1992 Federal Register / Vol. 62, No. 9 / Tuesday, January 14, 1997 / Rules and Regulations

1 EPA granted a final exclusion from the lists of

hazardous wastes contained in 40 CFR 261.32 —i.e.,

a delisting— for certain solid wastes derived from

the treatment of K088 at Reynolds Metals Company,

Gum Springs, Arkansas (56 FR 67197, December 30,

1991). The delisting is based on treating the same

parameters covered by the LDR treatment standard,

and compliance is also measured by TCLP analyses

for toxic metals, PAHs, cyanide, and fluoride. The

status of this delisting is discussed further in

section V.A. of this Notice.

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 268

[EPA # 530–Z–96–PH3F–FFFFF; FRL–5676–

4]

Land Disposal Restrictions Phase III—

Emergency Extension of the K088

Capacity Variance

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: Under the Land Disposal

Restrictions (LDR) program of the

Resource Conservation and Recovery

Act (RCRA), EPA is extending the

current national capacity variance for

spent potliners from primary aluminum

production (Hazardous Waste Number

K088) for six (6) months. Thus, K088

wastes do not have to be treated to meet

LDR treatment standards until July 8,

1997, six months from the current

treatment standard effective date of

January 8, 1997. EPA is extending the

national capacity variance due to

unanticipated performance problems by

the treatment technology which

provides most of the available treatment

capacity for these wastes. As a result,

the Agency does not believe that

sufficient treatment capacity which

minimizes short and long-term threats

to human health and the environment

posed by land disposal of the potliners

is presently available. The length of the

extension of the national capacity

variance is based on EPA’s best current

estimate of the time it will take to

modify, evaluate, and correct the

current deficiencies in treatment

performance.

EFFECTIVE DATE: January 8, 1997.

ADDRESSES: Supporting materials are

available for viewing in the RCRA

Information Center (RIC), located at

Crystal Gateway One, 1235 Jefferson

Davis Highway, First Floor, Arlington,

VA. The Docket Identification Number

is F–96–PH3F–FFFFF. The RCRA

Docket is open from 9 a.m. to 4 p.m.

Monday through Friday, except for

Federal holidays. The public must make

an appointment to review docket

materials by calling (703) 603–9230. The

public may copy a maximum of 100

pages from any regulatory document at

mo cost. Additional copies cost $0.15

per page.

FOR FURTHER INFORMATION CONTACT: For

general information, contact the RCRA

Hotline at (800) 424–9346 (toll-free) or

TDD (800) 553–7672 (hearing impaired).

In the Washington, DC, metropolitan

area, call (703) 412–9810 or TDD (703)

412–3323. For specific information,

contact the Waste Treatment Branch

(5302W), Office of Solid Waste (OSW),

U.S. Environmental Protection Agency,

401 M Street S.W., Washington, D.C.

20460; phone (703) 308–8434. For

information on the capacity analyses,

call Pan Lee or Bill Kline at (703) 308–

8440. For information on the regulatory

impact analyses, contact Paul Borst at

(703) 308–0481. For other questions,

call John Austin at (703) 308–0436 or

Mary Cunningham at (703) 308–8453.

SUPPLEMENTARY INFORMATION: Today’s

final rule as well as the K088 Fact Sheet

and the Index to the Record of materials

in the docket are available on the

Internet. Follow these instructions to

access the information electronically:

Gopher: gopher.epa.gov

WWW: http:///www.epa.gov

Dial-up: 919 558–0335

This report can be accessed off the

main EPA Gopher menu, in the

directory EPA Offices and Regions/

Office of Solid Waste and Emergency

Response (OSWER)/Office of Solid

Waste (RCRA)

FTP: ftp.epa.gov

Login: anonymous

Password: your Internet address

Files are located in /pub/gopher/

OSWRCRA.

SUPPLEMENTARY INFORMATION

Table of Contents

I. Background

A. The Existing Treatment Standard and

National Capacity Variance for Spent

Potliners

II. Subsequent Events

III. EPA’s Decision with Respect to Extending

the National Capacity Variance

IV. For How Long Should the National

Capacity Variance be Extended?

