is intended to remove many of the 
regulatory disincentives that to date have discouraged legitimate 
recycling in the zinc fertilizer industry. Previously, hazardous wastes 
that were recycled to make fertilizers were subject to the full suite 
of hazardous waste regulatory requirements, including the requirement 
to obtain a RCRA permit for storage of wastes prior to fertilizer 
production. This permitting requirement in particular has dissuaded a 
number of fertilizer manufacturers from using valuable secondary 
materials as feedstocks, since RCRA permits can be time and resource-
intensive to obtain and maintain, and a number of alternative materials 
are readily available that are not subject to subtitle C regulation, 
either because they are not hazardous (i.e., are not listed and do not 
exhibit a characteristic), or are raw materials. By allowing companies 
to manage these hazardous secondary materials in accord with the 
conditions which are established in today's final rule, EPA expects 
that the rate of legitimate recovery of zinc values in these materials 
will increase considerably, which should be environmentally beneficial 
and result in lower costs to farmers for zinc fertilizers.
    Once this rule becomes effective, those who wish to begin managing 
hazardous secondary materials according to the conditional exclusion 
will first need to notify EPA or the authorized state of their intent 
to do so. This will provide overseeing agencies information as to who 
will be operating under this alternative regulatory system, when they 
will start, and the type of materials involved. In EPA's view, for this 
particular recycling practice, this is the minimum information needed 
to ascertain that legitimate recycling of the zinc-bearing materials 
will occur, and by whom. The other conditions that must be met to use 
and maintain the conditional exclusion address the proper storage of 
materials prior to recycling, and documentation of all off-site 
shipments of excluded materials. In addition, fertilizer manufacturers 
will need to submit an annual report to the overseeing agency that 
identifies the type, quantity and origin of all excluded materials that 
were used in the previous year. Again, EPA believes that for this 
recycling practice, these conditions are needed to assure that the 
materials will be recycled legitimately.
1. Applicability
    Several changes have been made to the final rule with regard to its 
applicability. For one, the final rule has been modified with regard to 
how it applies to intermediate handlers who act as brokers or middlemen 
between generators and fertilizer manufacturers. The proposed 
regulatory language did not specify any requirements or conditions 
specifically for intermediate handlers, though EPA discussed the issue 
and solicited comments on it in the preamble (65 FR at 70962-3). 
Several commenters observed that the use of intermediate handlers in 
this industry is not uncommon, with one commenter suggesting that in 
the final rule an intermediate handler should have the same 
responsibilities as a manufacturer who uses the conditional exclusion.
    The conditions in the final rule for excluding hazardous secondary 
materials are intended to reflect normal, responsible practices for 
management of valuable material commodities, rather than waste 
management. Since intermediate handlers may be an integral part of the 
management chain for these materials prior to recycling, we believe it 
is reasonable to also establish conditions for them. If intermediate 
handlers had no responsibilities for maintaining the excluded status of 
materials they receive, the materials could potentially be mixed or 
consolidated with other materials, or could in some other way lose 
their regulatory identity and escape the chain of custody that provides 
accountability to the government and the public to ensure that these 
materials are being handled in way that is consistent with the handling 
of a valuable commodity. They also could simply be stored haphazardly 
and create the types of damage associated with improper management of 
discarded materials, as has occurred in past damage incidents within 
the zinc fertilizer recycling industry (records of these damage cases 
are in the docket for this rulemaking).
    EPA sees no reason to prohibit excluded materials from being 
shipped through intermediate handlers, since they may provide a useful 
service to

[[Page 48399]]

both generators and manufacturers in this industry. Moreover, use of 
such middle-men is relatively common in the industry, and so is 
consistent with the idea of an exclusion conditioned to conform to 
industry commercial practice. However, their use must not compromise 
the protections that have been built into this conditional exclusion.
    We believe that intermediate handlers have incentives for managing 
conditionally excluded materials that are very similar to the 
generators', and thus should have similar responsibilities (i.e., any 
exclusion for intermediate handlers should be conditioned in the same 
manner as for generators). The final rule therefore specifies that 
intermediate handlers who wish to use the conditional exclusion must 
meet the same set of conditions that apply to the generators of the 
materials [see Sec. 261.4(a)(20)(ii)]. In effect, any intermediate 
handler who elects to receive conditionally excluded materials and 
wishes to maintain their excluded status under the terms of today's 
rule would need to provide prior notice to the appropriate regulatory 
agency, store the materials in accordance with the conditions in the 
rule, and meet all other conditions that would otherwise apply to the 
generator of the material. Alternatively, it is possible that an 
intermediate handler might choose not to use the conditional exclusion, 
in which case any excluded materials received by the handler would lose 
their excluded regulatory status.
2. Conditions to the Exclusion
    In general, the conditions established in today's final rule for 
storage and documentation of excluded material are designed to reflect 
normal fertilizer industry handling practices for zinc-bearing 
feedstock materials. They are the same basic conditions that were 
proposed for establishing and maintaining a regulatory exclusion for 
hazardous secondary materials used to make zinc fertilizers, with 
several relatively minor changes.
    Under this rule, in order to begin managing hazardous secondary 
materials that will be used to make zinc fertilizers without being 
subject to the current hazardous waste regulatory system, the 
responsible party (i.e., the secondary material generator, the 
fertilizer manufacturer or an intermediate handler) must initially 
notify the appropriate regulatory agency that he or she intends to 
begin doing so, and must then meet the conditions set out in this 
regulation. These conditions address proper storage of the excluded 
secondary material, notification of regulatory agencies, and 
documenting and maintaining records of any off-site shipments of such 
material. Fertilizer manufacturers who wish to use the conditional 
exclusion will also need to submit an annual report to EPA or the 
authorized state agency on the types, origins and quantities of 
excluded materials used in the previous year.
    The storage conditions in today's rule are based on normal industry 
practices for storing zinc-bearing feedstock materials used to make 
fertilizers, and thus are analogues to the hazardous constituent 
specification levels for the fertilizers, which likewise are drawn from 
existing industry practice. The conditions generally serve to prevent 
these materials from being discarded via wholesale release into the 
environment. The conditions also reflect the fact that zinc fertilizer 
feedstock materials are typically valued commodities, and are thus 
stored so as to prevent releases or other losses of the material. EPA's 
review of feedstock storage practices by zinc fertilizer manufacturers 
indicated, for example, that bulk feedstock materials are usually 
stored outdoors in hoppers or other types of tanks, while indoor 
storage is typically in supersack containers or in piles. We are not 
aware of any zinc fertilizer manufacturer currently storing feedstock 
materials in ways that readily allow dispersal via wind or 
precipitation runoff (e.g., open, outdoor piles). See the memorandum 
``Industry Storage Practices,'' in the docket for this rulemaking. 
Thus, we believe that the conditions in today's rule reflect this 
industry's feedstock storage practices, and thus reasonably serve to 
demarcate valuable feedstocks from wastes.
    EPA has made several changes from the proposed rule to the specific 
conditions that must be met in order to be eligible for the exclusion. 
These changes address outside storage of material in supersack 
containers, initial notifications to regulatory agencies, 
certifications for off-site shipments of excluded material, and 
enforcement of the conditions, as discussed in more detail below.
    Outdoor storage in supersack containers. Supersacks are flexible, 
woven resin containers designed to hold approximately one ton of dry 
material, and are commonly used by generators, manufacturers and others 
to store various types of solid zinc fertilizer feedstock materials. 
Several commenters objected to the proposed condition that would have 
allowed only indoor storage of excluded materials in this type of 
container, asserting that such a restriction could be a hardship for 
smaller facilities that may not have sufficient indoor storage 
capacity, and that with a few simple safeguards supersacks can be 
safely and reliably used to store this type of material out of doors.
    EPA agrees with the commenters' assertions that outdoor storage of 
excluded material in supersack containers can be safe and does not 
automatically indicate the material is being discarded, and therefore 
should be allowed under certain conditions. We are unaware of any 
environmental damage cases associated with storage of zinc fertilizer 
feedstock materials in supersack containers. The final rule therefore 
specifies that storage of excluded material in non-rigid containers 
(e.g., supersacks) will be allowed outdoors, as long as they are kept 
closed and are in sound condition, and are managed within storage units 
(e.g., on concrete pads) that can contain, drain and allow removal of 
leaks, spills, and accumulated precipitation, and can prevent run-on 
into the unit. These conditions are intended to assure management 
commensurate with the secondary material's classification as a valuable 
feedstock, rather than as a waste. Put another way, the conditions 
assure both that the material is being managed comparably to other 
material inputs used in fertilizer manufacture, and that the secondary 
materials will not be discarded via haphazard management that allows 
wholesale environmental release of the material, so becoming ``part of 
the waste disposal problem''. American Mining Congress v. EPA, 824 F. 
2d 1177, 1193 (D.C. Cir. 1987); Association of Battery Recyclers v. 
EPA, 298 F. 3d 1047, 1056 n. 6 (D.C. Cir. 2000).
    One-time notice. Under the proposed rule, generators would have had 
to identify in their one-time notices to regulatory agencies the 
estimated annual quantities of excluded materials that they expected to 
ship to each fertilizer manufacturer. Some commenters objected to this 
condition on the grounds that such information would be speculative, 
commercially sensitive, and of questionable use to regulatory agencies. 
EPA agrees, largely for the reasons offered by the commenters, and has 
removed this element of the one-time notice condition from the final 
rule.
    Certification. The proposed rule specified that generators using 
the conditional exclusion in today's rule would need to ensure that 
each shipment of excluded material off-site to another state was 
accompanied by a certification stating that the receiving state is 
authorized to administer the provisions of this rule. The implication

