Federal Register / Vol. 65, No. 134 / Wednesday, July 12, 2000 / Proposed Rules 42937

To better protect beaches, coasts, and the

marine environment from pollution, the

Environmental Protection Agency (EPA),

relying upon existing Clean Water Act

authorities, shall expeditiously propose new

science-based regulations, as necessary, to

ensure appropriate levels of protection for

the marine environment. Such regulations

may include the identification of areas that

warrant additional pollution protections and

the enhancement of marine water quality

standards. The EPA shall consult with the

Federal agencies identified in subsection 4(a)

of this order, States, territories, tribes, and

the public in the development of such new

regulations.

EPA believes that revisions to the

Ocean Discharge Criteria (also called the

section 403 regulations) is the most

appropriate approach to implementing

the order.

In 1972, Congress passed the Federal

Water Pollution Control Act, commonly

known as the Clean Water Act (CWA).

Under the CWA, point source

discharges (i.e., discharges from

municipal and industrial facilities) to

waters of the United States must obtain

a National Pollutant Discharge

Elimination System (NPDES) permit,

which requires compliance with

technology- and water quality-based

treatment standards. In addition,

because of the complexity and

ecological significance of marine

ecosystems, discharges to the marine

environment beyond the baseline (i.e.,

the territorial sea, contiguous zone, and

oceans) must also comply with section

403 of the CWA (section 403), which

specifically addresses impacts from

such point sources on marine resources.

The current Ocean Discharge Criteria

regulations consider 10 criteria in

evaluating NPDES permits for

discharges into marine waters. These

criteria emphasize an assessment of the

impact of an ocean discharge both on

the biological community in the area of

the discharge and on surrounding

biological communities. The current

regulations governing section 403 were

issued in 1980. Revising these

regulations could potentially impact

holders of NPDES permits that

discharge into ocean waters and anyone

who might apply for such a permit in

the future.

EPA is holding these five meetings to

present EPA’s plans for section 403

regulatory revisions in support of the

Executive Order. These meetings will

provide the interested public an

opportunity to comment on EPA’s

approach for regulatory revisions and to

present data or opinions regarding the

impacts of ocean discharges under CWA

section 403 on the ocean environment.

These five meetings will provide an

opportunity for the interested public to

comment on EPA’s approach to meeting

the requirements of the Executive Order.

Specifically, the Agency may reconsider

revising the existing scientific standards

for protecting coastal and ocean waters

under section 403 of the Clean Water

Act, and proposing a list of Special

Aquatic Sites (SAS’s). The Agency’s

actions may also include strengthening

the existing regulations regarding

permits to discharge into ocean waters

under section 403 of the CWA,

including specific protection for SAS’s

in ocean waters.

Dated: July 7, 2000.

Robert H. Wayland III,

Director, Office of Wetlands, Oceans, and

Watersheds.

[FR Doc. 00–17751 Filed 7–11–00; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 260, 261, 268 and 271

[FRL–6729–4]

RIN 2050–AE65

Land Disposal Restrictions; Treatment

Standards for Spent Potliners From

Primary Aluminum Reduction (K088)

and Regulatory Classification of K088

Vitrification Units

AGENCY: Environmental Protection

Agency.

ACTION: Proposed rule.

SUMMARY: EPA is proposing to revise

certain treatment standards for spent

potliners from primary aluminum

reduction (EPA hazardous waste: K088)

under its Land Disposal Restrictions

(LDR) program. These revisions are a

direct result of an Agency commitment

to investigate whether a more

permanent treatment standard for K088

is appropriate. If promulgated,

nonwastewaster forms of K088 waste

would have to meet a new treatment

standard, measured by a version of the

Toxicity Characteristic Leaching

Procedure (TCLP) that uses deionized

water as the leaching fluid. The Agency

is also proposing to revise the treatment

standards for total and amenable

cyanide in K088 nonwastewaters.

Finally, the Agency is proposing to

classify K088 vitrification units as

RCRA Subpart X miscellaneous

treatment units. As a final matter, we

discuss the appropriateness of

extending the rationale and regulatory

status applied in this proposed rule for

K088-vitrification units to all

vitrification units treating RCRA

hazardous waste.

DATES: Written and electronic comments

must be received on or before

September 11, 2000.

ADDRESSES: Commenters should submit

an original and two copies of their

comments referencing Docket No. F–

2000–TSSP–FFFFF to: the RCRA

Information Center (RIC), U.S.

Environmental Protection Agency

Headquarters (5305G), Ariel Rios

Building, 1200 Pennsylvania Avenue

NW., Washington, DC 20460. Courier

deliveries of comments should be

submitted to the RIC at the address

listed below. Comments may also be

submitted electronically through the

Internet to: RCRAdocket@epamail.epa.gov. Comments in

electronic format should also be

identified by the docket number F–

2000–TSSP–FFFFF. Submit electronic

comments as an ASCII file and avoid the

use of special characters and any form

of encryption. If possible, EPA’s Office

of Solid Waste (OSW) would also like to

receive an additional copy of the

comments on disk in WordPerfect 6.1

file format.

Commenters should not submit

electronically any confidential business

information (CBI). An original and two

copies of the CBI must be submitted

separately to: Regina Magbie, RCRA CBI

Document Control Officer, Office of

Solid Waste (5305W), U.S. EPA, Ariel

Rios Building, 1200 Pennsylvania

Avenue NW., Washington, DC 20460.

The Agency will consider the public

comments during development of any

final rule related to this action. The

Agency urges commenters submitting

data in support of their views to include

data evidence that appropriate quality

assurance/quality control (QA/QC)

procedures were followed in generating

the data. Data that the Agency cannot

verify through QA/QC documentation

may be given less consideration or

disregarded in developing regulatory

options for the final rule. For guidance

see Final Best Demonstrated Available

Technology (BDAT) Background

Document for Quality Assurance/

Quality Control Procedures and

Methodology; USEPA, October 23, 1991.

Public comments and supporting

materials are available for viewing in

the RIC, located at Crystal Gateway One,

1235 Jefferson Davis Highway, First

Floor, Arlington, Virginia. The RIC is

open from 9 a.m. to 4 p.m., Monday

through Friday, except for Federal

holidays. To review docket materials,

the public must 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 per page.

42938 Federal Register / Vol. 65, No. 134 / Wednesday, July 12, 2000 / Proposed Rules

The docket index and notice are

available electronically. See the

Supplementary Information section for

information on accessing it.

FOR FURTHER INFORMATION CONTACT: For

general information, contact the RCRA

Hotline at (800) 424–9346 (toll-free) or

TDD (800) 553–7672 (hearing impaired).

In the Washington, DC, metropolitan

area, call (703) 412–9810 or TDD (703)

412–3323. For specific information,

contact Elaine Eby or John Austin,

Office of Solid Waste (5302W), U.S.

Environmental Protection Agency, Ariel

Rios Building, 1200 Pennsylvania

Avenue, NW., Washington, DC 20460.

Elaine Eby may be reached at 703–308–

8449, eby.elaine@epamail.epa.gov; and

John Austin may be reached at 703–

308–0436, austin.john@epamail.epa.gov.

For information on the capacity

analysis, contact C. Pan Lee (5302W) at

703–308–8478,

lee.cpan@epamail.epa.gov. For

questions on the regulatory impact

analysis, contact Linda Martin (5307W)

at 703–605–0768,

martin.linda@epamail.epa.gov.

SUPPLEMENTARY INFORMATION:

Availability of Rule on Internet

Please follow these instructions to

access the rule: From the World Wide

Web (WWW), type http://www.epa.gov/

epaoswer/hazwaste/ldr/index.html.

Affected Entities

Entities potentially affected by this

action are generators of spent aluminum

potliner from primary aluminum

reduction, or entities that treat, store,

transport, or dispose of these wastes.

Category Affected entities

Industry ................................. Generators of the following listed wastes, or entities that treat, store, transport, or dispose of these wastes.

K088—Spent potliners from primary aluminum reduction.

All RCRA Hazardous Waste—Treated using a vitrification technology.

This table is not intended to be

exhaustive, but provides a guide for

readers regarding entities likely to be

affected by this action. This table lists

those entities of which EPA now is

aware that potentially could be affected

by this action. Other entities not listed

in the table also could be affected. To

determine whether your facility is

regulated by this action, you should

examine 40 CFR parts 260 and 261

carefully in concert with the amended

rules found at the end of this Federal

Register document. If you have

questions regarding the applicability of

this action to a particular entity, consult

the person listed in the preceding FOR

FURTHER INFORMATION CONTACT section.

How Can I Influence EPA’s Thinking on

this Rule?

In developing this proposal, we tried

to address the concerns of all our

stakeholders. Your comments will help

us improve this rule. We invite you to

provide different views on options we

propose, new approaches we have not

considered, new data, how this rule may

affect you, or other relevant information.

We welcome your views on all aspects

of this proposed rule, but we request

comments in particular on the items in

the following Table.

PRIMARY AREAS UPON WHICH

COMMENTS ARE REQUESTED

• The selection of BDAT;

• The proposed treatment standards for cyanide and fluoride;

• The time required before treatment capacity capable of meeting the revised treatment standards will be available;

• The classification of K088 vitrification units

as miscellaneous Subpart X treatment

units;

PRIMARY AREAS UPON WHICH COMMENTS ARE REQUESTED—Continued

• The analytical approach taken to estimate

compliance costs and potential economic

impacts; and,

• Data to refine the time frame to construct a

vitrification unit and commercial pricing of

the Vortec technology.

Your comments will be most effective

if you follow the suggestions below:

• Explain your views as clearly as

possible and why you feel that way.

• Provide technical and cost data to

support your views.

• If you estimate potential costs,

explain how you arrived at the estimate.

• Tell us which parts you support, as

well as those with which you disagree.

• Provide specific examples to

illustrate your concerns.

• Offer specific alternatives.

• Refer your comments to specific

sections of the proposal, such as the

units or page numbers of the preamble,

or the regulatory sections.

• Make sure to submit your

comments by the deadline in this

notice.

• Be sure to include the name, date,

and docket number with your

comments.

Table of Contents

I. Background

A. How is K088 Waste Generated?

B. What is the Regulatory History of K088

in the LDR Program?

C. How Has Past Litigation Affected K088

Treatment Standards?

D. Today’s Proposal

II. Proposed Revisions to K088 Treatment

Standards

A. Why Is EPA Proposing Changes for

Cyanide and Fluoride in K088?

B. What Analytical Methods Were Used to

Measure Cyanide and Fluoride

Concentrations in K088?

C. How Are Treatment Standards

Developed?

D. Our Analysis of Performance Data and

BDAT Determination

E. How Does the Treatment Work?

F. Calculation of Proposed Treatment

Standards for Cyanide and Fluoride

G. Why Isn’t the Agency Proposing to

Revise the Treatment Standard for

Arsenic in K088?

III. Regulation of K088 Vitrification Units

A. Why Are K088 Vitrification Units

Generating Glass Frit Subject to RCRA

Subtitle C?

B. What Hazards May Be Posed by

Emissions From K088 Vitrification

Units?

C. What Regulatory Options is EPA

Considering?

D. What Rule Changes Are Being Proposed

to Regulate K088 Vitrification Units as

Miscellaneous Treatment Units?

E. What Is the Status of the Outputs From

a K088 Vitrification Process?

IV. Status of Interim Standards and Proposed

Effective Date for Amended Standards

A. Are the Interim Standards Still in

Effect?

B. When Should the New Treatment

Standards Take Effect?

V. Compliance and Implementation

A. Applicability of Rule in Authorized

States

B. Effect on State Authorization

VI. Regulatory Requirements

A. Regulatory Impact Analysis Pursuant to

Executive Order 12866

B. Regulatory Flexibility Act (RFA) as

amended by the Small Business

Regulatory Enforcement and Fairness

Act of 1996 (SBREAFA), 5 U.S.C. 601 et.

seq.

C. Unfunded Mandates Reform Act

D. Executive Order 13045: Protection of

Children from Environmental Health

Risks and Safety Risks

E. Environmental Justice Executive Order

12898

F. Paperwork Reduction Act

Federal Register / Vol. 65, No. 134 / Wednesday, July 12, 2000 / Proposed Rules 42939

1The following wastewater and nonwastewater

standards were promulgated in this rule:

acenapthene, anthracene, benz(a)anthracene,

benzo(a) pyrene, benzo(a)fluoranthene,

benzo(b)fluoranthene, benzo(g,h,i)perylene,

Continued

G. National Technology Transfer and

Advancement Act

H. Executive Order 13084: Consultation

and Coordination with Indian Tribal

Governments

I. Executive Order 13132 (Federalism)

I. Background

A. How Is K088 Waste Generated?

K088 (spent potliner from primary

aluminum reduction as listed in 40 CFR

261.32) is generated by the aluminum

manufacturing industry. Aluminum

production occurs in four distinct steps:

(1) mining of bauxite ores; (2) refining

of bauxite to produce alumina

(aluminum oxide); (3) reduction of

alumina to aluminum metal; and (4)

casting of the molten aluminum.

Bauxite is refined by dissolving alumina

in a molten cryolite bath. Next, alumina

is reduced to aluminum metal. This

reduction process requires high purity

aluminum oxide, carbon, electrical

power, and an electrolytic cell. An

electric current reduces the alumina to

aluminum metal in electrolytic cells,

called pots. These pots consist of a steel

shell lined with brick with an inner

lining of carbon. During pot service, the

liner is degraded and broken down.

Upon failure of a liner in a pot, the cell

is emptied, cooled, and the lining is

removed. In 1980, EPA originally listed

spent potliners as a RCRA hazardous

waste and assigned the hazardous waste

code K088. See 45 FR 47832.

B. What Is the Regulatory History of

K088 in the LDR Program?

The Phase III—Land Disposal

Restrictions Rule (61 FR 15566, April 8,

1996) prohibited the land disposal of

K088 spent potliner unless the waste

satisfies the section 3004(m) treatment

standard established in the same

rulemaking. The Phase III rule

established treatment standards,

expressed as numerical concentration

limits, for various regulated constituents

in the waste—25 in all, with standards

for both wastewaters and

nonwastewaters. These constituents

included cyanide, fluoride, toxic metals

(including arsenic), and a group of

organic compounds called polycyclic

aromatic hydrocarbons (PAHs).

With the exception of fluoride, the

treatment standard limits established for

K088 were equivalent to the universal

treatment standards. See 61 FR 15585;

see also 40 CFR 268.48 (Universal

Treatment Standards Table). The

fluoride standard was based generally

on data submitted in a delisting petition

for K088 waste from the Reynolds

Metals Company. These data were

generated from the operation of

Reynold’s proprietary treatment process

for spent potliners.

In the Phase III rule, the Agency

granted a nine-month national capacity

variance pursuant to section 3004(h)(2)

to allow facilities generating K088

adequate time to work out treatment and

disposal logistics. See 61 FR 15589.

Subsequent developments then took an

unexpected turn. Unanticipated

performance problems in the Reynolds

treatment process resulted in treatment

residues whose actual leachate (as

measured in the landfill leachate

collection system at the company’s

disposal site) contained markedly

higher concentrations of arsenic and

fluoride than predicted by the Toxicity

Characteristic Leaching Procedure

(TCLP), the analytical test used to

measure performance of the treatment

technology for certain hazardous

constituents in K088. Two of the 22

regulated constituents of concern,

namely, arsenic and fluoride were

significantly more soluble in highly

alkaline conditions (the actual disposal

environment of the landfill Reynolds

was using for disposal) than acidic

conditions (the situation modeled by the

TCLP). 62 FR 1992, 1993 (January 14,

1997). In addition, the company was

disposing of the treatment residues in

non-subtitle C units.

EPA concluded that further time was

needed to evaluate whether adequate

protective treatment capacity was

available (within the meaning of RCRA

section 3004(h)(2)), and, as part of this

determination, whether Reynold’s

practices in fact satisfied the mandate of

section 3004(m) that threats posed by

land disposal of the hazardous waste be

minimized through treatment. Until

these questions were answered and a

finding of sufficient protective treatment

capacity made, EPA determined that

insufficient treatment capacity existed

for K088 waste because Reynolds, at the

time, was the only available commercial

treatment facility for spent potliners.

Consequently, on January 14, 1997, we

extended the existing national capacity

variance, and postponed implementing

the land disposal prohibition for an

additional six months to be able to

study the efficacy of the Reynolds

treatment process and the resulting

leachate. See generally 62 FR 1992.

In July 1997, EPA, after further study

and negotiation with affected parties,

announced that Reynolds treatment

does reduce the overall toxicity

associated with the waste, and, by virtue

of an Enforcement Order, that disposal

of treatment residues would occur only

in units meeting subtitle C standards.

This was an improvement over the

disposal of untreated spent potliner and

provided protective treatment capacity.

