[Federal Register Volume 65, Number 134 (Wednesday, July 12, 2000)]
[Proposed Rules]
[Pages 42937-42959]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-16965]


-----------------------------------------------------------------------

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: <a href="/cdn-cgi/l/email-protection#adffeeffec80c9c2cec6c8d9edc8ddccc0ccc4c183c8ddcc83cac2db"><span class="__cf_email__" data-cfemail="11435243503c757e727a7465517461707c70787d3f7461703f767e67">[email protected]</span></a>. 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.

[[Page 42938]]

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, <a href="/cdn-cgi/l/email-protection#97f2f5eeb9f2fbf6fef9f2d7f2e7f6faf6fefbb9f2e7f6b9f0f8e1"><span class="__cf_email__" data-cfemail="5633342f78333a373f3833163326373b373f3a7833263778313920">[email protected]</span></a>; and John Austin may be reached at 
703-308-0436, <a href="/cdn-cgi/l/email-protection#0e6f7b7d7a676020646166604e6b7e6f636f6762206b7e6f20696178"><span class="__cf_email__" data-cfemail="5d3c282e29343373373235331d382d3c303c343173382d3c733a322b">[email protected]</span></a>. For information on the 
capacity analysis, contact C. Pan Lee (5302W) at 703-308-8478, 
<a href="/cdn-cgi/l/email-protection#066a63632865766768466376676b676f6a2863766728616970"><span class="__cf_email__" data-cfemail="caa6afafe4a9baaba48aafbaaba7aba3a6e4afbaabe4ada5bc">[email protected]</span></a>. For questions on the regulatory impact 
analysis, contact Linda Martin (5307W) at 703-605-0768, 
<a href="/cdn-cgi/l/email-protection#f09d918284999ede9c999e9491b09580919d91999cde958091de979f86"><span class="__cf_email__" data-cfemail="4825293a3c2126662421262c29082d382925292124662d3829662f273e">[email protected]</span></a>.

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
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
<bullet> The selection of BDAT;
<bullet> The proposed treatment standards for cyanide and fluoride;
<bullet> The time required before treatment capacity capable of meeting
 the revised treatment standards will be available;
<bullet> The classification of K088 vitrification units as miscellaneous
 Subpart X treatment units;
<bullet> The analytical approach taken to estimate compliance costs and
 potential economic impacts; and,
<bullet> 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:
    <bullet> Explain your views as clearly as possible and why you feel 
that way.
    <bullet> Provide technical and cost data to support your views.
    <bullet> If you estimate potential costs, explain how you arrived 
at the estimate.
    <bullet> Tell us which parts you support, as well as those with 
which you disagree.
    <bullet> Provide specific examples to illustrate your concerns.
    <bullet> Offer specific alternatives.
    <bullet> Refer your comments to specific sections of the proposal, 
such as the units or page numbers of the preamble, or the regulatory 
sections.
    <bullet> Make sure to submit your comments by the deadline in this 
notice.
    <bullet> 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

[[Page 42939]]

    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,

[[Page 42940]]

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 
waste-derived 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)).
---------------------------------------------------------------------------

    \1\ The 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, 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).
    \2\ We 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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \3\ We 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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \4\ As 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.
    \5\ See also 60 FR 11702, 11723 n. 11 (Mar. 2, 1995) (notice of 
proposed treatment standards emphasizing the importance of 
destroying cyanide and PAHs).
---------------------------------------------------------------------------

    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

[[Page 42941]]

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 broadly-accepted 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.
---------------------------------------------------------------------------

    \6\ The 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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \7\ Bench or pilot scale data may be considered if the full-
scale technology is nevertheless in use or commercially available.
---------------------------------------------------------------------------

    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

[[Page 42942]]

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\
---------------------------------------------------------------------------

    \8\ The 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.
---------------------------------------------------------------------------

    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 full-scale treatment 
operations and currently meet all the existing treatment standards for 
K088 waste found in Sec. 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\
---------------------------------------------------------------------------

    \9\ As 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.
---------------------------------------------------------------------------

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\
----------------------------------------------------------------------------------------------------------------
                                                                                                      Treated
                                   Untreated     Treated cyanide     Untreated        Treated        leachable
           Facility              cyanide  (mg/        (mg/kg)     fluoride  (mg/  fluoride  (mg/  fluoride  (mg/
                                      kg)                               kg)             kg)             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.
---------------------------------------------------------------------------