[[Page 48400]]

of this proposed provision was that out-of-state shipments of excluded 
material would only have been allowed if the receiving state had 
adopted and obtained authorization from EPA to implement these rules. 
Several commenters objected to this provision, arguing that shipments 
to states not authorized for this rule should be allowed, provided the 
materials are managed as hazardous wastes once they enter the receiving 
state. EPA agrees with these commenters, and has removed this 
certification provision from the final rule language.
3. Other Provisions
    Burden of Proof. The proposed rule contained a provision stating 
that in an enforcement action, the burden of proof in establishing 
conformance with the conditions in Sec. 261.4(a)(20) shall be on the 
generator, intermediate handler or manufacturer claiming the exclusion. 
One commenter correctly noted that this provision is redundant with the 
provision in Sec. 261.2(f), which also addresses assigning burdens of 
proof (both the burden of going forward and the ultimate burden of 
persuasion, see 50 FR at 642) when conditional exclusions are involved. 
The proposed provision has therefore been deleted from the final rule.
    Unit Closure. Today's final rule specifies that storage units 
(e.g., tanks and containers) used only to store zinc-bearing hazardous 
wastes before a conditional exclusion takes effect (i.e., before the 
facility owner/operator submits the one-time notice provided under 
Sec. 261.4(a)(20)(ii)(B)), and that will be used thereafter only to 
store secondary material excluded under today's rule, will not be 
subject to the closure requirements of 40 CFR part 264 (for units at 
permitted facilities) or Part 265 (for units at interim status 
facilities). This provision is intended to address situations where 
units such as tanks that have been used to store hazardous wastes would 
be required under the existing regulations to go through RCRA closure 
before storage of the excluded material could commence. As explained in 
the preamble to the proposed rule, the existing regulations require 
closure of units within 90 days of receiving the final volume of 
hazardous waste (see Sec. 264.113(a) and Sec. 265.113(a)). In the case 
of facilities affected by today's rule, this would mean that for units 
such as tanks that have been storing zinc-bearing hazardous wastes, the 
owner/operator would need to remove all waste residues and other 
contamination from the unit, in order for the unit to then commence 
storing the identical material under the terms of the conditional 
exclusion. We believe that requiring closure under these circumstances 
would serve little, if any environmental purpose, and today's rule 
explicitly provides that in these situations storage units will not be 
subject to RCRA closure requirements.
    Although these storage units will not be required to undergo 
closure according to the RCRA hazardous waste regulations, when the use 
of such a unit for this purpose is ultimately discontinued for some 
reason, the Agency expects that owner/operators will take common-sense 
steps to decontaminate and decommission the unit. We encourage owner/
operators in these situations to consult with regulatory agencies as to 
the best way to ensure that such units and their surroundings are 
cleaned up properly.
    EPA wishes to emphasize that relieving storage units from closure 
requirements in these situations will not relieve facility owner/
operators of their responsibility to respond to any releases from such 
units during their operational life. As explained elsewhere in this 
preamble, not responding to such releases could be considered an act of 
illegal disposal under RCRA, and could thus be subject to enforcement 
action under RCRA section 3008(a), which could impose penalties, as 
well as require any necessary cleanup actions. The conditional 
exclusion also will not affect a facility owner/operator's corrective 
action obligations under RCRA section 3004(u) or section 3008(h). If 
necessary, other federal or state remedial authorities may also be used 
to address such releases. We also note that the facilities operating 
under the terms of today's conditional exclusion will remain subject to 
regulatory oversight by authorized states and EPA, and as such we 
expect that environmental conditions at these facilities will continue 
to be scrutinized by regulatory personnel. Another consideration for 
not requiring RCRA closure in today's rule is that storage in land-
based units (e.g., outdoor piles) will not be allowed under the 
conditional exclusion. Generally, land-based units are more likely to 
have releases and are often more difficult to remediate. We thus 
believe, for the reasons cited above, that eliminating the closure 
requirement for storage units at facilities affected by today's rule 
will not compromise environmental protections at these facilities.
4. Implementation and Enforcement
    Implementation. The preamble to the proposed rule discussed and 
requested comments on several issues relating to implementation of this 
rule once it takes effect (65 FR at 70966-70967). These issues 
addressed the potential regulatory consequences of the rule on 
permitted and interim status RCRA facilities, and how the rule would be 
enforced. EPA has not made any specific regulatory changes in the final 
rule to address these issues, since we believe they can be 
satisfactorily resolved by the following explanation.
    One key issue has to do with the effects of the rule on facilities 
that currently have RCRA permits or interim status, and are managing 
hazardous wastes that will become conditionally excluded under this 
rule. Under one scenario, a facility that manages a variety of 
hazardous waste materials, including some that become excluded under 
this rule, would be affected only to the extent that certain units or 
procedures at the facility would no longer be subject to hazardous 
waste regulations. A somewhat different scenario could involve a 
facility whose hazardous wastes all become conditionally excluded from 
regulation when this rule takes effect (i.e., the facility no longer 
operates any hazardous waste management units).
    One idea discussed in the proposal was to amend the current 
regulations to automatically terminate permit conditions, permits and/
or interim status at facilities where hazardous waste management units 
or activities become de-regulated under today's rule. This could 
eliminate the need for regulatory agencies to process permit 
modifications or administratively terminate permits or interim status 
for those facilities. One state agency commenting on the proposal 
argued, however, for maintaining a government role in managing these 
facility transitions, asserting that automatically terminating permit 
conditions would not provide adequate oversight over facilities in 
these situations. Although cases like this are expected to be 
relatively few in number (perhaps only one facility in the nation will 
potentially be able to have its RCRA permit terminated because of this 
rule), we agree with the state agency commenter that making the 
transition to non-permitted status may not be entirely straightforward, 
especially when such facilities are undergoing cleanup actions under 
RCRA authorities. Thus, we concur that there should be some regulatory 
agency oversight in changing a facility's permit or interim status 
obligations under these regulations, and today's rule does not contain 
any regulatory provision for automatically terminating permits, permit 
conditions or interim status at

[[Page 48401]]

facilities affected by this final rule. We believe that making these 
changes at affected facilities can be done efficiently under current 
authorized state administrative procedures for modifying or terminating 
a facility's RCRA permit or interim status.
    Another potential implementation issue that could arise has to do 
with ensuring cleanup of historic contamination problems at facilities 
that may no longer need permits or interim status once the conditional 
exclusion takes effect. An example might be a facility with a RCRA 
operating permit that is working to remediate ground water 
contamination under the conditions of the permit. While the facility's 
operating permit may no longer be needed (since it is no longer 
actively managing hazardous waste), the owner/operator's obligations to 
remediate the contamination problems at the facility would not be 
affected by a change in the facility's operating status. In these 
situations, the authorized states would have the flexibility to address 
the facility's cleanup obligations by either maintaining in effect the 
corrective action-related provisions of the permit, or by using 
alternative federal or state enforcement mechanisms that may be 
available.
    Enforcement. The exclusion in today's rule for hazardous secondary 
materials (Sec. 261.4(a)(20)) will take effect once a generator, 
intermediate handler or manufacturer provides notice to the appropriate 
regulatory agency of his/her intent to begin using the exclusion. There 
is no requirement for the regulatory agency to formally approve or 
otherwise act on such notices, though some state agencies may wish to 
do so.
    The party claiming the conditional exclusion will be responsible 
for maintaining the exclusion by ensuring that all of the conditions 
are met. In the event that a condition is not met, the facility owner/
operator will need to remedy the situation as soon as possible in order 
not to jeopardize the exclusion. Should there be any questions as to 
whether the facility has properly maintained its exclusion, it will be 
the responsibility of the owner/operator to demonstrate that the 
conditions have been and are being met. See section 261.2(f), discussed 
earlier. If necessary, the overseeing regulatory agency may use RCRA 
inspection and information collection authorities to assist in 
establishing whether or not a facility is meeting the exclusion 
conditions.
    Facilities that claim the exclusion but fail to meet one or more of 
its conditions may be subject to enforcement action. For example, if a 
facility claiming the conditional exclusion failed to store secondary 
material in accordance with one or more of the conditions, the facility 
would in effect automatically lose its exclusion, and EPA or an 
authorized state agency could take enforcement action (under RCRA 
section 3008(a)), since the facility would likely then be violating 
hazardous waste regulatory requirements. In these situations a range of 
specific enforcement actions might be taken. In less serious cases the 
facility might simply be required to promptly remedy the situation, 
though fines or other penalties could also be assessed if appropriate. 
In especially serious cases the facility could be ordered to obtain a 
RCRA permit and comply with all applicable hazardous waste regulations.
    As a general matter, if a facility fails to meet a condition of the 
exclusion it will not necessarily affect the regulatory status of the 
secondary material at other facilities. For example, if a fertilizer 
manufacturer's facility were to lose its exclusion, the facility 
generating the secondary material would typically be allowed to retain 
its exclusion, provided that he or she continues to meet the applicable 
conditions. In such a case, the manufacturer would need to be in 
compliance with applicable hazardous waste regulations in order to 
accept any further shipments of excluded (or non-excluded) material 
from a generator.
    With regard to enforcement, it should also be noted that the 
conditional exclusion in today's rule will not affect a facility owner/
operator's obligation to promptly respond to and remediate any releases 
of excluded secondary material that may occur at the facility. An 
accident, for example, could rupture or otherwise damage a tank or 
container, causing spillage of material onto soils. If such released 
material were not cleaned up promptly, the owner/operator would be 
subject to enforcement action for illegal disposal of waste. See 
Sec. 264.1(g)(8)(iii).
    Today's conditional exclusion will not affect the rights of 
concerned citizens to bring to regulators' attention any circumstance 
that might aid authorities in their monitoring and enforcement efforts. 
A concerned citizen also may file a suit under RCRA section 7002 
against a party for violations that may result from failure to meet any 
of the conditions in this rule. Moreover, imminent and substantial 
endangerment provisions under Section 7003 of RCRA will continue to 
apply to conditionally excluded secondary materials as a safeguard, 
since those materials remain a statutory solid waste. Thus, EPA or an 
authorized State can act in the unlikely event of circumstances which 
may endanger human health or environment.
5. Response to Comments
    EPA received a number of comments addressing the general issue of 
whether or not a conditional exclusion from hazardous waste regulations 
is appropriate in the context of this rulemaking. One set of commenters 
presented arguments contending that EPA has no legal jurisdiction at 
all under RCRA to establish conditions or otherwise regulate hazardous 
secondary materials that are recycled to make zinc fertilizers. On the 
other hand, a substantial number of commenters expressed support for 
EPA continuing to regulate these materials as hazardous wastes, and 
called for adding a number of new, more stringent regulatory controls 
and restrictions over these waste materials.
    With respect to comments challenging EPA's authority to classify 
hazardous secondary materials used as ingredients in fertilizer as 
solid wastes at all, EPA notes first that this issue has been long-
settled, and was not reopened in this rule. EPA's rules classifying 
hazardous secondary materials used in a manner constituting disposal--
which includes use as fertilizers, or as ingredients in fertilizers--
were promulgated in 1985. 50 FR at 664, 666-67. These use constituting 
disposal rules were never challenged.\2\ EPA did not reopen the issue 
of jurisdiction for comment in this proceeding. 65 FR at 70959 n. 2. 
Thus, EPA believes that these comments are untimely.
---------------------------------------------------------------------------