V. Other Issues

A. Delisting

B. Competing Treatment Technologies as

BDAT

VI. Disposal of Potliners During National

Capacity Variance Period

VII. Regulatory Requirements

A. Regulatory Impact Analysis Pursuant to

Executive Order 12866

B. Unfunded Mandates Reform Act

C. Submission to Congress and the General

Accounting Office

VIII. Immediate Effective Date

I. Background

A. The Existing Treatment Standard

and National Capacity

Variance for Spent Potliners

On April 8, 1996, EPA promulgated a

prohibition on land disposing spent

potliners from primary aluminum

production (Hazardous Waste K088)

unless the waste satisfied the treatment

standards for K088 established by EPA

as part of the same rulemaking. (61 FR

15566, April 8, 1996.) Spent potliners

are a highly toxic hazardous waste,

whose hazardous constituents include

cyanide (present in concentrations

between 0.1 and 1 percent, which are

quite high for such a toxic constituent),

toxic metals, and polycyclic aromatic

hydrocarbons (PAHs). See the Final

BDAT Background Document for Spent

Potliners from Primary Aluminum

Reduction—K088, February 29, 1995.

These wastes also contain high

concentrations of fluoride. See generally

id. at 15584–585. Previous improper

management of spent potliners has

resulted in widespread groundwater

contamination with cyanide and

fluoride, and was an important factor in

EPA’s decision to list these materials as

hazardous wastes. See 53 FR 35412,

September 13, 1988. The treatment

standards for K088 wastes require

substantial reductions in the total

concentration of organic hazardous

constituents and cyanide, and

substantial reductions in the

leachability of toxic metals and fluoride.

See 61 FR 15626, April 8, 1996. The

reduction in leachability is measured by

application of the Toxicity

Characteristic Leaching Procedure

(TCLP), SW–846 Method 1311. Id.

These treatment standards are based

upon performance of combustion

technology plus stabilization treatment

of combustion residues. Id. at 15584.

The treatment standard for fluoride is

based upon the performance

demonstrated by the treatment process

developed by Reynolds Metals

Company during studies conducted as

part of their application for delisting 1

treated K088 from hazardous waste

regulation. See 61 FR 15585, April 8,

1996. Although treatment standards

were based upon these technologies,

any treatment technology (other than

impermissible dilution) may be used to

achieve these established numerical

standards. Data in the administrative

record indicate that these treatment

standards are achievable by a number of

different technologies, including

combustion followed by stabilization of

the residue. See the Final BDAT

Background Document for Spent

Potliners from Primary Aluminum
Federal Register / Vol. 62, No. 9 / Tuesday, January 14, 1997 / Rules and Regulations 1993

2Background Document for Capacity Analysis for

Land Disposal Restrictions, Phase III (February

1996, Volume I, pages 4–5 to 4–8). Because SPL are

not generated continuously, and because the rate of

generation fluctuates according to the amount of

aluminum produced, it is not possible to estimate

this figure with more accuracy. Theoretically, an

average of approximately 110,000 tons annually

may be used for purpose of assessing available

treatment capacity. There are generation data

submitted after LDR Phase III was published and

please see the docket files: 4/10/96 letter attached

to July 9, 1996 petition from aluminum smelters

and Reynolds’ 11/25/96 submission in the

Attachment of November 25, 1996 notes.

3Background Document for Capacity Analysis for

Land Disposal Restrictions, Phase III (February

1996, Volume I, pages 4–9 to 4–10).

4Reynolds challenged EPA’s decision in the D.C.

Circuit and attempted to obtain expedited review of

its petition, but the D.C. Circuit denied Reynolds’

motion.

5See Table 2, 56 FR 33004, July 18, 1991 and

attachments to December 9, 1996 letter from Pat

Grover to Mike Shapiro.

6EPA was not aware of these data until recently,

and, in particular was not aware of these data

during the rulemaking which established the K088

treatment standard. EPA notes further that the

leachate from the landfill is being intercepted and

collected by Reynolds, and so is not contaminating

the environment at the treatment site. However,

EPA also notes that there is no interception of

leachate or runoff at the Hurricane Creek Mine Site.

7As it happens, this elevated pH could provide

a clue to why the treatment process is operating less

well than predicted, and could be rectifiable.

9Standard Methods for the Examination of Water

and Wastewater, 16th Edition, APHA, AWWA, &

WPCF, 1985, page 327.

10 Id., page 330.

Reduction—K088, February 29, 1995,

available in the docket.