    \10\ Amenable 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.
    \11\ The 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.
    \12\ The 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''.
---------------------------------------------------------------------------

    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

[[Page 42943]]

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.
---------------------------------------------------------------------------

    \13\ As previously discussed, today's notice proposes the use of 
a revised test for analyzing fluoride in K088 nonwastewaters. This 
test uses a version of the TCLP that uses deionized water as the 
leaching fluid. Subsequently, all analytical results reported in 
this notice are based on this deionized water leaching test.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \14\ Based on the analysis of data collected at the Ormet 
facility, the glass frit meets all the treatment standards 
identified in Sec. 268.40 for K088 waste.
---------------------------------------------------------------------------

    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 
privately-owned 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.
---------------------------------------------------------------------------

    \15\ The 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.
---------------------------------------------------------------------------

    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, water-cooled, carbon steel vessel. Natural gas and 
preheated air are used to achieve temperatures of approximately 
2400 deg. 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 fluoride-enriched alumina 
material that is also reused.

[[Page 42944]]

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\
---------------------------------------------------------------------------

    \16\ As 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \17\ Confirmatory 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \18\ Of 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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \19\ If for some reason, the baghouse dust cannot be recycled, 
the generator may petition the Agency for a treatability variance as 
outlined in Sec. 268.44.
---------------------------------------------------------------------------

    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 
concentration-based 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

[[Page 42945]]

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.
---------------------------------------------------------------------------

    \20\ Performance 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 Potliners--K088'' which is available in 
the RCRA docket supporting this rule for additional detail.
    \21\ One 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).
---------------------------------------------------------------------------

    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

[[Page 42946]]

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.
---------------------------------------------------------------------------

    \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 a strictly definitional standpoint, the recovery of fluoride 
values in baghouse dust at least arguably meets the definition of 
reclamation in Sec. 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 Sec. 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\:
---------------------------------------------------------------------------

    \23\ Source: 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.

------------------------------------------------------------------------
              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 Sec. 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

[[Page 42947]]

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 
Sec. 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).
---------------------------------------------------------------------------

    \24\ See 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).
---------------------------------------------------------------------------

    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 
Sec. 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 Sec. 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\
---------------------------------------------------------------------------

    \25\ Subpart 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.
---------------------------------------------------------------------------

    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 de-emphasizes 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

[[Page 42948]]

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).
---------------------------------------------------------------------------

    \26\ Use 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 case-by 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.
---------------------------------------------------------------------------

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 Sec. 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 Sec. 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 case-by-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.
---------------------------------------------------------------------------

    \27\ A 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.
    \28\ As 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).
---------------------------------------------------------------------------

    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 site-specific 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

[[Page 42949]]

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 case-by-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 recently-promulgated 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 Sec. 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 Sec. 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 Sec. 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 Sec. 261.3(c)(2)(i) stating that the 
output of a reclamation process typically is no longer a solid waste 
and Sec. 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

[[Page 42950]]

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\
---------------------------------------------------------------------------

    \29\ The 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).
    \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.
---------------------------------------------------------------------------

    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 Sec. 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.
---------------------------------------------------------------------------

    \31\ The 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.
---------------------------------------------------------------------------

    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

[[Page 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

[[Page 42952]]

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 Sec. 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 post-
regulatory 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 post-regulation 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

[[Page 42953]]

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 debt-
equity 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:
    <bullet> Access road,
    <bullet> Site preparation (grading),
    <bullet> Concrete slab on grade,
    <bullet> Structural steel,
    <bullet> Conveyor,
    <bullet> Storage silo (1-day),
    <bullet> Hopper,
    <bullet> Crusher, impact mill, or hammer mill equipment purchase 
and installation costs,
    <bullet> Pilot test of crusher, impact mill or hammer mill,
    <bullet> Vibratory screen,
    <bullet> Instrumentation and electrical,
    <bullet> 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
    <bullet> 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:
    <bullet> Operator oversight,
    <bullet> Maintenance labor,
    <bullet> Maintenance material at 7% of capital,
    <bullet> Electricity,
    <bullet> Indirect O&M allowances (project management at 5%), and
    <bullet> 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 similar-sized 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. ``Site-specific'' 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

