Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Proposed Rules 41005

1 53 FR 35412 (September 13, 1988)

Agency, 75 Hawthorne Street, San

Francisco, CA 94105–3901 Telephone:

(415) 744–1184

SUPPLEMENTARY INFORMATION: This

document concerns negative

declarations for VOC source categories

from the Sacramento Metropolitan Air

Quality Management District

(SMAQMD) and the Santa Barbara

County Air Pollution Control District

(SBCAPCD). On June 6, 1996, the

SMAQMD submitted two negative

declarations for the following VOC

source categories: Plastic Parts Coating:

Business Machines and Plastic Parts

Coating: Other. On July 12, 1996, the

SBCAPCD submitted six negative

declarations for the following VOC

source categories: Industrial

Wastewater, Plastic Parts: Business

Machines, Plastic Parts: Other,

Industrial Cleaning Solvents, Offset

Lithography, and Shipbuilding Coating.

These negative declarations confirm that

the respective source categories are not

present in the SMAQMD or the

SBCAPCD. The negative declarations

were submitted to EPA by the California

Air Resources Board as revisions to the

SIP on the dates indicated.

For further information, please see the

information provided in the Direct Final

action which is located in the Rules

Section of this Federal Register.

Authority: 42 U.S.C. 7401–7671q.

Dated: July 16, 1997.

Felicia Marcus,

Regional Administrator.

[FR Doc. 97–20218 Filed 7–30–97; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 261

[SW–FRL–5862–8]

Hazardous Waste Management

System; Identification and Listing of

Hazardous Waste; Proposed Removal

of Final Rule

AGENCY: Environmental Protection

Agency.

ACTION: Proposed rule and request for

comment.

SUMMARY: The Environmental Protection

Agency (EPA) is proposing repeal of the

exclusion that appears in the final rule

published at 56 FR 67197 (December 30,

1991) regarding a delisting granted to

Reynolds Metals Company (Reynolds),

Gum Springs, Arkansas. The exclusion

granted to Reynolds on December 30,

1991, was to exclude (or delist), certain

solid wastes (i.e., kiln residue from

treatment of spent potliner from primary

aluminum reduction) generated at

Reynolds’ facility from the lists of

hazardous wastes contained in 40 CFR

261.24, 40 CFR 261.31, 40 CFR 261.32

and 40 CFR 261.33 (hereinafter all

sectional references are to 40 CFR

unless otherwise indicated). This

proposed decision to repeal the

exclusion is based on an evaluation of

waste-specific information provided by

Reynolds and obtained by EPA either

independently or from the Arkansas

Department of Pollution Control and

Ecology (ADPC&E) subsequent to the

promulgation of the exclusion. If this

proposed decision is finalized, all future

waste generated at Reynold’s Gum

Springs, Arkansas facility will no longer

be excluded from the requirements of

hazardous waste regulations under the

Resource Conservation and Recovery

Act (RCRA) and must be handled as

hazardous waste in accordance with 40

CFR parts 260 through 266, 268 and 273

as well as any permitting standards of

40 CFR part 270.

DATES: The EPA is requesting public

comments on this proposed decision.

Comments will be accepted until

September 2, 1997. Comments

postmarked after the close of the

comment period will be stamped ‘‘late’’,

and will not be considered in

formulating a final decision.

Any person may request a hearing on

this proposed decision by filing a

request by August 15, 1997. The request

must contain the information prescribed

in § 260.20(d).

ADDRESSES: Send three copies of your

comments. Two copies should be sent to

William Gallagher, Delisting Program,

Multimedia Planning and Permitting

Division (6PD–O), Environmental

Protection Agency, Region 6, 1445 Ross

Avenue, Dallas, Texas 75202. A third

copy should be sent to the Arkansas

Department of Pollution Control and

Ecology, P.O. Box 8913, Little Rock,

Arkansas 72209–8913. Identify your

comments at the top with this regulatory

docket number: F–97–ARDEL–

REYNOLDS. Requests for a hearing

should also be addressed to William

Gallagher.

The RCRA regulatory docket for this

proposed rule is located at Region 6,

Environmental Protection Agency, 1445

Ross Avenue, Dallas, Texas 75202 and

is available for viewing in the EPA

library on the 12th floor from 8:30 a.m.

to 4:00 p.m., Monday through Friday,

excluding Federal holidays. Call (214)

665–6444 for appointments. The docket

may also be viewed at the Arkansas

Department of Pollution Control and

Ecology, 8001 National Drive, Little

Rock, Arkansas 72209. The public may

copy material from any regulatory

docket at no cost for the first 100 pages,

and at $0.15 per page for additional

copies.

FOR FURTHER INFORMATION, CONTACT: For

technical information concerning this

notice, contact William Gallagher,

Delisting Program (6PD–O), Region 6,

Environmental Protection Agency, 1445

Ross Avenue, Dallas, Texas 75202, (214)

665–6775.

SUPPLEMENTARY INFORMATION:

I. Background

A. ‘‘Delisting’’, in General

On January 16, 1981, as part of its

final and interim final regulations

implementing section 3001 of RCRA,

the EPA published an amended list of

hazardous wastes from nonspecific and

specific sources. This list has been

amended several times, and is

published in §§ 261.31, 261.32 and

261.33. These wastes are listed as

hazardous because they typically and

frequently exhibit one or more of the

characteristics of hazardous wastes

identified in subpart C of part 261 (i.e.,

ignitability, corrosivity, reactivity, and

toxicity) or meet the criteria for listing

contained in § 261.11 (a)(2) or (a)(3).