Notwithstanding that a number of

different treatment technologies can

achieve the treatment standard, in fact,

virtually all existing treatment capacity

is provided by a single operation, the

Reynolds treatment facility located in

Gum Springs, Arkansas. See 61 FR

15589, April 8, 1996; Background

Document for Capacity Analysis for

Land Disposal Restrictions, Phase III

(February 1996, Volume I, pages 4–4 to

4–11). The Reynolds process entails the

crushing and sizing of spent potliner

materials, the addition of roughly equal

portions of limestone and a particular

type of brown sand as flux, and the

feeding of the combined mixture to a

rotary kiln for thermal destruction of

cyanide and PAHs. The process also is

intended to reduce the mobility of

soluble fluoride through the formation

of insoluble calcium fluoride. Spent

potliners (SPL) are generated in large

volumes ranging from 100,000 to

125,000 tons annually.2 Of the

approximate 140,000 tons of treatment

capacity EPA estimated was available,

120,000 tons are provided by Reynolds.3

Because of this potential bottleneck,

EPA was concerned enough about the

possibility for administrative delays in

obtaining access to Reynolds’ process

that the Agency delayed the prohibition

effective date by granting a nine-month

national capacity extension, pursuant to

RCRA section 3004(h)(2), to assure that

logistical difficulties were resolved

before the prohibition on land disposal

became effective. 61 FR 15589, April 8,

1996; Background Document for

Capacity Analysis for Land Disposal

Restrictions, Phase III (February 1996,

Volume I, pages 4–4 to 4–11).4 The

prohibition (and applicable treatment

standards) consequently is scheduled to

take effect on January 8, 1997.

II. Subsequent Events

Reynolds presently uses its process to

treat its own spent potliner K088 wastes

and those from other sources, and

disposes most of the residue in a

dedicated landfill (i.e. a monofill

receiving only these treatment residues)

located at the treatment site. The

company is also using these residues as

fill material in unlined pits at a

Hurricane Creek, Arkansas mining site,

and as a test all-weather road surface at

the mining site. (Trip Report, EPA,

October 30, 1996). The treatment

process appears to be destroying PAHs

as predicted, and to be reducing total

cyanide concentrations from initial

concentrations ranging from 975 mg/kg

to 6350 mg/kg to residual levels of 50

mg/kg to 150 mg/kg.5 For over two

years, however, notwithstanding that

the wastes as tested by the TCLP would

have complied with the land disposal

restriction treatment standards for the

non-wastewater forms of K088, actual

sampling data shows potentially high

concentrations of hazardous

constituents in the leachate from the

dedicated monofill. As measured in

September 1996, total cyanide

concentrations in the leachate are 46.5

mg/L (the treatment standards for K088

wastewaters specify a concentration of

1.2 mg/L); arsenic concentrations are at

6.55 mg/L (treatment standard 1.2 mg/

L); and fluoride concentrations are at

2228 mg/L (treatment standard 35 mg/

L). (Gum Springs Leachate Analytical

Results, Reynolds Metals Company,

September 26, 1996).6 Analysis of

surface water run-off from treated SPL

used as test roadbeds at the Hurricane

Creek Mine found total cyanide

concentrations in the leachate of 2.0 mg/

L (the treatment standards for K088

wastewaters specify a concentration of

1.2 mg/L); arsenic concentrations are at

1.24 mg/L (treatment standard 1.2 mg/

L); and fluoride concentrations are at

229 mg/L (treatment standard 35 mg/L).

(Arkansas Department of Pollution

Control & Ecology, November 12, 1996).

The Gum Springs monofill leachate also

has a pH of 12.75 to 13.5, exceeding

levels identifying a waste as hazardous

due to the characteristic of corrosivity.7

The Reynolds process thus appears to

be performing significantly less well

than anticipated. Indeed, it does not

appear to be reducing mobility of

hazardous constituents significantly

more than occurs in disposal of

untreated spent potliners. Landfill

leachate data obtained from two

hazardous waste landfill cells receiving

approximately 40 percent untreated SPL

shows cyanide concentrations of 11 and

14 mg/L, arsenic concentrations of 0.56

and 0.11 mg/L, and fluoride

concentrations of 2.3 and 0.001 mg/L

respectively. (Staff Communication;

November 20, 1996, fax of analytical

data reports for landfill cells L12 and

L13, Chemical Waste Management of

the Northwest, Inc., Arlington, Oregon).

Toxic constituents in the untreated

Oregon Landfill data are significantly

lower than observed in the leachate

from the treated waste in the Gum

Springs landfill. The Agency notes that

some dilution and neutralization

probably occurs from leachate produced

by other wastes in the Oregon landfill,

so that a direct comparison of the two

different leachate results is only

partially appropriate. However, the

Agency believes the comparison is still

relevant in that K088 is presently being

disposed in the Oregon landfill, and this

same K088 stream would be diverted to

the Reynolds facility if the Agency did

not take action today. The data available

indicate that a more concentrated and

toxic leachate would result from the

Reynolds facility.

