[Federal Register Volume 62, Number 230 (Monday, December 1, 1997)]
[Rules and Regulations]
[Pages 63458-63463]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-31404]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[FRL-5930-2]


Hazardous Waste Management System; Identification and Listing of 
Hazardous Waste; Removal of Final Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is removing the final rule appearing at 56 Federal 
Register (FR) 67197 (December 30, 1991) insofar as it excluded 
hazardous waste treatment residue generated by Reynolds Metals Company 
(Reynolds), Gum Springs, Arkansas, from the lists of hazardous wastes 
contained in 40 CFR 261.31 and 261.32 (hereinafter all sectional 
references are to 40 CFR unless otherwise indicated). This 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. After 
the effective date of this rule, future spent potliner waste generated 
at Reynolds' 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 sections 260 through 266, 268 and 273 as well 
as any applicable permitting standards of section 270. This rule does 
not remove or affect EPA's reasoning or evaluation as it related to the 
modified EPA Composite Model for Landfills (EPACML).

EFFECTIVE DATE: December 1, 1997.

ADDRESSES: The public docket for this final rule is located at the 
Environmental Protection Agency, Region 6, 1445 Ross Avenue, Dallas, 
Texas 75202, and is available for viewing in the EPA Review Room on the 
7th floor from 9 a.m. to 4 p.m., Monday through Friday, excluding 
Federal holidays. Call (214) 665-6775 for appointments. The reference 
number for this docket is ``F-97-ARDEL-REYNOLDS.'' 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 general and 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. Authority for ``Delisting''

    Under 40 CFR 260.20 and 260.22, facilities may petition EPA to 
remove their wastes from hazardous waste control by excluding them from 
the lists of hazardous wastes contained in sections 261.31 and 261.32. 
Specifically, section 260.20 allows any person to petition the 
Administrator to modify or revoke any provision of parts 260 through 
265 and 268 of Title 40 of the Code of Federal Regulations (CFR); and 
section 260.22 provides generators the opportunity to petition the 
Administrator to exclude a waste on a ``generator-specific'' basis from 
the hazardous waste lists. Petitioners must provide sufficient 
information to EPA to allow EPA to determine that the waste to be 
excluded does not meet any of the criteria under which the waste was 
listed as a hazardous waste. In addition, the Administrator must 
determine, where she has a reasonable basis to believe that factors 
(including additional constituents) other than those for which the 
waste was listed could cause the waste to be a hazardous waste, that 
such factors do not warrant retaining the waste as a hazardous waste.

B. History of This Rulemaking

    Reynolds was granted a final exclusion for K088 waste treatment 
residues on December 30, 1991 (see 56 FR 67197). In that rule, EPA also 
addressed the modified EPACML. The EPA believes its statements 
contained in that rule related to the EPACML remain accurate. Today's 
action is not intended to repeal or otherwise affect EPA's adoption or 
use of that model.
    After evaluation of new data, EPA proposed, on July 31, 1997, 
repeal of the final rule issued December 30, 1991 (see 62 FR 41005). 
This rulemaking addresses public comments received on the proposal and 
finalizes the proposed decision to repeal the Reynolds exclusion.