See 62 FR 37696 (July 14, 1997). On

October 8, 1997, the national capacity

extension ended and the prohibition on

land disposal of untreated spent

potliner took effect.

C. How Has Past Litigation Affected

K088 Treatment Standards?

Petitions for judicial review of the

Phase III rule and the January 1997 and

July 1997 rules were filed by Columbia

Falls Aluminum Company and other

aluminum producers from the Pacific

Northwest. The petitioners argued

among other things that the use of the

Toxicity Characteristic Leaching

Procedure (TCLP) did not accurately

predict the leaching of waste

constituents, particularly arsenic and

fluoride, to the environment and that it

was therefore arbitrary to measure

compliance with the treatment standard

using this test. The United States Court

of Appeals for the District of Columbia

Circuit decided on April 3, 1998, that

EPA’s use of the TCLP as a basis for

setting treatment standards for K088

was arbitrary and capricious for those

constituents for which the TCLP

demonstratively and significantly

under-predicted the amount of the

constituent that would leach (139 F.3d

914; see also 63 FR 28571, May 26, 1998

(EPA’s interpretation of the Court’s

opinion)). The Court vacated all the

K088 treatment standards and the

prohibition on land disposal even

though only two of the 54 hazardous

constituents for which EPA established

treatment standards, namely arsenic and

fluoride nonwastewaters, were

implicated and despite the Court’s

expressed statement that its decision

did not affect the viability of the

concentration limits established for

other constituents (139 F.3d at 923–24).

In its decision, the Court specifically

invited EPA to file a motion to delay

issuance of the mandate in this case for

a reasonable time in order to develop a

replacement standard. Id.

On May 18, 1998, we filed a motion

with the Court to stay its mandate for

four months while we promulgated a

replacement prohibition and

accompanying treatment standards. The

Court granted this motion, indicating

that its mandate would not become

effective before September 24, 1998. On

September 21, 1998, we promulgated

interim replacement standards for K088

waste.1 (See 63 FR 51254, September 24,

42940 Federal Register / Vol. 65, No. 134 / Wednesday, July 12, 2000 / Proposed Rules

chrysene, dibenzo(a,h)anthacene, fluoranthene,

indeno(1,2,3-cd)pyrene, phenanthrene, pyrene,

antimony, barium, beryllium, cadmium, chromium,

lead, mercury, nickel, selenium, silver, and

cyanide. The nonwastewater treatment standards

for cyanide and the above-listed organic

constituents, and all of the standards for

wastewaters, are based on a total composition

concentration analysis. The nonwastewater

treatment standards for the metal constituents are

based on analysis using the Toxicity Characteristic

Leaching Procedure (TCLP). The interim treatment

standard for arsenic nonwastewaters was set at 26.1

mg/kg total arsenic (mineral acid soluble).

2We determined that, as a practical matter the

requirements of the other metal treatment standards

for K088 would result in some immobilization of

fluoride as well, and that looking at the totality of

additional environmental protection gained from

the interim replacement standards for the suite of

hazardous constituents involved, in lieu of the land

disposal of untreated K088 waste, would constitute

the best practical approach to minimizing threats to

human health and the environment (even without

a fluoride treatment standard). EPA did commit to

additional study of fluoride treatment as part of the

longer-term effort to establish more permanent

treatment standards for K088 waste.

3We note that although much the discussion in

today’s notice is in the context of how to regulate

K088 vitrification units, the rationale for regarding

these units as Subpart X miscellaneous treatment

units would logically extend to all vitrification

units treating various hazardous wastes. Thus, all

vitrification units, whether direct-fired or indirectly

heated and irrespective of the waste treated or

recycled, would be classified as Subpart X

treatment units. The Agency solicits your comments

on the extension of this approach to all vitrification

units treating hazardous waste.

4As an example, the concentrations of cyanide

and fluoride in K088 waste from the Ormet Primary

Aluminum facility in Hannibal, Ohio averaged

approximately 700 mg/kg and 60,000 mg/kg

respectively. All other regulated constituents

measured well below the LDR treatment standards

in the treated waste. See also, Proposed Best

Demonstrated Available Technology (BDAT)

Background Document for Spent Aluminum

Potliners—K088,USEPA, December 1999.

5See also 60 FR 11702, 11723 n. 11 (Mar. 2, 1995)

(notice of proposed treatment standards

emphasizing the importance of destroying cyanide

and PAHs).

1998). We did not, however, replace the

treatment standard for fluoride, one of

the two constituents for which the TCLP

markedly under predicted its leaching

potential in treated K088. We

determined that significant technical

effort would be needed to develop a

replacement treatment standard for this

constituent—a task that could not be

achieved by the D.C. Circuit’s deadline

of September 24, 1998.2 We did commit,

however, to investigating and if

appropriate developing a more

permanent treatment standard for

K088—an effort we expected to be

completed within two years. We stated

that a new treatment standard for spent

potliners (K088) would hopefully be

based on the performance of a treatment

technology that resulted in the

immobilization of arsenic and fluoride,

as well as the other toxic metals in the

waste. At that time, we were aware of

numerous technologies that showed

promise for the treatment of K088 waste,

a number of which we viewed as close

to being commercially available. We

stated that more information was

needed to characterize the performance

of these technologies, as well as to

assess their safety and (in some cases)

the safety of the hazardous wastederived products which may be

generated as part of these treatment

processes. Chemical Waste

Management, 976 F.2d at 17 (treatment

technologies whose air emissions are

not adequately controlled are not

treating in conformance with

requirements of section 3004(m)).

D. Today’s Proposal

This brings us to today’s proposal.

Over the last 18 months we have

gathered additional data and

information on treatment technologies

that may be evaluated as the basis for a

permanent treatment standard for K088

waste. We have investigated

technologies such as vitrification,

gasification, and alkaline chlorination,

among others. Our emphasis has been

on the overall environmental benefits of

these technologies including, of course,

the performance of these technologies

on the treatment of cyanide as well as

the two constituents of special concern

to the Court, namely arsenic and

fluoride. Concurrent with this analysis

we have evaluated various analytical

methods for measuring fluoride and

arsenic concentrations in K088 waste.

We have also considered several

regulatory implementation approaches

for K088 vitrification units and

appropriate emission controls for these

units.

As a result of these efforts, we are

proposing a four-part regulatory strategy

for K088 treatment—a strategy that

provides environmental protection, but

also flexibility with regard to regulatory

compliance. The four basic components

being discussed in today’s proposal

include: (1) Revised treatment standards

for cyanide and fluoride in K088

nonwastewaters; (2) regulation of K088

vitrification units as RCRA Subpart X

miscellaneous treatment units; (3)

required air controls on K088

vitrification units; and (4) regulatory

status of the outputs of K088-

vitrification units.3 Today’s preamble is

structured to address each of these

components individually and in the

order that they have been presented

here.

II. Proposed Revisions to K088

Treatment Standards

In this section we discuss proposed

revisions to the treatment standards for

fluoride, total cyanide, and amenable

cyanide in K088 nonwastewaters. We

discuss the analytical method proposed

to measure compliance with the

proposed fluoride treatment standard

for K088 nonwastewaters, the

identification of treatment processes

and performance data for K088, the

determination of Best Demonstrated

Available Technology or BDAT, and

today’s proposed treatment standards.

A. Why Is EPA Proposing Changes for

Cyanide and Fluoride in K088?

The September 21, 1998 interim final

rule committed EPA to the development

of a more permanent treatment standard

for K088 waste. Cyanide and fluoride

were two of the hazardous constituents

for which treatment standard

development had previously proved

problematic. K088 waste contains

extremely high concentrations of these

constituents, much higher than any of

the other regulated constituents in the

waste.4 Furthermore, spent potliners are

listed as a hazardous waste because of

high concentrations and large amounts

of toxic cyanide. See 40 CFR Part 261,

Appendix VII (basis for listing K088); 62

FR 37696.5 Concentrations of cyanide

have been found in untreated potliners

as high as 5800 mg/kg. Past land

disposal of these wastes have resulted in

cyanide groundwater contamination.

Indeed, EPA has stated repeatedly (and

reiterates here) that control of cyanide is

the most important objective of the

K088 treatment standard, given

cyanide’s toxicity, concentration in

these wastes, and potential to migrate

from these wastes in high concentration,

as shown by the historic damage

incidents. See, e.g., 63 FR 51256; 51261.

K088 also contains high

concentrations of fluoride. Often

concentrations of fluoride in untreated

potliner are greater than ten percent and

some data suggest that untreated

potliner may have concentrations of

fluoride at greater than 20 percent. Most

of this fluoride is in the form of soluble

sodium fluoride. Unless this fluoride is

recovered or effectively immobilized,

the high concentrations of soluble

fluoride found in K088 have significant

potential to contaminate surface water

and ground water and cause significant

adverse effects to human health and the

environment.

New performance data collected as

part of developing this proposed rule

show that the cyanide present in K088

waste can be readily treated to levels far

below the current treatment standard

using a vitrification process. These data

also show that fluoride can be recovered

and reused within the aluminum

Federal Register / Vol. 65, No. 134 / Wednesday, July 12, 2000 / Proposed Rules 42941

6The development and proposal of a new

analytical procedure would raise concerns related

to the goals of the National Technology Transfer

and Advancement Act of 1995. See today’s

preamble discussion under National Technology

Transfer and Advancement Act for a further

discussion.

7Bench or pilot scale data may be considered if

the full-scale technology is nevertheless in use or

commercially available.

reduction process as well as sold as

product to other industrial sectors. See

Chemical Waste Management v. EPA,

976 F.2d 2, 27 (D.C. Cir. 1992)

(remanding treatment standards as

failing to minimize threats when more

aggressive treatment was demonstrated

to exist). Accordingly, we are proposing

to amend to current cyanide treatment

standards based on this new

performance data as well as proposing

a new treatment standard for fluoride

nonwastewaters that will encourage

fluoride recycling and reuse.

B. What Analytical Methods Were Used

to Measure Cyanide and Fluoride

Concentrations In K088 Waste?

The proposed treatment standards for

both total and amenable cyanides in

nonwastewaters are based upon analysis

using Method 9010 or 9012, found in

Test Methods for Evaluating Solid

Waste, Physical/Chemical Methods,

EPA Publication SW–846, as

incorporated by reference in 40 CFR

260.11. These analyses require a sample

size of 10 grams and a distillation time

of one hour and 15 minutes. This is the

analytical method already required for

cyanide in all the existing treatment

standards.

Today’s notice also proposes the use

of a revised test for analyzing fluoride

in K088 nonwastewaters. This test uses

a version of the Toxicity Characteristic

Leaching Procedure (TCLP) that uses

deionized water as the leaching fluid

(ASTM Method D3987–85 (1999)). The

prior treatment standard for fluoride

was based on TCLP analysis following

treatment that converted the fluoride

present in untreated K088 waste to

generally insoluble calcium fluoride.

(See 61 FR 15584, April 8, 1996.)

However, the solubility of calcium

fluoride is a function of pH. Because the

TCLP tests use a simulated leachate

with enough buffering capacity to lower

the leachate pH to more acidic

conditions, the calcium fluoride would

be substantially less soluble than would

be the case under actual field

conditions. At the more acidic pH of the

TCLP test, fluoride concentrations in

treated waste were measured at less

than 48 mg/L TCLP (the old treatment

standard promulgated in the Phase III

rule, 61 FR 15584, April 8, 1996), while

measured concentrations in actual

alkaline landfill leachate can be much

higher, approximately 2200 mg/L. Had

the original Phase III test been

performed using de-ionized water as the

leachate fluid, we expect that test

results would have more closely tracked

with the actual field measurement

because the simulated leachate used in

testing would not be buffered.

More recent leachate test results

support this hypothesis. Fluoride results

using deionized water leach ranged

from 730–940 mg/L in the December 6,

1996, Special Laboratory Report, from

Reynolds Metals Company. Actual

leachate results from ‘‘landfill—cell 1’’

in which these wastes were placed have

ranged from 664 to 1120 mg/L (April

1998 to August 1999), although values

of approximately 2200 mg/L were

initially observed from cell 1.

Testing of fluoride concentrations in

K088 nonwastewaters, using a version

of the TCLP with de-ionized water as

the leachate fluid (ASTM Method

D3987–85 (1999)), appears to be a

workable solution to the pH-fluoride

solubility concerns and a suitable

measure of treatment performance. With

de-ionized water as the leachate test

fluid, leachate pH is controlled by the

physical properties of the waste (and

not the artificial buffering capacity of

the test fluid), and more closely

correlates with monofill conditions.

In developing this proposal, we also

considered whether to conduct leach

testing under more aggressive

conditions, such as the very alkaline

conditions (pH >12) that have been

observed at the Gum Springs facility.

Ultimately, the lack of a broadlyaccepted test method, the variability of

site conditions, concerns about

transferability of results to other wastes

or sites, and time constraints led us to

reject this approach for developing

today’s proposal. We also evaluated the

potential of a column-based test,

although acceptable for rulemaking

development, would not facilitate rapid

assessment of compliance after

promulgation of the standard. This was

seen as a significant drawback not only

for EPA, but for regulated entities as

well, since column tests normally

require weeks to conduct, and most

treatment facilities lack multi-week

storage capacity for treatment residues.

Also, basing standards on alkaline leach

or column-based testing conditions

would entail the development and

proposal of a new analytical procedure

whereas the deionized water leach test

has been fully vetted.6 As such, we have

collected performance data on K088

treatment using the alternative

analytical method being proposed

today.

C. How Are Treatment Standards

Developed?

In the Land Disposal Restrictions

(LDR) program, two types of treatment

standards have been established by

EPA: (1) numerical concentration-based

treatment limits for each regulated

constituent of concern; and (2) methods

of treatment that must be used to treat

a particular constituent or

constituents(s). In either case, the

treatment standard is based on a

technology determined to be the ‘‘Best

Demonstrated Available Technology’’ or

BDAT. The BDAT determination

consists of four steps: The first step is

the identification of all possible

technologies that, in theory, can treat a

particular waste. The second step

involves a determination of which of

these technologies are demonstrated,

defined as available on a full-scale

basis.7 Third, from the list of

demonstrated technologies, we

determine which are available, i.e.,

those which can be purchased and

provide substantial treatment. Finally,

available technologies are evaluated

based on their treatment performance.

EPA typically calculates numerical

treatment standards or establishes a

method of treatment based on the

performance of that technology (or

sometimes technologies) shown to

perform best on a waste or waste

constituent.

However, when evaluating any

hazardous waste treatment process, we

keep in mind other important

environmental objectives. Consequently,

within the LDR program and more

specifically the BDAT process, a

hierarchy of preferred options exists for

evaluating treatment and recycling

technologies. This hierarchy is part of a

broader waste management goal to

promote source reduction that is less or

no production of hazardous waste, and

recycling or reuse (i.e, all the waste

generated is used as a feedstock in the

same process or another process.) Next,

in descending order of preference, are

options for hazardous waste

management and the establishment of

LDR treatment standards. First, are

treatment technologies that recover

chemical value from the waste for reuse.

This option may result in some

residuals needing to be land disposed

but the preferred techniques would also

significantly reduce the quantity and

toxicity of any waste destined for land

disposal. Further down the hierarchy

are treatment technologies that reduce

the quantity and toxicity without

42942 Federal Register / Vol. 65, No. 134 / Wednesday, July 12, 2000 / Proposed Rules

8The Agency would like to reiterate here that

although we have proposed promulgating

numerical treatment standards for K088 waste, EPA

is aware of only one privately-owned facility that

can meet the standards being proposed today. The

vitrification technology that has formed the basis of

the proposed standards does however meet all the

criteria necessary for developing BDAT as

identified in 51 FR 40588, November 7, 1986.

9As previously discussed, the determination of

BDAT is a four-step process. When the Agency

determines that a treatment is available, it must be

available for purchase if the technology is patented

or proprietary and it must provide substantial

treatment. Ormet operates a private treatment unit

which was purchased from the Vortec Corporation.

This technology can be purchased, and as discussed

in the following sections data indicate that

substantial treatment of K088 occurs.

10Amenable concentrations of cyanide in the

Ormet untreated and treated potliner averaged 322

mg/kg and <0.5 mg/kg respectively. No average

amenable cyanide concentrations were reported by

Reynolds.

recovery of materials for reuse. Finally,

at the lowest rung, are treatment

technologies that only lower toxicity or

the potential for migration. These may

even increase the volume of materials

for land disposal, e.g., metals

stabilization.

If a treatment technology treats

hazardous constituents, recovers

chemical value from the waste, and

meets our BDAT criteria, it will

typically be our preference when

establishing LDR standards. Treatment

standards based on ‘‘treatment/

recovery’’ are developed in one of two

ways by: (1) establishing a required

method of treatment, e.g. ‘‘lead recovery

or RLEAD’’; or (2) establishing

numerical concentrations levels based

on hazardous constituent concentrations

in the recycling (i.e., treatment) residue.