The Agency believes that the

increased mobility of cyanide, fluoride,

and arsenic are due to the highly

alkaline conditions that exist at

Reynolds’ Gum Springs monofill. In the

case of cyanide, for example, alkalimetallic cyanide complexes are

soluble,9 and even insoluble iron

cyanides can be solubilized under

highly alkaline conditions.10 While the

total cyanide concentration in the

treated waste has been greatly reduced

by Reynolds’ treatment process, cyanide

remaining in the residue would be

environmentally mobile and in fact does

appear in high concentrations in the

alkaline leachate from the Gum Springs

landfill. As a result, almost all

remaining cyanide is detected in the

Gum Springs leachate, where at a more

neutral pH, only soluble free cyanide
1994 Federal Register / Vol. 62, No. 9 / Tuesday, January 14, 1997 / Rules and Regulations

11As described in the text above, leachate and

runoff levels of hazardous constituents from the fill

area are presently significantly lower than from the

landfill, although the levels are still of potential

environmental concern (particularly given the

unsecured disposal setting) and are higher than the

K088 wastewater treatment standards. The lower

levels undoubtedly result from the buffering effect

of the acid mining material at the site. However,

this buffering may not be permanent. In addition,

it is important to evaluate total concentrations of

hazardous constituents in the fill material because

of the different types of exposure pathways (for

example, air-borne particulate) that can result when

wastes are placed in this type of uncontrolled

setting. See generally 60 FR at 11732 (March 2,

1995) (proposal to prohibit use of hazardous waste

as fill material). Reevaluation of this use will be one

of the first matters EPA focuses on as it reexamines

the decision to delist the K088 treatment residue.

See section V.A. in the text.

12As EPA has stated many times, the Agency’s

ultimate preference is to develop risk-based levels

that reflect levels at which threats to human health

and the environment are minimized, with the

reasonable degree of certainty noted by the statute

(RCRA section 3004(d)(1)). See, e.g. 56 Fed. Reg. at

6641; See also 60 FR 66344, December 21, 1995, the

so-called ‘‘HWIR’’ proposal. The risk-based levels

would then cap technology-based standards.

would be measured. In the case of the

Oregon landfill, the leachate is of more

neutral pH (i.e., pH 6.5 to pH 7.5) and

only a small fraction of the constituents

of concern are soluble even though the

total concentration of toxics in the

potliner being disposed is much higher.

The Agency does not have information

detailing the sources or properties of

other hazardous wastes being codisposed at the Oregon site, but again

notes that their presence did not result

in a more toxic leachate. EPA surmises

that the co-disposed wastes provided

some neutralization of the alkaline

spent potliner. The extreme alkaline pH

conditions that exist in the Gum Springs

monofill were not anticipated by the

Agency, and are not analogous to the

test conditions (i.e. the TCLP) used to

verify treatability and compliance with

the delisting provisions.

III. EPA’s Decision with Respect to

Extending the National Capacity

Variance

The root requirement of the land

disposal restriction program is that

treatment of hazardous wastes is to

‘‘substantially diminish the toxicity of

the waste or substantially reduce the

likelihood of migration of hazardous

constituents from the waste so that

short-term and long-term threats to

human health and the environment are

minimized.’’ RCRA section 3004(m)(1).

To date, in the absence of a reliable

means of quantifying when threats are

minimized, EPA has implemented this

requirement by requiring treatment to

reflect the performance of Best

Demonstrated Available Treatment

technologies, in order to assure

substantial reductions of a waste’s

toxicity and mobility before land

disposal. See, e.g., 56 FR 6641 (Feb. 26,

1990).

There are certainly legitimate

questions as to the degree of risk

reduction through treatment needed to

satisfy this minimize threat standard,

and EPA has stated repeatedly that the

statute does not require elimination of

all threats or optimized treatment of

each hazardous constituent in order to

satisfy the requirement. See, e.g., id. at

n. 1; 56 FR 12355, March 25, 1991.

However, under the circumstances

present here, EPA finds that the

effectiveness of the Reynolds process, as

operated, to minimize short-term or

long-term threats sufficiently to satisfy

the core statutory requirement must be

seriously questioned. For instance, the

levels of cyanide and arsenic (and also

the less-toxic fluoride) in the leachate

from the treated potliners is not

significantly superior to that found

when untreated potliners are landfilled,

as explained above.