    \2\EPA promulgated the rules requiring products placed on the 
land which are produced from hazardous wastes to meet LDR 
requirements in 1988, which rules also contained the provision 
exempting K 061-derived zinc fertilizers from this requirement. 53 
FR at 31212 (August 17, 1988). There were likewise no challenges to 
these rules raising the question of EPA's jurisdiction to adopt the 
provisions.
---------------------------------------------------------------------------

    In the event that response is considered necessary, however, EPA 
believes that it has ample jurisdiction to classify hazardous secondary 
materials used to produce zinc fertilizers as solid wastes. We also 
note that the following discussion applies to authority over uses 
constituting disposal as defined in section 261.2(c)(1), and does not 
deal with, or apply to, any other type of recycling. First, the 
generator of the hazardous secondary material is an unrelated entity 
getting rid of its secondary materials to a different industry sector. 
Thus, when one entity takes a secondary material for which it has no 
continuing use and transfers it to an unrelated entity, the materials 
can be viewed as discarded by that first entity.

[[Page 48402]]

See Owen Electric Steel Co., v. EPA, 37 F. 3d 146, 150 (4th Cir. 1994) 
EPA properly classified secondary material as a solid waste ``because 
the slag is sold to others for use in roadbed construction, it is not 
`destined for beneficial reuse or recycling in a continuous process by 
the generating industry itself', quoting AMC I, 824 F. 2d at 1186 
(emphasis in original). See generally American Petroleum Institute v. 
EPA (``API II''), 216 F. 3d 50--, 58 (D.C. Cir. 2000); Association of 
Battery Recyclers v. EPA, 208 F. 3d 1047, 1059-60 (D.C. Cir. 2000); 
American Petroleum Institute v. EPA, 906 F. 2d 729, 741 (D.C. Cir. 
1990)\3\; Specialty Steel Mfrs. Assn v. EPA, 27 F. 3d 642, 646 (D.C. 
Cir. 1994).
---------------------------------------------------------------------------

    \3\Commenters argued that API I was not on point because EPA 
there had compelled recovery of K 061 by establishing a treatment 
standard mandating metals recovery, and so had simply forced the 
recycling of material that would otherwise be disposed of, so that 
the material could be regarded as ``discarded''. Although it is 
correct that the opinion states that K061 was subject to a treatment 
standard of mandatory metal reclamation, 906 F. 2d at 741, it is 
incorrect that steel mills were otherwise disposing of their 
electric arc furnace dust, or that EPA had through its treatment 
standard converted a disposed-of waste into a recycled secondary 
material. Metals reclamation of K 061 was widespread at the time EPA 
adopted the treatment standard, and EPA based the standard on this 
well-established, existing practice. See 53 FR 11742, 11752 (April 
8, 1988) (high temperature metal recovery currently in use by at 
least four domestic facilities to recover zinc from K061, and the 
proposed treatment standard is taken from measurements from one of 
those existing operations). It also should be noted that the 
recycling practice at issue in API I is arguably more continuous 
than the types of practices involved in this rulemaking. When 
electric arc furnace dust is smelted for zinc recovery, it is 
captured as a dust by steel mill baghouses, conveyed to a storage 
bin at the mill (usually by conveyor belt, but sometimes 
pneumatically), and then shipped directly by truck or rail to the 
purchasing smelter. Typical storage time at the generating steel 
mill is two days or less, due to limited storage bin capacity. In 
contrast, storage times at generators of secondary materials used 
eventually as a zinc source for fertilizer often is up to 90 days. 
These generators also often deal through intermediary brokers who 
find an end use for the secondary material.
---------------------------------------------------------------------------

    Recycling via land application is a further indication of 
discarding. As EPA has stated years ago, ``Use constituting disposal 
involves as a practical matter the disposal of wastes. The wastes are 
being gotten rid of by placing them directly on the land.'' 53 FR at 
31198; see also 48 FR at 14484 (April 4, 1983) (``these practices are 
virtually the equivalent of unsupervised land disposal''). When placed 
on the land, hazardous secondary materials and the hazardous 
constituents they contain (few, if any, of which contribute to the 
recycling activity) could escape via all conceivable exposure pathways-
-air, runoff, leaching, even (as here) foodchain uptake. Such 
activities can certainly be viewed as discarding that is ``part of the 
waste disposal problem.''
    The statute supports this position. See RCRA section 3004 (l) (use 
of ``waste or used oil or other material, which is contaminated with 
dioxin or any hazardous waste * * * for dust suppression or road 
treatment is prohibited'')\4\; H.R. Rep. No. 198, 98th Cong., 1st Sess. 
at 46, 67-68 (hazardous waste-derived products that are placed on the 
land are to be the special object of EPA scrutiny in implementing 
subtitle C); see also Association of Battery Recyclers v. EPA, 208 F. 
3d 1047, 1059-60 (recycling via uses constituting disposal pose even 
greater potential risks than conventional land disposal, and thus 
justify stricter regulation). As the Agency concluded in 1988 (in 
another determination that was never challenged), ``To say that 
Congress did not intend to control these use constituting disposal 
situations under RCRA is to say that Congress had no intention of 
controlling such damage incidents as the Times Beach dioxin spreading 
incident where a group of communities were rendered uninhabitable as a 
result of use of a distillation botto[m] mixed with used oil as a dust 
suppressant. No credible reading of the statute would authorize this 
type of conduct.'' 53 FR at 31198. Indeed, some of the fertilizers 
addressed by today's rule contain dioxin, which comes from the 
hazardous secondary materials used as a source of zinc. EPA does not 
consider it plausible that Congress prohibited the use of dioxin-
containing secondary materials as dust suppressants, but denied EPA the 
authority to even consider the question of dioxin-containing hazardous 
secondary materials used as fertilizers--the more potentially harmful 
practice given the possibility of food chain contamination.
---------------------------------------------------------------------------

    \4\Since dioxin is a chemical contaminant, and is not itself a 
waste, section 3004 (l) thus states that use of contaminated used 
oil which is recycled via use as a dust suppressant--an example of a 
use constituting disposal--is prohibited. Congress, by placing this 
prohibition within section 3004 (which applies only to solid and 
hazardous wastes) could take this action only if it considered this 
form of recycling to involve a solid waste. It also bears mention 
that use of used oil contaminated with dioxin as a dust suppressant 
is not per se a type of sham recycling. Dioxins bind tenaciously 
with soils, and so contribute to the dust suppression use. The 
Congressional prohibition in section 3004 (l) thus applies to a form 
of recycling, not to illicit disposal. Note also that today's rule 
deals (in part) with the issue of dioxin contamination in the 
secondary materials used to produce zinc fertilizers.
---------------------------------------------------------------------------

    EPA notes, in addition, that many of the conditions in today's rule 
serve to demarcate legitimate recycling. The hazardous constitutent 
levels for fertilizers, for example, are drawn from typical levels in 
commercial zinc micronutrient fertilizers. To the extent that 
fertilizers contain non-nutritive hazardous constituents which come 
from hazardous secondary materials in concentrations significantly in 
excess of these levels, the recycling practice can be viewed as simply 
discarding those materials and constituents. American Petroleum Inst. 
II, 216 F. 3d at 58.
    This is not to say that EPA lacks discretion to classify some 
hazardous secondary materials, and products derived therefrom, which 
are used in a manner constituting disposal as not being solid wastes. 
The facts justifying such discretion here (stated broadly) are (a) the 
usefulness of the materials as a source of zinc for fertilizer; (b) the 
similarity of hazardous constituent levels in hazardous and non-
hazardous feedstock materials, and the fact that zinc fertilizers made 
from hazardous secondary materials are indistinguishable from those 
made from non-hazardous materials, and are processed identically (see, 
e.g. 46 FR at 44971 (Aug. 8, 1981) (EPA's first announcement of the 
principle that identity of waste-derived and non-waste derived products 
justifies cessation of RCRA regulation); and (c) management practices 
commensurate with the idea that the secondary materials are being 
managed as a valuable commodity rather than as a waste. The conditions 
adopted in today's rule are designed to assure that this fact pattern 
actually occurs, and (as noted above) are further designed to assure 
that legitimate rather than sham recycling occurs.
    As mentioned previously, a number of commenters did not support a 
regulatory exclusion of any kind for hazardous secondary materials used 
to make fertilizers, and instead favored maintaining and expanding the 
current hazardous waste regulatory controls over these materials. Among 
the suggestions for increased regulatory controls were greatly enhanced 
reporting by waste generators, middlemen and fertilizer manufacturers 
with regard to all shipments of hazardous wastes, including reporting 
on the composition of both the wastes that are used and of the 
fertilizers that are produced from those wastes. These additional 
reports would be required as part of the RCRA biennial reporting system 
(see Sec. 262.41). More thorough testing for a wider range of hazardous 
constituents was also suggested, as was labeling of fertilizer 
packaging to indicate that the fertilizer was made from hazardous 
waste.
    As discussed earlier, we believe that maintaining RCRA regulatory 
controls over all hazardous secondary materials