C. Subsequent Events

    Under the RCRA Land Disposal Restrictions (LDR) Program certain 
hazardous wastes cannot be land disposed until they satisfy treatment 
standards promulgated by EPA (RCRA sections 3004 (d)-(g)). On April 8, 
1996, EPA prohibited land disposal, of and established treatment 
standards for, spent potliners from aluminum production (K088 hazardous 
wastes, 61 FR 15566, April 8, 1996). At that time (and still today), 
Reynolds has the only commercially available treatment facility that is 
capable of meeting those LDR treatment standards. However, as discussed 
below in section II., EPA had concerns about concentrations of certain 
hazardous constituents in the leachate from Reynolds treatment process 
residue, especially because such treatment residues had been delisted 
and were being disposed in units which were not subject to RCRA 
subtitle C standards [62 FR 1994-62 FR 1995 (January 14, 1997)]. The 
EPA initially extended the national capacity variance until July 8, 
1997. At that time, after reexamination, the Agency found that Reynolds 
was providing treatment and disposal capacity which is protective of 
human health and the environment (RCRA section 3004(h)(2)), and 
accordingly found that there is adequate treatment capacity for K088 
wastes. [62 FR 37694 (July 14, 1997)]. The national capacity variance 
was further extended three months to allow generators to make necessary 
logistic arrangements (Id. at 37694).
    The Agencys decision rested upon two principal factors. Reynolds 
process destroys most of the most hazardous constituent in K088 
wastes--cyanide--immobilizes most of the toxic metals, and destroys all 
polycyclic aromatic hydrocarbons (62 FR 37694, 62 FR 37696). In 
addition, Reynolds disposal

[[Page 63459]]

of treatment residue in units not subject to subtitle C regulation will 
end, and all future disposal must be in units which must comply with 
subtitle C standards (Id. at 37697). The immediate mechanism for 
addressing, the concerns about ``protective'' disposal capacity was the 
September 3, 1997, issuance of a unilateral administrative order under 
RCRA section 7003 (UAO), which required Reynolds to comply with RCRA 
Subtitle C management standards at its treatment facility in Gum 
Springs, and at its mining site located in Bauxite, Arkansas, where the 
treatment residue had been used as fill material in reclamation 
activities.<SUP>1</SUP> The company agreed to comply with the terms of 
the UAO in a letter to EPA dated September 5, 1997. At the Gum Springs 
facility, the UAO and amended UAO require Reynolds to: (1) Manage the 
kiln residue and the kiln residue leachate as a hazardous waste; (2) 
conduct 30-day compliance sampling of the kiln residue; (3) discontinue 
placement of the kiln residue into Cell #1 of the Reynolds on-site 
monofill, and initiate and complete construction of a clay cap on that 
cell that meets RCRA requirements; and (4) upgrade Cell #2 of the newly 
regulated monofill by, inter alia, installation of a double composite 
liner with leachate collection capabilities and to meet all RCRA 
subtitle C standards applicable to landfills. At the Hurricane Creek 
facility, the Order requires Reynolds to: (1) Control access to the E-
40 mine pit; (2) conduct an environmental impact study; (3) submit a 
hydrogeological investigation plan; (4) submit a revised ground water 
monitoring plan; (5) complete one year of ground water monitoring, 
subject to continued monitoring; and (6) remove existing and 
discontinue construction of roadways which utilize kiln residue.
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    \1\ The Unilateral Administrative Order issued September 3, 1997 
was amended on October 31, 1997.
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II. Repeal of Final Rule Granting Reynolds Delisting Petition

A. Highly Alkaline Nature of Reynolds Treatment Residue

    As noted above, subsequent to issuing the final rule granting 
Reynolds delisting petition, EPA obtained additional information 
gathered after operations at the Gum Springs facility began. 
Specifically, EPA received and analyzed data regarding the actual 
leachate from cell #1 of the monofill at Gum Springs produced from 
residue generated by Reynolds K088 treatment process as well as data 
from Reynolds Hurricane Creek mining site. As explained in greater 
detail in the proposed rule, those data indicate that the monofill 
leachate contains levels of hazardous constituents significantly higher 
than the delisting levels [62 FR 41005, 62 FR 41007, (July 31, 1997)]. 
Those data also show that the leachate is corrosive with a pH in the 
range of 12.5-13.5 therefore making it a characteristically hazardous 
waste as defined by section 261.22. In light of those actual field 
data, EPA has concluded that the Agencys 1991 determination under 
section 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 need to be revised.
    Specifically, EPA now concludes that although significant treatment 
is occurring (see sections I.C. and II. B. 2.f.), the highly alkaline 
nature of the treatment residue is a factor which warrants retaining it 
as a hazardous waste. Mobility of arsenic and cyanide, remaining in the 
residue following treatment increases in a highly alkaline disposal 
environment such as that utilized by Reynolds. As a result, these 
compounds leach from the residue at hazardous levels. 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 no longer be delisted.