The statute further provides in section

3004(h)(2) that EPA shall establish the

effective date of a land disposal

prohibition on the earliest date on

which ‘‘adequate alternative treatment,

recovery or disposal capacity which

protects human health and the

environment will be available’’.

(Emphasis added.) See also sections

3004 (d)(1), (e)(1) and (g)(5), which

require that land disposal of hazardous

wastes ultimately be protective if land

disposal is not to be prohibited. See 60

FR at 14473 (March 2, 1995); 56 FR at

41168 (Aug. 19, 1991); Natural

Resources Defense Council v. EPA, 907

F.2d 1146, 1171–72 (D.C. Cir. 1990)

(dissenting opinion). EPA cannot but

take notice of two facts relevant here to

whether Reynolds’’ process, as operated,

provides treatment capacity which is

protective of human health and the

environment. First, because EPA has

delisted the residues (see n.1 above and

section V.A. below), Reynolds now

disposes much of the treatment residue

in a subtitle D unit. Although this unit

appears to have adequate leachate

collection and monitoring to prevent

any immediate harm at the site, the

monofill still lacks the safeguards

subtitle C landfills have—such as

double liners, financial responsibility,

and more extensive monitoring and

leachate collection. Second, Reynolds is

placing some of the treatment residues

as fill material in an unmonitored,

unsupervised setting and no regulatory

Agency has directly evaluated the

potential for harm this type of disposal

could be posing. While this use or

disposal practice is presently legal

under federal law, since the material is

delisted, the Agency cannot say with

any certainty (see RCRA sections (d)(1),

(e)(1) and (g)(5)) that this practice

protects human health and the

environment. RCRA section 3004 (h)

(2).11

EPA believes that treatment normally

is adequate to be considered to be both

minimizing threats to human health and

the environment and to be protective of

human health and the environment

where there is substantial destruction of

environmentally available toxics and/or

substantial reduction of the mobility of

toxic residuals. See 125 Cong. Rec. at S

9178 (statement of Sen. Chaffee

introducing the provision which became

RCRA section 3004(m) indicating that

the land disposal restriction treatment

standards are not to be technology

forcing.) In almost all cases, simply

meeting the treatment standards for the

waste achieves this result. But where

treatment is not operating so as to

reduce environmental availability of key

hazardous constituents appreciably

more than disposal of untreated spent

potliners, and where total and leachable

arsenic may actually be increased by the

treatment process, the Agency must

question the adequacy of the treatment.

Further, where disposal in subtitle C

units may be safer than disposal of the

residues in subtitle D landfills or in

uncontrolled units, the Agency must

seriously question the environmental

consequences of expanded treatment

operations at Gum Spring should the

national capacity variance not be

extended. The corrosivity and mobility

of toxic constituents in the Gum Springs

leachate, and the concentration of

hazardous constituents in the leachate

and runoff from the fill area, compels

the Agency to find that the treatment

process, as it is presently performing

and as it includes disposal in nonsubtitle C units, is not satisfying the

requirement that threats posed by land

disposal of the wastes be minimized and

that the available treatment capacity be

protective of human health and the

environment.

In making this finding, EPA stresses

that it is specific to this set of facts. The

Agency does not mean to revisit the

question of whether LDR standards

should be technology-based or riskbased.12 Nor should this action be read

as automatically invoking risk-based

levels to supplant technology-based

treatment standards, or to vitiate a

treatment standard whenever treatment

performance turns out in practice to be

less than predicted by analytic protocols

such as the TCLP. Nor is land disposal
Federal Register / Vol. 62, No. 9 / Tuesday, January 14, 1997 / Rules and Regulations 1995

13EPA notes, however, that it may have to

ultimately revise the treatment standard for

fluoride, which is based on the performance of

Reynolds’ process. EPA will be seeking more

information to more fully characterize the

performance of the treatment process for fluoride

during the extended national capacity variance

period.

14Attachments to December 9, 1996 letter from

Pat Grover of Reynolds Metal 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

(a 1:20 ratio).

15 Id.

typically to be taken into account in

establishing an LDR treatment standard.

American Petroleum Inst. v. EPA, 906 F.

2d 729, 734–37 (D.C. Cir. 1990). In fact,

technology-based standards remain the

best presently-available means of

reducing threats posed by land disposal

of hazardous wastes. Our finding here is

a narrow response to particular facts:

there has been on-going, consistent

failure (in certain key aspects) of a

treatment technology, and the failure is

of a magnitude that, under the

circumstances, disposal of untreated

wastes in Subtitle C landfills is

preferable to treatment of the wastes by

this process followed by land disposal

in non-subtitle C disposal units. Under

these unusual circumstances, threats

have not been adequately minimized

and ultimate protectiveness has not yet

been achieved.