[[Page 48403]]

used to make zinc fertilizer is counter-productive, in that it 
discourages legitimate, safe recycling of these valuable materials, and 
can actually encourage production of fertilizers with higher 
contaminant levels . Adding further regulatory requirements would 
almost certainly ensure that this recyling practice would be eliminated 
completely, which we do not believe would be beneficial 
environmentally. With regard specifically to requiring additional 
testing of wastes and materials, the commenters did not supply any data 
to demonstrate why such additional testing is necessary, or any 
evidence indicating that fertilizers which meet today's exclusion 
levels are likely to contain meaningful levels of contaminants other 
than those for which we have established limits. EPA thus sees no 
reason to impose such additional requirements without a clear rationale 
for doing so.
    With regard to commenters who supported labeling of hazardous waste 
derived fertilizer products, we note that there is no legal authority 
under RCRA to impose such a labeling requirement on products that are 
made from legitimately recycled hazardous wastes or conditionally 
excluded secondary materials. We also question the appropriateness of 
requiring such labels, since they would likely unnecessarily stigmatize 
products that are identical in composition to fertilizers made from 
other types of materials.

D. Conditional Exclusion for Zinc Fertilizers Made From Excluded 
Hazardous Secondary Materials

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

                 Table 1.--Limits on Metal Contaminants
------------------------------------------------------------------------
                                               Maximum allowable total
                                            concentration in fertilizer,
             Metal Constituent                  per unit (1%) of zinc
                                                       content
------------------------------------------------------------------------
Arsenic...................................  0.3 ppm
Cadmium...................................  1.4 ppm
Chromium..................................  0.6 ppm
Lead......................................  2.8 ppm
Mercury...................................  0.3 ppm
------------------------------------------------------------------------

    As noted in the table, these limits are expressed as total 
concentrations of the metal in the fertilizer product. The alternative 
of establishing limits based on a different type of test procedure, 
such as the TCLP used in the RCRA program to identify hazardous wastes, 
was not supported by any of the commenters on the proposal (one obvious 
reason being that satisfying a leach test would normally mean that the 
material is unusable as a fertilizer, since the nutritive metal would 
be bound up along with the hazardous constitutents). It should also be 
noted that the limits are tied to the percentage of zinc in the 
fertilizer. This is primarily because the zinc content of fertilizers 
varies widely. If the limits were not tied to the percentage of zinc in 
the product, it is possible that manufacturers could

[[Page 48404]]

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

[[Page 48405]]



  Table 2.--Comparison of RCRA Exclusion Levels With AAPFCO Recommended
                               Guidelines
------------------------------------------------------------------------
                                                    RCRA
                                                 Exclusion      AAPFCO
                     Metal                         Levels     Guideline
                                                   (ppm)        (ppm)
------------------------------------------------------------------------
Arsenic.......................................         10.7        3,976
Cadmium.......................................         49.7        2,947
Chromium......................................         21.3     No limit
Lead..........................................         99.4       16,437
Mercury.......................................         10.7          213
------------------------------------------------------------------------

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

[[Page 48406]]

of chromium as a ``hazardous constituent'' in Appendix VIII of 40 CFR 
part 261 does not distinguish between the hexavalent and trivalent 
forms. Similarly, the ``land disposal restrictions'' treatment standard 
for chromium (see Sec. 268.48) applies to total chromium. There are a 
number of other examples, as well. We acknowledge, however, that some 
regulatory provisions of RCRA do make risk distinctions between 
hexavalent and trivalent chromium. One example is the exemption from 
the definition of hazardous waste for certain wastes that, upon 
specific demonstration, are shown to contain only trivalent chromium 
(see Sec. 261.4(b)(6)).
    The proposed limit for total chromium (0.6 ppm per unit of zinc) 
represents the level that has been demonstrated as readily achievable 
in ZSM fertilizers, including a small margin to account for 
variabilities in the manufacturing process. The commenter who proposed 
applying the limit only to hexavalent chromium did not question EPA's 
assertion that this level can be easily achieved in ZSM products, but 
instead referred to an unspecified ``advanced technology'' for making 
zinc fertilizer that is not designed to remove these contaminants. We 
note that the commenter did not supply any description of this advanced 
process, or submit any data to substantiate the claim that this 
technology would be unable to meet the proposed limit for total 
chromium. In fact, it is unclear from the commenter's discussion that 
this unspecified technology has been actually used in full-scale 
manufacture of zinc fertilizers. We also note that there is little, if 
any, available ZSM analytical data that differentiates between the 
different forms of chromium, although the basic chemical properties of 
chromium suggest that the presence of hexavalent chromium in ZSM 
fertilizers is likely to be relatively rare. In any case, it is 
certainly not EPA's intent in this rule to stifle development of new 
technologies for legitimate recycling in the fertilizer industry. 
However, without additional data and/or considerably more 
substantiation of the commenter's claims it is difficult for the Agency 
to conclude that the proposed limit on chromium is inappropriate or 
will otherwise be a hardship for zinc fertilizer manufacturers. The 
final limit on (total) chromium is therefore unchanged from the 
proposal.
3. Limit on Dioxins
    Today's rule finalizes the proposed limit of eight (8) parts per 
trillion of dioxins in zinc fertilizers, as measured according to the 
``toxicity equivalence'' or TEQ method (see ``Estimating Exposures to 
Dioxin-like Compounds'' (EPA publication 600/6-88/005 Ca)). 
The eight part per trillion limit is based on EPA's estimate of average 
national background levels of dioxins in soils (see EPA report 
``Estimating Exposure to Dioxin-Like Compounds, Review Draft'' (EPA/
600/6-88/000Ca; June 1994)). EPA has included dioxins in its list of 
priority ``persistent, bioaccumulative and toxic'' (PBT) chemicals that 
are of particular concern environmentally and are the focus of new 
control strategies being developed by EPA. Further information on the 
Agency's overall strategy for addressing PBTs can be found on our Web 
site (see www.epa.gov/pbt.htm).
    Significant levels of dioxins (in the hundreds of parts per 
trillion range) have been found in zinc oxysulfate fertilizers made 
from K061 hazardous wastes. EPA's fertilizer risk assessment concluded 
that exposure to dioxins in fertilizers at these levels is unlikely to 
pose unacceptable risks, based on currently available dioxin health 
effects information. However, available data on dioxin levels in 
fertilizers are admittedly very limited, so it is possible that dioxin 
levels in some fertilizer products could be higher than the current 
data suggest. It is also possible that, when finished, the Agency's 
ongoing reassessment of dioxin health effects could conclude that even 
more aggressive measures to control this class of PBT compounds are 
warranted. Because of these uncertainties, and because EPA is committed 
generally to a multifaceted national strategy aimed at reducing PBTs in 
the environment, we believe it is appropriate and prudent to limit 
dioxins in fertilizers in today's final rule. Moreover, given the 
presence of dioxins in at least some of the hazardous secondary 
materials used to produce zinc fertilizers, the extreme health risks 
associated with dioxins, and the fact that they contribute nothing to 
the efficacy of fertilizer products, some limit on dioxins is necessary 
for distinguishing product fertilizers from wastes, and to guard 
against sham recycling.
    As explained in the preamble to the proposed rule, EPA chose to use 
a ``background'' approach to setting a limit for dioxins in zinc 
fertilizers primarily because we do not have sufficient data on dioxin 
levels in zinc fertilizers to establish a technology-based limit, which 
would be consistent with the approach used in this rulemaking to set 
limits for metals. The limited data that are available on dioxin 
concentrations in zinc sulfate monohydrate (the zinc fertilizer 
formulation used to develop the technology-based limits for metals) 
indicate dioxin levels of approximately one part per trillion (TEQ) or 
less. We did not receive any additional data from commenters with 
regard to dioxin levels in ZSM products, nor did any commenters offer 
persuasive evidence that the 8 ppt limit would be technically or 
economically difficult for ZSM producers to achieve in their products. 
Thus, we believe that the 8 ppt limit can be (and is being) easily 
achieved by industry, should not impose any significant economic burden 
on zinc fertilizer manufacturers, and serves as a reasonable level for 
distinguishing fertilizer products from wastes.
    Response to comments. Many of the commenters on the proposal cited 
the need to limit dioxins in fertilizers as one of their primary 
concerns with regard to this rulemaking. Most of these commenters 
argued for either a more stringent limit than was proposed (e.g., a 
technology-based limit), or a complete ban on the recycling of any 
dioxin-containing waste material to make fertilizers. Some commenters 
suggested that a limit based on average national soil background levels 
would be appropriate only if it were based on ``pre-industrial'' 
background levels (which would presumably be lower than eight parts per 
trillion). In contrast, a number of other commenters opposed setting 
any limit on dioxins in this rule, arguing that it would increase costs 
to industry and would have little or no net environmental benefit. 
Other commenters suggested that if a limit on dioxins in fertilizer is 
established it should be risk-based, rather than based on national 
background soil levels. One commenter suggested that a dioxin limit of 
100 parts per trillion would be more reasonable and appropriate than 
the proposed limit, though the basis for that specific limit was not 
provided.
    None of the commenters who argued for more stringent limits on 
dioxins in this rule offered any scientific evidence establishing an 
environmental need for such additional controls, or questioning EPA's 
basic risk findings with regard to dioxins in zinc fertilizers. In 
addition, it is likely that more stringent limits would raise costs for 
this rule considerably. We see no reason to impose such additional 
costs without a convincing environmental rationale for doing so; thus, 
we chose not to adopt more stringent controls for dioxins in this final 
rule.
    We disagree with the commenters who questioned the need for any 
limit on dioxins in this rule. As explained above, we believe that a 
limit on dioxins