Presently, there are 14 waste codes that

directly require or include recycling as

their treatment standard. See 40 CFR

268.40. We recognize, however, that not

all hazardous waste within a specific

waste listing may be recyclable.

Generally, that is why we establish

concentration-based numerical

standards instead of requiring

mandatory recycling of a particular

constituent. Although numerical

standards can be based on a recycling

technology, any technology (other than

prohibited technologies) can be used to

meet the treatment standard. In general,

this type of approach meets our LDR

goal of encouraging environmentally

sound recycling at the same time

providing the regulated community

with flexibility in meeting the treatment

standards.8

We have identified a range of

treatment and recycling practices as

applicable to K088 waste. Most of these

processes, however, are still under

development and are not full-scale

operating units so they cannot be the

basis of BDAT. What we find

encouraging however, is that all of the

processes being investigated are

recovery or recycling-based. Many of

these processes recover reusable

chemical value from the spent potliner

from either the fluoride or the unburned

carbon contained in the waste. Some of

these technologies also claim to process

the K088 into marketable products. We

are encouraged by the prospect of K088

management with some of these

alternative processes. However, at the

present time and for purposes of this

proposal, we are only in a position to

evaluate the three existent facilities

known to be treating K088 waste.

The Reynolds Metals Company

facility in Gum Springs, Arkansas, the

Ormet Primary Aluminum facility in

Hannibal, Ohio, and the Chemical

Waste Management of the Northwest,

Incorporated facility in Arlington,

Oregon (herein referred to as Reynolds,

Ormet, and CWMNW respectively)

presently operate the three treatment

facilities for K088 waste in the U.S. All

three of these facilities maintain fullscale treatment operations and currently

meet all the existing treatment standards

for K088 waste found in § 268.40.

Reynolds and CWMNW operate

commercial treatment operations, while

Ormet operates a private on-site

treatment facility not involved in the

commercial treatment of K088. All three

of these treatment units are considered

available as defined by our BDAT

methodology and have had their

treatment performance data evaluated

for establishment of treatment standards

for fluoride, cyanide and arsenic.9

D. Our Analysis of Performance Data

and BDAT Determination

In 1999, we collected and analyzed

treatment performance data from Ormet.

We also reviewed performance data

submitted by CWMNW. We compared

these data to existing performance data

from Reynolds. Our analysis shows that

the Vortec technology, used at the

Ormet facility, provides highly effective

treatment of cyanide in addition to

being a highly effective recovery process

for fluoride. Furthermore, the process

has also been shown to be effective in

the immobilization of residual fluoride.

Conversely, Reynolds and CWMNW

operate treatment only facilities for

K088 waste. They do not recycle or

recover the fluoride value in the waste.

Reynolds and CWMNW performance

data show that both treatment processes

are less effective than Ormet in the

destruction of cyanide and the

immobilization of residual fluoride.

TABLE 1.—COMPARISON OF AVERAGE CONCENTRATIONS OF CYANIDE AND FLUORIDE IN ORMET, REYNOLDS, AND

CWMNW UNTREATED AND TREATED POTLINERS 10

Facility

Untreated

cyanide

(mg/kg)

Treated

cyanide

(mg/kg)

Untreated

fluoride

(mg/kg)

Treated

fluoride

(mg/kg)

Treated

leachable

fluoride

(mg/L)

Ormet ................................................................................................................. 670 <0.5 62,775 38.5 2.15

Reynolds ............................................................................................................ 2,770 77 81,100 44,700 552

CWMNW 11 ........................................................................................................ CBI CBI CBI CBI CBI

As shown in Table 1, data from the

Ormet treatment/recovery process

showed cyanide concentrations in the

treated potliner measuring below

detectable limits (<0.5 mg/kg). This

comports with a greater than 99.9%

destruction of the cyanide. Conversely,

treatment performance data from

Reynolds showed untreated potliners

with an average cyanide concentration

of 77 mg/kg (92–94% total destruction

of cyanide).12 Data from CWMNW

showed treatment of the cyanide below

the current treatment standard of 590

mg/kg, but well above the average

performance concentrations achieved by

Ormet.

The Ormet process also removes and

recovers from the untreated potliner

approximately 99.9% total fluoride.

Residual concentrations of fluoride in

the treated potliner averaged 38.5 mg/kg

total fluoride. Leachable fluoride

Federal Register / Vol. 65, No. 134 / Wednesday, July 12, 2000 / Proposed Rules 42943

11The K088 performance data from Chemical

Waste Management of the Northwest, Inc. has been

claimed confidential business information. The

reader is referred to the background document

supporting this proposal for additional information.

12The percent destruction of cyanide by the

Reynolds process was calculated using data found

in Table 3–1 of the ‘‘Proposed Best Demonstrated

Available Technology (BDAT) Background

Document for Spent Aluminum Potliners—K088’’.

15The Agency has also concluded that in addition

to the destruction of cyanide, polycyclic aromatic

hydrocarbons (PAHs) will also be destroyed in this

process, independent of their initial concentration

in the untreated potliner. See the technical

background document for this proposed rule for

additional discussion on the technical engineering

analysis used to make this determination.

concentration in the treated potliner

averaged 2.15 mg/L total fluoride.13

Conversely, fluoride concentrations in

the treated potliner from Reynolds’

averaged 44,700 mg/kg with leachate

values averaging 552 mg/kg.

As such, we have initially determined

Ormet’s treatment process as BDAT for

fluoride and cyanide in K088 waste.14

Ormet’s performance data show cyanide

destruction values exceeding those

obtained by both Reynolds and

CWMNW. Furthermore, Ormet’s ability

to recovery fluoride values for the

untreated potliner, coupled with

effective immobilization of the residual

fluoride in the treated potliner, indicate

a treatment process superior to

Reynolds and CWMNW.

While the data strongly support this

BDAT determination, it is imperative,

however, that we discuss here, the issue

of ‘‘most-difficult-to-treat’’ waste. In the

LDR program, we generally prefer to

establish a treatment standard based on

a waste that we determine to be the

most difficult to treat. We usually

consider the ‘‘most-difficult-to-treat’’

waste, as being the waste with the

highest constituent concentration(s) of

concern. It is therefore assumed that if

a treatment technology can treat a

highly concentrated waste, then it can

also treat lower concentrations with

equal effectiveness. However, we have

encountered cases where data and

information on different treatment

technologies is limited in scope and

does not represent the most difficult to

treat waste. In these situations, our

engineering judgment has played a

crucial role in supporting the BDAT

determination.

Today’s rule is such a case. As

mentioned earlier, Ormet is a privatelyowned K088 treatment facility. It does

not commercially treat K088 waste

(although the treatment technology it

uses is commercially available, as

explained earlier). Because of this, the

treatment performance data that we

gathered at the Ormet facility reflects

the treatment of only one type of K088

waste—Ormet’s. Reynolds, the largest

commercial treater of K088 waste treats

K088 from more than 15 aluminum

reduction facilities and has a much

broader concentration range of K088

regulated constituents. As indicated by

Table 1, the average concentration of

cyanide in Ormet’s untreated potliner

was well below the average

concentration of cyanide in Reynold’s

untreated potliner (670 mg/kg versus

2,770 mg/kg). Based on this information,

one might be tempted to conclude that

Ormet’s waste is not the most difficult

to treat for cyanide. However, based on

an extensive engineering review of the

process at Ormet, and our findings that

the treatment unit is well-designed and

operated and has a robust combination

of time, temperature and mixing within

the unit, we are confident that higher

concentrations of cyanide, (such as

those encountered by Reynolds) will be

easily destroyed by this process.15

Furthermore, we have determined that

the Ormet process is matrix

independent for cyanide and capable of

destroying any concentration of cyanide

contained in a K088 waste to below the

detection limit. Therefore, we believe

that the treatment standards being

proposed today for both total and

amenable cyanide are appropriate.

Similarly, the average concentration

of total fluoride in the Reynolds

untreated potliner was 81,000 mg/kg,

exceeding the average concentration in

Ormet’s waste of 62,775 mg/kg.

However, we conclude, for similar

engineering reasons, that the process

employed at Ormet is capable of

providing effective recovery and

immobilization of fluoride independent

of the concentration of fluoride

contained in the untreated K088 waste.

That is, virtually all of the fluoride will

partition to the vitrification baghouse

dust, and is then recoverable. The

remainder of the fluoride will be

immobilized in the treatment residue.

EPA notes that the proposed standard

for cyanide would no longer be the

universal treatment standard (UTS). The

UTS is normally our preferred option,

but here the improved cyanide

treatment performance from vitrification

of K088 (over two and one-half orders

of magnitude) is striking. In addition,

the Ormet vitrification process appears

to optimize recovery/treatment of

fluoride, so that improved treatment of

both cyanide and fluoride will go

together. The proposed treatment

standards thus reflect both of these

linked treatment improvements. The

Agency requests comment as to whether

the assumptions made in this ‘‘difficult

to treat’’ determination are valid and our

conclusions are correct. Additional

discussion on this matter can be found

in the technical background document

supporting this proposed rulemaking

and is available in the docket.

E. How Does The Treatment Work?

The K088 treatment technology used

at Ormet can be generally described as

a direct-fired vitrification system that

destroys cyanide, while recovering

fluoride for reuse. In this treatment, the

K088 along with other additives are

mixed together and then vitrified to

form a residue or glass-like ‘‘frit,’’ while

effectively partitioning the fluoride for

reuse. The fluoride that does not

partition is immobilized within the frit.

The unit performing this operation is

referred to as a combustion melting

system (CMS TM) which was licensed by

Ormet from the Vortec Corporation. The

CMS TM consists of a Counter Rotating

Vortex (CRV) reactor, a cyclone melter,

and a separator/reservoir. The process

involves the rapid suspension heating of

finely crushed K088 waste, sand, and

limestone in a preheater prior to

physical and chemical melting that

occurs within a cyclone reactor. The

reactor is a refractory-lined, watercooled, carbon steel vessel. Natural gas

and preheated air are used to achieve

temperatures of approximately 2400° F

in the reactor. Materials begin to melt in

the reactor and flow downward to the

cyclone melter. Melting of the waste and

other additives, as well as the

combustion of the cyanide and other

organics, is completed in this vessel and

the resultant molten glass is separated

from the combustion gas. The molten

glass is dropped into a water quench

tank where it solidifies into a frit.

The separated combustion gas is used

to preheat the air entering the reactor,

and is then sent to a baghouse to remove

sodium fluoride (this residue is referred

to as the primary baghouse dust).

Arsenic, if present, would likewise

partition to the baghouse because of its

high volatility. The exhaust from the

baghouse is then transferred into the

potroom dry scrubber system, which is

a baghouse air pollution control device

using alumina to dry scrub fluoride

from aluminum reduction pot exhaust

gases. Here, gaseous fluoride is removed

and additional particulate removal

occurs. The material from the dry

scrubber system (referred to as

secondary baghouse dust) is fluorideenriched alumina material that is also

reused.

42944 Federal Register / Vol. 65, No. 134 / Wednesday, July 12, 2000 / Proposed Rules

16As a condition of their recycling exemption

from the State of Ohio Ormet Primary Aluminum

must recycle the glass frit. It is reasonable to expect

however, that if additional vitrification units are

constructed and brought on-line or if the Ormet unit

is permitted as a miscellaneous Subpart X unit, an

excess of glass frit may occur, resulting in the land

disposal of this material.

17Confirmatory experimental data collected by

the Agency on June 15, 1999 show that leachate

concentrations of the fluoride when tested in a pH

range of 11.5–12.5 are 1.8, 2.1, 2.0, and 2.1 mg/L.

These data suggest that the residual fluoride that

remains in the glass frit is immobilized at an

alkaline pH range from 8 (the pH at which the

deionized water leach test was conducted) to 12.5.

18Of course, dilution of the waste as a means to

comply with the standard is prohibited. Also wastes

that are generated in such a way as to naturally

meet the standard can be land disposed without

treatment.

19 If for some reason, the baghouse dust cannot be

recycled, the generator may petition the Agency for

a treatability variance as outlined in § 268.44.

20Performance data from the Ormet facility show

that arsenic concentrations in the treated potliner

(i.e., glass frit) measured below detectable limits

(<2mg/kg) in all samples analyzed. See ‘‘Proposed

Best Demonstrated Available Technology(BDAT)

Background Document for Spent Aluminum

F. Calculation of the Proposed

Treatment Standards for Cyanide and

Fluoride

Based on an analysis of the entire

treatment process, the Agency

concludes that the revised treatment

standards for fluoride and cyanide will

be derived from the concentrations of

these constituents as measured in the

treated potliner or glass frit. We do so

for two reasons. First, the baghouse dust

is fluoride-rich material that can be sold

as a product or recycled back into the

aluminum reduction pots as an

electrolyte. Second, the glass frit is the

primary residual from the treatment of

K088 and will likely be land disposed

at some point either after its use as a

product or immediately if the glass frit

market cannot sustain all the frit that is

generated.16

EPA took four samples of the frit and

analyzed them for total cyanide,

amenable cyanide and fluoride. The

data for total cyanide in the glass frit

consisted of 4 data points all of which

measured total cyanide concentrations

at below detectable levels (<0.5 mg/kg).

Based on these data, a treatment

standard of 1.3 mg/kg for total cyanide

was calculated. The data for amenable

cyanide also included four data points

all of which measured below detectable

levels (<0.5 mg/kg) in the frit. Based on

these data, a treatment standard of 1.4

mg/kg for amenable cyanide was

calculated. The difference results from

differing recovery factors in the two

calculations.

Data was also collected on the

leachability of fluoride in the glass frit

using the deionized water leach test

(ASTM Method D3987–85(1999)). The

leach test is a measure of the immobility

of the fluoride in the treated matrix.

Data results as measured on the frit

were: 1.9, 2.3, 1.9, and 2.5 (mg/L). 17

Based on these data, a treatment

standard of 2.7 mg/L fluoride was

calculated.

To resolve the compliance problem

that would result from having a total

cyanide value less than the amenable

cyanide value, we propose that both

total and amenable cyanide have the

same compliance values. Therefore,

EPA is today proposing revised

treatment standards of 1.4 mg/kg total

cyanide and 1.4 mg/kg amenable

cyanide for K088 nonwastewaters. We

are also proposing a new treatment

standard for fluoride in K088

nonwastewaters, 2.7 mg/L fluoride,

when measured by a version of the

Toxicity Characteristic Leaching

Procedure with deionized water as the

leaching fluid (ASTM Method D3987–

85 (1999)). It should be noted that we

are not proposing to revise any of the

other treatment standards for K088

waste found in 40 CFR 268.48.

The numerical treatment standards

proposed in today’s notice are

performance standards reflecting the

levels achieved by the BDAT. We

emphasize that we are not proposing to

require the use of any particular

treatment technology. Any technology

or combination of technologies not

otherwise prohibited (i.e.,

impermissible dilution) can be used to

achieve these standards. 18 The

establishment of concentration-based

treatment standard provides the

regulated community with the greatest

amount of flexibility in meeting the

treatment standards.

Evaluation of the performance data

from Reynolds and CWMNW show that

these treatment processes cannot

generally achieve the proposed

treatment standards which, in practical

terms, means that existing treatment

technologies that do not recover and

substantially immobilize fluoride will

need to be modified or replaced. See

‘‘Best Demonstrated Available

Technology (BDAT) Background

Document for Spent Aluminum

Potliners—K088’’ for additional

discussion. However, as previously

mentioned, we are aware of several

promising technologies being developed

for K088—all of which recover fluoride.

Preliminary information further suggest

that these technologies would be

successful in meeting the treatment

standards being proposed today. We

request any data and information on any

developing technologies currently being

investigated by the primary aluminum

industry or other for the treatments of

K088 waste. Furthermore, we solicit

your comments on the achievability of

these proposed treatment standards as

well as EPA’s assumptions regarding the

technical and economic feasibility of

recycling the fluoride dust.

During the development of this

proposal, we did consider several other

regulatory options in lieu of the

treatment standards being proposed

today. One option we considered was

the development of a separate

treatability group and treatment

standard for ‘‘Baghouse Dust from K088

Vitrification Processes—No Land

Disposal Based On Recycling.’’ This

option was explored because

clarification might be needed as to the

management of the dust, i.e., no land

disposal. We determined, however, that

the addition of a second, separate

standard for K088 baghouse dust had no

practical advantage over the proposed

standard and rejected this option for

two reasons: (1) The baghouse dust is a

high quality product that can be

recycled within the aluminum industry

or other industrial processes; and (2) the

proposed treatment standard of 2.7 mg/

L cannot be met by the baghouse dust

and, therefore, for all practical purposes,

it must be recycled.19

We also considered a ‘‘Fluoride

Recycling plus 268.48 Standards’’

requirement for all of K088 waste. This

option would require some type of

fluoride recycling to occur in addition

to treatment to meet the concentrationbased treatment standards (both existing

and proposed). The option we are

proposing already effectively provides

this result since the baghouse dust

would not meet the numerical standards

if land disposed, and thus its recycling

is essentially compelled.