In 1988,1 the Agency determined that

spent potliners are a solid waste that

may pose a substantial present or

potential hazard to human health or the

environment when improperly

transported, treated, stored, disposed of,

or otherwise managed. It was

determined that spent potliners contain

toxic constituents that are mobile and/

or persistent in the environment. Spent

potliners were originally listed as

hazardous waste because: (1) Spent

potliners contain significant amounts of

iron cyanide complexes and free

cyanide, both of which EPA detected in

spent potliners in significant

concentrations; (2) free cyanide is

extremely toxic to both humans and

aquatic life if ingested; (3) available data

indicated that significant amounts of

free cyanide and iron cyanide will leach

from potliners if spent potliners are

stored or disposed in unprotected piles

outdoors and are exposed to rain water;

(4) damage incidents have been reported

that are attributable to improper

disposal of spent potliners,

demonstrating migration, mobility, and

persistence of waste constituents and

demonstrating that substantial hazard

can result from improper management

of this waste; and (5) generation of large

quantities of the waste increases the
41006 Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Proposed Rules

2The Extraction Procedure was the accepted

leachate test in 1989 when Reynolds originally

submitted its petition.

3The Toxicity Characteristic Leaching Procedure

replaced the Extraction Procedure as the standard

leaching procedure for hazardous waste in 1990.

potential for hazard if mismanagement

should occur.

Individual waste streams may vary,

however, depending on raw materials,

industrial processes, and other factors.

Thus, while a waste described in these

regulations generally is hazardous, a

specific waste from an individual

facility meeting the listing description

may not be hazardous. Therefore,

§§ 260.20 and 260.22 provide a variance

procedure, allowing persons to

demonstrate that a specific waste from

a particular generating facility should

not be regulated as a hazardous waste.

To have their wastes excluded,

petitioners must show that wastes

generated at their facilities do not meet

any of the criteria for which the wastes

were listed. See, § 260.22(a) and the

background documents for the listed

wastes. In addition, the Hazardous and

Solid Waste Amendments (HSWA) of

1984 require EPA to consider any

factors (including additional

constituents) other than those for which

the waste was listed, if there is a

reasonable basis to believe that such

additional factors could cause the waste

to be hazardous. Accordingly, a

petitioner also must demonstrate that

the waste does not exhibit any of the

hazardous waste characteristics (i.e.,

ignitability, reactivity, corrosivity, and

toxicity), and must present sufficient

information for EPA to determine based

on actual or theoretical data whether the

waste contains any of the other

identified constituents at levels not

protective of human health and the

environment through comparison to

maximum contaminant levels, drinking

water standards, etc. See, § 260.22(a), 42

U.S.C. 6921(f), and the background

documents for the listed wastes.

Although wastes that are delisted (i.e.,

excluded) are evaluated to decide

whether they exhibit any of the

characteristics of hazardous waste,

generators remain obligated under

RCRA to determine whether their waste

exhibits a hazardous waste

characteristic as defined by §§ 261.21

through 261.24. The Agency may also

impose additional conditions to ensure

the waste does not result in a health

hazard, and has the ability to consider

and act on new information if it

becomes available.

In addition, mixtures containing

listed hazardous wastes and residues

from the treatment, storage, or disposal

of listed hazardous wastes are also

considered hazardous wastes. See,

§§ 261.3 (a)(2)(iv) and (c)(2)(i), referred

to as the ‘‘mixture’’ and ‘‘derived-from’’

rules, respectively. Such wastes are also

eligible for exclusion but remain

hazardous wastes until excluded.

B. The Reynold’s ‘‘Delisting’’ Petition

On August 14, 1989, Reynolds Metals

Company (Reynolds), located in

Bauxite, Arkansas, petitioned EPA

pursuant to §§ 260.20 and 260.22 to

exclude kiln residue derived from

processing K088 spent potliner wastes

at its R.P. Patterson facility in Gum

Springs, Arkansas from hazardous waste

regulation. Reynolds conducted the

demonstration for the delisting at its

Bauxite, Arkansas, facility but later

moved its thermal treatment process

from Bauxite, Arkansas, to the Reynolds

facility located in Gum Springs,

Arkansas. Specifically, Reynolds

requested an exclusion (i.e., for a waste

that had not yet been generated) for kiln

residue from the treatment of spent

potliner from four Reynolds aluminum

reduction facilities. Reynolds petitioned

EPA for the exclusion based on: (1)

descriptions of a full-scale process used

to treat spent potliner; and (2)

characterization of untreated spent

potliner and residue generated at

Reynolds’ Bauxite, Arkansas, facility

during the treatment of spent potliners

from four Reynolds aluminum reduction

facilities. In support of its petition,

Reynolds submitted: (1) Detailed

descriptions of its waste treatment

process; (2) a description of the

processes generating spent potliners that

were treated by the rotary kiln process;

(3) total constituent analysis results for

the eight metals listed in § 261.24; (4)

total constituent analysis results for

antimony, beryllium, nickel, cyanide,

and fluoride from representative

samples of both the kiln residue and the

untreated spent potliner; (5) Extraction

Procedure 2 leachate analysis results for

the eight metals listed in § 261.24,

antimony, beryllium, nickel, cyanide,

and fluoride from representative

samples of the kiln residue; (6) Toxicity

Characteristic Leaching Procedure, test

Method 1311 in ‘‘Test Methods for

Evaluating Solid Waste, Physical/

Chemical Methods,’’ EPA Publication

SW–846 (hereinafter the TCLP) 3

leachate analyses for the metals in

§ 261.24 (except mercury), antimony,

beryllium, nickel, cyanide, and fluoride

from representative samples of the kiln

residue; (7) total constituent analysis

results for volatile and semivolatile

organic compounds, dioxins, and furans

from representative samples of the kiln

residue; and (8) test results and

information regarding the hazardous

waste characteristics of ignitability,

corrosivity, and reactivity.

Moreover, Reynolds requested that

the exclusion also apply to the waste

generated by an additional kiln in order

for Reynolds to expand its treatment

capacity. The second kiln was

established in conjunction with the first

kiln in Gum Springs, Arkansas, and

similarly treats spent potliner.

C. EPA Evaluation of Reynolds

‘‘Delisting’’ Petition

The EPA evaluated the information

and analytical data provided by

Reynolds in support of its petition.