[[Page 48407]]

is appropriate as part of the Agency's broader strategy to control PBT 
chemicals in the environment, and should moreover have minimal cost 
impacts on industry. We also believe that a limit on dioxins in this 
rule is useful in distinguishing products from wastes, and in guarding 
against sham recycling of dioxin-containing secondary materials (dioxin 
being a non-contributing hazardous constituent in fertilizers). We do 
not agree with the commenters who suggested using a risk-based approach 
to setting limits on dioxins in this rule, for reasons similar to those 
in the preceding discussion of risk-based levels for metal 
contaminants. A risk-based limit on dioxins would likely be much higher 
than the actual levels of dioxins in high-quality zinc fertilizer, or 
the national soil background level of eight parts per trillion. Thus, a 
risk-based limit on dioxins would likely allow dioxin levels in these 
fertilizer products to increase greatly, to the point where they could 
pose unacceptable risks. EPA does not believe this to be a desirable 
environmental result, particularly in light of the current scientific 
uncertainty over the health effects of dioxins.
    We also chose not to adopt a limit of 100 parts per trillion, as 
was suggested by one commenter. That commenter did not offer any 
scientific, technical or economic basis for this particular limit, nor 
did the commenter offer any evidence to refute our assumption that the 
eight ppt limit would be easily achievable by manufacturers of high-
quality zinc fertilizers. We thus see no reason to adopt this higher, 
alternative limit for dioxins in this rule.

IV. Mining Wastes Used To Make Fertilizers

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

V. State Fertilizer Regulatory Programs

    Virtually all States have regulatory programs for fertilizers, 
which are usually administered by state agricultural agencies. 
Traditionally, the primary focus of these regulatory programs has been 
to ensure that fertilizers are accurately classified and labeled, and 
meet manufacturers' plant nutrient claims. Until quite recently, state 
regulatory programs did not explicitly address the issue of controlling 
contaminants such as heavy metals in fertilizer products. In 1998 the 
State of Washington enacted legislation to create this country's first 
comprehensive system for regulating fertilizer contaminants. A key 
feature of Washington's program is a publicly accessible internet 
website containing data on all fertilizers registered in the State of 
Washington, including data on levels of non-nutrient metals in each 
registered product. This database can be accessed at http//www.wa.gov/
agr/pmd/fertilizers.
    The States of Texas and California have also recently established 
regulatory programs for fertilizer contaminants, and a number of other 
states are likewise considering regulatory initiatives in this area.
    EPA supports state efforts to regulate contaminants in fertilizers. 
EPA regulates only a small fraction of the fertilizers currently on the 
market (one half of one percent or less) under its RCRA authorities. 
The potential certainly exists, however, for contaminant problems in 
other types of fertilizers. For example, cadmium levels in certain 
phosphate fertilizers (which typically are not waste derived) have been 
the subject of some concern recently by researchers, state regulators 
and others. We believe that the State of Washington's fertilizer 
regulatory program has been highly successful in controlling, and in a 
number of cases reducing, contaminants in fertilizer products sold in 
that state, and we thus encourage other states to develop similar 
programs.

[[Page 48408]]

VI. State authority

A. Applicability of Federal RCRA Rules in Authorized States

    Under section 3006 of RCRA, EPA may authorize qualified states to 
administer the RCRA hazardous waste program within the state. Following 
authorization, the state requirements authorized by EPA apply in lieu 
of equivalent federal requirements and become federally enforceable as 
requirements of RCRA. EPA maintains independent authority to bring 
enforcement actions under RCRA sections 3007, 3008, 3013, and 7003. 
Authorized states also have independent authority to bring enforcement 
actions under state law.
    A state may receive authorization by following the approval process 
described in 40 CFR part 271. Part 271 of 40 CFR also describes the 
overall standards and requirements for authorization. After a state 
receives initial authorization, new Federal regulatory requirements 
promulgated under the authority in the RCRA statute which existed prior 
to the 1984 Hazardous and Solid Waste Amendments (HSWA) do not apply in 
that state until the state adopts and receives authorization for 
equivalent state requirements (this does not, however, preclude a state 
from adopting and implementing such new regulations under state law 
only, prior to being authorized for them). The state must adopt such 
requirements to maintain authorization. In contrast, under RCRA section 
3006(g), (42 U.S.C. 6926(g)), new Federal requirements and prohibitions 
imposed pursuant to HSWA provisions take effect in authorized states at 
the same time that they take effect in unauthorized States. Although 
authorized states are still required to update their hazardous waste 
programs to remain equivalent to the Federal program, EPA carries out 
HSWA requirements and prohibitions in authorized states, including the 
issuance of new permits implementing those requirements, until EPA 
authorizes the state to do so. Authorized states are required to modify 
their programs only when EPA promulgates Federal requirements that are 
more stringent or broader in scope than existing Federal requirements.
    RCRA section 3009 allows the states to impose standards more 
stringent than those in the Federal program. See also 40 CFR 271.1(i). 
Therefore, authorized states are not required to adopt Federal 
regulations, either HSWA or non-HSWA, that are considered less 
stringent.

B. Authorization of States for Today's Proposal

    Today's rule is promulgated pursuant in part to HSWA authority and 
in part to non-HSWA authority. The conditional exclusion from the 
definition of solid waste for hazardous secondary materials used in 
zinc fertilizers is promulgated pursuant to non-HSWA authority, and is 
also less stringent than the current Federal requirements. Therefore, 
States will not be required to adopt and seek authorization for the 
conditional exclusion. EPA will implement the exclusion only in those 
States which are not authorized for the RCRA program. EPA believes, 
however, that this final rulemaking has considerable merit, and we thus 
strongly encourage States to amend their programs and become federally 
authorized to implement these rules.
    The elimination of the exemption from LDR treatment standards for 
K061 derived fertilizers is promulgated pursuant to RCRA section 
3004(g), a HSWA provision.\5\ Therefore, the Agency is adding this rule 
to Table 1 in 40 CFR 271.1(j), which identifies the Federal program 
requirements that are promulgated pursuant to HSWA and take effect in 
all States, regardless of their authorization status. Table 2 in 40 CFR 
271.1(j) is modified to indicate that these requirements are self-
implementing. Until the States receive authorization for these more 
stringent HSWA provisions, EPA will implement them. Once authorized 
States adopt an equivalent rule and receive authorization for such rule 
from EPA, the authorized state rule will apply in that State as the 
RCRA Subtitle C requirement in lieu of the equivalent federal 
requirement.
---------------------------------------------------------------------------

    \5\In Aug. 17, 1988, through a rule promulgated pursuant to 
HSWA, EPA imposed treatment standards prior to land application on 
all other commercial fertilizers containing recyclable waste, except 
for those derived from K061 (53 FR 31198, 31202). Today's rule 
simply extends the application of treatment standards to K061 
derived fertilizers.
---------------------------------------------------------------------------

VII. Administrative Assessments

A. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735), the Agency must 
determine whether this regulatory action is ``significant'' and 
therefore subject to formal review by the Office of Management and 
Budget (OMB) and to the requirements of the Executive Order, which 
include assessing the costs and benefits anticipated as a result of the 
proposed regulatory action. The Order defines ``significant regulatory 
action'' as one that is likely to result in a rule that may: (1) Have 
an annual effect on the economy of $100 million or more or adversely 
affect in a material way the economy, a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or state, local, or tribal governments or communities; (2) 
create a serious inconsistency or otherwise interfere with an action 
taken or planned by another agency; (3) materially alter the budgetary 
impact of entitlements, grants, user fees, or loan programs or the 
rights and obligations of recipients thereof; or (4) raise novel legal 
or policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in the Executive Order. 
Pursuant to the terms of Executive Order 12866, the Agency has 
determined that today's proposed rule is a significant regulatory 
action because this proposed rule contains novel policy issues. As 
such, this action was submitted to OMB for review. Changes made in 
response to OMB suggestions or recommendations are documented in the 
docket to today's proposal.
    EPA's economic analysis suggests that this rule is not economically 
significant under Executive Order 12866.
    Detailed discussions of the methodology used for estimating the 
costs, economic impacts and the benefits attributable to today's rule 
for regulatory modifications to the definition of solid waste for zinc-
containing hazardous waste-derived fertilizers, followed by a 
presentation of the cost, economic impact and benefit results, may be 
found in the background document: ``Economic Analysis for Regulatory 
Modifications to the Definition of Solid Waste For Zinc-Containing 
Hazardous Waste-Derived Fertilizers, Notice of Final Rulemaking,'' 
which is in the docket for today's final rule.
    Methodology. To estimate the cost, economic impacts to potentially 
affected firms and benefits to society from this rulemaking, we 
analyzed data from zinc micronutrient producers, firm financial 
reports, trade associations and chemical production data. The Agency 
has used both model facilities and actual facilities in analyzing the 
effects of this proposed regulation.
    To estimate the incremental cost or cost savings of this rule 
making, we reviewed baseline management practices and costs of 
potentially affected firms. The Agency has modeled the most likely 
post-regulatory scenario resulting from this action (e.g., shifts to 
non-hazardous fertilizer feedstocks, shifting from zinc oxysulfate to 
zinc sulfate monohydrate production) and the estimated cost of 
complying with it.