G. Why Isn’t the Agency Proposing to

Revise the Treatment Standard for

Arsenic in K088?

During the development of the revised

treatment standards for cyanide and

fluoride, we also evaluated the

possibility of revising the

nonwastewater treatment standard for

arsenic. The current treatment standard

for arsenic in K088 nonwastewaters is

26.1 mg/kg total arsenic. The

development of a revised arsenic

treatment standard in this proposal

proved problematic for two reasons.

First, Ormet’s untreated potliners have

extremely low concentrations of arsenic,

measuring between 3.1 and 4.0 mg/kg,

and therefore could not be considered

‘‘most-difficult to treat’’ for BDAT

purposes.20 Second, performance data

Federal Register / Vol. 65, No. 134 / Wednesday, July 12, 2000 / Proposed Rules 42945

Potliners—K088’’ which is available in the RCRA

docket supporting this rule for additional detail.

21One might think that because the universal

treatment standard for arsenic is based on the

performance of slag vitrification (see 54 FR 48372

(Nov. 22, 1989)), and because Ormet operates a

vitrification process, this process should become

the basis for a revised arsenic treatment standard.

However, all vitrification processes are not

identical. The Ormet process does not appear to

chemically bind the arsenic inside a glass-like

matrix or frit. Thus, we are uncertain about the

underlying similarity or difference between Ormet’s

vitrification process and slag vitrification (about

which we do not have an abundance of data). In

addition, we have questions on whether the high

concentration of fluoride in the K088 can interfere

with some vitrification processes; whether the high

carbon concentration in the K088 acts as a reducing

agent and inhibits some vitrification processes; and

whether the high gas flow and limited solubility of

arsenic in molten silica is distinct from slag

vitrification. (See USEPA, Treatment Technology

Background Document, 1991).

22 Information suggests that there are certain

waste constituents, such as fluoride, that may

interfere with the vitrification process if they are

present at high levels. However, in Ormet’s

vitrification process, the fluoride is volatilized and

captured in the baghouse, thereby generating two

usable outputs; (1) glass frit with low fluoride

concentrations; and (2) fluoride-rich dust.

from the Ormet process indicates that

arsenic is not immobilized in the treated

potliner.21 Rather it partitions (because

of its high volatility) to the baghouse

dust, which is then be recycled back

into the aluminum reduction pots or

sold as product. Of course, trace

amounts of arsenic may not be collected

in the baghouse and would be contained

ultimately in the stack emissions. We do

not have data indicating at what level

either of these two potential events

might occur and, therefore, cannot make

a judgment about the efficacy of an

arsenic recycling standard or the

probability or degree of environmental

concern about potential releases of

arsenic to the air or land. However, later

in this notice, we are proposing an

approach to assure that emissions from

these devices do not present significant

environmental threats.

EPA has therefore decided tentatively

not to alter the existing arsenic

treatment standard. That standard

reflects total arsenic concentrations in

the land disposed treatment residue

from higher-arsenic potliners, and also

is designed to prevent significant

additions of arsenic via the treatment

process (that is, the arsenic remaining in

the treatment residues would reflect

arsenic in the potliners in the first

place). See 63 FR at 51,257–58 (Sept. 24,

1998). Given the current questions

regarding whether any superior means

of arsenic treatment presently exists,

EPA is not in a position to propose a

different standard at this time.

While we are not at this time

proposing an alternative to the total

arsenic standards now in place for

K088, we foresee only very limited

impacts upon the continuing

development of alternative recycling

and treatment technologies for K088 by

other companies. We note however that

should a K088 recycling process be

constructed that has, as one of its

residuals for land disposal, arsenic at

total levels above the current standard,

current regulations would prevent

disposal of the residual. We emphasize

that this does not render the process

unusable. However, the generator would

have to petition for a variance from the

current treatment standard in

accordance with 40 CFR 268.44 or for a

rulemaking in accordance with 40 CFR

260.20 for the Agency to set appropriate

alternative treatment standards. EPA

also could adjust the arsenic standard as

part of this rulemaking if we receive

sufficient information as part of the

comment process and the appropriate

notice and comment protocols (e.g., a

Notice of Data Availability (NODA)) are

met.

We are informally engaged in a

broader effort to gather data on the

effectiveness of current arsenic

treatment methods and may revise the

arsenic treatment standards for K088 or

all hazardous waste upon the

completion of these studies, if

warranted. In the interim, as part of this

docket, we are soliciting your comments

on arsenic treatment methods in

general, the use of these treatment

methods for arsenic in K088, and our

technical questions about the Ormet

process (particularly with respect to its

apparent inability to immobilize arsenic

contained in K088).

III. Regulation of K088 Vitrification

Units

Because new treatment units are

likely to be needed to treat the 120,000

tons of K088 generated each year to

achieve compliance with today’s

proposed standards, the issue of the

regulatory status of K088 vitrification

units has arisen. We discuss in this

section several options for regulating

K088 vitrification units and propose

that they should be miscellaneous

treatment units under RCRA.

Furthermore, we propose that these

units should be subject to a particular

suite of emission controls irrespective of

whether the unit recycles K088

treatment residuals back into the

aluminum making process or into other

products. Furthermore, we note that

although the discussion in today’s

notice is in the context of how to

regulate K088 vitrification units, the

rationale for regarding these units as

Subpart X miscellaneous treatment

units would logically extend to all

vitrification units treating other

hazardous waste. Thus, all vitrification

units, whether direct-fired or indirectly

heated and irrespective of the waste

treated or recycled, would be classified

as Subpart X treatment units. Therefore,

the Agency solicits your comments on

the extension of this approach to all

vitrification units treating hazardous

waste.

A. Why Are K088 Vitrification Units

Generating Glass Frit Subject to RCRA

Subtitle C?

The initial issue requiring resolution

is whether spent potliners are a solid

waste when they are processed by a

vitrification unit that generates glass frit

and recyclable baghouse dust, both of

which can be put to productive use. The

argument goes that spent potliners are

used as an ingredient in a glass

production process, and so are not a

solid waste based on 40 CFR 261.2

(e)(1). This subsection excludes from the

regulatory definition of solid waste

those secondary materials that are used

or reused as ingredients in an industrial

process to make a product, provided the

materials are not being reclaimed.

Because this regulation contains a

proviso that the process not be

reclamation, it is necessary to argue

further that the recovery of fluoride

values in the baghouse dust is not

reclamation to fit within the cited

exemption.

Although the issue is not entirely

clear-cut, EPA takes the view here that

vitrification of K088 is a hazardous

waste treatment process,

notwithstanding that recovery of

something usable can result. Marine

Shale Processors v. United States, 81 F.

3d 1371, 1380 (5th Cir. 1996); United

States v. Marine Shale Processors, 81 F.

3d 1361, 1366 (5th Cir. 1996). These

cases indicate that units producing a

product may still be engaged in

hazardous waste treatment subject to

regulation.

Certain traditional criteria suggest that

the best way to characterize the process

is as conventional treatment plus

recycling. For example, we know that

spent potliners contain high

concentrations of cyanide which is

present in concentrations well in excess

of that needed to produce glass frit.22

See Marine Shale Processors v. United

States, 81 F. 3d at 1381–83 and n.3

(concentrations of hazardous

constituents in excess of those needed

to produce a product are a critical

indication that conventional waste

treatment, rather than recycling, is

occurring). Spent potliners may also

42946 Federal Register / Vol. 65, No. 134 / Wednesday, July 12, 2000 / Proposed Rules

23Source: USEPA, Proposed Best Demonstrated

Available Technology (BDAT) Background

document for Spent Aluminum Potliners—K088.

The concentrations presented represent the

maximum concentrations of contaminant. K088 also

contains other toxic metals at lower concentrations,

including cadmium, and selenium.

24See 60 FR at 11,723 (March 2, 1995) (K088

treatment devices should be subject to uniform

standards if possible, given that they are performing

the same function and are likely to pose the same

types of risks).

contain relatively high concentrations of

carcinogenic polycyclic aromatic

hydrocarbons, which do not contribute

to the process at all. United States v.

Marine Shale Processors, 81 F. 3d at

1366 ([a] substance cannot be an

ingredient in making something if it is

merely along for the ride); see also 60

FR at 11723 and n.11 (March 2, 1995)

where EPA suggested that K088 could

meet the criteria of being ‘‘inherently

waste like’’ under section 261.2(d) for

these reasons. The economics of the

vitrification process also suggest that

waste treatment is occurring at least in

part, since generators of K088 would

pay the vitrification facility to process

the material, most likely at or near the

going rate for hazardous waste

treatment. See memorandum from

Sylvia K. Lowrance, Director, Office of

Solid Waste, to Hazardous Waste

Management Division Directors, Regions

I–X, entitled ‘‘F006 Recycling,’’, dated

April 26, 1989, which states that the

economics of the process are a criterion

for legitimate recycling (i.e., whether

most of the revenue come from charging

generators for managing their wastes or

from the sale of the product). We note,

of course, that the recovered fluoride

can be sold by the treatment facility.

From a strictly definitional

standpoint, the recovery of fluoride

values in baghouse dust at least

arguably meets the definition of

reclamation in § 261.1(c)(4) (which is

recovery of contained values in a matrix

as a usable end product, the example in

the rule being recovery of lead from a

spent battery). Here we observe that

fluoride in spent potliners being treated

by the Ormet vitrification process is

recovered as an air pollution control

dust and can be returned to the

aluminum reduction process as an agent

to lower the melting point of the molten

cryolite bath used to reduce aluminum

from alumina. This means that under

§ 261.2(e)(1)(i), the fluoride recovery

operation is reclamation and that

fluoride recovery does not qualify

strictly for the current overall recycling

exclusion from RCRA. This is a separate

proposition from identifying as BDAT a

process that includes strong elements of

recycling or reclamation in its broadest

sense, which are preferred outcomes in

the waste management hierarchy.

For these reasons, the Agency

interpretation here is that vitrification of

spent potliners is best viewed as a type

of hazardous waste treatment,

notwithstanding the elements of

recycling, reclamation, and reuse.

Hence, absent some regulatory

exemption, some form of subtitle C rule

regulatory controls are appropriate. The

selection of appropriate controls under

RCRA section 3004 and 3005 is a matter

within our discretion. The next section

discusses what those controls ought to

be, with the chief focus on the air

emissions from the treatment process.

B. What Hazards May Be Posed by

Emissions From K088 Vitrification

Units?

K088 can contain toxic constituents at

significant concentrations as shown

below 23:

Constituent Concentration (mg/kg)

Total cyanide ............................................................................................................. 5,800 (0.58%)

Fluoride ...................................................................................................................... 135,000 (13.5%)

Beryllium .................................................................................................................... 32

Chromium .................................................................................................................. 59

Lead ........................................................................................................................... 26

Arsenic ....................................................................................................................... 27.6

Nickel ......................................................................................................................... 64

Polycyclic aromatic hydrocarbons ............................................................................. Up to 2,000 (0.2%)

Although cyanide and polycyclic

aromatic hydrocarbons (PAHs) are

relatively easy to destroy in a

combustion system, improper

combustion could result in high

emissions from untreated compounds in

the incoming waste or from products of

incomplete combustion. Similarly, the

metals present in K088 will condense as

the combustion gas is cooled and can be

effectively controlled using particulate

matter control equipment such as a

baghouse. Improper design, operation,

or maintenance of the particulate matter

control equipment could cause high

metals emissions, however. Finally, the

high levels of fluoride in K088 could

result in unsafe emissions of hydrogen

fluoride if the gas cleaning system is not

properly designed, operated, and

maintained.

C. What Regulatory Options Is EPA

Considering?

We considered a number of control

approaches under RCRA for K088

vitrification units, partly based on

traditional classification criteria,

including those for an incinerator,

industrial furnace, or Subpart X

miscellaneous treatment unit. We also

considered whether the potential

hazards posed by vitrification unit air

emissions should be controlled by

establishing MACT (Maximum

Achievable Control Technology)

standards under Section 112 of the

Clean Air Act instead of using RCRA

authorities. We discuss below our

current thinking on these options and

propose that K088 vitrification units can

most effectively and efficiently

controlled under our program for RCRA

Subpart X miscellaneous treatment

units. We also propose to have these

units be presumptively subject to the

recent MACT hazardous waste

incinerator standards as a point of

departure in developing the suite of

Subpart X permit conditions to be

imposed, irrespective of whether the

facility engages in recycling of K088.

Incinerator Approach. While the one

operating K088 vitrification system at

Ormet uses controlled flame combustion

and therefore meets the RCRA definition

of an incinerator in 40 CFR 260.10, glass

vitrification units can also be heated

indirectly using electricity. See US EPA,

Treatment Technology Background

Document, January 1991, at p. 114.

Indirectly heated units would be outside

of the RCRA definition of an incinerator

in § 260.10. To simplify decisions on

regulatory classification, we propose to

regulate all vitrification units the same

given that their primary function is

essentially the same (i.e., they treat

waste by vitrification) whether or not

the unit is direct-fired.24 This would

Federal Register / Vol. 65, No. 134 / Wednesday, July 12, 2000 / Proposed Rules 42947

25Subpart X refers to the permit standards under

Subpart X, Part 264, for units not eligible for

interim status. Miscellaneous thermal treatment

units operating under interim status are subject to

Subpart P, Part 265.

26Use of the Subpart X miscellaneous unit

approach may also be appropriate for other K088

treatment units (whether vitrification or not) that do

not fit neatly into the previously described

categories. These units may be evaluated on a caseby case basis or at such time that their operation

is imminent. For these units, the Subpart X

miscellaneous unit approach would again offer

implementation flexibility and allow regulators to

impose appropriate, environmentally protective

conditions on a case-by-case basis.

avoid significant implementation issues

for EPA and for individual State and

regional permit writers, especially if

custom-designed vitrification units

employ variations in design and

operation or experience variations in

emissions that may derive from

controlled flame combustion versus

indirect heating configurations. We

wish to avoid unnecessary confusion

and controversy (with attendant delays)

in any permit implementation scheme.

This would not be feasible under

§ 260.10 and an incinerator approach

unless we were assured that all current

and future units would be direct-fired.

We can reach a workable solution by

other means (see Subpart X discussion

below).

Industrial Furnace Approach.

Vitrification units that are an integral

component of a manufacturing process

could potentially be considered a type

of smelting, melting, or refining furnace

(SMRF) that is listed as a category of

industrial furnace under the regulatory

definition in 40 CFR 260.10. Although

the Agency had originally intended the

SMRF category of industrial furnaces to

apply to metallurgical furnaces, one

could possibly interpret the category to

also include glass or slag vitrification

furnaces as a type of melting furnace.

We considered whether it would be

appropriate to explicitly add K088

vitrification units to the list of industrial

furnaces in § 260.10 through this

rulemaking. Under this approach,

emission standards could be established

under Subpart H of Part 266 and

implemented through the BIF permit

process under RCRA.

To be considered an industrial

furnace, however, the unit must be an

integral component of a manufacturing

process and must use thermal treatment

‘‘to accomplish recovery of material

products;’’ see also Marine Shale, 81 F.

3d at 1381–83 construing this

definition. As discussed earlier, there

are elements of waste treatment about

these K088 vitrifying activities. In

addition, unlike currently recognized

industrial furnaces, the outputs of the

vitrification process are entirely the

result of K088 input and treatment and

are not, for example, historical

production processes that are using

waste as an ingredient substitute.

We initially conclude that classifying

K088 vitrification units as industrial

furnaces is problematic. Ormet asserts

that the frit is marketable for a variety

of uses, including polishing and

grinding, backing for asphalt shingles,

molding for steel castings and as cullet

in glass or ceramic manufacturing. The

fluoride can be sold as a flux to steel

mills as well as being recycled as a

electrolyte in the aluminum industry. If,

however, the market for the frit or the

fluoride dust is not sustainable, the

facility would not meet the primary

criterion for an industrial furnace. See

Marine Shale v. United States, 81 F.3d

at 1383–84 (device listed as an

industrial furnace which does not in

fact engage in recovery of material

products is not an industrial furnace,

since industrial furnaces, by definition,

must be used primarily to accomplish

recovery of material products). We do

not have any evidence that the current

markets can use the amount of

purported product that would be

generated by vitrification processes

treating 120,000 tons of K088 each year.

Indeed, the amounts involved suggest

caution about assuming constant

demand, especially for the frit.