A consequence of this finding is that

the capacity for treatment that is

protective is inadequate for spent

potliners at this time. Since the

Reynolds process provides virtually all

available capacity, and EPA is finding

that the process as it is presently

performing does not protect human

health and the environment (see RCRA

section 3004 (h) (2)), the remaining

treatment capacity is far below that

needed to accommodate the volume of

potliners being generated. Therefore, an

extension of the existing national

capacity variance is required.

IV. For How Long Should the National

Capacity Variance Be Extended?

EPA continues to believe that

Reynolds’ process is inherently sound,

and should be able to treat potliners in

a manner that minimizes the threats

their land disposal can pose. The

process has been demonstrated to

effectively destroy significant portions

of the cyanide and PAHs present, and

the stabilization technology has

generally been effective in reducing

soluble fluorides.13 In fact, the high

degree of leaching presently occurring

may be due to the high pH of each of

the materials being combined in the

treatment process (i.e., spent potliner,

limestone, and brown sand). Spent

potliner alone has been found to raise

the pH of deionized water to 11.2 to

12.0.14 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. The high alkalinity

of brown sand together with SPL and

limestone provides no neutralization of

the inherent alkalinity; in confirmation,

the pH of deionized water leach

solutions of the Reynolds’ treatment

residue has been found to range from

11.9 to 12.2.15 This is a problem that

may be rectified soon by using a

different type of sand and keeping the

pH of the treated solids within a

particular range.

EPA is also aware of Reynolds’

substantial investment of capital and

expertise into developing this treatment

process. The company also has

complied with all applicable regulations

in developing, implementing, and

operating its process, seeking and

obtaining RCRA permits for its process,

and obtaining a delisting for the

treatment residue. The company has

also been complying with the terms of

the delisting, which only require

evaluation of newly-generated treatment

residues for leachable cyanide, fluoride,

PAHs, and TCLP metals. The Agency

does not intend to take precipitous

action that irrevocably undermines use

of this still-promising treatment

technology, or that discourages needed

development of and investment in other

treatment technologies (for potliners or

for other hazardous wastes).

It is EPA’s present judgment that the

immediate problems with Reynolds’

process could be resolved relatively

quickly, possibly (as noted above) by

substitution of different sand and other

means of pH control. Brown sand

functions only as a flux in the process

to avoid the formation of lava like

blockages in the kiln. Other high silica

materials should perform equivalently

as a flux, but should not contain or

result in a highly alkaline treatment

residue that promotes the mobility of

hazardous constituents of concern.

Process modifications and test trials of

a sand substitute by Reynolds are

planned or are underway. The Agency

projects that six months may be

required to complete these tests and

data evaluation, and is, therefore

extending the period of the national

capacity variance until July 8, 1997. In

the event that replacing the brown sand

does not lower the pH, or that the lower

pH does not eliminate the problems of

the generation of a corrosive leachate

high in hazardous constituents, EPA

will evaluate other technical options to

provide for treatment of K088 that

adequately minimizes threats posed by

land disposal and proves ultimately to

be protective. The Agency may extend

the capacity variance for up to an

additional nine (9) months, should

process modifications be determined to

have not resulted in adequate treatment.

The Agency will make available to the

public for comment any data or

additional information it receives in

response to this capacity extension.

V. Other Issues

A. Delisting

As noted above, EPA has delisted the

residues from Reynolds’ treatment

process, relying in significant part on

use of the TCLP as a predictor of actual

environmental performance. (56 FR

67197, December 30, 1991.) These

predictions have proven incorrect, at

least in the short-term. EPA also did not

anticipate, or directly evaluate the use

of the treatment residue as fill or road

construction material when it granted

the delisting.

Authority to evaluate delistings is

presently delegated to EPA Regional

offices and to authorized States. EPA’s

Region 6 is presently evaluating the

terms of the existing delisting and plans

regulatory action regarding the delisting

during the spring of 1997.