[[Page 48409]]

The difference between the baseline management cost and the post-
regulatory cost is either the incremental cost or cost savings 
resulting from the rulemaking.
    To estimate the economic impact of today's rule, we compared the 
incremental cost or cost savings of the rule with model firm sales. The 
Agency has also considered the ability of potentially affected firms to 
pass compliance costs on in the form of higher prices.
    To characterize the benefits of today's rule, we evaluated 
available data and presented a qualitative assessment of benefits 
including ecological benefits and protection of natural resources such 
as groundwater.
    Results. Volume. Data reviewed by the Agency indicates that there 
are 3 to 4 zinc micronutrient producers, one zinc producer, one steel 
mill, and 23 brass fume dust generators (ingot makers, mills, and 
foundries) potentially affected by today's rule. Although the exact 
amount of hazardous waste used in zinc micronutrient fertilizer 
production on annual basis varies from year to year, in 1997, data 
indicate that approximately 46,000 tons of hazardous waste were used in 
the production of zinc micronutrient fertilizer. The principal 
hazardous waste feedstocks were tire ash, electric arc furnace dust 
(K061) and brass fume dust from ingot makers, mills and foundries.
    Costs. For the part of today's rule pertaining to zinc 
micronutrient fertilizers, we estimate the total annual cost savings 
from today's proposal to be $2.14 million for all facilities. Costs 
savings for different groups are summarized in Table 1.

   Table 1.--Estimated Incremental Costs and Cost Savings By Facility
                                Category
------------------------------------------------------------------------
                                              Incremental annual costs
       Potentially affected facility           (cost savings) (1999$)
------------------------------------------------------------------------
Zinc Oxysulfate Producers.................  ($0.49 million).
Zinc Sulfate Monohydrate Producers........  ($0.75 million).
Primary Zinc Producers....................  ($1.0 million).
Steel Mill................................  $1.5 million.
Brass Fume Dust Generators................  ($1.4 million).
                                           -----------------------------
  Total...................................  ($2.14 million).
------------------------------------------------------------------------

    Costs and cost savings to zinc oxysulfate producers are estimated 
from either shifting production to zinc sulfate monohydrate or shifting 
to nonhazardous sources of oxysulfate feedstocks. Zinc sulfate 
monohydrate producers and primary zinc producers are estimated to 
realize cost savings from shifting brass fume dust currently used in 
animal feed production to fertilizer production. Under current zinc 
sulfate markets, fertilizers are sold at a higher price than animal 
feed. One steel mill that has generated baghouse dust used in 
fertilizer manufacturing is expected to incur additional costs from 
having to shift their dust from fertilizer production to land disposal. 
And brass fume dust generators (mills, ingot makers, foundries) are 
estimated to incur cost savings from shifting their dust from zinc 
reclamation and animal feed to fertilizer production.
    Economic Impact Results. To estimate potential economic impacts 
resulting from today's rule, we use a first order economic impacts 
measure: the estimated incremental costs or cost savings of today's 
rule as a percentage of affected firms sales. Because of data 
limitations, EPA was unable to obtain profit information for 
potentially affected firms. For two zinc oxysulfate producers the 
estimated impact of the rule is 1.42 percent in incremental costs for 
one firm and 0.64 percent in cost savings for the other. Two zinc 
sulfate monohydrate producers are estimated to realize cost savings of 
0.1 and 15 percent of revenue. For the primary zinc producer, the rule 
is estimated to result in cost savings equal to 1 percent of firm 
sales. More detailed information on this estimate can be found in the 
economic analysis placed into today's docket.
    Benefits Assessment. Because EPA did not use any risk assessments 
of current or projected metals and dioxin concentrations in zinc 
fertilizers in the development of this rulemaking, the Agency cannot 
make any quantitative conclusions about the risk reduction from today's 
final rule. To estimate the benefits resulting from today's rule, EPA 
looked at available literature and records regarding hazardous waste 
feedstocks used to make zinc micronutrient fertilizers. The data 
suggest that today's rule will reduce loading of toxic non-nutritive 
constituents to the soil. Two zinc oxysulfate samples produced from 
hazardous waste and analyzed by the State of Washington had dioxin 
concentrations between 17 and 42 times background level (``Final Report 
Screening Survey for Metals and Dioxins in Fertilizer Products and 
Soils in Washington State,'' Washington State Department of Ecology, 
April 1999, Figures 1-1 and 1-2). In addition, the zinc oxysulfate 
manufacturing process does not remove any of the lead or cadmium from 
the feedstock material. If promulgated, today's proposal would reduce 
annual loadings of these metals to the soil.
    In addition, today's proposal may reduce natural resource damage 
and contamination to groundwater. EPA is aware of at least two damage 
incidents caused by land placement of hazardous waste prior to 
fertilizer production that resulted in contamination of either 
groundwater or surrounding surface water bodies adjacent to the site. 
(``Report of RCRA Compliance Inspection at American Microtrace 
Corporation,'' US EPA Region VII, December 4, 1996, Editorial, The 
Atlanta Journal/Constitution, April 11, 1993). Today's proposal may 
increase non-use values for these environmental amenities as well.
    The Agency also believes that this rule has the potential for 
reducing what may be considered low probability but high consequence 
adverse human health or environmental impact if contamination from 
hazardous secondary material used in fertilizer production should, 
because of geological conditions such as karst terrain, reach a major 
population drinking water source or sensitive environmental location. 
This rule should lessen the chances of this type of event even though 
the probabilities of such occurrences and the magnitude of any impacts 
are not known.

B. Regulatory Flexibility Act (RFA), as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 USC 601 et. 
seq.

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business that has 
fewer than 1000 or 100 employees per firm depending upon the SIC code 
the firm primarily is classified; (2) a small governmental jurisdiction 
that is a government of a city, county, town, school district or 
special district with a population of less than 50,000; and (3) a small 
organization that is any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.

[[Page 48410]]

    After considering the economic impacts of today's final rule on 
small entities, we have determined that this action will not have a 
significant economic impact on a substantial number of small entities. 
In determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the proposed rule on small entities'' (5 U.S.C. 603 
and 604). Thus, an agency may certify that a rule will not have a 
significant economic impact on a substantial number of small entities 
if the rule relieves regulatory burden, or otherwise has a positive 
economic effect on all of the small entities subject to the rule.
    There is one small entity incurring incremental costs and 
offsetting increased revenues resulting from this rulemaking. This firm 
is Frit Inc, a zinc oxysulfate fertilizer producer. Frit has one 
facility co-located onsite with Nucor Steel's Norfolk, Nebraska 
facility. Frit has been producing zinc oxysulfate fertilizer from 
Nucor's baghouse dust (K061, a listed hazardous waste). As result of 
this rulemaking, Frit will no longer be able to make zinc oxysulfate 
from Nucor's dust. This is due to both the removal of the exemption of 
K061 derived fertilizer's from LDR requirements and metal limits on 
zinc fertilizers made from hazardous secondary materials. EPA 
understands that Frit is ceasing operations at the Norfolk, Nebraska 
facility. In the economic analysis of the proposed rulemaking, EPA had 
modeled Frit switching from zinc oxysulfate to zinc sulfate monohydrate 
at Nucor's facility as the most cost-effective post-regulatory 
alternative. In public comment on the proposed rulemaking, The 
Fertilizer Institute, a trade association of which Frit is a member, 
commented that EPA's economic analysis had not accounted for costs of 
switching and operating from zinc oxysulfate to zinc sulfate 
monohydrate. Although EPA agrees with some of The Fertilizer 
Institute's comments and disagrees with others (for more information 
see the Response to Comments document to today's rulemaking), when EPA 
reevaluated two possible alternative regulatory responses for Frit to 
this rulemaking (1. switching from zinc oxysulfate to zinc sulfate 
monohydrate, and 2. switching from hazardous secondary sources to 
nonhazardous secondary sources), we determined that switching to 
nonhazardous sources of zinc-bearing secondary materials would be more 
cost-effective for Frit than switching its production to ZSM. This is 
because although it costs more to purchase nonhazardous zinc-bearing 
secondaries, the fertilizers produced from the nonhazardous sources are 
sold at a higher price due to lower nonnutritive mineral content (i.e. 
lead and cadmium). Because Frit is ceasing operations at the Nucor 
site, EPA has modeled the firm consolidating its operations at another 
company facility to produce zinc oxysulfate from nonhazardous sources. 
EPA has estimated that Frit's costs for nonhazardous feedstocks will 
increase by $2.9 million. Also, Frit should realize increased revenues 
of $3.4 million that offset these costs and increase profit by $0.49 
million. Thus, Frit should not be significantly impacted by this rule 
even though it will be required to incur additional costs when 
substituting to nonhazardous sources.
    Moreover, EPA does not believe that one regulated entity 
constitutes a substantial number of small entities in the zinc 
micronutrient industry. There are several other firms producing zinc 
micronutrient fertilizers, some of them small businesses. As discussed 
below, this rule will benefit many of these firms.
    It is also likely that even in the absence of this rulemaking that 
opportunities to market K061 derived fertilizers would become more 
limited in response to decreased consumer demand for fertilizers with 
high non-nutritive mineral content. EPA notes that there is currently a 
market trend away from zinc fertilizers with high heavy metal content 
(see www.chemexpo.com/news/newsframe.cfm?framebody=/news/profile.cfm as 
obtained April 12, 2002 for zinc sulfate). Therefore, it is likely that 
even in the absence of this rulemaking, the market for zinc fertilizers 
with relatively high heavy metal content, such as K061-derived zinc 
oxysulfate, is declining in favor of cleaner zinc fertilizers. And in 
the past 3 years, there has been a trend away from using K061 in 
fertilizer production. Two of the three firms that had used K061 in 
1997 in zinc oxysulfate production had ceased using this hazardous 
feedstock prior to EPA's proposed fertilizer rulemaking.
    EPA also notes that this rulemaking will assist many small 
businesses that either generate hazardous zinc-bearing secondary 
feedstocks or use those feedstocks in fertilizer production by opening 
up markets for these materials including brass dust, tire ash, and zinc 
oxides from steel waste. Brass foundries, brass mills, and brass ingot 
makers are examples of the types of small business generators likely to 
benefit from today's final rule. The Agency has received favorable 
public comments from trade associations representing small business 
generators of hazardous zinc-bearing secondaries. Other small business 
producers of zinc sulfate monohydrate such as Big River Zinc, and 
Madison Industries will benefit from increased supplies of zinc-bearing 
secondaries. For more information, please refer to the background 
document entitled ``Economic Analysis for Regulatory Modifications to 
the Definition of Solid Waste For Zinc-Containing Hazardous Waste-
Derived Fertilizers, Notice of Final Rulemaking,'' which was placed in 
the docket for today's final rule.
    For the reasons discussed above, I hereby certify that this rule 
will not have a significant adverse economic impact on a substantial 
number of small entities.