Specifically, EPA evaluated the

petitioned waste (i.e., the treatment

residues) against the listing criteria for

K088 listed waste and factors cited in

§ 261.11(a)(3). Based on that review,

EPA determined that the waste was

nonhazardous with respect to the

original listing criteria (i.e., presence of

cyanide in the residue). The EPA then

evaluated the waste with respect to

other factors or criteria to assess

whether there was a reasonable basis to

believe that additional factors could

cause the waste to be hazardous. In

accordance with § 260.22, EPA was

required to consider whether the waste

was acutely toxic, the toxicity of the

constituents, the concentration of the

constituents in the waste, ‘‘their

tendency to migrate and to

bioaccumulate, their persistence in the

environment once released from the

waste, plausible and specific types of

management of the petitioned waste, the

quantities of waste generated, and waste

variability’’.

For this delisting determination, the

EPA used such information to identify

plausible exposure routes (i.e., ground

water, surface water, air) for hazardous

constituents present in the petitioned

waste. As explained in the final rule

delisting the waste, EPA assumed that

disposal in a subtitle D landfill was the

most reasonable, worst-case disposal

scenario for Reynolds’ petitioned waste.

This assumption is based in part on

Reynolds’ original delisting petition that

stated that the waste would be disposed

of in an on-site monofill or in a

municipal landfill. The EPA determined

the major exposure route of concern

would be ingestion of contaminated

ground water. Evaluations of wind

blown dust and surface water runoff

were conducted and determined not to

be a concern. The EPA Composite

Model for Landfills (EPACML) was used

to predict the maximum allowable

concentrations of hazardous

constituents that may be released from

the petitioned waste after disposal and

to determine the potential impact of the
Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Proposed Rules 41007

disposal of Reynolds’ petitioned waste

on human health and the environment.

At the time of the Reynolds petition

submittal, the Agency had developed a

ground water model which could

address a large number of limitations in

the ground water models used in 1989.

See, 56 FR 32993, July 18, 1991 and 56

FR 67197, December 30, 1991.

Specifically, EPA used the maximum

estimated waste volume and the

maximum reported TCLP extract

concentrations as inputs to estimate the

constituent concentrations in the

ground water at a hypothetical receptor

well downgradient from the disposal

site. The calculated receptor well

concentrations (referred to as

compliance-point concentrations) were

then compared directly to the healthbased levels (i.e, Maximum

Contaminant levels, drinking water

standards, etc.) used in delisting

decision-making for the hazardous

constituents of concern.

The EPA believed that this fate and

transport model represented a

reasonable worst-case scenario for

disposal of the petitioned waste in a

landfill, and that a reasonable worstcase scenario was appropriate when

evaluating whether a waste should be

relieved of the protective management

constraints of RCRA subtitle C. The

delisting process was established on the

basis that if it could be demonstrated

that the waste concentrations would not

exceed the health based concentrations

at a hypothetical downgradient well,

when modeled using the assumed

worst-case scenario, the waste could be

delisted. Based on this evaluation, EPA

believed that the hazardous constituents

in Reynolds’ petitioned waste would not

leach and migrate at concentrations

above the health-based levels used in

delisting decision-making and,

therefore, would not pose a threat to

human health and the environment.

Accordingly, after providing the

required public notice and opportunity

to comment EPA concluded that: (1)

The waste to be excluded was not

hazardous based upon the criteria for

which K088 was listed, and (2) no other

hazardous constituents or factors that

could cause the waste to be hazardous

were present in the waste at levels of

regulatory concern. For complete

information on EPA’s proposed and

final decisions to grant Reynold’s

delisting petition see 56 FR 32993 (July

18, 1991) and 56 FR 67197 (December

30, 1991) respectively.

As part of the decision to grant the

Reynolds delisting petition, EPA

imposed requirements that Reynolds

conduct ongoing sampling of the

treatment residue using the TCLP to

verify that the hazardous constituents

remaining in the residue were below the

established delisting levels for those

constituents. No requirements were

established for sampling the monofill

residue leachate.

D. Reynolds’ Current Disposal of the

Delisted Treatment Residue

Reynolds presently uses its process to

treat its own spent potliner K088 wastes

and those from other sources, and has

disposed approximately 300,000 cubic

yards of the residue in a single lined

monofill located at the Gum Springs

site. According to Reynolds, from June

1994 to March 1996, the leachate

generated from the landfill

(approximately 7,000,000 gallons of

leachate) was shipped off-site to a

Reynolds facility located in Sherwin,

Texas, for use as a water conditioner (a

practice now no longer employed by

Reynolds). Since April 1996, the

company also has used approximately

150,000 cubic yards of the delisted

residues in mine reclamation activities

at its Hurricane Creek, Arkansas, mining

site as fill material in unlined pits, and

as test material for all-weather road

surfaces at the mining site and at the

Gum Springs Plant.

As required by the delisting

conditions, Reynolds has conducted

ongoing daily sampling (TCLP) of the

treatment residue generated by its

treatment of spent potliner K088 waste

to determine if the hazardous

constituents remaining in the residue

are below the established delisting

levels. See Part 261 Appendix IX-Table

2, Reynolds Metals Company, Condition

(2)(B). According to Reynolds’ test

results, the leachate generated from

using the test method prescribed by

Reynolds’ exclusion (the TCLP) do not

indicate that the health-based delisting

levels established for the constituents of

concern in the residue have been

exceeded. (See Table 1).

TABLE 1.— TCLP LEACHATE DATA FOR RESIDUES (MILLIGRAMS PER LITER, mg/L)1

TCLP results from ongoing verification testing

Date of report Arsenic

(mg/L)

Cyanide 2

(mg/L)

Fluoride

(mg/L)

Delisting Limit ..................................................................................................................................................... 0.6 2.4 48

Health Based Level ............................................................................................................................................ 30.05 40.2 44

4/6/94 ................................................................................................................................................................. <0.002 <0.5 28.8

5/10/94 ............................................................................................................................................................... 0.002 0.733 26.6

3/22/95 ............................................................................................................................................................... <0.005 1.28 32.4

9/28/95 ............................................................................................................................................................... 0.008 2.00 27.0

1/14/96 ............................................................................................................................................................... 0.010 1.22 32.0

4/2/96 ................................................................................................................................................................. <0.002 1.90 31.1

9/26/96 ............................................................................................................................................................... 0.015 1.70 25.5

1 Representative sample of data collected from daily analyses for Reynolds Metals Company’s Laboratory Reports for the Kiln Product.