EPA notes that a determination that

the Reynolds process (or any other

treatment process) is treating

sufficiently to be considered to

minimize threats to human health and

the environment does not necessarily

mean that the residues from the

treatment process would have to remain

delisted. See, e.g. the text of RCRA

section 3004(m)(2) which speaks

directly of treatment residues which

have been treated to minimize threats

then being disposed in subtitle C

disposal units. Thus, should EPA find

that the Reynolds process is performing

sufficiently well to satisfy land disposal

restriction requirements, i.e. that the

potliners have been treated sufficiently

to allow their land disposal, the finding

would not necessarily require retention

of the current delisting. Conversely, and

for the same reasons, a potential finding

that the treatment residues should be

relisted as hazardous wastes would not

preclude a finding that the treatment is

nevertheless sufficient to satisfy the

requirement that substantial reductions

in toxicity and mobility sufficient to

minimize threats occur so that land

disposal of the treatment residue is

permissible.
1996 Federal Register / Vol. 62, No. 9 / Tuesday, January 14, 1997 / Rules and Regulations

16The Senate Report also states that ‘‘[i]t is not

intended, that a generating industry, for example,

could be allowed to continue to have its wastes

disposed of in an otherwise prohibited manner

solely by binding itself to using a facility which has

not been constructed.’’ S. Rep. No. 284, 98th Cong.

2d sess. at 19.

B. Competing Treatment Technologies

as BDAT

As discussed above, treatment

technologies other than Reynolds’ exist

which could satisfy the existing

treatment standards. Other technologies

are being developed, and some of these

recover resources from the potliner (as

well as destroying hazardous

constituents). See ‘‘Final BDAT

Background Document for Spent

Potliners from Primary Aluminum

Reduction—K088’’, dated February

1995.

EPA is presently being urged to

designate these recovery technologies as

exclusive BDAT. See Supplemental

Submission in Support of Amendment

of Land Disposal Restrictions Phase III—

Spent Potliners. Although EPA is still

studying these submissions, the Agency

notes that it does not regard its proper

role as picking winners and losers

among different treatment technologies,

so long as the treatment technologies are

achieving substantial reductions in

toxicity and mobility of hazardous

constituents sufficient to find that

threats are being adequately minimized.

(See, for example, 57 FR 37198 (August

18, 1992), where EPA chose to base

treatment standards on performance of a

technology which substantially reduces

concentrations of hazardous

constituents but does not perform as

well as certain other available treatment

technologies). Further, the Agency has

established the Universal Treatment

Standards (268.40) and has indicated a

preference to use numerical limits

whenever possible, to allow any

legitimate treatment process to meet the

standards.

EPA notes, in addition, that the

Reynolds process is presently the only

treatment process offering any

appreciable treatment capacity for K088.

Reynolds also took the initiative and

developed and marketed this technology

in advance of the land disposal

prohibition for spent potliners. Given

these facts, plus the technology’s ability

to achieve substantial reductions in the

waste’s toxicity through destruction of

hazardous constituents, EPA does not

initially believe it should disallow the

process as a valid treatment technology

(assuming the present operational

problems are resolved). EPA notes

moreover that as a legal matter, the LDR

treatment standards are not intended to

be technology-forcing (see 125 Cong.

Rec. S 9178 (July 25, 1984) (statement of

Sen. Chaffee)), but are intended to force

utilization of existing treatment capacity

where that capacity can significantly

reduce wastes’ toxicity and mobility. S.

Rep. No. 284, 98th Cong. 1st sess. at 19.

Thus, as a matter of both policy and

law, the Agency is disposed to retaining

treatment standards for spent potliners

that are achievable by a number of

treatment technologies, and to try and

hasten the use of currently existing

technologies provided their

performance and operation adequately

minimize threats posed by land disposal

of the potliners. 16

Thus, the Agency’s initial inclination

is not to amend the current treatment

standard for spent potliners to establish

any particular technology as BDAT.

VI. Disposal of Potliners During

National Capacity Variance Period

Section 3004(h)(4) states that during

periods of national capacity variances

(and case-by-case extensions),

hazardous wastes subject to those

extensions that are disposed in landfills

(and surface impoundments) may only

be so disposed if the landfill (or

impoundment) is in compliance with

the minimum technology requirements

of section 3004(o). EPA has interpreted

this language as requiring the individual

unit receiving the waste to be in

compliance with those so-called

minimum technology standards, an

interpretation sustained in Mobil Oil v.

EPA, 871 F.2d 149 (D.C. Cir. 1989). In

addition, EPA has indicated that this

requirement only applies to wastes that

are still hazardous when disposed. 55

Fed. Reg. at 22659–60 (June 1, 1990).