C. Paperwork Reduction Act

    The information collection requirements in this final rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An 
Information Collection Request (ICR) document has been prepared by EPA 
(ICR No. 1189.XX). A copy of this ICR may be obtained from Sandy 
Farmer, OPIA Regulatory Information Division, U.S. Environmental 
Protection Agency (2137), 1200 Pennsylvania Avenue, NW., Washington DC 
20460, or by calling (202) 260-2740 and a copy may be obtained from 
Sandy Farmer by mail at OPPE Regulatory Information Division; U.S. 
Environmental Protection Agency (2137); 401 M St., SW.; Washington, DC 
20460, by e-mail at farmer.sandy@epamail.epa.gov, or by calling (202) 
260-2740. A copy may also be downloaded off the Internet at http://
www.epa.gov/icr.
    EPA has finalized the following conditions for reporting and 
recordkeeping by generators and manufacturers: The rule requires 
generators to submit a one-time notice to the EPA Regional 
Administrator (or the state Director in an authorized state) and to 
maintain all records of all shipments of excluded hazardous secondary 
materials for a minimum of three years As a condition of the exclusion, 
manufacturers will be required to submit a one-time notice, retain for 
a minimum of three years

[[Page 48411]]

records of all shipments of excluded hazardous secondary materials that 
were received by the zinc fertilizer manufacturer during that period, 
and submit an annual report identifying the types, quantities and 
origins of all such excluded materials that were received by the 
manufacturer in the preceding year. The manufacturer will also be 
required to perform sampling and analysis of the fertilizer product to 
determine compliance with the contaminant limits for metals no less 
than every six months, and for dioxins no less than every twelve 
months. Additional testing will be required when changes to processes 
or feedstock materials are made that could significantly alter the 
composition of the fertilizer products. These conditions replace the 
current hazardous waste regulatory requirements for reporting and 
recordkeeping, and are designed to improve the accountability system, 
and government oversight capabilities, over the handling of secondary 
materials used to make zinc fertilizers.
    EPA estimates that the total annual respondent burden for the new 
paperwork requirements in the rule is approximately 61 hours per year 
and the annual respondent cost for the new paperwork requirements in 
the rule is approximately $12,653. However, in addition to the new 
paperwork requirements in the rule, EPA also estimated the burden and 
cost savings that generators and manufacturers could expect as a result 
of no longer needing to comply with the existing RCRA hazardous waste 
information collection requirements for the excluded materials. This 
cost savings of $21,149 minus the $12,653 cost for the new paperwork 
requirements will result in an overall cost savings $8,496. The net 
cost to EPA of administering the rule was estimated at approximately 
$244 per year. Burden means the total time, effort, or financial 
resources expended by persons to generate, maintain, retain, or 
disclose or provide information to or for a Federal agency. This 
includes the time needed to review instructions; develop, acquire, 
install, and utilize technology and systems for the purposes of 
collecting, validating, and verifying information, processing and 
maintaining information, and disclosing and providing information; 
adjust the existing ways to comply with any previously applicable 
instructions and requirements; train personnel to be able to respond to 
a collection of information; search data sources; complete and review 
the collection of information; and transmit or otherwise disclose the 
information.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR part 9 and 48 CFR Chapter 15.

D. Unfunded Mandates Reform Act

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

E. Federalism--Applicability of Executive Order 13132

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    Under Section 6 of Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law, unless 
the Agency consults with State and local officials early in the process 
of developing the proposed regulation.
    Section 4 of the Executive Order contains additional requirements 
for rules that preempt State or local law, even if those rules do not 
have federalism implications (i.e., the rules will not have substantial 
direct effects on the States, on the relationship between the national 
government and the states, or on the distribution of power and 
responsibilities among the various levels of government). Those 
requirements include providing all affected State and local officials 
notice and an opportunity for appropriate participation in the 
development of the regulation. If the preemption is not based on 
express or implied statutory authority, EPA also must consult, to the 
extent practicable, with appropriate State and local officials 
regarding the conflict between State law and Federally protected 
interests within the agency's area of regulatory responsibility.
    This rule does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in

[[Page 48412]]

Executive Order 13132. This rule directly affects primarily zinc 
micronutrient producers and generators of hazardous wastes used in zinc 
fertilizer production. There are no State and local government bodies 
that incur direct compliance costs by this rulemaking. And State and 
local government implementation expenditures are expected to be less 
than $500,000 in any one year (for more information, please refer to 
the background document entitled ``Federalism Analysis (Executive Order 
13132) for Zinc-Containing Hazardous Waste-Derived Fertilizers, Notice 
of Proposed Rulemaking: Substantial Direct Effects'', August 2000). 
Thus, the requirements of section 6 of the Executive Order do not apply 
to this rule.
    This rule preempts State and local law that is less stringent for 
these zinc-bearing hazardous wastes. Under the Resource Conservation 
and Recovery Act (RCRA), 42 U.S.C. 6901 to 6992k, the relationship 
between the States and the national government with respect to 
hazardous waste management is established for authorized State 
hazardous waste programs, 42 U.S.C. 6926 (section 3006), and retention 
of State authority, 42 U.S.C. 6929 (section 3009). Under section 3009 
of RCRA, States and their political subdivisions may not impose 
requirements less stringent for hazardous waste management than the 
national government.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

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

G. Executive Order 13045: Protection of Children From Environmental 
Risks and Safety Risks

    The Executive Order 13045, entitled ``Protection of Children from 
Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 
1997) applies to any rule that EPA determines (1) is ``economically 
significant'' as defined under Executive Order 12866, and (2) the 
environmental health or safety risk addressed by the rule has a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children; and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered.
    This final rule is not subject to the Executive Order because it is 
not economically significant as defined in Executive Order 12866, and 
because the Agency does not have reason to believe the environmental 
health or safety risks addressed by this rule present a 
disproportionate risk to children. EPA's fertilizer risk assessment 
modeled a number of pathways by which farmers and their children could 
be exposed to metals and dioxins in fertilizer products applied at 
recommended rates and frequencies. Exposure was modeled through both 
direct and indirect pathways. The direct pathways considered were the 
inhalation pathway, including inhalation of windblown emissions, and 
from emissions during product application and tilling. Direct ingestion 
of soils amended with fertilizers was also modeled. The indirect 
exposure pathways considered were ingestion of plants (vegetables, 
fruits, and root vegetables) grown on soils amended with fertilizer 
products containing metals and dioxins, ingestion of beef and dairy 
products produced on land amended with these products, and ingestion of 
home-caught fish from a stream adjacent to the farmer's agricultural 
field.
    EPA's fertilizer risk assessment used a probabilistic methodology 
to estimate incremental lifetime cancer and non-cancer risks to farmers 
and farm children. The general conclusion of the risk assessment was 
that fertilizers generally do not pose harm to human health or the 
environment. Since today's final rule is expected to reduce the overall 
levels of contaminants in zinc fertilizers made from hazardous 
secondary materials, the Agency expects that the impacts of this rule 
on childrens' health will be positive, albeit relatively small.

H. National Technology Transfer and Advancement Act of 1995

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law No. 104-113, section 12(d) (15 
U.S.C. 272 note) directs EPA to use voluntary consensus standards in 
its regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards. This 
rule establishes a conditional exclusion for zinc fertilizers based on 
contaminant levels for metals and dioxins. After considering 
alternatives, EPA has determined that it would be impractical and 
inappropriate to use voluntary consensus standards in this rulemaking, 
for the reasons discussed in more detail in in Section III.D of this 
preamble.