2 Deionized water leachate used in lieu of TCLP extraction media.

3 Maximum Contaminant Level.

4 National Primary and Secondary Drinking Water Standards.

II. Repeal of Final Rule Granting

Reynolds’ Delisting Petition

A. Highly Alkaline Nature of Reynolds’

Treatment Residue

Subsequent to issuing the final rule

granting Reynolds’ delisting petition,

EPA has obtained additional

information gathered after the

operations at the Gum Springs facility

began. Specifically, EPA now has

received and analyzed data regarding

the makeup of the actual residue

leachate generated by Reynolds’ K088

treatment process and data from the

Hurricane Creek mining site. As

explained in greater detail below, those

data indicate that the monofill leachate

contains levels of hazardous

constituents significantly higher than

the health-based delisting levels. Those

data also show that the leachate is
41008 Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Proposed Rules

4Attachments to December 9, 1996, letter from

Pat Grover of Reynolds Metals Company to Michael

Shapiro, Director, Office of Solid Waste. Results

cited are from the analysis of 100 grams of solid

material leached with 2-liters of deionized water

(1:20 ratio).

hazardous waste as defined by § 261.22.

The leachate is corrosive with a pH in

the range of 12.5–13.5. In light of those

actual field data, EPA has now initially

concluded that the Agency’s 1991

determination under § 260.22, that no

other hazardous constituents or factors

that could cause the K088 treatment

residue resulting from Reynolds’

treatment process to be hazardous are

present in the waste at levels of

regulatory concern, needs to be revised.

Specifically, EPA now preliminarily

concludes that the highly alkaline

nature of the treatment residue is a

factor which warrants retaining it as a

hazardous waste. As supported by the

data recently gathered by EPA and the

State of Arkansas and discussed below,

the mobility of the arsenic, cyanide, and

fluoride remaining in the treatment

residue increases in the highly alkaline

matrix. This results in these compounds

leaching from the residue at hazardous

levels under most disposal scenarios,

including those utilized by Reynolds. In

addition, the leachate is a hazardous

waste because it exhibits the hazardous

waste characteristic of corrosivity.

Therefore, based on this new data, the

treatment residue should not remain

delisted.

The EPA believes that the highly

alkaline nature of the Reynolds

treatment residue is due to the high pH

of each of the materials being combined

in the treatment process (i.e., spent

potliner, brown sand, and limestone).

Spent potliner alone has been found to

raise the pH of deionized water from 7

to 12.0.4 Historically, the pH of spent

potliner has ranged from 11–13 when

measured. Brown sand is an alkaline

mud produced from the extraction of

alumina from bauxite ore with sodium

hydroxide, and contains significant

concentrations of highly caustic sodium

hydroxide residuals. Its pH has been

measured at ranges from 12–14.

Limestone (pH 9–10) is a caustic

material whose intended use in the

process is to react with soluble fluoride

salts in spent potliner to form stable,

relatively insoluble, calcium fluoride.

However, the high alkalinity of brown

sand together with spent potliner and

limestone provides no neutralization of

the inherent alkalinity of the residue; in

confirmation, the pH of deionized water

leach solutions (for cyanide extraction)

of the Reynolds’ treatment residue has

been found to range from 11.9 to 12.2.5

As EPA noted in the Emergency Rule

for the K088 national capacity variance

(See, 62 FR 1993, January 14, 1997)

cyanide (for example, alkali-metallic

cyanide complexes) is soluble, and even

insoluble iron cyanides can be

solubilized under highly alkaline

conditions. While the total cyanide

concentration in the treated waste has

been reduced by Reynolds’ treatment

process, cyanide remaining in the

residue is environmentally mobile and

appears in high concentrations in the

alkaline leachate from the Gum Springs

landfill. As a result, almost all forms of

remaining cyanide (free cyanide and

cyanide complexes) are detected in the

Gum Springs leachate. However, at a

neutral pH, only the soluble free

cyanide would be expected in the

leachate. Moreover, although, the final

exclusion did not express concerns with

the presence of arsenic in the treatment

residue, high concentrations of arsenic

are present in the residue leachate

sampled from the monofill. It is

believed that the high degree of arsenic

in the leachate is also due to the highly

alkaline nature of the treatment residue.

Arsenic in the treated spent potliner

will be predominantly in the III

oxidation state because of the high

operating temperature of the rotary

kilns. Arsenic probably would normally

remain in the III oxidation state,

whether in the solid phase or in

leachate, however, arsenic III solubility

and mobility tend to increase under

highly alkaline conditions.

B. EPA Analysis of Data

The EPA has completed an analysis of

data gathered from Reynolds, the

ADPC&E and its independent sampling

of the residue. Those data consist of

leachate samples from Reynolds’

monofill and from the Reynolds

Hurricane Creek mining site. Those data

support the Agency’s preliminary

conclusion that Reynolds’ treatment

residue should not remain delisted. For

example, the Reynolds and ADPC&E

sampling data from the residue leachate

from the dedicated monofill show that

the leachate contains concentrations of

hazardous constituents above the

delisting limits, (See Table 2).

TABLE 2

Residue leachate data from monofill 1

Date pH Arsenic

(mg/L)

Cyanide

(mg/L)

Fluoride

(mg/L)

Delisting Limits ......................................................................................................... ...................... 0.6 2.4 48

Health-Based Level .................................................................................................. ...................... 2 0.05 3 0.2 3 4

4/6/94 ........................................................................................................................ 13.5 ...................... 18.8 5.2

5/11/94 ...................................................................................................................... ...................... 3.54 ...................... ......................

3/22/95 ...................................................................................................................... ...................... 12.8 22 ......................

9/28/95 ...................................................................................................................... 13.1 10.6 35.3 2650

1/5/96 ........................................................................................................................ 12.5 7.0 ...................... ......................