B. Agency Response to Public Comments

    General. The EPA received public comments from eight interested 
parties. The comments were received from two Arkansas private citizens, 
two Arkansas local government officials, one Arkansas environmental 
group, the Environmental Defense Fund, counsel from a consortium of 
aluminum producers in the northwest U.S., and Reynolds. No adverse 
comments were received regarding repeal of the delisting.
1. Issues Not Directly Related to the Proposed Repeal
    Interested parties submitted comments related to the following 
areas which are not part of today's final action by EPA:
    <bullet> Waste management and waste disposal issues;
    <bullet> Permitting issues;
    <bullet> Hazards to human health and the environment;
    <bullet> Additional analyses/investigations;
    <bullet> Land Disposal Restrictions/effectiveness of Reynolds' 
treatment process;
    <bullet> Toxicity Characteristic Leaching Procedure;
    <bullet> Perceived delays in EPA's decision-making; and
    <bullet> Enforcement issues/unlawful disposal/Arkansas Department 
of Pollution Control & Ecology Consent Administrative Order/draft EPA 
RCRA section 7003 order.
    Because these comments address issues that did not directly bear 
upon the decision to repeal the delisting exclusion, EPA will not 
respond to them as part of this rulemaking. Any additional observations 
provided in this document respecting those issues are simply 
informational and do not form a basis for a final action by EPA. 
Importantly, no commenter felt that the delisting exclusion should be 
retained.
    a. Waste Management and Waste Disposal Issues. Several comments 
related to whether Reynolds' management of the leachate and residue was 
responsible, in light of the nature of the waste, whether the waste 
should remain in place or be immediately removed from Cell #1 of the 
landfill at Gum Springs or from the mine pit and a research and 
development landfill at the Hurricane Creek facility, and what 
oversight authority EPA will exercise to ensure that the State of 
Arkansas inspects and oversees the Reynolds operation. These are 
enforcement and oversight issues and are separate and distinct from 
today's final rule which merely repeals a previous exclusion. Although 
comments of this nature did not bear on the substance of today's 
rulemaking, EPA notes that investigations are being conducted under the 
UAO which pertain to some of these issues, and it is premature to 
comment on any potential future enforcement response by the Agency. The 
State is authorized to administer the RCRA program, and EPA will 
conduct additional oversight activities as appropriate.
    b. Permitting Issues. A second broad group of comments related 
generally to permitting issues such as ecological and human health 
assessments, ground water and surface water monitoring, a health and 
safety plan for Reynolds' operations, landfill operations, 
incompatibility of the landfill liner and leachate collection system, 
commingling of waste from Cells #1 and #2, public participation in 
permitting, and siting issues. Again, these issues are not relevant to 
the question decided by today's final action whether to repeal a 
previous exclusion. Indeed, these concerns support EPA's decision to

[[Page 63460]]