I. Executive Order 12898

    EPA is committed to addressing environmental justice concerns and 
is assuming a leadership role in environmental justice initiatives to 
enhance environmental quality for all populations in the United States. 
The Agency's goals are to ensure that no segment of the population, 
regardless of race, color, national origin, or income bears 
disproportionately high and adverse human health or environmental 
impacts as a result of EPA's policies, programs, and activities, and 
that all people live in safe and healthful environments. In response to 
Executive Order 12898 and to concerns voiced by many groups outside the 
Agency, EPA's Office of Solid Waste and Emergency Response formed an 
Environmental Justice Task Force to analyze the array of environmental 
justice issues specific to waste programs and to develop an overall 
strategy to identify and address these issues (OSWER Directive No. 
9200.3-17).
    Today's rule pertains to hazardous wastes used in zinc 
micronutrient production, and is intended to reduce risks of excluded 
hazardous secondary materials, and benefit all populations. As such, 
this rule is not expected to cause any disproportionately high and 
adverse impacts to minority or low-income communities versus non-
minority or affluent communities.
    Excluded hazardous secondary materials will be subject to 
protective conditions regardless of where they are generated and 
regardless of where they may be managed. Although the Agency 
understands that the exclusion may affect where these wastes are 
managed in the future, the Agency's decision to conditionally exclude 
these materials is

[[Page 48413]]

independent of any decisions regarding the location of waste generators 
and the siting of waste management facilities. Today's rule will reduce 
loadings of toxic non-nutritive constituents to the soil, and will 
ensure proper management of secondary materials at affected facilities. 
EPA believes that these provisions of the rule will benefit all 
populations in the United States, including low-income and minority 
communities.

J. Executive Order 13211 (Energy Effects)

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

K. Congressional Review Act

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

List of Subjects

40 CFR Part 261

    Environmental protection, Hazardous waste, Recycling, Reporting and 
recordkeeping requirements.

40 CFR Part 266

    Environmental protection, Energy, Hazardous waste, Recycling, 
Reporting and recordkeeping requirements.

40 CFR Part 268

    Environmental protection, Hazardous waste, Reporting and 
recordkeeping requirements.

40 CFR Part 271

    Environmental proteciton, Hazardous waste, Reporting and 
recordkeeping requirements.

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

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

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

    1. The authority citation for part 261 continues to read as 
follows:

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

Subpart A--General

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


Sec. 261.4  Exclusions.

    (a) * * *
    (20) Hazardous secondary materials used to make zinc fertilizers, 
provided that the following conditions specified are satisfied:
    (i) Hazardous secondary materials used to make zinc micronutrient 
fertilizers must not be accumulated speculatively, as defined in 
Sec. 261.1 (c)(8).
    (ii) Generators and intermediate handlers of zinc-bearing hazardous 
secondary materials that are to be incorporated into zinc fertilizers 
must:
    (A) Submit a one-time notice to the Regional Administrator or State 
Director in whose jurisdiction the exclusion is being claimed, which 
contains the name, address and EPA ID number of the generator or 
intermediate handler facility, provides a brief description of the 
secondary material that will be subject to the exclusion, and 
identifies when the manufacturer intends to begin managing excluded, 
zinc-bearing hazardous secondary materials under the conditions 
specified in this paragraph (a)(20).
    (B) Store the excluded secondary material in tanks, containers, or 
buildings that are constructed and maintained in a way that prevents 
releases of the secondary materials into the environment. At a minimum, 
any building used for this purpose must be an engineered structure made 
of non-earthen materials that provide structural support, and must have 
a floor, walls and a roof that prevent wind dispersal and contact with 
rainwater. Tanks used for this purpose must be structurally sound and, 
if outdoors, must have roofs or covers that prevent contact with wind 
and rain. Containers used for this purpose must be kept closed except 
when it is necessary to add or remove material, and must be in sound 
condition. Containers that are stored outdoors must be managed within 
storage areas that:
    (1) have containment structures or systems sufficiently impervious 
to contain leaks, spills and accumulated precipitation; and
    (2) provide for effective drainage and removal of leaks, spills and 
accumulated precipitation; and
    (3) prevent run-on into the containment system.
    (C) With each off-site shipment of excluded hazardous secondary 
materials, provide written notice to the receiving facility that the 
material is subject to the conditions of this paragraph (a)(20).
    (D) Maintain at the generator's or intermediate handlers's facility 
for no less than three years records of all shipments of excluded 
hazardous secondary materials. For each shipment these records must at 
a minimum contain the following information:
    (1) Name of the transporter and date of the shipment;
    (2) Name and address of the facility that received the excluded 
material, and documentation confirming receipt of the shipment; and
    (3) Type and quantity of excluded secondary material in each 
shipment.
    (iii) Manufacturers of zinc fertilizers or zinc fertilizer 
ingredients made from excluded hazardous secondary materials must:
    (A) Store excluded hazardous secondary materials in accordance with 
the storage requirements for generators and intermediate handlers, as 
specified in paragraph (a)(20)(ii)(B) of this section.
    (B) Submit a one-time notification to the Regional Administrator or 
State Director that, at a minimum, specifies the name, address and EPA 
ID number of the manufacturing facility, and identifies when the 
manufacturer intends to begin managing excluded, zinc-bearing hazardous 
secondary materials under the conditions specified in this paragraph 
(a)(20).

[[Page 48414]]

    (C) Maintain for a minimum of three years records of all shipments 
of excluded hazardous secondary materials received by the manufacturer, 
which must at a minimum identify for each shipment the name and address 
of the generating facility, name of transporter and date the materials 
were received, the quantity received, and a brief description of the 
industrial process that generated the material.
    (D) Submit to the Regional Administrator or State Director an 
annual report that identifies the total quantities of all excluded 
hazardous secondary materials that were used to manufacture zinc 
fertilizers or zinc fertilizer ingredients in the previous year, the 
name and address of each generating facility, and the industrial 
process(s) from which they were generated.
    (iv) Nothing in this section preempts, overrides or otherwise 
negates the provision in Sec. 262.11 of this chapter, which requires 
any person who generates a solid waste to determine if that waste is a 
hazardous waste.
    (v) Interim status and permitted storage units that have been used 
to store only zinc-bearing hazardous wastes prior to the submission of 
the one-time notice described inparagraph (a)(20)(ii)(A) of this 
section, and that afterward will be used only to store hazardous 
secondary materials excluded under this paragraph, are not subject to 
the closure requirements of 40 CFR Parts 264 and 265.
    (21) Zinc fertilizers made from hazardous wastes, or hazardous 
secondary materials that are excluded under paragraph (a)(20) of this 
section, provided that:
    (i) The fertilizers meet the following contaminant limits:
    (A) For metal contaminants:

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

    (B) For dioxin contaminants the fertilizer must contain no more 
than eight (8) parts per trillion of dioxin, measured as toxic 
equivalent (TEQ).
    (ii) The manufacturer performs sampling and analysis of the 
fertilizer product to determine compliance with the contaminant limits 
for metals no less than every six months, and for dioxins no less than 
every twelve months. Testing must also be performed whenever changes 
occur to manufacturing processes or ingredients that could 
significantly affect the amounts of contaminants in the fertilizer 
product. The manufacturer may use any reliable analytical method to 
demonstrate that no constituent of concern is present in the product at 
concentrations above the applicable limits. It is the responsibility of 
the manufacturer to ensure that the sampling and analysis are unbiased, 
precise, and representative of the product(s) introduced into commerce.
    (iii) The manufacturer maintains for no less than three years 
records of all sampling and analyses performed for purposes of 
determining compliance with the requirements of paragraph (a)(21)(ii) 
of this section. Such records must at a minimum include:
    (A) The dates and times product samples were taken, and the dates 
the samples were analyzed;
    (B) The names and qualifications of the person(s) taking the 
samples;
    (C) A description of the methods and equipment used to take the 
samples;
    (D) The name and address of the laboratory facility at which 
analyses of the samples were performed;
    (E) A description of the analytical methods used, including any 
cleanup and sample preparation methods; and
    (F) All laboratory analytical results used to determine compliance 
with the contaminant limits specified in this paragraph (a)(21).

PART 266--[AMENDED]

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

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

Subpart C--Recyclable Materials Used in a Manner Constituting 
Disposal

    4. Section 266.20 is amended by removing the last two sentences of 
paragraph (b), and adding paragraph (d) to read as follows:


Sec. 266.20  Applicability.

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

PART 268-- [AMENDED]

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

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

Subpart D--Treatment Standards


Sec. 268.40  [Amended]

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

PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE 
PROGRAMS

    7. The authority citation for Part 271 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), and 6926.

    8. In Sec. 271.1(j), tables 1 and 2 are amended by adding the 
following entries in chronological order by date of publication to read 
as follows:


Sec. 271.1  Purpose and scope.

* * * * *
    (j) * * *

               Table 1.--Regulations Implementing the Hazardous and Solid Waste Amendments of 1984
----------------------------------------------------------------------------------------------------------------
                                                                    Federal Register
          Promulgation date              Title of regulation           reference              Effective date
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
July 15, 2002........................  Elimination of LDR       July 24, 2002, FR cite.  January 24, 2003.
                                        Treatment Standards
                                        Exemption for K061-
                                        Derived Fertlizers.
 

[[Page 48415]]

 
*                  *                  *                  *                  *                  *
                                                        *
----------------------------------------------------------------------------------------------------------------


                  Table 2.--Self Implementing Provisions of the Solid Waste Amendments of 1984
----------------------------------------------------------------------------------------------------------------
                                          Self-implementing                                  Federal Register
            Effective date                    provision              RCRA citation              reference
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
January 24, 2003.....................  Elimination of LDR       3004(g)(6).............  July 24, 2002, FR cite.
                                        Treatment Standards
                                        Exemption for K061
                                        Derived Fertilizers.
 
*                  *                  *                  *                  *                  *
                                                        *
----------------------------------------------------------------------------------------------------------------

[FR Doc. 02-18405 Filed 7-23-02; 8:45 am]
BILLING CODE 6560-50-P