4/2/96 ........................................................................................................................ 12.9 11.5 41.4 2320

9/26/96 ...................................................................................................................... 12.75 6.55 46.5 2228

1These samples were collected during Reynolds’ semi-annual landfill sampling events and an ADPC&E inspection.

2 Maximum Contaminant Level.

3 National Primary and Secondary Drinking Water Standards.

Data from samples of the actual

leachate from the monofill taken in

September 1996, shows total cyanide

concentrations in the actual leachate are

46.5 mg/L (the maximum cyanide

concentration allowable under the

Reynolds’ exclusion is 2.4 mg/L);

arsenic concentrations are at 6.55 mg/L

(Reynolds’ delisting maximum

concentration is 0.6 mg/L); and fluoride

concentrations are at 2228 mg/L

(Reynolds’ delisting maximum

concentration is 48 mg/L). The residue

leachate concentrations from the

monofill are orders of magnitude higher
Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Proposed Rules 41009

5 Id. at Attachment 1.

6See 56 FR 33006.

7 Id.

8 Id.

9 Id.

than the average predicted TCLP

leachate values, (See Table 3).

TABLE 3

Comparison of leachate concentrations from monofill and TCLP concentrations (mg/L)

Constituent DL 1 HBL 1 (A) (B) (A)÷(B)

Monofill Leachate (4/94–9/

96).

Average TCLP (4/94–9/

96).

LeachateTCLP=Comparative

Strength of Monofill

Leachate.

Arsenic .............................. 0.6 2 0.05 3.54—12.8 ....................... 0.006 ................................ 590—2133

Cyanide ............................. 2.4 30.2 18.8—46.5 ....................... 1.30 .................................. 14.46—35.77

Fluoride ............................. 48 3 4 5.2—2650 ........................ 29.06 ................................ .179—91.19

1 DL=Delisting Limit in mg/L; HBL = Health Based Level in mg/L.

2 Maximum Contaminant Level.

3 National Primary and Secondary Drinking Water Standards.

Further, the Gum Springs monofill

leachate also has a pH of 12.5 to 13.5,

exceeding the pH level of 12.5

identifying a waste as hazardous due to

the characteristic of corrosivity. See

§ 261.22. The leachate from the residue

is a hazardous waste.

An analysis of surface water run off

from treated spent potliner used as test

roadbeds at the Hurricane Creek Mine

by ADPC&E in September 1996 found

concentrations of the following

hazardous constituents of concern: total

cyanide concentrations of 2.0 mg/L

(compared with a health-based level of

0.2 mg/L) 6; arsenic concentrations at

1.24 mg/L (compared with the healthbased level of 0.05 mg/L) 7; and fluoride

concentrations at 229 mg/L (compared

with the health-based level of 4.0 mg/

L) 8,(See, sampling results provided by

ADPC&E included in the docket, items

F–97–ARDEL–REYNOLDS–002). In

addition, EPA performed sampling at

the Hurricane Creek mine reclamation

site in March 1997. Results from the

sampling of the residue used as fill

material indicate TCLP leachable

concentrations of fluoride in the residue

used as fill material at the mine site

ranged from 17.0 mg/L—86.4 mg/L

(compared to the health-based level of

4.0 mg/L).9 The cyanide concentrations

in the residue used as fill material

ranged from 0.01 mg/L—0.79 mg/L.

(compared to the health-based number

of 0.2 mg/L).10 Water samples taken

from boreholes placed in the mine

reclamation area show arsenic

concentrations at 19.8 mg/L (compared

to the health-based level of 0.05 mg/L),

cyanide concentrations at 3.3 mg/L

(compared to the health-based level of

0.2 mg/L) and fluoride concentrations at

2320 mg/L (compared to the healthbased level of 4.0 mg/L). This indicates

that when placed in an acidic

environment, the waste continues to

leach at levels which would not be

protective of human health and the

environment.

Values for pH, arsenic, fluoride, and

cyanide differ significantly between the

TCLP extract for treated spent potliner

and the actual residue leachate from the

monofill. EPA assumed that the TCLP

would accurately predict the leachate

quality of the treated spent potliner

when evaluating Reynolds’ petition in

1991 and used the maximum TCLP

leachate concentrations and the

EPACML model to evaluate the

compliance point concentrations for the

waste. The EPACML projected that no

hazardous constituents would migrate

from the landfill at concentrations that

would exceed the health-based levels at

a receptor well.

Based on the actual data when using

the TCLP the delisted material has

always met the delisting criteria as

prescribed in the December 1991

exclusion or the residue has been

further treated when a batch failed to

meet the delisting criteria. The

predicted leachate characteristics (via

TCLP), however, do not correlate to the

actual leachate concentrations, (See,

Table 4).

TABLE 4.—Leachate Concentrations (mg/

L) TCLP vs. Actual Leachate

Inorganic constituents

Leachate analyses

TCLP (1991

petition)

Landfill

(1994–1996)

Arsenic .............. 0.018 3.54–12.8

Cyanide ............. 0.014 18.8–46.5

Fluoride ............. 29.0 5.2–2650

In this limited circumstance, the

TCLP was not an accurate predictor for

the actual leachability of the treated

residue. This is a distinct and unusual

case. The Agency anticipated that

certain situations might arise, as stated

in the Response to Comments on the

promulgation of revisions to the TCLP

method. See, 55 FR 11798 (March 29,

1990).

The EPA is continuing to investigate

the reasons for the discrepancies

between the predicted and actual

results, but the initial findings indicate

a possible explanation. The EPA

suspects that the highly alkaline residue

does not leach under the TCLP test

conditions because the solubility and

mobility of arsenic, cyanide, and

fluoride remaining in the residue do not

occur at the extraction conditions of the

test (liquid to solid ratio). The liquid to

solid ratio for the TCLP test is 20:1 (2

liters of extraction fluid/100 grams of

residue). The liquid to solid ratios of the

monofill range 0.15:1—0.09:1 based on

rainfall amounts and in situ waste

volume. See, F–97–ARDELREYNOLDS–010. The difference in the

TCLP liquid to solid ratio and the actual

monofill liquid to solid ratio contributes

to the differing results. The TCLP

appears to be diluting the

concentrations of the constituents

leaching from the residue.