Finally, it is not a good use of

constrained Agency resources to

proceed with a rulemaking to list K088

vitrification units as industrial furnaces

in § 260.10 and then to establish

standards specific to those units. This is

particularly the case here given that we

expect only a few facilities to be

constructed to meet the treatment

capacity demand and given the

availability of recently-upgraded

emission standards for incinerators that

can be applied through the Subpart X

approach discussed next.

Subpart X Miscellaneous Treatment

Unit Approach. Early on, the RCRA

program recognized that treatment units

(including thermal) may not fit easily

into any existing classification,

including those for incinerators and

BIFs. As a result, EPA created a category

known as Subpart X miscellaneous

units.25

Design and operational conditions are

developed for Subpart X units on a

facility-by-facility basis by a regional or

state permit writer, who has wide

flexibility to impose conditions

appropriate to protecting human health

and the environment. 40 CFR 264.601.

Typically, Subpart X permit writers are

expected to incorporate existing

standards for other types of units that

would address the same or similar types

of environmental and regulatory

concerns. For example, Subpart X

thermal treatment unit permits would

likely incorporate many or all permit

conditions and standards developed for

other thermal units burning hazardous

waste, e.g., incinerators. See the

discussion below giving further

guidance on appropriate air emission

standards for K088 vitrification units.

The Subpart X miscellaneous unit

approach therefore offers

implementation flexibility that deemphasizes our somewhat rigid

regulatory definitions and optimizes the

ability of regulatory agencies to impose

appropriate, environmentally protective

conditions on a case-by-case basis. (A

trade-off is the uncertainty of not

knowing in advance what standards

apply to a given activity, plus the

administrative burden and inefficiencies

of dealing with units on an ad hoc basis.

These problems appear resolvable here,

as explained below, because there are

likely to be only a few units involved,

and we are indicating a potential

starting point for emission standards in

this rulemaking.)

Using Subpart X as the umbrella

approach for K088 vitrification units

thereby offers an opportunity to avoid

the potential implementation confusion

and additional regulatory burdens

involved in the two alternative

approaches discussed above.26 We

would be able to address the permitting

of K088 vitrification units in a

consolidated fashion that would make

unnecessary the need to engage in

lengthy discussions about how

regulatory definitions would apply.

Rather, time and effort would be spent

on characterizing the design, operation,

and emissions of K088 treatment units

42948 Federal Register / Vol. 65, No. 134 / Wednesday, July 12, 2000 / Proposed Rules

27A RCRA storage permit is a necessity in all

cases where storage occurs (except storage falling

within the 90-day storage provisions of 40 CFR

262.34). Thus, RCRA permitting may be needed at

a given site for reasons other than the vitrification

unit itself.

28As noted earlier, these MACT standards are

also protective of human health and the

environment and are therefore presumptively

appropriate for inclusion in RCRA Subpart X

permits. See 64 FR at 52834, col. 3 (Sept. 30, 1999)

(EPA concludes that the MACT standards are

generally protective of human health and the

environment).

and developing appropriate regulatory

control. We also note that this is

basically the approach the Agency

previously used to implement controls

for both direct-fired and indirect-fired

carbon regeneration units. See 56 FR at

7200 (Feb. 21, 1991).

1. K088 Vitrification Units Should Be

Regulated Even If Engaged in Bona Fide

Recycling

We have discussed earlier the

Agency’s view that vitrification of K088

is a form of waste treatment, not

excluded recycling. However, under

EPA regulations (see 40 CFR 261.6(c)),

the corollary issue of a recycling unit

being exempt from permitting warrants

brief mention. Under § 261.6(c), certain

types of Subpart X recycling units have

been regarded as exempt from

permitting—either under application of

EPA’s own regulations or under a state’s

authorized implementing regulations.

Today, we are proposing to regulate

K088 vitrification units regardless of

whether or not processing of hazardous

waste K088 might otherwise be

considered to be exempt recycling

under current permit regulations in

§ 261.6(c).

Our proposed approach is consistent

with EPA’s general approach to regulate

air emissions from hazardous waste

recycling activities. Under current

RCRA regulations, treatment units

(other than industrial furnaces) that

recycle hazardous waste are still subject

to the standards of Parts 264 and 265.

See 40 CFR 261.6(d). Likewise,

industrial furnaces are subject to air

emission standards in 40 CFR Part 266

when they burn hazardous waste for any

purpose except certain types of metal

recovery. Even if a K088 vitrification

unit were to be viewed as being engaged

in bona fide recycling of K088 along

with its conventional treatment of that

waste, today’s proposed regulations

would not allow this particular type of

unit to be exempt from permitting and

a full suite of appropriate emission

standards. This is, at least in part,

because K088 can contain high

concentrations of toxic compounds.

Improper design, operation, or

maintenance of the reactor or gas

cleaning system could result in

emissions of toxic compounds at levels

that could pose a hazard to human

health and the environment. In

addition, we note that, as discussed

above, if we were not to classify K088

vitrification units as miscellaneous

treatment units potentially eligible for

the recycling exemption, direct-fired

units could be appropriately classified

as incinerators subject to the recently

promulgated MACT incinerator

standards.

2. Standards Applicable to K088

Vitrification Units

As discussed above, a Subpart X

miscellaneous treatment unit

classification is particularly apt because

we expect it will result in appropriate

emission controls, allowed for a

consolidated implementation scheme,

and avoid controversy over RCRA

definitional issues. Permits issued

under Subpart X must contain terms

and provisions as necessary on a caseby-case basis to ensure protection of

human health and the environment. See

40 CFR 264.601. This broad

performance standard can be viewed as

being another potential source of

controversy and attendant delay for the

construction and operation of new,

properly controlled K088 vitrification

units.27 Therefore, we are also

proposing, as part of the Subpart X

approach, that permit writers must

consider the recently-promulgated

hazardous waste incinerator

standards 28 as the point of departure for

any Subpart X K088 vitrification unit.

This means that, absent factors

suggesting otherwise, a K088

vitrification unit would be subject to the

same standards as a hazardous waste

incinerator (see 64 FR at 52993–94

(Sept. 30, 1999). Applying the

incinerator MACT standards to K088

vitrification units could be

accomplished either through direct

regulatory provisions that can be added

to 40 CFR Part 265 or via guidance to

permit writers on how to approach

developing permit conditions for these

units on a site-by-site basis. Under

either approach, if a particular

incinerator standard is not technically

applicable to the type of device or if it

is unnecessary to ensure protection,

then the permit writer is free to develop

a technical justification as to why that

particular standard should not be

included in a permit. Again, this

implementation scheme should shift the

dialogue from one of definitional

classification to one focused on the unit

controls necessary to adequately protect

the public and the environment. And, as

noted above, it also offers the

implementation advantage of having

one type of permitting scheme for all

K088 treatment unit designs, regardless

of whether they are directly or

indirectly fired.

We have looked closely at whether

the MACT hazardous waste incinerator

standards are the most appropriate for

K088 vitrification units, and conclude

that those standards are technically

appropriate and necessary to address

the hazards posed by toxic metal and

nonmetal emissions from these units.

Two issues should be discussed,

however. First, K088 vitrification units

may not feed enough chlorine to exceed

the MACT incinerator standards for

hydrogen chloride and chlorine gas,

combined, even if emissions are

uncontrolled. Our MACT regulations

minimize the compliance burden in

such cases by waiving emissions testing,

and requiring only monitoring of

feedrate to document that the standards

could not be exceeded if emissions were

uncontrolled. This approach can

certainly be considered by permit

writers dealing with K088 vitrification

units. Second, the MACT incinerator

standards do not establish controls

specific to hydrogen fluoride, which is

potentially a significant pollutant from

K088 vitrification units. Accordingly,

permit writers must consider whether

additional permit conditions are needed

to ensure that emissions of hydrogen

fluoride do not pose a hazard to human

health and the environment.

3. Availability of Interim Status for

Existing K088 Treatment Units

A K088 vitrification unit is currently

in operation at the Ormet Primary

Aluminum Reduction facility in

Hannibal, Ohio. At least some of the frit

and baghouse dust from the vitrification

unit appear to be recycled for beneficial

use. As a State authorized to implement

the applicable RCRA standards, Ohio

has previously determined that this

vitrification unit is excluded from RCRA

regulation. As discussed above, when

viewing this issue from a national

policy perspective (and not on the sitespecific factors that Ohio may have

relied upon in its determination), we are

persuaded that K088 vitrification units

should be regulated for a number of

reasons already discussed above, some

of which are independent of whether

recycling is deemed to occur. The status

of the existing Ormet K088 vitrification

unit could therefore become an issue

under today’s proposal, and regulatory

confusion could easily result.

Because of the potential for confusion

as to the proper classification and

Federal Register / Vol. 65, No. 134 / Wednesday, July 12, 2000 / Proposed Rules 42949

29The fluoride-rich baghouse dust can be used as

a reducing agent for metals processed in iron and

steel furnaces, the can also serve as a substitute for

fluor-spar (calcium fluoride) which is typically

between 95–100 pure calcium fluoride. Preliminary

analysis of the baghouse dust show the

concentration of all regulated organic constituents

at below detectable levels (<.330 mg/kg). Analysis

of the 11 UTS metals show leachate levels well

below the K088 treatment standards. Cyanide

concentrations are also below detectable levels (<.5

mg/kg).

ultimately the proper emission controls

that should apply to any existing K088

vitrification facility, it would be

appropriate for a state, should it so

chose, to use the authority of 270.10(c)

to allow an existing facility to submit

Part A of a RCRA permit application

and to operate under the interim status

standards of Subpart P, Part 265, within

30 days of the date of promulgation of

these revised LDRs for K088. See 60 FR

at 11,723 (March 2, 1995) noting that it

may be appropriate for EPA to make the

substantial confusion finding because of

unclear status of potential K088

treatment technologies. Questions about

other interim status issues (such as

adding a vitrification unit as a change in

interim status) should be addressed to

the Region or State administering the

RCRA permit regulations at the plant

location.

4. Why We Are Not Developing Separate

MACT Standards Solely for K088

Vitrification Units?

Under this potential rulemaking

option, we could use the authority of

section 112(d) of the Clean Air Act to

establish technology-based MACT

(maximum achievable control

technology) standards solely for these

units. In such a case, RCRA air emission

standards may be unnecessary since the

MACT standards could also be

sufficiently protective of human health

and the environment. See RCRA section

1006(b) allowing EPA to defer RCRA

regulation where it may unnecessarily

duplicate provisions adopted under

other environmental statutes, including

the Clean Air Act.

Most significant from our perspective

is the prospective resource commitment

needed to develop MACT standards

specific to K088 vitrification units. Such

an effort has not been planned to date,

and this effort would divert already

constrained Agency resources to

develop a regulatory regime applicable

possibly only to a handful of units.

Indeed, under a worst case scenario, the

MACT standards development process

could take as long or longer than a caseby-case permitting approach under

Subpart X for new treatment facilities.

This is particularly true if several units

can be built quickly, but we need to

wait for full-scale operations to obtain

the emissions testing data to develop

national MACT standards. In addition,

we have concluded that the recentlypromulgated MACT incinerator

standards (perhaps with an additional

standard to control hydrogen fluoride)

would address the potential air

emissions concerns that we now have.

Starting a separate rulemaking would

appear to be unnecessary from an

environmental protection standpoint.

On balance, given that we expect that

only a handful of new sources would be

needed to meet the K088 treatment

capacity demand and the existence of

standards that can be applied to these

Units, it does not appear cost-effective

for the Agency to pursue a separate

rulemaking to develop MACT standards

to control emissions specifically from

these sources. Rather, it appears more

appropriate to adopt a RCRA Subpart X

approach for regulating K088

vitrification units.

D. What Rule Changes Are Being

Proposed To Regulate K088 Vitrification

Units as Miscellaneous Treatment

Units?

To enable K088 vitrification units to

be able to be regulated as miscellaneous

treatment units, we propose to revise

the definition of an incinerator in

§ 260.10 to specifically exclude K088

vitrification units. This would ensure

that direct-fired vitrification units are

not classified as incinerators. In

addition, we propose to add a definition

for K088 vitrification unit. See proposed

amendments to § 260.10. Because K088

vitrification units would not meet the

definition of incinerator or boiler, and

because K088 vitrification units are not

listed as a type of industrial furnace,

they would not qualify as BIFs and

therefore would be classified by default

as miscellaneous treatment units (along

with sludge dryers and carbon

regeneration units, for example). Please

note that we are also requesting

comment on whether to expand these

regulatory changes to include all

vitrification units and/or all types of

K088 treatment units (whether

vitrification or not).

E. What Is the Status of the Outputs

From a K088 Vitrification Process?

As discussed above, Ormet’s

treatment process, which can be defined

as a K088 vitrification process, generates

two treatment residuals: a glass frit

which is usable as a commercial

product and a fluoride-rich baghouse

dust that can be recycled back into the

aluminum reduction pots as electrolyte

or sold as a product for other industrial

uses such as steel making. EPA is

proposing here that both of these output

streams be classified as products, and

no longer solid wastes, provided certain

conditions are satisfied. When put to

productive use, this will avoid

inappropriate Subtitle C regulation of

these recycling activities. We will

address the conditions for the glass frit

and the fluoride-rich baghouse dust

separately.

First, the glass frit, would be required

to meet all the numerical treatment

standards for K088 and it would have to

be recycled. The Agency is proposing

that this product be required to meet the

LDR treatment standards to ensure the

effective treatment of cyanide, fluoride

and other regulated constituents in

K088. Furthermore, it is important to

note that at some point this product

could be land disposed and there exists

a need to address potential

environmental consequences of this

land disposal. By having to meet the

K088 treatment standards, the glass frit

is subject to a set of treatment standards

that minimize threats to human health

and the environment. We reiterate here,

that if the glass frit is not recycled, it is

still a K088 waste and must meet the

treatment standards found in § 268.40

prior to land disposal in a Subtitle C

land disposal unit.

The proposed conditions for the

baghouse dusts are that they be recycled

(e.g., returned for use to a primary

aluminum process or to another

process) and not be land disposed (i.e.,

placed on the land) before

reintroduction into these industrial

processes. This proposal is consistent

with the principle (applicable to

reclamation processes) found in existing

rules. See § 261.3(c)(2)(i) stating that the

output of a reclamation process

typically is no longer a solid waste and

§ 261.2(e)(i) indicating that secondary

materials put to direct use ordinarily are

not solid wastes. EPA is proposing these

conditions for two central reasons: (1)

the baghouse dust is similar to raw

materials currently utilized by industry

in terms of physical properties and

types and concentrations of hazardous

constituents; 29 and (2) the

concentration of fluoride in the

baghouse dust is so high (and greatly in

excess of the levels proposed as the

treatment standard today for fluoride)

that EPA is uncertain that other

dispositions would be safe. The

proposed exclusion limits the type of

recycling of the baghouse dust to

situations where the dust is used as an

ingredient, or is used for material

recovery (i.e., reclaimed) by being

reintroduced into other industrial

processes (normally primary aluminum

42950 Federal Register / Vol. 65, No. 134 / Wednesday, July 12, 2000 / Proposed Rules

30 It should be noted however that although the

arsenic found in the baghouse would not meet the

treatment standard for arsenic in K088

nonwastewaters (26.1 mg/kg), as part of the

development of this proposed rule, we subjected

this waste to numerous alternative arsenic leach

tests, using a variety of leachate media. Based on

our preliminary analysis, the leachate from the

baghouse dust would not fail the TCLP for arsenic

(5 mg/L) nor would it fail using any number of

alternate leach tests. See the background document

supporting this rule for additional discussion.

31The data and detailed analysis on the effective

date for proposed treatment standards can be found

in the Background Document to Establish the

Effective Date for Amended Treatment Standards in

the docket for this proposed rulemaking.

or potentially steel production). EPA

has added this qualification in the

unlikely event that the baghouse dust

would be burned as a fuel (probably not

legitimate recycling in any case). It is

our understanding that the proposed

language covers all of the current and

contemplated means of recycling the

baghouse dust. The condition on there

being no land disposal before return to

the primary aluminum process is

necessary to ensure that the basic LDR

goal is not derogated. These baghouse

dusts would not meet today’s proposed

treatment standards for fluoride, so that

allowing their land disposal (in the

guise of products stored on the land

prior to recycling) would be

inconsistent with the purpose of the

LDR program, the prohibition and

treatment standards for spent potliners,

and our goal to ensure that recycling

does not present threats to human

health and the environment.30

In addition, EPA is including the

standard condition that both these

materials not be accumulated

speculatively before recycling. Such

prolonged storage would be inconsistent

with the proposed product status, and

indeed would raise the same types of

concerns that the RCRA storage

prohibition (codified in § 268.50) is

intended to stop.

