[Federal Register Volume 67, Number 49 (Wednesday, March 13, 2002)]
[Rules and Regulations]
[Pages 11251-11254]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-6063]



40 CFR Part 261

RIN 2050-AE94

Hazardous Waste Management System; Definition of Solid Waste; 
Toxicity Characteristic

AGENCY: Environmental Protection Agency.

ACTION: Final Rule; Response to court order vacating regulatory 


SUMMARY: This action responds to two court vacaturs of regulations 
under the Resource Conservation and Recovery Act (RCRA), first, by 
deleting regulatory language that classified mineral processing 
characteristic sludges and by-products being reclaimed as solid wastes 
under RCRA's hazardous waste management regulations, and secondly, by 
codifying the decision that the Toxicity Characteristic Leaching 
Procedure (TCLP) may not be used for determining whether manufactured 
gas plant (MGP) waste is hazardous under RCRA. The Environmental 
Protection Agency (EPA) initially took action on these matters as part 
of the Phase IV Land Disposal Restrictions (LDR) on May 26, 1998. 
Today's revisions carry out vacaturs ordered by the United States Court 
of Appeals for the District of Columbia Circuit in Association of 
Battery Recyclers v. EPA (ABR). In addition, we are announcing that we 
plan to propose a separate rule to revise the definition of solid 

EFFECTIVE DATE: This rule is effective on March 13, 2002.

ADDRESSES: Supporting materials to this final rule are available for 
viewing in the RCRA Information Center (RIC), located at Crystal 
Gateway I, First Floor, 1235 Jefferson Davis Highway, Arlington, VA. 
The Docket Identification Number is F-2001-TCVF-FFFFF. The RIC is open 
from 9 a.m. to 4 p.m., Monday through Friday, excluding federal 
holidays. To review docket materials, we recommend that the public make 
an appointment by calling (703) 603-9230. The public may copy a maximum 
of 100 pages from any regulatory docket at no charge. Additional copies 
cost $0.15/page. The docket index and some supporting materials are 
available electronically. See the beginning of the Supplementary 
Information section for information on accessing them.

FOR FURTHER INFORMATION CONTACT: For general information, contact the 
RCRA/Superfund Hotline at (800) 424-9346 or TDD (800) 553-7672 (hearing 
impaired). In the Washington, D.C., metropolitan area, call (703) 920-
9810 or TDD (703) 412-3323. For information on definition of solid 
waste aspects of the rule, contact Ms. Ingrid Rosencrantz, Office of 
Solid Waste (5304W), U.S. Environmental Protection Agency, 1200 
Pennsylvania Avenue, NW., Washington, DC, 20460. [e-mail address and 
telephone number: [email protected] (703-308-8285).] For 
information on the manufactured gas plant wastes and the TCLP, contact 
Mr. Greg Helms, Office of Solid Waste (5304W), U.S. Environmental 
Protection Agency, 1200 Pennsylvania Avenue, NW.,

[[Page 11252]]

Washington, D.C., 20460. [E-mail address and telephone number: 
[email protected] (703-308-8845).]

SUPPLEMENTARY INFORMATION: Whenever the terms ``we'' or ``Agency'' are 
used throughout this document, they refer to the Environmental 
Protection Agency (EPA).
    The docket index for the rule is available in electronic format on 
the Internet at: http://www.epa.gov/epaoswer/hazwaste/recycle/battery.htm>.
    We will keep the official record for this action in paper form. The 
official record is the paper record maintained at the RCRA Information 
Center, also referred to as the Docket, at the address provided in the 
ADDRESSES section at the beginning of this document.