again impose regulatory controls on the spent potliner waste generated 
by Reynolds. The Agency believes that the permitting issues raised by 
the commenters are best addressed during the State's permitting process 
for the Reynolds Gum Springs facility.
    c. Hazards to Human Health and Environment. Some commenters alleged 
that the Reynolds operation might be the cause of two eagle kills in 
the area and of adverse health effects being alleged by workers at the 
Hurricane Creek facility. Commenters were also concerned that the 
area's water supply be protected. The Agency believes that the 
imposition of hazardous waste management controls through the UAO and 
this repeal will help ensure that appropriate requirements apply to 
better protect human health and the environment. While no direct 
evidence linking the eagle kills to Reynolds' waste was provided by the 
commenter, the appropriate State and Federal agencies are investigating 
that concern as well as complaints of the workers.
    d. Additional Analysis/Investigations. Other comments related 
generally to the need for additional analysis or investigation. 
Commenters requested information on the performance of toxicological 
assays and investigations of past and present threats to human health 
and the environment. The evaluation of the threats to human health and 
the environment and toxicological assays relate to the permitting and 
enforcement processes and should be raised as part of those processes. 
Again, the concerns only tend to support todays action: bringing the 
wastes back into the RCRA regulatory system for hazardous waste 
management.
    e. Toxicity Characteristic Leaching Procedure (TCLP). Several 
comments generally addressed use of the TCLP to evaluate the residue. 
Commenters claimed that there was a failure of the testing system and 
analytical methods used to identify the potential problems with the 
residue. They also indicated that information regarding the potential 
failure of the testing program was in the Agencys possession since 
January 1992, and additionally addressed Reynolds development of 
replacement tests for the TCLP. Whether the TCLP correctly predicts 
behavior of the waste in a landfill is not the focus of EPAs decision 
today to repeal Reynolds delisting. As explained in the proposal, the 
Agencys decision to repeal is based, in part, on sampling results from 
actual landfill leachate, not on the results of a TCLP analysis of the 
residue itself. To the extent comments addressed the validity of the 
TCLP test method itself, revision or modification of the TCLP is beyond 
the scope of todays action.
    f. Perceived Delays in EPAs Decision-Making. Commenters complained 
that the Agency did not respond timely in repealing the delisting and 
questioned why it took the Agency more than fourteen months to propose 
repeal of the delisting. They also comment that the Agency never sought 
copies of all the data in Reynolds possession concerning the 
performance of the treatment technology and generation of hazardous 
constituents in treated materials disposed at various locations. The 
Agency believed it appropriate to base its decision upon a reasoned 
evaluation of all available facts. It concluded that rather than acting 
precipitously, the Agency should gather enough information to allow an 
informed decision. To this end, it conducted separate sampling events 
at the two Reynolds facilities. The Agency then received and reviewed 
these results and proposed a decision. The EPA believed that it was 
necessary to accept public comment on the decision and therefore did 
not use an emergency rulemaking or direct final rule to repeal the 
delisting as some commenters suggested.
    g. Enforcement Issues. Another group of comments raised issues with 
respect to EPAs enforcement authorities. These types of issues related 
to a draft of the RCRA 7003 order, the ADPC&E Consent Administrative 
Order (rescinded September 14, 1997), and allegations that the waste 
has been illegally disposed. These issues relate to EPAs exercise of 
its enforcement authority and its enforcement discretion, not to todays 
decision. However, as a point of information, the Agency is requiring 
further investigation regarding the disposal of wastes placed at the 
Hurricane Creek facility. Interim measures have already been 
implemented to control and monitor environmental concerns at the 
Hurricane Creek facility. The UAO requires Reynolds to close Cell #1 at 
the Gum Springs Landfill and the mine pit at Hurricane Creek by 
installation of an engineered clay cap, which is consistent with 
Superfund and RCRA presumptive remedies for closure of landfills.
    Commenters also suggested that Reynolds may have illegally disposed 
of hazardous waste for a variety of reasons, for example, claims that 
the delisting is void by reason of certain perceived failures on 
Reynolds part. The EPA does not believe that there is a sufficient 
factual basis to find that the delisting was void because of Reynolds 
actions or perceived omissions. The decision whether to enforce the 
terms of the delisting rests within the Agencys discretion.
2. Comments Directly Pertaining to the Repeal of the Delisting
    <bullet> Technical Corrections;
    <bullet> Retroactive Application of Repeal;
    <bullet> Interim Status of the Monofill;
    <bullet> Public Participation/Notice and Comment;
    <bullet> Delisting Violations; and
    <bullet> Delisting vs. LDR issues.
    a. Technical Corrections. Reynolds submitted comments which 
provided a number of clarifications and corrections to the proposed 
rule. It averred that EPA had inaccurately characterized use of the 
delisted kiln residue as ``fill material'' in an ``unlined'' mine pit. 
Further, Reynolds stated that the material was used in mine reclamation 
activities at the Hurricane Creek facility because the pH of the 
residue beneficially contributed to neutralization of acidic bauxite 
mining residues. It claimed that the material was placed in areas of 
the facility underlain by a substantial clay layer having a very low 
permeability exceeding EPAs design specifications for hazardous and 
non-hazardous landfills. The Agency does not adopt the position that 
the clay layer underlying the mine pit fulfills the EPA design 
requirements for composite liners for solid waste landfills (see 
section 258.40(b)), nor does it meet the composite liner requirements 
for hazardous waste landfills (see sections 264.301(c)(1), 265.301(a), 
and 265.19). The mine pit is not equipped with a complete composite 
liner system which combines an upper liner of a synthetic flexible 
membrane and a lower layer of soil at least two feet thick as exists in 
the solid waste landfill at the Gum Springs plant. Neither did Reynolds 
demonstrate that the method of placement was actually beneficial to 
neutralization of the acidic bauxite mine residues.
    Reynolds further disagrees with EPAs evaluation of the leachate 
numbers as compared to the health-based numbers. Tables included in the 
proposed rule seemed to compare health-based limits to delisting levels 
and actual leachate levels. For clarification, delisting levels are 
obtained by multiplying health-based levels by a calculated dilution 
attenuation factor (DAF) (see 62 FR 41006 and 62 FR 41007).
    Reynolds also complained of the absence of an articulation of EPAs 
sampling protocol, quality assurance and quality control data used in 
sampling at the Hurricane Creek and Gum Springs facilities. The EPAs 
sampling protocol, quality assurance