IV. Status of Interim Standards and

Proposed Effective Date for Amended

Standards

Typically, prohibitions on land

disposal of hazardous waste are to take

effect immediately upon promulgation,

but may be postponed for two years on

a national basis and (potentially) two

more years on a case-by-case basis from

the ‘‘earliest date on which adequate

alternative treatment, recovery or

disposal capacity that protects human

health and the environment will be

available.’’ RCRA section 3004(h)(2).

Here, however, spent potliners are

already prohibited from land disposal

(as of September 24, 1998; 63 FR 51254).

Thus, the period during which EPA

could conceivably issue any type of

variance based on the available

treatment capacity is already running

out (less than a year remains on the

potential national capacity variance

period) and could already have expired

by the time EPA issues a final rule

adopting amended K088 treatment

standards. A basic question, therefore, is

whether there should be any lapse in

the existing prohibition and treatment

standards during the time it takes for

additional treatment capacity to be

created to treat K088 to the proposed

treatment standards (assuming EPA

adopts them). A second question is

when the effective date should be for

the amended standards (again, assuming

EPA adopts them). These questions are

discussed below.

A. Are the Interim Standards Still in

Effect?

EPA proposes that there should be no

lapse in the existing prohibition and

treatment standards because if there

were, land disposal of untreated spent

potliners could resume. As EPA has

explained at length, this result would be

directly at odds with the central

objective of the land disposal restriction

statutory provisions. See 63 FR 51255–

256. Moreover, EPA has already

determined that there currently exists

adequately protective treatment and

disposal capacity for spent potliners

treated to meet the existing (interim)

treatment standards. See 62 FR 37696–

697. Thus, EPA knows of no reason to

justify eliminating the existing land

disposal prohibition and treatment

standards during the period before

additional treatment capacity capable of

meeting the proposed standards

becomes available.

B. When Should the New Treatment

Standards Take Effect?

EPA is guided by the overall objective

of section 3004(h): treatment standards

which best accomplish the objective of

section 3004(m) to minimize threats

posed by land disposal—should take

effect as soon as possible, consistent

with availability of protective treatment

capacity. Therefore, we estimated how

long it will take for available treatment

capacity to be created and satisfy the

proposed treatment standards.31 We are

basing the proposed effective date for

today’s treatment standards on this

estimate.

Because a land disposal prohibition

and interim treatment standards for

K088 waste already exist under the

interim rule of September 24, 1998, we

propose as noted above to leave these

requirements in place until the final

rule adopting amended treatment

standards becomes effective.

Furthermore, although there are no legal

constraints to limit EPA’s potential

implementation time period for a final

rule amending these treatment

standards, EPA will establish an

appropriate effective date based on the

projected availability of treatment or

recovery capacity that can meet today’s

proposed treatment standards.

Key determinants of K088 generation

include primary aluminum production

rates (which vary from year to year), the

useful life spans of different types of

potliners, the lag time between

aluminum production and waste

generation, and occasional increases in

potliner waste generation due to

production starts and stops. To compare

the required treatment or recovery

capacity to available commercial

capacity that can meet today’s proposed

treatment standards, EPA combined all

data presented in previous rulemakings

and used the 1997 Biennial Reporting

System (BRS) to update these data. At

the present time, EPA estimates that

approximately 80,000–100,000 tons per

year of K088 waste would require

alternative management to meet the

proposed treatment standards.

The majority of available commercial

K088 waste treatment capacity in the

United States exists at the Reynolds

Gum Springs facility in Arkansas. This

facility uses a thermal treatment system

capable of treating approximately

120,000 tons of K088 waste per year and

meeting the interim treatment standards

promulgated on September 24, 1998.

Two additional U.S. facilities have

available technology to treat K088 waste

to the interim standards. They are

Chemical Waste Management of the

Northwest, Inc. (CWMNW), which uses

a combination of chemical oxidation

and stabilization to treat commercial

K088 waste, and a primary aluminum

producer, Ormet, which uses a Vortec

vitrification system to manage its own

K088 waste. Other technologies, under

development, although appearing to be

promising, are not yet operating

commercially.

In today’s proposed rule, EPA would

amend the treatment standards based on

vitrification performance data and thus

significantly lower the existing

treatment standards for fluoride and

total and amenable cyanide in K088

nonwastewaters. Available data suggest

that the existing treatment process at the

Reynolds Gum Springs facility cannot

meet the proposed treatment standard

for cyanide (both total and amenable)

and fluoride for most (and perhaps all)

of the K088 wastes currently being

treated at the facility. Even if Reynolds

can reconfigure or adjust its thermal

Federal Register / Vol. 65, No. 134 / Wednesday, July 12, 2000 / Proposed Rules 42951

treatment process or purchase an

additional treatment system, a

substantial amount of time may be

required. CWMNW, the other

commercial treatment facility, will not

meet the proposed treatment standards

for total and amenable cyanide and

fluoride in K088 with its current

chemical treatment. Therefore, there is

uncertainty whether CWMNW will

continue to provide treatment capacity

to meet the amended treatment

standards for K088 waste.

At this time, among K088 generators,

only Ormet appears to have an on-site

management treatment technology

(vitrification) capable of meeting the

proposed treatment standards. The

Ormet unit’s capacity is up to 10,000

tons per year. The treatment capacity is

based on Ormet’s own waste generation

and the company has no plans to

expand its on-site capacity or accept

K088 from other generators.

Based on this information, we find

that no commercial vitrification or

equivalent capacity currently exists that

could meet the proposed treatment

standards for K088 waste. Nevertheless,

projects to construct plants for spent

potliner recycling are currently in the

planning phase. For example, in 1997,

Vortec and Ormet formed a joint

technology development enterprise (SPL

Recycling, LLC) to assist in the

development of waste recycling projects

in the aluminum industry. Also,

Reynolds is examining recycling

technologies potentially capable of

meeting the revised treatment standards.

Some primary aluminum producers are

also investigating recycling technologies

to handle their K088 waste. Although

other firms are also studying alternative

K088 treatment or recycling

technologies or processes (e.g.,

gasification, the ‘‘Alcoa-Selca’’ process,

and the Spent Potliner Test Plan by

AshGrove Cement Company). Most of

these technologies and processes have

not yet been proven commercially, and

uncertainty exists about their potential

to meet the proposed treatment

standards.

The amount of time needed to

establish sufficient vitrification or

equivalent capacity for all K088

wastes—which essentially dictates our

selection of an effective date for the

amended standards—is affected by the

need for treatment facilities to conduct

full design and engineering assessments,

negotiate contractual agreements, obtain

permits from appropriate regulatory

agencies, construct the systems, set up

the appropriate infrastructures, and

make other logistical arrangements

necessary to receive, store, treat and

recycle or dispose of K088 wastes. Such

a process can take years to accomplish.

For example, approximately two years

were needed to before Ormet’s

vitrification system became operational.

Using this example and other

information noted in the background

document for this analysis of the

appropriate effective date for this rule,

EPA is proposing to delay the effective

date for two years following final rule

promulgation. Although two years may

or may not be adequate for certain

systems to become operational and meet

the proposed treatment standards for

K088 waste, the length of time needed

depends on whether the facility has an

existing treatment system or will build

a new system. For example, if a facility

has an existing thermal system capable

of treating K088 waste already, then it

may replace its existing system with a

vitrification device to meet the proposed

requirements and new treatment

standards if EPA adopts them. EPA will

consider comments and other available

information to adjust the time required

before treatment capacity capable of

meeting the revised treatment standards

will be available.

In today’s rule, as discussed above,

EPA is not soliciting comments on the

land disposal prohibition or interim

standards for K088 waste. EPA is

requesting capacity data and

information solely to better assess when

treatment or recovery capacity could

become available and meet the proposed

treatment standards. EPA is also seeking

comments on whether two years after

the final rule effective date is a

sufficient time period to allow for

adequate treatment or recovery capacity

to become operational.

V. Compliance and Implementation

A. Applicability of Rule in Authorized

States

Under section 3006 of RCRA, EPA

may authorize qualified States to

administer and enforce the RCRA

program within the State. Following

authorization, EPA retains enforcement

authority under sections 3008, 3013,

and 7003 of RCRA, although authorized

States have primary enforcement

responsibility. The standards and

requirements for authorization are

found in 40 CFR Part 271.

Prior to the Hazardous and Solid

Waste Amendments (HSWA) of 1984, a

State with final authorization

administered its hazardous waste

program in lieu of EPA administering

the Federal program in that State. The

Federal requirements no longer applied

in the authorized State, and EPA could

not issue permits for any facilities that

the State was authorized to permit.

When new, more stringent Federal

requirements were promulgated or

enacted, the State was obligated to enact

equivalent authority within specified

time frames. New Federal requirements

did not take effect in an authorized State

until the State adopted the requirements

as State law.

In contrast, under RCRA section

3006(g), new requirements and

prohibitions imposed by HSWA take

effect in authorized States at the same

time that they take effect in

unauthorized States. EPA is directed to

carry out these requirements and

prohibitions in authorized States,

including the issuance of permits, until

the State is granted authorization to do

so.

Today’s proposal would be

promulgated pursuant to sections 3004

(g)(4) and (m) of RCRA. It either directly

implements these provisions or, in the

case of the provisions relating to

classification of K088 treatment devices

and their outputs, is necessary to

implement the section 3004 (g) and (m)

K088 treatment standards. Therefore,

when promulgated, the Agency would

add the rule to Table 1 in 40 CFR

271.1(j), which identifies the Federal

program requirements that are

promulgated pursuant to HSWA. This

rule would be effective in all States

immediately pursuant to RCRA section

3006(g). States may apply for final

authorization for the HSWA provisions

in Table 1, as discussed in the following

section of this preamble.

B. Effect on State Authorization

As noted above, when promulgated,

EPA will implement today’s rule in

authorized States until they modify

their programs to adopt these rules and

the modification is approved by EPA.

Because today’s rule would be

promulgated pursuant to HSWA, a State

submitting a program modification may

apply to receive interim or final

authorization under RCRA section

3006(g)(2) or 3006(b), respectively, on

the basis of requirements that are

substantially equivalent or equivalent to

EPA’s. However, with respect to the

classification of K088 thermal treatment

devices as Subpart X units for

permitting purposes, we note that many

states already have authorization to

issue Subpart X permits. Therefore, as a

practical matter, these States would

continue to be the appropriate

permitting authority for K088 thermal

treatment devices after promulgation of

this rule. If a state is not yet authorized

for Subpart X permitting, we encourage

those States to apply for Subpart X

authority as soon as possible after

issuance of this proposal and not wait

42952 Federal Register / Vol. 65, No. 134 / Wednesday, July 12, 2000 / Proposed Rules

until promulgation of the final rule. The

procedures and schedule for State

program modifications for final

authorization are described in 40 CFR

271.21. All HSWA interim

authorizations will expire January 1,

2003. (See § 271.24 and 57 FR 60132,

December 18, 1992.)

VI. Regulatory Requirements

A. Regulatory Impact Analysis Pursuant

to Executive Order 12866

Under Executive Order 12866, (58 FR

51735, October 4, 1993) the Agency

must determine whether a regulatory

action is ‘‘significant’’ and therefore

subject to OMB review and the

requirements of the Executive Order.

The Order defines a ‘‘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 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; 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, it has been determined

that this rule is a ‘‘significant regulatory

action’’ because of novel policy reasons.

As such, this action was submitted to

OMB for review. Changes made in

response to OMB suggestions or

recommendations will be documented

in the public record. The Agency

estimated the costs of today’s proposed

rule to determine if it is a significant

regulation as defined by the Executive

Order. Because the treatment standards

for K088 promulgated in the September

28, 1998 final rule (Interim Treatment

Standards for Spent Aluminum

Potliners from Primary Aluminum

Reduction) have remained in effect,

treatment costs for spent aluminum

potliner have already been accounted

for. Accordingly, EPA believes that

there are no costs associated with the

existing treatment standards in today’s

proposed rule. (According to the Court,

none of the standards measured by

means other than TCLP were affected by

the ruling, 139 F.3d at 923, so no costs

should be attributed to treating

constituents other than cyanide and

fluoride under this rule in any case.)

Incremental annual treatment costs for

cyanide and fluoride attributed to

today’s proposed rule range from a low

estimate of $12.4 million to a high

estimate of $36.8 million. The high

treatment estimate of $36.8 million is

not economically significant according

to the definition in Executive Order

12866. These treatment estimates

represent only direct expenditures for

treatment of cyanide and fluoride

attributable to today’s proposed rule.

Discussion of the methodology used

for estimating the costs and economic

impacts attributable to today’s proposed

rule for K088 wastes may be found in

the background document ‘‘Economic

Assessment for Revised LDR Treatment

Standards for Spent Aluminum Potliner

(K088)’’ which was placed in the docket

for today’s proposed rule. EPA requests

comments on the analytical approach to

estimate the costs of today’s proposed

rule, as well as on the economic

analysis background document. Further,

EPA requests data (cost and/or

engineering) to further refine

assumptions underlying the

implementation of Vortec. Of particular

interest to EPA is information on actual

commercial costs of the Vortec

technology.

1. Methodology Section

The Agency examined reported values

for K088 generation from prior Agency

estimates in the Phase III LDR final rule

to estimate the volumes of K088 affected

by today’s rule, to determine the

national level incremental costs (for

both the baseline and three postregulatory scenarios) and economic

impacts. Economic impacts were

estimated based upon incremental costs

as a percent of sales for three different

scenarios. It should be noted that these

are hypothetical scenarios, and do not

necessarily predict the actual course of

action potentially taken by any

particular treatment facility. The

Agency believes these three

hypothetical scenarios to be a

reasonable representation of the

potential range of possible outcomes of

this proposed rule. However, scenario

two is thought to be the least likely of

the three hypothetical scenarios, and is

presented primarily for illustrative

purposes. Scenario’s one and three

represent the range of anticipated

responses given the current political

environment in which the aluminum

industry operates: on-site or off-site

treatment in the northwest U.S. versus

commercial treatment at the Reynolds

Aluminum, Gum Springs, Arkansas

facility. The Agency requests comments

on these three hypothetical scenarios as

well as any alternative scenarios in

response to the proposed rule.

Scenario 1: Assumes two facilities

will be available for treating K088, one

owned by Reynolds, and one storage

facility owned by CWMNW. Both

facilities are assumed to be retrofitted

with the Vortec technology to meet the

revised treatment standards;

Scenario 2: Assumes only the

treatment facility owned by Reynolds

will be available. This facility is

assumed to be retrofitted with the

Vortec technology; and

Scenario 3: Assumes that facilities in

the Pacific Northwest treat on-site using

the Vortec technology (using a cost

structure similar to the Ormet facility in

Hannibal, Ohio), and assumes that the

Reynolds facility also will be retrofitted

with the Vortec technology.

The basis for the baseline thresholds

are the engineering design capacity for

one facility and current treatment rates

at another. Under the baseline, the

existing Reynolds off-site thermal

treatment system located in Gum

Springs, Arkansas has a design

treatment capacity of 120,000 tons per

year. Only, 48,455 tons of this capacity

were utilized in 1998. The existing

CWMNW off-site storage/treatment

facility located near Arlington, Oregon

has a treatment capacity of 60,000 tons

per year based on a communication

with the facility that they currently are

treating K088 at a rate of 5,000 tons per

month.

Unit costs for crushers, impact mills,

hammer mills, and on-site Vortec

Combustion Melt Systems are scaled

based on cost estimates known or

developed for certain capacities. Capital

costs are scaled to the 0.6 power and

operation & maintenance costs are

scaled to the 0.9 power to reflect

economies of scale with varying

capacities. In its simplest form, the

equations are as follows:

Scaled Capital Cost = (Known Capital

Cost) * (New Capacity/Known

Capacity)0.6

Scaled O&M Cost = (Known O&M Cost)

* (New Capacity/Known

Capacity)0.9

For off-site Vortec Combustion Melt

Systems, unit prices are not scaled

based on capacity. Instead a range of

unit costs (based on vitrification and

incineration market pricing assumed to

be high estimates) are used to represent

the range of potential commercial

pricing that may occur within the postregulation K088 treatment market.

EPA knows of only two full-scale

Vortec systems that have been

constructed to date. One plant treats

radioactive-contaminated soil and the

Federal Register / Vol. 65, No. 134 / Wednesday, July 12, 2000 / Proposed Rules 42953

32 Kaiser Aluminum and Chemical Corp., Mead,

Washington facility did not report generating K088

in the 1997 Biennnial Reporting System (BRS).

K088 generation data reported in the 1995 BRS

were used instead.

