63458 Federal Register / Vol. 62, No. 230 / Monday, December 1, 1997 / Rules and Regulations

Dated: November 20, 1997.

Carol M. Browner,

Administrator.

For the reasons set forth in the

preamble, 40 CFR part 52 is amended as

follows:

PART 52 —[AMENDED]

1. The authority citation for part 52

continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart D—Arizona

§ 52.120 [Amended]

2. Section 52.120 is amended by

removing and reserving paragraphs

(c)(83) and (c)(85).

[FR Doc. 97–31278 Filed 11–28–97; 8:45 am]

BILLING CODE 6560–50–P

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.

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
Federal Register / Vol. 62, No. 230 / Monday, December 1, 1997 / Rules and Regulations 63459

1The Unilateral Administrative Order issued

September 3, 1997 was amended on October 31,

1997.

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.1 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.

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:

• Waste management and waste

disposal issues;

• Permitting issues;

• Hazards to human health and the

environment;

• Additional analyses/investigations;

• Land Disposal Restrictions/

effectiveness of Reynolds’ treatment

process;

• Toxicity Characteristic Leaching

Procedure;

• Perceived delays in EPA’s decisionmaking; and

• 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
63460 Federal Register / Vol. 62, No. 230 / Monday, December 1, 1997 / Rules and Regulations

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 DecisionMaking. 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

• Technical Corrections;

• Retroactive Application of Repeal;

• Interim Status of the Monofill;

• Public Participation/Notice and

Comment;

• Delisting Violations; and

• 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 healthbased 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
Federal Register / Vol. 62, No. 230 / Monday, December 1, 1997 / Rules and Regulations 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
63462 Federal Register / Vol. 62, No. 230 / Monday, December 1, 1997 / Rules and Regulations

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
Federal Register / Vol. 62, No. 230 / Monday, December 1, 1997 / Rules and Regulations 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

FEDERAL MARITIME COMMISSION

46 CFR Part 514

[Docket No. 97–23]

Simplification of Service Contract

Filing Requirements

AGENCY: Federal Maritime Commission.

ACTION: Final rule.

SUMMARY: The Federal Maritime

Commission is amending its rules to

discontinue the requirement that service

contracts be filed in double envelopes.

This should reduce duplication and

Commission and carrier costs, as well as

facilitate the submission of service

contract filings at the Commission.

EFFECTIVE DATE: December 1, 1997.

FOR FURTHER INFORMATION CONTACT:

Bryant L. VanBrakle, Director, Bureau of

Tariffs, Certification and Licensing,

Federal Maritime Commission, 800

North Capitol Street, N.W., Washington,

D.C. 20573, (202) 523–5796.

SUPPLEMENTARY INFORMATION:

I. Background

The rules of the Federal Maritime

Commission (‘‘Commission’’), at 46 CFR

514.7(g)(1)(i) and (ii), require service

contracts to be filed in double

envelopes. This requirement originated

with the Commission’s initial service

contract rules, when all filings were in

paper form and was intended to

facilitate the separation of service

contracts from their associated essential

terms filings. Service contract essential

terms are now filed electronically in the

Commission’s Automated Tariff Filing

and Information system (‘‘ATFI’’). As a

consequence, the double-envelope

procedure has become superfluous.

The Commission received 38,747

service contract filings during fiscal year

1997. Each filing is now required to be

‘‘filed in single copy contained in a

double envelope.’’ This proposal will

thus reduce by half the number of

envelopes that must be filed with and

handled by the Commission’s staff. This

will result in cost savings and

processing efficiencies for the industry

and Commission.

Because the removal of this obsolete

requirement eliminates, rather than

creates, a regulatory requirement, this

revision is being promulgated as a final

rule effective upon publication in the

Federal Register.

This final rule does not impose any

additional reporting or recordkeeping

requirements from those which were

previously approved by the Office of

Management and Budget under the

Paperwork Reduction Act of 1995, as

amended. (OMB Control No. 3072–0055,

expires May 31, 1998.)

The Chairman of the Commission

certifies, pursuant to section 605(b) of

the Regulatory Flexibility Act, 5 U.S.C.

601, et seq., that this final rule will not

have a significant economic impact on

a substantial number of small entities,

including small businesses, small

organizational units, and small

governmental jurisdictions.

The subject final rule is not a major

rule under the Small Business

Regulatory Flexibility Act (5 U.S.C.

804(2)) because it will not result in an

annual effect on the economy of $100

million or more; a major increase in cost

or prices for consumers, individual

industries, Federal, State or local

government agencies, or geographic

regions; or significant adverse effects on

competition, employment, investment,

productivity, innovation, or on the

ability of U.S.-based enterprises to

compete with foreign-based enterprises.

List of Subjects in 46 CFR Part 514

Administrative practice and

procedure, Antitrust, Automatic data

processing, Cargo vessels, Confidential

business information, Contracts,

Exports, Freight, Freight forwarders,

Imports, Maritime carriers, Penalties,

Rates and fares, Reporting and

recordkeeping requirements.

Therefore, pursuant to 5 U.S.C. 553

and sections 3, 8, and 17 of the

Shipping Act of 1984 (46 U.S.C. app.

1702, 1707 and 1716), the Federal

Maritime Commission amends Part 514

of Title 46 of the Code of Federal

Regulations as follows:

PART 514—[AMENDED]

1. The authority citation for Part 514

continues to read:

Authority: 5 U.S.C. 552 and 553; 31 U.S.C.

9701; 46 U.S.C. app. 804, 812, 814–817(a),

820, 833a, 841a, 843, 844, 845, 845a, 845b,

847, 1702–1712, 1714–1716, 1718, 1721, and

1722; and sec. 2(b) of Pub. L. 101–92, 103

Stat. 601.

2. Section 514.7 is amended by

revising paragraph (g)(1) to read as

follows:

§ 514.7 Service contracts in foreign

commerce.

* * * * *

(g) * * *

(1) Service contracts. Within ten (10)

days of the electronic filing of essential

terms under § 514.17, a true and

complete copy of the related contract(s)

shall be submitted in form and content

as provided by this section and § 514.17,

in single copy contained in an envelope,

which contains no other material,

addressed to: ‘‘Director, Bureau of

Tariffs, Certification and Licensing,

Federal Maritime Commission,

Washington, DC 20573.’’ The envelope

shall state ‘‘This Envelope Contains a

Confidential Service Contract.’’ If

multiple service contracts are filed in an

envelope, the pages of each individual

contract should be fastened together.

The top of each page of a filed service

contract shall be stamped

‘‘Confidential.’’

* * * * *