[[Page 63461]]

and quality control information are available and will be placed in the 
record.
    b. Retroactive Application of Repeal. One commenter questioned why 
the proposed repeal of the delisting only covered future generation of 
the residue and did not address the waste previously disposed at the 
Hurricane Creek or the Gum Springs site.
    Generally, a rule may only have prospective application. See Bowen 
vs. Georgetown University Hosp., 488 U.S. 204 (1988). Moreover, the 
residue generated during the effective time period of the delisting was 
not hazardous waste subject to RCRA subtitle C regulation; therefore, 
that residue could legally be disposed of as a solid waste. Because EPA 
is merely repealing the Reynolds delisting exclusion as of the 
effective date of todays rule, EPAs action will not, in itself, bring 
the residue generated during the operation of the delisting exclusion 
back within the RCRA subtitle C regulatory system. However, if Reynolds 
should actively manage (i.e., treat, store, or dispose) the waste 
disposed of during the operation of the delisting subsequent to the 
effective date of this repeal, it would potentially have to manage it 
as a RCRA subtitle C hazardous waste. See 55 FR 8762-63 (National 
Contingency Plan preamble); and, Chemical Waste Management, Inc. vs. 
EPA, 869 F.2d 1526 (D.C. Cir. 1989).
    c. Interim Status of Reynolds Landfill Cell #2. Several commenters 
expressed concern regarding Reynolds ability to obtain interim status 
as part of the delisting repeal. There was also concern that the Agency 
was granting Reynolds a de facto temporary permit to operate the new 
landfill cell. Commenters were concerned that a permitting decision was 
being made without the requisite public participation or public review 
and comment. Although this issue is not being decided in todays 
decision to repeal the delisting, it was addressed in the proposal, and 
thus the Agency feels compelled to offer an explanation.
    First, interim status is not granted. It occurs by operation of law 
without resort to an administrative approval process. See New Mexico 
vs. Watkins, 969 F.2d 1122, 1130 (D.C. Cir. 1992). There is no 
statutory or regulatory provision for public comment and review of a 
facilitys claim of interim status. Moreover, the State of Arkansas, not 
EPA, has the authority to determine that the Reynolds facility does not 
qualify for interim status. Second, Reynolds already has interim status 
for portions of its facility and the original UAO may constitute a 
``new requirement'' resulting in an expansion of that status, section 
270.72(a)(6), and (Arkansas Pollution Control and Ecology Commission 
Regulation No. 23, section 270.72(a)(6)). Third, there are other 
provisions in the applicable Federal and State laws indicating that 
Cell #2 may qualify for interim status. This final rule to repeal the 
delisting exclusion, however, does not constitute a finding that 
Reynolds has met interim status, permitting or land disposal 
restriction requirements.
    d. Notice and Comment. Four commenters requested that a public 
hearing be held to discuss issues relating to the Reynolds Metals 
Company. A number of issues tangential to repeal of the delisting were 
raised to support these requests. One commenter stated that there was 
an attempt by the Agency to bypass all of the legally mandated public 
notice, review, and comment protections by giving Reynolds a back door 
to Subtitle C interim status. This comment is addressed in the prior 
subsection. None of the commenters contested the decision to repeal the 
delisting but instead sought to raise additional issues. The Agency 
does not believe that it is appropriate to delay the pending repeal 
decision in order to discuss these issues that go beyond today's final 