33Background Document to Establish the

Effective Date (March 2000, Section II, Required

Capacity) in the docket for today’s rule.

other treats K088. They have capacities

of 12,950 tons per year and 7,000 tons

per year, respectively. The Vortec

technology has been licensed to Japan’s

Mitsubishi Kasei Engineering Co. for the

treatment of municipal incinerator ash

which is typically generated in larger

amounts than K088 annually. This

indicates that larger design capacities

are likely feasible. The economic

assessment estimates costs for systems

ranging in capacity from 3,150 tons per

year to 85,000 tons per year. We have

assumed that, similar to other larger

vitrification technologies, Vortec

capacities can be built through multiple

lines and combining storage

requirements. Costs will be higher for

multiple lines because not all fixed

costs can be shared among lines. These

potentially higher costs have been

captured within the range of market

price proxies used based on vitrification

and incineration commercial operations

to estimate potential cost impacts.

EPA chose a rate of 50 percent debt

to 50 percent equity (or 1.0 debt-equity

ratio) as a proxy for actual industry

debt-equity structures. The debt-equity

ratio may shed some light on the cost of

financing the capital expenditures to

fully comply with the proposed rule.

While the cost of debt financing

(interest expenditures) is readily

apparent, the cost of equity financing

may be more difficult to discern. While

many of the larger companies are less

reliant on debt financing (e.g., Reynolds

Metals and ALCOA have respective

debt-equity ratio of approximately 0.7

and 0.5), some of the publicly traded

firms are heavily reliant on debt capital

(e.g., Kaiser Aluminum has a debtequity ratio of 35). Data were not

obtained for closely-held companies in

the industry; EPA assumes that these

companies’ debt-equity positions would

be similar to other aluminum industries

(e.g., extruded aluminum, aluminum

foundries, die-cast aluminum and

secondary nonferrous metals) for which

data are available. A review of

consolidated financial statements in

these related industries (as published in

Robert Morris Associates Annual

Statement Studies) showed debt-equity

ratios in the 1.0 to 1.5 range. We

selected a debt-equity ratio of 1.0 rather

than other values because it is near the

midpoint of the 0.5 to 0.7 (Reynolds

Metals and ALCOA) and 1.0 to 1.5

(Robert Morris Associates Annual

Statement Studies) ranges. We request

comment on the appropriateness of

these debt-equity ratios for use in the

aluminum industry.

Crusher, impact mill, and hammer

mill cost estimates include the

following capital cost elements:

• Access road,

• Site preparation (grading),

• Concrete slab on grade,

• Structural steel,

• Conveyor,

• Storage silo (1-day),

• Hopper,

• Crusher, impact mill, or hammer

mill equipment purchase and

installation costs,

• Pilot test of crusher, impact mill or

hammer mill,

• Vibratory screen,

• Instrumentation and electrical,

• Indirect capital cost allowances

(permits at 1.25%, insurance and

bonding at 2%, construction

management at 6%, engineering design

at 5%, project management at 2.5%, and

overhead and profit at 20%), and

• Contingency on direct and indirect

capital costs at 15%.

Crusher, impact mill, and hammer

mill cost estimates include the

following operation and maintenance

cost elements:

• Operator oversight,

• Maintenance labor,

• Maintenance material at 7% of

capital,

• Electricity,

• Indirect O&M allowances (project

management at 5%), and

• Contingency on direct and indirect

O&M costs at 10%.

On-site Vortec Combustion Melting

System cost estimates were not

developed from the ground up similar to

the crushing and milling cost estimates.

They were estimated based on scaling

aggregate costs obtained from literature.

The Department of Energy (DOE) spent

$11.6 million to construct a 12,950 ton

per year system to treat radioactively

contaminated soil in Paducah,

Kentucky. EPA assumed that this cost

estimate included all the capital cost

components listed. In a recent

communication with Ormet Primary

Aluminum Corporation on February 1,

2000, it was estimated that it would cost

$10 million today to construct a similarsized 7,000 ton per year system to the

one they are operating currently. Ormet

had to make several modifications to the

system and actually spent more than

$10 million. Others likely can learn

from their experience which is why they

estimated only $10 million. EPA did not

modify the Paducah cost estimate even

though it may be a high estimate for

future construction given the others will

learn from their experience thus

lowering their costs. For O&M costs, we

assumed a unit cost at the high end of

the $150–$300/ton range estimated for a

NHW vitrification system. In recent

communication with Ormet, they

estimate it cost them less than $300 per

ton (excluding depreciation) to operate

and maintain their systems.

Off-site Vortec Combustion Melting

System cost estimates were not

developed from the ground up similar to

the crushing and milling cost estimates.

Unit price estimates were developed

using market unit price estimates for

commercial vitrification and

commercial incineration as a proxy for

the range of potential market pricing.

This range of commercial unit prices

should account for all the potential

costs included in the list of cost

elements in the question.

Under Scenario 3, EPA assumed

crusher, impact mill, and hammer mill

capacity based on current K088

generation rates for that plant. EPA

further assumed that additional capacity

could be added in the future in

generation rates increased. ‘‘Sitespecific’’ was changed to ‘‘current K088

generation.’’ However, for the Vortec

Combustion Melting System, a design

capacity that is 40 percent greater than

the plants current K088 generation rate

was assumed. EPA assumed it would be

more difficult to add capacity in the

future for the Vortec system and that the

initial investment for additional

capacity will be made now rather than

later.

2. Results

a. Volume Results. EPA estimated an

average of 87,746 tons annually for

purposes of assessing cost and economic

impacts from today’s proposed rule.

This estimate is based upon the total

reported generated quantity managed in

1997, including the 1995 reported

quantity for Kaiser Aluminum &

Chemical Corporation, Mead,

Washington.32 Moreover, spent potliner

(SPL) generation is in the range of

80,000 to 100,000 tons annually.33 An

additional 20,000 tons reported in the

1997 BRS (including leachate and

wastestreams that carried other EPA

waste codes) were excluded from the

economic analysis as they were

determined not to be within the scope

of today’s rule. Previous analyses were

based upon generation of an estimated

120,000 tons of SPL annually. This

estimate was based upon available data

sources from the Phase III Land Disposal

Restrictions Final Rule (61 FR 15566,

April 8, 1996.). The current K088

treatment standards became effective in

42954 Federal Register / Vol. 65, No. 134 / Wednesday, July 12, 2000 / Proposed Rules

34Chemical Waste Management has received

approximately 30,000 tons of K088 to-date, of

which approximately 10,000 tons have already been

treated. Further, Chemical Waste Management

continues to receive 2,000 tons of additional K088

per month, while treating 5,000 tons of K088 per

month. Net effect is a 3,000 ton per month

reduction in stored K088. Personal communication

with Steve Seed, Chemical Waste Management, and

Linda Martin U.S.E.P.A., January 5, 2000.

35For example, previously Reynolds Metals

Company has provided data indicating that the

treatment of disposal cost of their process, though

variable depending on a series of factors, is between

$200 and $500 per ton. Personal Communication

with Jack Gates, Vice-President, Reynolds Metals

Company, September 28, 1994 as cited in

Regulatory Impact Analysis of the Phase III Land

Disposal Restrictions Final Rule, U.S.

Environmental Protection Agency, Office of Solid

Waste, February 15, 1996. Recently, Waste

Management has quoted treatment and disposal

charges at $160 per ton for treatment capacity now

being developed at its Arlington, Oregon facility.

Letter from Mitchell S. Hahn, Manager,

Environmental Health and Safety, Waste

Management Inc. to Paul A. Borst, Economist,

USEPA, Office of Solid Waste, June 4, 1998. The

Waste Management treatment and disposal charge

is determined by subtracting the $85 storage price

from a new customer price of $245 per ton.

Transportation costs are not factored into this

estimate. Of the $160 per ton treatment and storage

cost, $80 per ton is attributable to treatment and $80

is attributable to disposal. Personal Communication

with Mitch Hahn, Chemical Waste Management,

and Paul Borst, U.S.E.P.A. August 13, 1998.

36Mineral Commodity Summaries 1999, U.S.

Department of the Interior, U.S. Geological Survey.

September 1998, therefore, several of

the reported management practices (i.e.,

off-site incineration, on-/off-site landfill,

and off-site stabilization) did not meet

the standard.

The baseline scenario assumes that of

the 87,746 tons of spent aluminum

potliner generated annually, 47,724 tons

currently go to the Reynolds facility for

treatment and Subtitle C disposal;

34,854 tons to the CWMNW facility for

storage, and 5,170 tons are generated

and treated on-site (non-commercially)

using the Vortec technology at the

Ormet facility. To establish the baseline

management unit costs for the economic

impact analysis, transportation costs

were determined for each aluminum

smelter.

b. Cost Results. As stated above,

because this rule only modifies the

treatment standard for cyanide and

establishes a treatment standard for

fluoride, the Agency believes that this

rule does not impose significant

incremental treatment costs associated

with treating K088. EPA has estimated

transportation, permitting, and

treatment costs for K088. Incremental

annual treatment costs attributable to

today’s proposed rule range from $12.4

million under Scenario 1 to $36.8

million under Scenario 2. Capacity

currently exists at the CWMNW to treat

all stored K088 to current treatment

standards, therefore, costs of storage are

not included in cost estimates. 34

Transportation and permitting costs are

estimated to range from $4.5 million to

$11.8 million. EPA previously estimated

treatment costs between $6.4 million

and $42 million for the LDR Phase III

final rule. 61 FR 15566,15591(April 8,

1996). EPA notes that new K088

treatment technologies are currently

being developed that may significantly

lower K088 treatment costs

nationally. 35 EPA does not believe that

this proposed rule will create barriers to

market entry for firms wishing to

provide alternative treatment capacity

for spent aluminum potliner. Estimated

economic impacts reflect direct

expenditures to construct using Vortec

and do not reflect the full costs of

compliance.

EPA has also estimated the potential

value of the fluoride-rich baghouse dust

that is a by-product of the Vortec

process. In 1994, approximately 73% of

reported fluorspar consumed in the U.S.

was used in the production of

hydrofluoric acid; 10% as a fluxing

agent in steelmaking; and, 17% in

aluminum fluoride manufacture,

primary aluminum production, glass

manufacture, enamels, welding-rod

coatings, and other miscellaneous end

uses or products. Fluorspar prices are

driven to a large extent by activities in

China, including major increases in

Chinese exports and the resulting

competition between Chinese exporters

and the introduction of Chinese export

quotas and license fees. The average

U.S. Gulf port price per ton, dry basis,

for acid grade fluorspar is $122. The

current licensing fee for Chinese (acid

grade) fluorspar is $39. This price per

ton represents the average delivered

price of Chinese, Mexican, and South

African acid grade at Gulf port.

About 90,000 tons of K088 waste were

reported managed in the U.S. in 1997.

The estimated cost per ton of the Vortec

system (excluding permitting prices)

ranges from $483 to $693. The Agency

has assumed that this estimated

treatment cost per ton includes both the

generation cost of fluoride-rich material,

as well as cyanide removal. The Agency

does not have data to isolate the cost of

cyanide removal; this cost is included in

the overall treatment cost using the

Vortec process. Annual cost impacts of

the proposed rule were estimated to

range from about $12 million to $37

million in aggregate for all facilities.

About 5,250 tons of fluoride-rich

material (assuming 100% of the fluoride

baghouse dust is marketed as fluorspar)

are generated annually in the U.S. Based

upon the $122 price per ton for acid

grade fluorspar, the resulting estimated

value of the fluoride-rich baghouse dust

is $640,500.

c. Economic Impact Results. To

estimate potential economic impacts

resulting from today’s proposed rule,

EPA has used first order economic

impact measures such as the estimated

incremental management unit costs of

today’s final rule as a percentage of

affected firms’ sales and/or revenues.

Individual facilities were considered in

the analysis. Annual sales for each

facility were estimated from overall

industry production data and industry

capacity. Total industry capacity

estimates were taken from USGS data.

Industry production divided by industry

capacity determined the overall capacity

utilization. Sales for each facility were

approximated assuming that they each

produced aluminum at this capacity

utilization rate of approximately 88

percent. When the annual costs of

regulation are less than one percent of

a firms annual sales or revenues, this

analysis presumes that the regulation

does not pose a significant economic

impact on the affected facilities absent

information to the contrary. In 1997,

U.S., primary aluminum production was

an estimated 4.0 million metric tons of

aluminum at an average market price of

$1,542 per ton yielding total sales of

$6.1 billion.36 The $36.8 million high

estimate of the incremental treatment

cost estimate represents only 0.6 percent

of the total value of the aluminum sold

by primary aluminum producers. It is

likely, as discussed, that treatment costs

will decrease as new firms develop

commercial technologies for K088. As a

result, this proposed rule will not pose

a significant economic impact on

primary aluminum producers in the

United States. More detailed

information on this estimate can be

found in the economic assessment

placed into today’s docket.

d. Benefits Assessment. EPA has not

conducted a quantitative assessment of

actual benefits from this proposed rule.

Because today’s proposed rule

promulgates a revised treatment

standard for cyanide and establishes a

treatment standard for fluoride in K088,

the Agency believes that there may be

a reduction in the levels of cyanide and

fluoride in leachate, which may reduce

human health risks in the event of a

landfill liner failure and subsequent

actual exposure by any nearby

populations.

Since the proposed rule is technologybased (and not risk-based) the Agency

has not conducted a data collection and

analysis of actual cyanide

Federal Register / Vol. 65, No. 134 / Wednesday, July 12, 2000 / Proposed Rules 42955

contamination. However, the Agency

has reviewed the available actual

damage incidents with respect to the

potential for spent aluminum potliner to

release free cyanide, and cyanide’s

mobility and persistence following

release. Specifically, the July 7, 1980

background document for the original

spent aluminum potliner (K088) listing

identified a damage case involving

Kaiser Aluminum’s Mead Works.

Kaiser’s facility is situated 150 feet

above the Spokane aquifer which is

used for private wells and drains into

the Little Spokane River. Leachate from

a lagoon containing potliners and sludge

leached through the ground and

contaminated the aquifer with cyanide.

Eighteen wells were contaminated,

some having cyanide levels in excess of

1,000 ppb. Kaiser had to provide

alternative sources of drinking water to

the affected owners and upgrade and

seal the leaking lagoon.

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 the reasons stated above, in the

estimated costs discussion of section

X.A.2, the Agency does not believe that

today’s proposed rule will have a

significant impact on a substantial

number of small entities. The overall

economic impact of today’s proposed

rule to promulgate revised treatment

standards for total and amenable

cyanide and establish a treatment

standard for fluoride in spent aluminum

potliner results in annual incremental

costs ranging from $12.4 million to

$36.8 million.

The proposed rule will affect an

estimated 22 aluminum smelting

companies. Of the companies in

question, 21 are expected to incur costs.

For purposes of assessing the impacts of

today’s proposed rule on small entities,

small entity is defined as: a small

business that has less than 1,000

employees; (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. No more than one

facility is estimated to be small

according to the Small Business

Administration definition for small for

SIC 3334 (Primary Production of

Aluminum). After considering the

economic impacts of today’s proposed

rule on small entities, I certify that this

action will not have a significant

economic impact on a substantial

number of small entities. We have

determined that the preliminary

estimate of the impact on affected

facilities indicates compliance costs

may exceed 1% of sales for this facility.

The overall impact to the entire affected

population of facilities is expected to

range from 0.0 to 1.9 percent of sales,

however, only under the assumption

that the only K088 management facility

will be the Reynolds facility in

Arkansas.

Although this proposed rule will not

have a significant economic impact on

a substantial number of small entities,

EPA nonetheless has tried to reduce the

impact of this rule on small entities.

EPA has sought data to determine

available treatment technologies for

establishment of treatment standards for

cyanide and fluoride, as well as

available markets for recycled K088.

We continue to be interested in the

potential impacts of the proposed rule

on small entities and welcome

comments on issues related to such

impacts. More information on this

analysis can be found in the background

document ‘‘Economic Assessment for

Revised LDR Treatment Standards for

Spent Aluminum Potliner (K088)’’

placed in the public docket.

C. 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 generally must prepare a written

statement, 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 generally requires EPA to

identify and consider a reasonable

number of regulatory alternatives and

adopt the least costly, most costeffective, or least burdensome

alternative that achieves the objectives

of the rule. The provisions of section

205 do not apply when they are

inconsistent with applicable law.

Moreover, section 205 allows EPA to

adopt an alternative other than the least

costly, most cost-effective, or least

burdensome alternative if the

Administrator publishes with the final

rule an explanation why that alternative

was not adopted. Before EPA establishes

any regulatory requirements that may

significantly or uniquely affect small

governments, including tribal

governments, it must have developed

under section 203 of the UMRA a small

government agency plan. The plan must

provide for notifying potentially

affected small governments, enabling

officials of affected small governments

to have meaningful and timely input in

the development of EPA regulatory

proposals with significant Federal

intergovernmental mandates, and

informing, educating, and advising

small governments on compliance with

the regulatory requirements.