[[Page 42954]]

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.
---------------------------------------------------------------------------

    \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.
    \33\ Background Document to Establish the Effective Date (March 
2000, Section II, Required Capacity) in the docket for today's rule.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \34\ Chemical 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.
    \35\ For 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \36\ Mineral Commodity Summaries 1999, U.S. Department of the 
Interior, U.S. Geological Survey.
---------------------------------------------------------------------------

    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 technology-based (and not risk-based) 
the Agency has not conducted a data collection and analysis of actual 
cyanide

[[Page 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 cost-effective, 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

[[Page 42956]]

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, Sec. 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

[[Page 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:


Sec. 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:


Sec. 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 Sec. 261.1(c)(8)) and meets the requirements of 
Sec. 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 Sec. 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:


Sec. 261.6  Requirements for recyclable materials.

* * * * *
    (c)(1) * * * (The recycling process itself is exempt from 
regulation except as provided in Sec. 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:

[[Page 42958]]



                                                        Treatment Standards for Hazardous Wastes
                                                             [Note: NA means not applicable]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                    Regulated hazardous constituent                  Wastewaters                   Nonwastewaters
                                           -------------------------------------------------------------------------------------------------------------
  Waste   Waste description and  treatment/                                                                                  Concentration in mg/kg\5\
  code       regulatory  subcategory\1\                Common name               CAS\2\      Concentration in mg/L\3\, or  unless noted as mg/L TCLP, or
                                                                                 number           technology code\4\              technology code
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                   *                  *                  *                  *                  *                  *                  *
   K088   Spent potliner from primary       Acenaphthalene                        83-32-9                          0.059                            3.4
           aluminum reduction.
                                           -------------------------------------------------------------------------------------------------------------
                                            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 TCLP\12\
                                           -------------------------------------------------------------------------------------------------------------
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------

Footnotes to Treatment Standard Table 268.40
    \1\ The 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.
    \2\ CAS means Chemical Abstract Services. When the waste code and/
or regulated constituents are described as a combination of a chemical 
with its salts

[[Page 42959]]

and/or esters, the CAS number is given for the parent compound only.
    \3\ Concentration standards for wastewaters are expressed in mg/L 
and are based on analysis of composite samples.
    \4\ All treatment standards expressed as a Technology Code or 
combination of Technology Codes are explained in detail in 40 CFR 
268.42 Table 1--Technology Codes and Descriptions of Technology-Based 
Standards.
    \5\ Except for Metals (EP or TCLP) and Cyanides (Total and 
Amenable) the nonwastewater treatment standards expressed as a 
concentration were established, in part, based upon incineration in 
units operated in accordance with the technical requirements of 40 CFR 
Part 264 Subpart O or 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.
* * * * *
    \7\ Both 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.
* * * * *
    \12\ Fluoride 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.


Sec. 271.1  Purpose and scope.

* * * * *
    (j) * * *

               Table 1.--Regulations Implementing the Hazardous and Solid Waste Amendments of 1984
----------------------------------------------------------------------------------------------------------------
                                                              Federal Register
       Promulgation date            Title of regulation           reference               Effective date
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
[date of final signature]......  Treatment Standards for    Federal Register      [date of signature]
                                  Hazardous Waste K088.      page numbers.
 
*                  *                  *                  *                  *                  *
                                                        *
----------------------------------------------------------------------------------------------------------------


                  Table 2.--Self-Implementing Provisions of the Solid Waste Amendments of 1984
----------------------------------------------------------------------------------------------------------------
                                     Self-implementing
         Effective date                  provision              RCRA citation       Federal Register reference
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
[date of final signature]......  Prohibition on land        3004(g)(4)(C) and     [date of publication of final
                                  disposal of K088 wastes,   3004(m).              rule]
                                  and prohibition on land                         [FR page numbers].
                                  disposal of radioactive
                                  waste mixed with K088
                                  wastes, including soil
                                  and debris.
 
*                  *                  *                  *                  *                  *
                                                        *
----------------------------------------------------------------------------------------------------------------

* * * * * * *
[FR Doc. 00-16965 Filed 7-11-00; 8:45 am]
BILLING CODE 6560-50-U


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>