action--the repeal of the delisting--in the context of a public 
hearing. It is important to note that a public hearing is not mandated 
by either RCRA or its implementing regulations as relates to today's 
decision. In providing the public the opportunity to comment on this 
action, EPA elected to adopt the procedures provided by section 
260.20(d) for making a hearing request. That provision, as well as the 
Administrative Procedures Act, 5 U.S.C. 553 (which governs the Agency's 
general rulemaking process), provides that it is within the Agency's 
discretion to determine when a hearing is necessary. The EPA believes 
that a public hearing on the repeal of the delisting is not necessary 
and that comments germane to this action from interested parties are 
being adequately addressed through the notice and comment process.
    e. Delisting Violations. Commenters assert that Reynolds has 
violated the terms of the original exclusion because it did not report 
information that was ``true, accurate, or complete'' as required by the 
certification requirements of Reynolds delisting exclusion. They also 
assert that Reynolds did not report information in its possession which 
indicated that landfill leachate contained elevated levels of arsenic, 
cyanide, fluoride, and pH. On this basis, the commenters contend that 
the delisting is void and has been void for some time prior to today's 
action. Any decision to take action with regard to an alleged violation 
is within EPA's enforcement discretion. The EPA does not currently 
believe that there is a sufficient factual basis to support a finding 
that violations have occurred that would void the delisting exclusion, 
ab initio. The exclusion explicitly outlines the information Reynolds 
was required to submit as part of the delisting. Historically, the 
Agency has not required submission of information about leachate from 
landfills where a delisted waste has been disposed, nor did it require 
Reynolds to report this information. Reynolds did report the monofill 
leachate data to the appropriate State solid waste offices. While it is 
unfortunate that this information was not brought to EPA's attention 
immediately, the delay in getting the data to EPA does not necessarily 
translate into a violation of the certification requirement contained 
in the Reynolds delisting. Furthermore, the delisting regulations as 
well as the exclusion provide that the determination whether the 
certification was false, inaccurate or incomplete lies in the sole 
discretion of the EPA. Based on current information, EPA does not 
believe a violation of the certification requirements occurred.
    One commenter also stated that the proposed repeal does not include 
an evaluation of whether Reynolds has violated any solid waste 
regulations. Regulation of solid waste primarily belongs to the States; 
therefore, violation of the State's solid waste regulations should be 
addressed by the State. Inasmuch as this action relates to the limited 
determination that the Reynolds delisting exclusion should be repealed, 
further response is unnecessary.
    f. Delisting vs. LDR Determinations. A commenter asked how EPA 
harmonizes the findings in the July 14 National Capacity Variance Final 
Rule, 62 FR 37694 (July 14, 1997) with those in the proposed repeal, 
particularly with respect to total cyanide, amenable cyanide, and 
mobilization of cyanide in the alkaline environment of the Reynolds 
monofill. The commenter states the substantial increases in leachable 
cyanide or cyanide amenable to being mobilized in the environment, and 
as discussed in the proposed repeal of Reynolds delisting, seem to 
contradict the conclusions reached in the July 14 Rule.
    There is no contradiction. Land disposal treatment standards 
require ``substantial treatment''; they do not mandate that a 
nonhazardous residue