EPA has determined that this rule

does not include a Federal mandate that

may result in estimated costs of $100

million or more in the aggregate to

either State, local, or tribal governments

or the private sector in one year. The

rule would not impose any federal

intergovernmental mandate because it

imposes no enforceable duty upon State,

tribal or local governments. States,

tribes and local governments would

have no compliance costs under this

rule. It is expected that states will adopt

similar rules, and submit those rules for

inclusion in their authorized RCRA

programs, but they have no legally

enforceable duty to do so. For the same

reasons, 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. EPA has

fulfilled the requirement for analysis

under the Unfunded Mandates Reform

Act.

D. Executive Order 13045: Protection of

Children from Environmental Health

Risks and Safety Risks

Executive Order 13045: Protection of

Children from Environmental Health

Risks and Safety Risks (62 FR 19885,

April 23, 1997), applies to any rule that:

(1) is determined to be ‘‘economically

significant’’ as defined under E.O.

12866, and (2) concerns an

environmental health or safety risk that

EPA has reason to believe may have a

disproportionate effect on children. If

the regulatory action meets both criteria,

the Agency must evaluate the

42956 Federal Register / Vol. 65, No. 134 / Wednesday, July 12, 2000 / Proposed Rules

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 by the Agency.

This proposed rule is not subject to

the Executive Order because this is not

an economically significant regulatory

action as defined by Executive Order

12866, and because the Agency does not

have reason to believe the

environmental health or safety risks

addressed by this action present a

disproportionate risk to children. The

Agency has concluded this because this

rulemaking proposes treatment

standards for hazardous constituents in

spent aluminum potliner that minimizes

both short-term and long-term threats to

human health and the environment. The

environmental health risks or safety

risks addresses by this action do not

have a disproportionate effect on

children.

The public is invited to submit or

identify peer-reviewed studies and data,

of which the Agency may not be aware,

that assessed the results of early life

exposure to K088 waste or its regulated

constituents of concern, e.g., cyanide,

fluoride, arsenic, and polycyclic

aromatic hydrocarbons.

E. Environmental Justice 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

residents of 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 and

environmental impacts as a result of

EPA’s policies, programs, and activities,

and that all people live in clean and

sustainable communities. 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 proposed rule covers K088

spent potliner wastes from primary

aluminum operations. It is not certain

whether the environmental problems

addressed by this rule could

disproportionately effect minority or

low income communities, due to the

location of primary aluminum

operations. Because today’s proposed

rule establishes treatment standards for

K088 being land disposed, the Agency

does not believe that today’s rule will

increase risks from K088. It is, therefore,

not expected to result in any

disproportionately negative impacts on

minority or low income communities

relative to affluent or non-minority

communities.

F. Paperwork Reduction Act

To the extent that this rule imposes

any information collection requirements

under existing RCRA regulations

promulgated in previous rulemakings,

those requirements have been approved

by the Office of Management and

Budget (OMB) under the Paperwork

Reduction Act, 44 U.S.C. 3501 et seq.,

and have been assigned OMB control

numbers 2050–120 (ICR No. 1573, Part

B Permit Application); 2050–120 (ICR

1571, General Facility Standards); 2050–

0028 (ICR 261, Notification to Obtain an

EPA ID); 2050–0034 (ICR 262, Part A

Permit Application); 2050–0039 (ICR

801, Hazardous Waste Manifest); 2050–

0035 (ICR 820, Generator Standards);

and 2050-0024 (ICR 976, Biennial

Report).

G. National Technology Transfer and

Advancement Act

Section 12(d) of the National

Technology Transfer and Advancement

Act of 1995 (‘‘NTTAA’’), Pub. L. No.

104–113, § 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 proposed rulemaking involves

technical standards. Existing

determination methods are employed

for the analysis of cyanide in the treated

waste and fluoride in the deionized

water leachate from the treated waste.

As stated above, today’s action proposes

a revised treatment standard for fluoride

in nonwastewaters, based on a

recognized version of the toxicity

characteristic leaching procedure,

ASTM Method D3987–85 (1999)

Standard Test Method for Shake

Extraction of the Solid Waste With

Water. This is a consensus method.

H. Executive Order 13084: Consultation

and Coordination with Indian Tribal

Governments

Under Executive Order 13084, EPA

may not issue a regulation that is not

required by statute, that significantly or

uniquely affects the communities of

Indian tribal governments, and that

imposes substantial direct compliance

costs on those communities, unless the

Federal government provides the funds

necessary to pay the direct compliance

costs incurred by the tribal

governments. If the mandate is

unfunded, EPA must provide to the

Office of Management and Budget, in a

separately identified section of the

preamble to the rule, a description of

the extent of EPA’s prior consultation

with representatives of affected tribal

governments, a summary of the nature

of their concerns, and a statement

supporting the need to issue the

regulation. In addition, Executive Order

13084 requires EPA to develop an

effective process permitting elected and

other representatives of Indian tribal

governments ‘‘to provide meaningful

and timely input to the development of

regulatory policies on matters that

significantly or uniquely affect their

communities.’’

Today’s rule does not significantly or

uniquely affect the communities of

Indian tribal governments. Aluminum

potliners are not currently generated or

treated on any known Indian tribal

lands. Today’s proposal does not create

a mandate on State, local or tribal

governments. The proposal would not

impose any enforceable duties on these

entities. Accordingly, the requirements

of section 3(b) of Executive Order 13084

do not apply to this proposed rule.

I. Executive Order 13132 (Federalism)

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

implication.’’ ‘‘Policies that have

federalism implication’’ is defined in

the Executive Order to include

regulation 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

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

Federal Register / Vol. 65, No. 134 / Wednesday, July 12, 2000 / Proposed Rules 42957

necessary to pay the direct compliance

costs incurred by State and local

government, 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.

If EPA complies by consulting,

Executive Order 13132 requires EPA to

provide to the Office of Management

and Budget (OMB), in a separately

identified section of the preamble to the

rule, a federalism summary impact

statement (FSIS). The FSIS must include

a description of the extent of EPA’s

prior consultation with State and local

officials, a summary of the nature of

their concerns and the Agency’s

position supporting the need to issue

the regulation, and a statement of the

extent to which the concerns of State

and local officials have been met. Also

when EPA transmits a draft final rule

with federalism implication to OMB for

review pursuant to Executive Order

12866, EPA must include a certification

from the Agency’s Federalism Official

stating that EPA has met the

requirements of Executive Order 13132

in a meaningful and timely manner.

This proposed rule 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

Executive Order 13132. Thus, the

requirements of section 6 of the

Executive Order do not apply to this

proposed rule.

List of Subjects

40 CFR Part 260

Environmental protection,

Administrative practice and procedure,

Confidential business information,

Hazardous waste.

40 CFR Part 261

Environmental protection, Hazardous

materials, Recycling, Waste treatment

and disposal.

40 CFR Part 268

Environmental protection, Hazardous

waste, Reporting and recordkeeping

requirements.

40 CFR Part 271

Environmental protection,

Administrative practice and procedure,

Confidential business information,

Hazardous material transportation,

Hazardous waste, Indians-lands,

Intergovernmental relations, Penalties,

Reporting and recordkeeping

requirements, Water pollution control,

Water supply.

Dated: June 27, 2000.

Carol M. Browner,

Administrator.

For the reasons set out in the

preamble, title 40, chapter I of the Code

of Federal Regulations is proposed to be

amended as follows:

PART 260—HAZARDOUS WASTE

MANAGEMENT SYSTEM: GENERAL

I. In part 260:

1. The authority citation for part 260

continues to read as follows:

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

6927, 6930, 6934, 6935, 6937, 6938, 6939,

and 6974.

Subpart B—[Amended]

2. Section 260.10 is amended by

revising the definition of ‘‘incinerator’’

and adding the definition of ‘‘K088

vitrification unit’’ in alphabetical order

to read as follows:

§ 260.10 Definitions.

* * * * *

Incinerator means any enclosed

device that:

(1) Uses controlled flame combustion

and neither meets the criteria for

classification as a boiler, sludge dryer,

carbon regeneration unit, or K088

vitrification unit, nor is listed as an

industrial furnace; or

(2) Meets the definition of infrared

incinerator or plasma arc incinerator.

* * * * *

K088 vitrification unit means an

enclosed device in which K088 waste

and other materials are introduced into

a pool of molten glass and whereby

waste components that are dissolved or

suspended in the molten matrix are

subsequently entrapped or chemically

bound in the matrix upon cooling to

form a solid mass. Such units are

classified as other thermal treatment

units.

* * * * *

PART 261—IDENTIFICATION AND

LISTING OF HAZARDOUS WASTE

II. In part 261:

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.

2. Section 261.4 is amended by

adding paragraphs, (a)(20) and (a)(21) to

read as follows:

§ 261.4 Exclusions.

(a) * * *

(20) Glass frit generated by the

vitrification of K088, provided the frit is

recycled legitimately and is not

accumulated speculatively (as defined

in § 261.1(c)(8)) and meets the

requirements of § 268.40 of this chapter.

(21) Fluoride-rich baghouse dust

generated by the vitrification of K088,

provided the dust is recycled

legitimately as an ingredient or for

reclamation by introduction into

industrial processes and is not land

disposed (i.e., placed on the land) before

doing so and is not accumulated

speculatively (as defined in

§ 261.1(c)(8)) of this chapter.

* * * * *

3. Section 261.6 is amended by

revising the last sentence of paragraph

(c)(1) to read as follows:

§ 261.6 Requirements for recyclable

materials.

* * * * *

(c)(1) * * * (The recycling process

itself is exempt from regulation except

as provided in § 261.6(d) and except

that K088 vitrification units are not

exempt from regulation.)

* * * * *

PART 268—LAND DISPOSAL

RESTRICTIONS

II. In part 268:

1. The authority citation for part 268

continues to read as follows:

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

and 6924.

2. Section 268.40 is amended by

revising the entry for K088 in the table

entitled Treatment Standards For

Hazardous Wastes and adding footnote

12 to read as follows:

42958 Federal Register / Vol. 65, No. 134 / Wednesday, July 12, 2000 / Proposed Rules

TREATMENT STANDARDS FOR HAZARDOUS WASTES

[Note: NA means not applicable]

Waste

code

Waste description and

treatment/regulatory

subcategory1

Regulated hazardous constituent Wastewaters Nonwastewaters

Common name CAS2

number

Concentration in mg/L3, or

technology code4

Concentration in mg/kg5

unless noted as mg/L TCLP,

or technology code

*******

K088 Spent potliner from primary aluminum reduction.Acenaphthalene 83–32–9 0.059 3.4

Anthracene 120–12–7 0.059 3.4

Benzo(a)anthracene 56–55–3 0.059 3.4

Benzo(a)pyrene 50–32–8 0.061 3.4

Benzo(b)fluoranthene 205–99–2 0.11 6.8

Benzo(k)fluoranthene 207–08–9 0.11 6.8

Benzo(g,h,i)perylene 191–24–2 0.0055 1.8

Chrysene 218–01–9 0.059 3.4

Dibenz(a,h)anthracene 53–70–3 0.055 8.2

Fluoranthene 206–44–0 0.068 3.4

Indeno(1,2,3,-c,d)pyrene 193–39–5 0.0055 3.4

Phenanthrene 85–01–8 0.059 5.6

Pyrene 129–00–0 0.067 8.2

Antimony 7440–39–3 1.9 1.15 mg/L TCLP

Arsenic 7440–38–2 1.4 26.1 mg/kg

Barium 7440–39–3 1.2 21.0 mg/L TCLP

Beryllium 7440–41–7 0.82 1.22 mg/L TCLP

Cadmium 7440–43–9 0.69 0.11 mg/L TCLP

Chromium (Total) 7440–47–3 2.77 0.60 mg/L TCLP

Lead 7439–92–1 0.69 0.75 mg/L TCLP

Mercury 7439–97–6 0.15 0.025 mg/L TCLP

Nickel 7440–02–0 3.98 11.0 mg/L TCLP

Selenium 7782–49–2 0.82 5.7 mg/L TCLP

Silver 7440–22–4 0.43 0.14 mg/L TCLP

Cyanide (Total)7 57–12–5 1.2 1.4 mg/kg

Cyanide (Amenable)7 57–12–5 0.86 1.4 mg/kg

Fluoride 16984–48–8 35 2.7 mg/L Deionized TCLP12

*******

Footnotes to Treatment Standard Table

268.40

1The waste descriptions provided in

this table do not replace waste

descriptions in 40 CFR 261.

Descriptions of Treatment/Regulatory

Subcategories are provided, as needed,

to distinguish between applicability of

different standards.

2CAS means Chemical Abstract

Services. When the waste code and/or

regulated constituents are described as a

combination of a chemical with its salts

Federal Register / Vol. 65, No. 134 / Wednesday, July 12, 2000 / Proposed Rules 42959

and/or esters, the CAS number is given

for the parent compound only. 3Concentration standards for

wastewaters are expressed in mg/L and

are based on analysis of composite

samples. 4All treatment standards expressed as

a Technology Code or combination of

Technology Codes are explained in

detail in 40 CFR 268.42 Table 1—

Technology Codes and Descriptions of

Technology-Based Standards. 5Except for Metals (EP or TCLP) and

Cyanides (Total and Amenable) the

nonwastewater treatment standards

expressed as a concentration were

established, in part, based upon

incineration in units operated in

accordance with the technical

requirements of 40 CFR Part 264

Subpart O or Part 265 Subpart O, or

based upon combustion in fuel

substitution units operating in

accordance with applicable technical

requirements. A facility may comply

with these treatment standards

according to provisions in 40 CFR

268.40(d). All concentration standards

for nonwastewaters are based on

analysis of grab samples.

* * * * * 7Both Cyanides (Total) and Cyanides

(Amenable) for nonwastewaters are to

be analyzed using Method 9010 or 9012,

found in ‘‘Test Methods for Evaluating

Solid Waste, Physical/Chemical

Methods,’’ EPA Publication SW 846, as

incorporated by reference in 40 CFR

260.11, with a sample size of 10 grams

and a distillation time of one hour and

15 minutes.

* * * * * 12Fluoride extraction must be

performed using ASTM Method D3987–

85(1999) Standard Test Method for

Shake Extraction of Solid Waste with

Water.

* * * * *

PART 271—REQUIREMENTS FOR

AUTHORIZATION OF STATE

HAZARDOUS WASTE PROGRAMS

3. The authority citation for part 271

continues to read as follows:

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

6926.

4. Section 271.1(j) is amended by

adding the following entries to Table 1

and Table 2 in chronological order by

date of publication to read as follows.

§ 271.1 Purpose and scope.

* * * * *

(j) * * *

TABLE 1.—REGULATIONS IMPLEMENTING THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984

Promulgation date Title of regulation Federal Register reference Effective date

*******

[date of final signature].Treatment Standards for Hazardous Waste K088 .................... Federal Register page numbers.[date of signature]

*******

TABLE 2.—SELF-IMPLEMENTING PROVISIONS OF THE SOLID WASTE AMENDMENTS OF 1984

Effective date Self-implementing provision RCRA citation Federal Register reference

*******

[date of final signature].Prohibition on land disposal of K088 wastes, and prohibition

on land disposal of radioactive waste mixed with K088

wastes, including soil and debris.

3004(g)(4)(C) and 3004(m). [date of publication of

final rule]

[FR page numbers].

*******

* * * * * * *

[FR Doc. 00–16965 Filed 7–11–00; 8:45 am]

BILLING CODE 6560–50–U

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 271

[FRL–6732–9]

Delaware: Final Authorization of State

Hazardous Waste Management

Program Revisions

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: The EPA proposes to grant

final authorization to the hazardous

waste program revisions submitted by

Delaware. In the ‘‘Rules and

Regulations’’ section of this Federal

Register, EPA is authorizing the State’s

program revisions as an immediate final

rule without prior proposal because

EPA views this action as

noncontroversial and anticipates no

adverse comments. The Agency has

explained the reasons for this

authorization in the preamble to the

immediate final rule. If EPA does not

receive adverse written comments, the

immediate final rule will become

effective and the Agency will not take

further action on this proposal. If EPA

receives adverse written comments, EPA

will withdraw the immediate final rule

and it will not take effect. EPA will then

address public comments in a later final

rule based on this proposal. EPA may

not provide further opportunity for

comment. Any parties interested in

commenting on this action must do so

at this time.

DATES: Written comments must be

received on or before August 11, 2000.

ADDRESSES: Mail written comments to

Lillie Ellerbe, Mailcode 3WC21, RCRA

State Programs Branch, U.S. EPA Region

III, 1650 Arch Street, Philadelphia, PA

19103, Phone number: (215) 814–5454.

You can examine copies of the materials

submitted by Delaware during normal

business hours at the following

locations: EPA Region III, Library, 2nd

Floor, 1650 Arch Street, Philadelphia,

PA 19103, Phone number: (215) 814–

5254; or Department of Natural

Resources & Environmental Control,

Division of Air & Waste Management, 89