When the measured leachate

concentrations are input into the

EPACML model, the residue fails to

meet the delisting criteria for arsenic,

cyanide, and fluoride, (See, Table 5).

The concentrations of constituents in

the actual landfill leachate can pose a

threat to human health and the

environment. Further, the leachate

exhibits the characteristic of corrosivity.
41010 Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Proposed Rules

Table 5.—EPACML: CALCULATED COMPLIANCE-POINT CONCENTRATIONS (MG/L) TCLP /ACTUAL LANDFILL LEACHATE

Inorganic constituents

Compliance point concentrations 1 (mg/L)Health

based levels 2 (mg/

TCLP Landfill L)

Arsenic ............................................................................................................................................................ 0.0026 0.295–1.07 3 0.05

Cyanide ........................................................................................................................................................... 0.021 1.57–4.291 4 0.2

Fluoride ........................................................................................................................................................... 2.42 0.433–221 4 4.0

1 Compliance Point Concentrations are calculated using the TCLP leachate concentration divided by a dilution attenuation factor (DAF) of 12.

The DAF corresponds to the maximum volume of 300,000 cubic yards of residue generated Reynolds annually). 2See, 56 FR 33006, December 30, 1991 located in the RCRA public docket for today’s document. 3 Maximum Contaminant Level.

4 National Primary and Secondary Drinking Water Standards.

The EPA believes that this is an

anomalous case because of the unique

characteristics of Reynolds’ waste (i.e.,

very caustic) and treatment process. The

EPA’s reasoning in evaluating the

difference between predicted using the

TCLP and actual landfill leachate results

and findings relating to the mine

reclamation site are expressly limited to

this isolated waste, treatment process,

and circumstance. It is to be anticipated

that no test methodology will be

universally appropriate in all

circumstances and will be varied based

upon discrete site-specific conditions as

was anticipated by the rule

promulgating revisions to the TCLP

referenced above. It is for just such

reasons that the Agency did not so limit

the appropriate test method for making

all delisting decisions. The EPA finds

that there are distinct differences in the

assumptions made in use of the TCLP

and the actual monofill conditions as

well as most other potential disposal

scenarios. For example, Reynolds’ waste

is not co-disposed with 95 per cent

municipal waste as assumed by the

TCLP worst case scenario. The leaching

of Reynolds’ waste by rain water (with

little buffer capacity) occurs in lieu of

the simulated municipal landfill

leachate (where the leaching media is

designed with a certain buffer capacity).

Finally, highly alkaline conditions (pH

12.5–13.5) exist in the monofill as

opposed to the low pH (<5) conditions

normally anticipated in municipal

landfills.

C. Conclusion

Based on the information described

above, EPA believes that Reynolds’

residue from the treatment of K088

spent potliner from the list of hazardous

waste contained in § 261.32 should not

remain delisted. Based on more than

two years of sampling data from the

actual treatment residue leachate and

data gathered during EPA’s sampling

event in March 1997, EPA believes that

the residue does not meet the § 260.22

criteria for delisting. Therefore, EPA

proposes to repeal the final rule

published at 56 FR 67197 (July 18, 1991)

granting Reynolds’ petition for an

exclusion from K088 hazardous waste

listing contained in §§ 261.31 and

261.32 for certain solid waste generated

at Reynolds Metals Company, Gum

Springs, Arkansas.

The leachate from the kiln residue

contains cyanide concentrations which

greatly exceed the health-based limit of

0.2 mg/L. Cyanide is extremely toxic

when it is ingested in free form and less

toxic when ingested in complex form. In

its most toxic form, cyanide can be fatal

to humans at a concentration of 300

parts per million. Cyanide affects

human tissues ability to use oxygen.

Some health effects from low level

cyanide exposures are breathing

difficulties, headaches, skin irritation

and in some cases sores. Moreover, the

concentrations of arsenic, a human

carcinogen, far exceed the maximum

contaminant level of 0.05 mg/L. The

concentrations of fluoride at the

compliance point are well above the

drinking water standard of 4 mg/L.

Fluoride concentrations as low as 4 mg/

L have been determined to mottle teeth.

The resultant leachate from the kiln

residue is a characteristic hazardous

waste (corrosive). The premise on which

the delisting was based, that the TCLP

test would be an appropriate test to

model the fate and transport of

hazardous constituents in this waste is

not supported by the actual leachate

data. The inherent waste-like qualities

of the kiln residue (i.e., the high pH and

the potential for the leachate contacting

the residual to solubilize and increase

the mobility of toxic constituents) also

support repeal of the rule which

delisted the treated kiln residue. The

kiln residue’s potential to cause damage

to human health and the environment,

especially under its current

management practices, provides yet

another reason for reestablishing

regulatory control over the kiln residue.

Based on the leachate data provided,

information from the treatment process,

and evaluation of the additional uses of

the residue employed by Reynolds, EPA

concludes that the rule delisting the kiln

residue should be repealed.

It is EPA’s understanding that

Reynolds is currently making several

treatment process modifications to

address the leachate issues surrounding

the treated kiln residue. If the repeal of

the final rule becomes effective,

Reynolds may submit to the Agency a

new delisting petition for the wastes

generated from the modified treatment

process.

D. Interim Status for Reynolds’ Monofill

Because of the delisting granted to

Reynolds’ treatment residue generated

at its Gum Springs facility, Reynolds

can presently dispose of the treatment

residue in its single lined on-site

monofill without obtaining Resource

Conservation and Recovery Act (RCRA)

subtitle C interim status or an RCRA

subtitle C permit. However, if EPA

finalizes this proposed repeal of the

Reynolds’ delisting, Reynolds must

manage the treatment residue as a

hazardous waste and must dispose of

the waste in either a unit permitted

under subtitle C of RCRA or a unit

which meets interim status standards

under subtitle C of RCRA and all

applicable state regulations.