I. Why Are We Taking This Action?

    EPA is taking today's action in response to vacaturs ordered by the 
United States Court of Appeals for the District of Columbia Circuit in 
Association of Battery Recyclers, v. EPA 208 F.3d 1047 (2000). After 
EPA promulgated the final Phase IV LDR rule on May 26, 1998 (63 FR 
28556), the Association of Battery Recyclers, the National Mining 
Association and other trade groups challenged this rule. On April 21, 
2000, the D.C. Circuit issued a decision that vacated two parts of the 
Phase IV LDR rule. The court vacated the portion of the rule that 
asserted jurisdiction and imposed conditions over mineral processing 
characteristic by-products and sludges being stored prior to being 
recycled in beneficiation or primary mineral processing operations. The 
court also vacated the portion of the rule providing for use of the 
TCLP for determining whether MGP waste exhibits the characteristic of 
toxicity. Association of Battery Recyclers v. EPA, 208 F.3d 1047 
    Regarding the mineral processing secondary materials, the Phase IV 
LDR rule revised a 1985 rule that defined the circumstances under which 
EPA classified secondary mineral processing materials undergoing 
reclamation as solid wastes under Subtitle C of RCRA. The 1998 Phase IV 
LDR rule amended the 1985 rule and relaxed jurisdiction over spent 
materials reclaimed within the mineral processing industry, provided 
certain conditions were met. The Phase IV LDR rule also asserted 
jurisdiction over some previously-unregulated secondary materials 
(characteristic by-products and sludges) reclaimed within the mineral 
processing industry. The rule classified these by-products and sludges 
as wastes if they were stored without meeting the same conditions. EPA 
codified the conditions under which the materials would be regulated as 
solid wastes at 40 CFR 261.4(a)(17) and inserted references to these 
conditions into the regulation asserting authority over reclamation in 
40 CFR 261.2(c)(3). Today, in response to the D.C. Circuit Court's 
decision, EPA is codifying the vacatur by deleting a parenthetical 
statement in the second sentence of 40 CFR 261.2(c)(3) and making 
conforming changes to 40 CFR 261.4(a)(17). In Sec. 261.4(a)(17), EPA is 
replacing the term ``secondary materials'' (which includes sludges and 
by-products, as well as spent materials) with the more narrow term 
``spent materials.'' These changes inform the public that mineral 
processing characteristic sludges and by-products being reclaimed are 
not solid wastes, and mineral processing characteristic spent materials 
remain eligible for the conditional exclusion when being reclaimed.
    To further the goal of encouraging legitimate recycling while 
protecting human health and the environment, EPA has decided to 
undertake a separate future rulemaking to propose additional revisions 
to its current recycling regulations. We believe that removing the 
specter of RCRA control where it is not necessary can spur increased 
reuse and recycling of hazardous waste, and will lead to better 
resource conservation and improved materials management overall. For 
materials undergoing reclamation, in the proposed rule we expect to 
request comment on how interested parties would distinguish materials 
that are discarded from materials that remain in use in a continuous 
industrial process and anticipate proposing a definition of 
``continuous industrial process.'' In addition, EPA has been working 
with a group of stakeholders concerned with recycling in the metal 
finishing industry and we are committed to proposing, either as part of 
that action or as a separate rule, removal of regulatory barriers in 
order to increase recycling of sludges from metal finishing operations.
    Although EPA has not established a formal comment period, we 
anticipate moving quickly to propose this rule; interested parties are 
welcome to submit suggestions now for this future proposal, directing 
them to Ms. Ingrid Rosencrantz at the address given in the For Further 
Information Contact section.
    The court's decision in ABR also addressed another provision of the 
Phase IV LDR Rule providing for use of the Toxicity Characteristic 
Leaching Procedure (TCLP) to determine whether mineral processing 
waste, and manufactured gas plant \1\ (MGP) wastes, are RCRA hazardous 
wastes under 40 CFR 261.24 (63 FR 28597-98; May 26, 1998).

    \1\ Manufactured gas plants are facilities that produced gas 
from coal or oil for lighting, cooking, and heating during the 1800s 
until the mid 1900s. No active MGP facilities currently exist, 
although a range of gas production residues remain at the sites of 
former MGP facilities. Therefore, the only wastes generated at these 
sites will be from site remediation. MGP wastes are typically tars, 
sludges, lampblack, light oils, spent oxide wastes, and other 
hydrocarbons, and soils and debris contaminated with these 
materials. See 63 FR 28574, May 26, 1998, and EPA 542-R-00-005, A 
Resource for MGP Site Characterization and Remediation for more 
information on MGP sites and wastes.

    In its ruling in ABR, the court found that EPA produced sufficient 
evidence that the TCLP bears a ``rational relationship'' to plausible 
mineral processing waste management practices, and upheld the use of 
the TCLP to evaluate mineral processing wastes. Regarding MGP waste, 
the court found that EPA produced insufficient evidence that co-
disposal of MGP waste from remediation sites with municipal solid waste 
(MSW) has happened or is likely to happen. The court concluded that ``* 
* * the EPA has not justified its application of the TCLP to MGP 
waste'' and consequently ``* * * vacate[d] the Phase IV rule insofar as 
it provides for the use of the TCLP to determine whether MGP waste 
exhibits the characteristic of toxicity.'' ABR v. EPA, 208 F.3d at 
1064. EPA is taking final action today to codify this vacatur by 
promulgating language exempting MGP wastes from the Toxicity 
Characteristic regulation.

