`[Federal Register Volume 62, Number 147 (Thursday, July 31, 1997)]
[Proposed Rules]
[Pages 41005-41012]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-19885]


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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.

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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 Sec. 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 
Secs. 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 Sec. 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

[[Page 41006]]

potential for hazard if mismanagement should occur.
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    \1\ 53 FR 35412 (September 13, 1988)
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    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, Secs. 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, Sec. 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, 
Sec. 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 Secs. 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, Secs. 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 Secs. 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 Sec. 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 Sec. 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 Sec. 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.
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    \2\ The Extraction Procedure was the accepted leachate test in 
1989 when Reynolds originally submitted its petition.
    \3\ The Toxicity Characteristic Leaching Procedure replaced the 
Extraction Procedure as the standard leaching procedure for 
hazardous waste in 1990.
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    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 Sec. 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 Sec. 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

[[Page 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 health-based 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 worst-case 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             
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                                 Arsenic (mg/   Cyanide \2\    Fluoride 
        Date of report                L)           (mg/L)       (mg/L)  
------------------------------------------------------------------------
Delisting Limit...............  0.6            2.4                  48  
Health Based Level............  \3\0.05        \4\0.2             \4\4  
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

[[Page 41008]]

hazardous waste as defined by Sec. 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 Sec. 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
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    \4\ Attachments 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).
    \5\ Id. at Attachment 1.
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    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\                                    
-----------------------------------------------------------------------------------------------------------------
                                                                        Arsenic  (mg/ Cyanide  (mg/   Fluoride  
                          Date                                 pH            L)            L)          (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  
----------------------------------------------------------------------------------------------------------------
\1\ These 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

[[Page 41009]]

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          Average TCLP (4/  Leachate-       
                                                             Leachate (4/94-   94-9/96).         TCLP=Comparativ
                                                             9/96).                              e Strength of  
                                                                                                 Monofill       
                                                                                                 Leachate.      
Arsenic.......................           0.6      \2\ 0.05  3.54--12.8......  0.006...........  590--2133       
Cyanide.......................           2.4       \3\0.2   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 Sec. 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 health-based 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 health-based 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.
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    \6\ See 56 FR 33006.
    \7\ Id.
    \8\ Id.
    \9\ Id.
    \10\ Id.
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    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   
------------------------------------------------------------------------
                                               Leachate analyses        
                                     -----------------------------------
       Inorganic constituents          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-ARDEL-REYNOLDS-
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.

[[Page 41010]]



Table 5.--EPACML: Calculated Compliance-Point Concentrations (mg/L) TCLP
                        /Actual Landfill Leachate                       
------------------------------------------------------------------------
                                       Compliance point         Health  
                                  concentrations \1\ (mg/L)      based  
     Inorganic constituents     ----------------------------- levels \2\
                                   TCLP        Landfill         (mg/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).                        
\2\ See, 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 Sec. 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 
Sec. 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 Secs. 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

[[Page 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 Sec. 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 site-specific 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:

[[Page 41012]]

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`