Under RCRA Section 3005(e), any

person who owns or operates a facility

required to have a permit under subtitle

C and which ‘‘is in existence on the

effective date of statutory or regulatory

changes under [subtitle C] that render

the facility subject to the requirement to

have a permit under Section 3005’’, may

qualify for interim status, provided the

requirements of Section 3005 are met. It

is EPA’s understanding that Reynolds

has begun a lateral expansion of its

landfill, which should meet the subtitle

C minimum technological requirements

(MTR), for disposal of future wastes. In

EPA’s view, the repeal represents a

‘‘regulatory change’’ that may render

Reynolds’’ upgraded monofill subject to

the requirements of subtitle C, if the
Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Proposed Rules 41011

repeal of Reynolds’ delisting is

finalized. If Reynolds’ new MTR landfill

is in existence at the time of the

regulatory change, EPA expects that the

new MTR landfill may be eligible for

interim status under RCRA Section

3005(e) provided that Reynolds

complies with the interim status

standards contained in § 265.1, et seq.

and meets applicable State regulations.

E. Best Demonstrated Available

Technology

The EPA also notes that Land

Disposal Restrictions (LDR) treatment

standards for spent potliners expressed

as numerical concentrations limits were

established in 61 FR 15584 (April 8,

1996). There is no inherent conflict

between a finding that a waste has been

treated to satisfy LDR requirements and

a finding that the treatment residue

nevertheless remains a hazardous waste.

This in fact is the normal case (few

residues from treating listed wastes have

been delisted even after being treated to

satisfy LDR requirements), and is

directly contemplated in RCRA Section

3004 (m)(2).

III. Effective Date

This rule, if made final, will become

effective 60 days from final publication.

The HSWA of 1984 amended Section

3010 of RCRA to allow rules to become

effective in less than six months when

the regulated community does not need

the six-month period to come into

compliance. The EPA believes that 60

days will be sufficient for Reynolds to

come into compliance with today’s rule.

The 60 days will allow Reynolds to

either make arrangements to send its

hazardous waste treatment residue to a

disposal facility permitted under

subtitle C of RCRA or to seek interim

status for its on-site disposal facility (see

interim status discussion above).

IV. Regulatory Impact Analysis Under

Executive Order 12866

Under Executive Order 12866, 58 FR

51735 (October 4, 1993), EPA must

determine whether the regulatory action

is ‘‘significant’’ and therefore subject to

review by the Office of Management and

Budget (OMB) and to the requirements

of the Executive Order (EO), which

include assessing the costs and benefits

anticipated as a result of the proposed

regulatory action. The Order defines

‘‘significant regulatory action’’ as one

that is likely to result in a rule that may:

(1) Have an annual effect on the

economy of $100 million or more or

adversely affect in a material way the

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, or

State, local, or tribal governments or

communities; (2) create serious

inconsistency or otherwise interfere

with an action taken or planned by

another agency; (3) materially alter the

budgetary impact of entitlements,

grants, user fees, or loan programs or the

rights and obligations of recipients

thereof; or (4) raise novel legal or policy

issues arising out of legal mandates, the

President’s priorities, or the principles

set forth in the EO.

The EPA has determined that today’s

final rule is a not a significant rule

under EO 12866 because it is a sitespecific rule that directly affects only

the waste treatment residue from the

Reynolds’ Gum Springs, Arkansas,

facility.

V. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA)

of 1980 requires Federal agencies to

consider ‘‘small entities’’ throughout the

regulatory process. Section 603 of the

RFA requires an initial screening

analysis to be performed to determine

whether small entities will be adversely

affected by the regulation. If affected

small entities are identified, regulatory

alternatives must be considered to

mitigate the potential impacts. Small

entities as described in the Act are only

those ‘‘businesses, organizations and

governmental jurisdictions subject to

regulation.’’

Today’s rule, if promulgated, will

directly affect only the Reynolds Metals

Company, therefore, no small entities

will be adversely affected. The EPA

certifies pursuant to the provisions at 5

U.S.C. 605(b), that this rule will not

have a significant economic impact on

a substantial number of small entities.

VI. Paperwork Reduction Act

The Paperwork Reduction Act of

1980, 44 U.S.C. 3501 et seq., authorizes

the Director of the OMB to review

certain information collection requests

by Federal agencies. The EPA has

determined that this proposed rule will

not impose any new record keeping or

reporting requirements that would

require OMB approval under the

provisions of the Paperwork Reduction

Act of 1980.

VII. Unfunded Mandate Reform Act

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), Pub .L.

104–4, establishes requirements for

Federal agencies to assess the effects of

their regulatory actions on State, Tribal,

and local 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. When a written

statement is needed for an EPA rule,

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, giving them

meaningful and timely input in the

development of EPA regulatory

proposals with significant Federal

intergovernmental mandates, and

informing, educating, and advising them

on compliance with the regulatory

requirements. The UMRA generally

defines a Federal mandate for regulatory

purposes as one that imposes an

enforceable duty upon state, local or

tribal governments or the private sector.

The EPA has determined that this

proposed rule does not contain a

Federal mandate that may result in

expenditures of $100 million or more

for State, local, and tribal governments,

in the aggregate, or the private sector in

any one year. Because today’s proposed

rule directly affects only the Reynolds

Gum Springs, Arkansas, facility, EPA

finds that the rule does not impose any

enforceable duty upon State, local, and

tribal governments. Thus, today’s rule is

not subject to the requirements of

sections 203 and 205 of the UMRA.

List of Subjects in 40 CFR Part 261

Environmental Protection, Hazardous

waste, Recycling, Reporting and

recordkeeping requirements.

Dated: July 16, 1997.

Robert E. Hannesschlager,

Acting Director, Multimedia Planning and

Permitting Division.

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:
41012 Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Proposed Rules

PART 261—IDENTIFICATION AND

LISTING OF HAZARDOUS WASTE

1. The authority citation for part 261

continues to read as follows:

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

6922 and 6938.