II. Why Do We Have Good Cause for Promulgating an Immediately 
Effective Final Rule Without Prior Notice and Opportunity for 
Public Comment?

    Section 553 of the Administrative Procedure Act, 5 U.S.C. 
553(b)(B), provides that, when an agency for good cause finds that 
notice and public comment procedure are impracticable, unnecessary or 
contrary to the public interest, the agency may issue a rule without 
providing notice and an opportunity for public comment. EPA has 
determined that there is good cause for removal of these provisions 
without prior proposal and opportunity for comment. As a matter of law, 
the order issued by the United States Court of Appeals for the District 
of Columbia Circuit on April 21, 2000, vacated the provisions of the 
final Phase IV LDR rules described above, making them non-binding and 
unenforceable. It is, therefore, unnecessary to provide notice and an 
opportunity for comment on this action, which merely carries out the

[[Page 11253]]

court's order. For the same reasons, EPA finds that it has good cause 
to make the revisions immediately effective under 5 U.S.C. 553(d) and 
section 3010(b) of RCRA. 42 U.S.C. 6930(b). Further, the rule imposes 
no new requirements, so members of the regulated community do not need 
time to come into compliance.

III. To Whom Does the Final Rule Withdrawal of Provisions Apply?

    This final rule applies to the owners and operators of facilities 
that generate or reclaim characteristically hazardous by-products or 
sludges within the mineral processing industry and to generators of 
manufactured gas plant wastes. We plan to further consider other 
revisions to the definition of solid waste (40 CFR 261.2) and will 
propose these revisions, as appropriate, in the future.

IV. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and is therefore not 
subject to review by the Office of Management and Budget (OMB). Because 
the EPA has made a ``good cause'' finding that this action is not 
subject to notice and comment requirements under the Administrative 
Procedure Act or any other statute, it is not subject to the regulatory 
flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 
et seq.), or to sections 202 and 205 of the Unfunded Mandates Reform 
Act of 1995 (UMRA) (Pub. L. 104-4). In addition, this action does not 
significantly or uniquely affect small governments or impose a 
significant intergovernmental mandate, as described in sections 203 and 
204 of the UMRA. This action also does not significantly or uniquely 
affect the communities of tribal governments, as specified by Executive 
Order 13175 (65 FR 67249, November 6, 2000). This action does not have 
substantial direct effects on the States, or on the relationship 
between the national government and the States, as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999). This action also 
is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) 
because it is not economically significant.
    This action does not involve the application of new technical 
standards; thus, the requirements of section 12(d) of the National 
Technology Transfer and Advancement Act (NTTAA) of 1995 (15 U.S.C. 272) 
do not apply. This action also does not involve special consideration 
of environmental justice related issues as required by Executive Order 
12898 (59 FR 7629, February 16, 1994). In issuing this action, EPA has 
taken the necessary steps to eliminate drafting errors and ambiguity, 
minimize potential litigation, and provide a clear legal standard for 
affected conduct, as required by section 3 of Executive Order 12988 (61 
FR 4729, February 7, 1996). This rule is not subject to Executive Order 
13211, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)) 
because it is not a significant regulatory action under Executive Order 
12866. This action does not impose an information collection burden 
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.). 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. Section 808 allows the issuing agency to 
make a rule effective sooner than otherwise provided by the 
Congressional Review Act if the agency makes a good cause finding that 
notice and public procedure is impracticable, unnecessary, or contrary 
to the public interest. This determination must be supported by a brief 
statement (5 U.S.C. 808(2)). As stated previously, the EPA has made 
such a good cause finding, including the reasons therefore, and 
established an effective date of March 13, 2002. The 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 rule in the Federal Register. 
This action is not a ``major rule'' as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 261

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

    Dated: March 7, 2002.
Christine T. Whitman,

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


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

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

    2. Section 261.2 is amended by revising paragraph (c)(3) to read as 

Sec. 261.2  Definition of solid waste.

* * * * *
    (c) * * *
    (3) Reclaimed. Materials noted with a ``*'' in column 3 of Table 1 
are solid wastes when reclaimed (except as provided under 
Sec. 261.4(a)(17)). Materials noted with a ``--''in column 3 of Table 1 
are not solid wastes when reclaimed.
* * * * *

    3. Section 261.4 is amended by revising paragraph (a)(17) to read 
as follows:

Sec. 261.4  Exclusions.