[[Page 63462]]

result from treatment (see RCRA section 3004(m)(2), 42 U.S.C. 
6924(m)(2)). Few residues from treated listed waste have been delisted 
even after being treated to satisfy LDR requirements (see 62 FR 37697). 
The fact that residue resulting from treatment using Reynolds' process 
remains hazardous does not mean that it has not been substantially 
treated. As shown in the July document, 90 percent of the cyanide is 
removed in the process, PAHs (polycyclic aromatic hydrocarbons) are 
completely destroyed and eleven metals are immobilized. Further, as the 
residue must be disposed of consistent with regulations applicable to 
hazardous wastes, land disposal of the residue will be protective of 
human health and the environment. As a result of today's rule, 
Reynolds' treatment residue will once again be subject to hazardous 
waste controls, notwithstanding the fact that it has been substantially 
treated.

C. Final Agency Decision

    For reasons stated in both the proposal and this notice, EPA 
believes that exclusion of Reynolds' residue from the treatment of K088 
spent potliner from the list of hazardous wastes contained in section 
261.32 should be repealed. The EPA, therefore, is repealing the final 
rule published at 56 FR 67197 (December 30, 1991) granting Reynolds' 
petition for an exclusion from K088 hazardous waste listing contained 
in sections 261.31 and 261.32 for certain solid waste generated at 
Reynolds Metals Company, Gum Springs, Arkansas. As a result of today's 
rule, Reynolds must manage the treatment residue as a hazardous waste.

III. Effective Date

    This rule will become effective immediately. The Hazardous and 
Solid Waste Amendments 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. 
Although, in the proposed rule, EPA proposed making the final rule 
effective 60 days after publication in the Federal Register to allow 
Reynolds the opportunity to make arrangements with a hazardous waste 
disposal facility or claim interim status for its facility, the EPA has 
good cause to believe that no additional time is necessary for Reynolds 
to come into compliance with today's rule. In response to the UAO 
issued on September 8, 1997, Reynolds submitted a revised part A 
application to ADPC&E dated September 2, 1997, claiming the inclusion 
of the spent potliner monofill under their interim status for the Gum 
Springs facility and indicating their agreement to manage the material 
as a hazardous waste. The UAO is protective and provides that the waste 
will be disposed of safely, consistent with all hazardous waste 
requirements. Further, although other issues relating to Reynolds' 
treatment process may affect a broader audience, this rule affects only 
Reynolds. Reynolds commented on the proposal and, like other 
commenters, did not object to the repeal. The EPA finds that the good 
cause requirement contained in 5 U.S.C. 553 has been met, allowing this 
rule to be effective immediately upon its publication.

IV. Regulatory Impact Analysis Under Executive Order (E.O.) 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 E.O., 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 E.O.
    The EPA has determined that today's final rule is not a significant 
rule under E.O. 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 will directly affect only the Reynolds 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. 350l et seq., 
authorizes the Director of the OMB to review certain information 
collection requests by Federal agencies. The EPA has determined that 
this rule will not impose any new recordkeeping 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), Public 
Law 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

[[Page 63463]]

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 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 protections, Hazardous waste, Recycling, Reporting 
and recordkeeping requirements.

    Authority: Section 2002(a), 3001(f) RCRA, 42 U.S.C. 6921(f).

    Dated: November 18, 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 amended as follows:

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 Table 2--[Amended]

    2. Appendix IX to part 261, Table 2--Wastes is amended by removing 
the entry ``Reynolds Metals Company, Gum Springs, Arkansas'' and its 
related text.
* * * * *
[FR Doc. 97-31404 Filed 11-28-97; 8:45 am]
BILLING CODE 6560-50-P