Appendix IX to Part 261—[Amended]

2. In Appendix IX to part 261, table

2 is amended by removing the entry

‘‘Reynolds Metals Company’’, Gum

Springs, Arkansas’’.

[FR Doc. 97–19885 Filed 7–30–97; 8:45 am]

BILLING CODE 6560–50–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 2

[ET Docket No. 97–157; FCC 97–245]

Reallocation of TV Channels 60–69, the

746–806 MHz Band

AGENCY: Federal Communications

Commission.

ACTION: Proposed rule.

SUMMARY: By this Notice of Proposed

Rule Making (NPRM), the Commission

proposes to reallocate the 746–806 MHz

band, currently comprising television

(TV) channels 60–69. The Commission

proposes to allocate 24 megahertz, at

764–776 MHz and 794–806 MHz, to the

fixed and mobile services, and to

designate this spectrum for public safety

use. The Commission proposes to

allocate the remaining 36 megahertz at

746–764 MHz and 776–794 MHz to the

fixed, mobile, and broadcasting services;

and anticipates that licenses in this

portion of the band may be assigned

through competitive bidding. These

allocations would help to meet the

needs of public safety for additional

spectrum, make new technologies and

services available to the American

public, and allow more efficient use of

spectrum in the 746–806 MHz band.

The Commission also considers issues

related to protecting existing and

proposed TV stations on channels 60–69

from interference until the transition to

digital TV (DTV) is complete, but defer

specific interference protection

standards to a separate proceeding on

service rules in the 746–806 MHz band.

DATES: Comments must be filed on or

before September 15, 1997, and reply

comments must be filed on or before

October 14, 1997.

ADDRESSES: Comments and reply

comments should be sent to the Office

of Secretary, Federal Communications

Commission, Washington, DC 20554. If

participants want each Commissioner to

receive a personal copy of their

comments, an original plus nine copies

must be filed.

FOR FURTHER INFORMATION CONTACT:

Sean White, Office of Engineering and

Technology, (202) 418–2453,

swhite@fcc.gov.

SUPPLEMENTARY INFORMATION: This is a

summary of the Commission’s Notice of

Proposed Rule Making, ET Docket 97–

157, FCC 97–245, adopted July 9, 1997,

and released July 10, 1997. The full text

of this Commission decision is available

for inspection and copying during

regular business hours in the FCC

Reference Center (Room 239), 1919 M

Street, NW., Washington, DC. The

complete text of this decision also may

be purchased from the Commission’s

duplication contractor, International

Transcription Service, Inc., (202) 857–

3800, 1231 20th Street, NW.,

Washington, DC 20036.

Summary of Notice of Proposed Rule

Making

1. In this NPRM, the Commission

proposes to reallocate 24 megahertz of

spectrum at 764–776 MHz and 794–806

MHz to the fixed and mobile services,

and reserve this spectrum for the

exclusive use of public safety services.

The Commission also proposes to

reallocate the 746–764 MHz and 776–

794 MHz bands to the fixed, mobile, and

broadcasting services, and anticipates

that licenses in this spectrum will be

assigned by competitive bidding.

2. TV channels 60–69 (746–806 MHz)

are relatively lightly used for full service

television operations. There are

currently only 95 full service analog

stations, either operating or with

approved construction permits on these

channels. In the Sixth Report and Order

in MM Docket No. 87–268 (DTV

Proceeding), 62 FR 26684, May 14,

1997, the Commission adopted a Table

of Allotments for digital television. This

Table provides all eligible broadcasters

with a second 6 MHz channel to be used

for DTV service during the transition

from analog to digital television service.

The DTV Table also, inter alia,

facilitates the early recovery of a portion

of the existing broadcast spectrum,

specifically, channels 60–69, by

minimizing the use of these channels for

DTV purposes. The DTV Table provides

only 15 allotments for DTV stations on

channels 60–69 in the continental

United States.

3. In providing for early recovery of

spectrum, the Commission also

observed that there is an urgent need for

additional spectrum to meet important

public safety needs, including voice and

data communications, and to provide

for improved interoperability between

public safety agencies. We indicated

that spectrum in the region of the 746–

806 MHz band may be appropriate to

meet some of these needs. The

Commission stated that we would

initiate a separate proceeding to

reallocate the spectrum at channels 60–

69 in the very near future, and that we

would give serious consideration to

allocating 24 megahertz of this spectrum

for public safety use and consider

allocating the remaining 36 megahertz

in the 746–806 MHz band for

assignment by auction.

4. In 1995, the Commission, along

with the National Telecommunications

and Information Administration,

established the Public Safety Wireless

Advisory Committee (PSWAC) to study

public safety telecommunications

requirements. The PSWAC was

chartered, inter alia, to advise the

Commission on total spectrum

requirements for the operational needs

of public safety entities in the United

States through the year 2010. On

September 11, 1996, the PSWAC issued

its Final Report. The PSWAC found that

the currently allocated public safety

spectrum is insufficient to support

current voice and data needs of the

public safety community, does not

provide adequate capacity for

interoperability channels, and is

inadequate to meet future needs, based

on projected population growth and

demographic changes. In the Final

Report, the PSWAC stated that data

communication needs are also expected

to grow rapidly in the next few years,

and wireless video needs are expected

to expand quickly. In addition, new

spectrum is required to support new

capabilities and technologies, including

high speed data and video. The PSWAC

found that, in the short term, 24 or 25

megahertz of new public safety

spectrum is needed, and concluded that

public safety users should be granted

access to portions of the unused

spectrum in the 746–806 MHz band.

5. The Commission tentatively

proposes to allocate the spectrum at TV

channels 63, 64, 68, and 69 (the 764–

776 MHz and 794–806 MHz bands) for

public safety. There are several reasons

why the Commission believes these

channels would best serve the needs of

public safety. These channels are

relatively lightly used by full service

television broadcasting, so this

spectrum would offer the fewest

restrictions on public safety operations.

Further, since the 794–806 MHz band is

subjacent to existing public safety

operations in the 806–824 MHz band, it

holds the best potential for expansion of