    (a) * * *
    (17) Spent materials (as defined in Sec. 261.1) (other than 
hazardous wastes listed in subpart D of this part) generated within the 
primary mineral processing industry from which minerals, acids, 
cyanide, water, or other values are recovered by mineral processing or 
by beneficiation, provided that:
    (i) The spent material is legitimately recycled to recover 
minerals, acids, cyanide, water or other values;
    (ii) The spent material is not accumulated speculatively;
    (iii) Except as provided in paragraph (a)(17)(iv) of this section, 
the spent material is stored in tanks, containers, or buildings meeting 
the following minimum integrity standards: a building must be an 
engineered structure with a floor, walls, and a roof all of which are 
made of non-earthen materials providing structural support (except 
smelter buildings may have partially earthen floors provided the 
secondary material is stored on the non-earthen portion), and have a 
roof suitable for diverting rainwater away from the foundation; a tank 
must be free standing, not be a surface impoundment (as defined in 40 
CFR 260.10), and be manufactured of a material suitable for containment 
of its contents; a container must be free standing and be manufactured 
of a material suitable for containment of its contents. If tanks or 
containers contain any particulate which may be subject to wind 
dispersal, the owner/operator must operate these units in a manner 
which controls fugitive dust. Tanks, containers, and buildings must be 
designed, constructed and operated to prevent significant releases to 
the environment of these materials.
    (iv) The Regional Administrator or State Director may make a site-
specific determination, after public review and

[[Page 11254]]

comment, that only solid mineral processing spent material may be 
placed on pads rather than tanks containers, or buildings. Solid 
mineral processing spent materials do not contain any free liquid. The 
decision-maker must affirm that pads are designed, constructed and 
operated to prevent significant releases of the secondary material into 
the environment. Pads must provide the same degree of containment 
afforded by the non-RCRA tanks, containers and buildings eligible for 
    (A) The decision-maker must also consider if storage on pads poses 
the potential for significant releases via groundwater, surface water, 
and air exposure pathways. Factors to be considered for assessing the 
groundwater, surface water, air exposure pathways are: The volume and 
physical and chemical properties of the secondary material, including 
its potential for migration off the pad; the potential for human or 
environmental exposure to hazardous constituents migrating from the pad 
via each exposure pathway, and the possibility and extent of harm to 
human and environmental receptors via each exposure pathway.
    (B) Pads must meet the following minimum standards: Be designed of 
non-earthen material that is compatible with the chemical nature of the 
mineral processing spent material, capable of withstanding physical 
stresses associated with placement and removal, have run on/runoff 
controls, be operated in a manner which controls fugitive dust, and 
have integrity assurance through inspections and maintenance programs.
    (C) Before making a determination under this paragraph, the 
Regional Administrator or State Director must provide notice and the 
opportunity for comment to all persons potentially interested in the 
determination. This can be accomplished by placing notice of this 
action in major local newspapers, or broadcasting notice over local 
radio stations.
    (v) The owner or operator provides notice to the Regional 
Administrator or State Director providing the following information: 
The types of materials to be recycled; the type and location of the 
storage units and recycling processes; and the annual quantities 
expected to be placed in land-based units. This notification must be 
updated when there is a change in the type of materials recycled or the 
location of the recycling process.
    (vi) For purposes of paragraph (a)(7) of this section, mineral 
processing spent materials must be the result of mineral processing and 
may not include any listed hazardous wastes. Listed hazardous wastes 
and characteristic hazardous wastes generated by non-mineral processing 
industries are not eligible for the conditional exclusion from the 
definition of solid waste.
* * * * *

    4. Section 261.24 is amended by revising the first sentence of 
paragraph (a) to read as follows:

Sec. 261.24  Toxicity characteristic.

    (a) A solid waste (except manufactured gas plant waste) exhibits 
the characteristic of toxicity if, using the Toxicity Characteristic 
Leaching Procedure, test Method 1311 in ``Test Methods for Evaluating 
Solid Waste, Physical/Chemical Methods,'' EPA Publication SW-846, as 
incorporated by reference in Sec. 260.11 of this chapter, the extract 
from a representative sample of the waste contains any of the 
contaminants listed in table 1 at the concentration equal to or greater 
than the respective value given in that table. * * *
* * * * *

[FR Doc. 02-6063 Filed 3-12-02; 8:45 am]