Putting this together, this means that

during the extended period of the

national capacity extension, generators

other than Reynolds will dispose of

K088 wastes in landfill units that satisfy

the minimum technology requirements

of section 3004(o). Reynolds’ treatment

residue is not subject to these

requirements because it has been

delisted, and so is not a hazardous

waste. Should there be action

reclassifying that treatment residue as a

hazardous waste and should the

national capacity extension still be in

effect, then such residues would also be

required to be disposed in landfill units

satisfying minimum technology

requirements (assuming that landfill

disposal is utilized).

VII. Regulatory Requirements

A. Regulatory Impact Analysis Pursuant

to Executive Order 12866

Executive Order No. 12866 requires

agencies to determine whether a

regulatory action is ‘‘significant.’’ The

Order defines a ‘‘significant’’ regulatory

action as one that ‘‘is likely to result in

a rule that may: (1) Have an annual

effect on the economy of $100 million

or more or adversely affect, in a material

way, the economy, a sector of the

economy, productivity, competition,

jobs, the environment, public health or

safety, or State, local, or tribal

governments or communities; (2) create

serious inconsistency or otherwise

interfere with an action taken or

planned by another agency; (3)

materially alter the budgetary impact of

entitlements, grants, user fees, or loan

programs or the rights and obligations of

recipients; or (4) raise novel legal or

policy issues arising out of legal

mandates, the President’s priorities, or

the principles set forth in the Executive

Order.’’

The Agency and OMB consider

today’s final rule to be nonsignificant as

defined by the Executive Order and

therefore not subject to the requirement

that a regulatory impact analysis has to

be prepared. Today’s rule delays for six

months the imposition of treatment

standards for spent aluminum potliners

that were estimated previously by EPA

to cost between $11.9 million and $47.3

million (61 FR 15566 and 15591, April

8, 1996). Thus, today’s rule results in

net savings over this period of time and

prevents any potential hardship that

would otherwise result from the lack of

available thermal treatment capacity for

spent aluminum potliner.

B. Unfunded Mandates Reform Act

Under Section 202 of the Unfunded

Mandates Reform Act of 1995, signed

into law on March 22, 1995, EPA must

prepare a statement to accompany any

rule where the estimated costs to State,

local, or tribal governments in the

aggregate, or to the private sector, will

be $100 million or more in any one year.

Under Section 205, EPA must select the

most cost-effective and least

burdensome alternative that achieves

the objective of the rule and is

consistent with the statutory

requirements. Section 203 requires EPA

to establish a plan for informing and

advising any small governments that

may be significantly impacted by the

rule.

EPA has presented an analysis of the

costs of implementing the prior LDR

Phase III rule ( 61 FR 15566, April 8,

1996) and has determined that this rule

does not include a Federal mandate that

may result in estimated costs of $100

million or more to either State, local, or

tribal governments in the aggregate. As

stated above, the private sector is not

expected to incur costs exceeding $100
Federal Register / Vol. 62, No. 9 / Tuesday, January 14, 1997 / Rules and Regulations 1997

million per year due to the delayed

implementation of the land disposal

restrictions for K088 wastes. EPA has

fulfilled the requirement for analysis

under the Unfunded Mandates Reform

Act.

C. Submission to Congress and the

General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added

by the Small Business Regulatory

Enforcement Fairness Act of 1996, EPA

submitted a report containing this rule

and other required information to the

U.S. Senate, the U.S. House of

Representatives and the Comptroller

General of the General Accounting

Office prior to publication of the rule in

today’s Federal Register. This rule is

not a ‘‘major rule’’ as defined by 5

U.S.C. 804(2).

VIII. Immediate Effective Date

EPA has determined to make today’s

action effective immediately. The

Agency believes that there is good cause

to do so, within the meaning of 5 U.S.C.

section 553(b)(B). The current regulatory

prohibition is scheduled to take effect

on January 8, 1997. Should the Agency

fail to act before that time, EPA believes

that actions will occur which are both

contrary to the objectives of the Land

Disposal Restriction statutory

provisions, and also environmentally

worse than disposal of untreated

hazardous waste in subtitle C units.

Specifically, if the prohibition takes

effect, virtually the entire national

volume of potliners will be sent for

treatment and disposal to the Reynolds

facility. This is because, as set out in

this Notice, the Reynolds process is

presently operating poorly and because

the treatment residues from that process

are disposed in units other than subtitle

C units. The result is treatment that does

not minimize threats and disposal

which could be less protective than

disposal of untreated wastes in subtitle

C units.

Good cause to forego notice-andcomment procedures exists where use of

those procedures is contrary to the

public interest. 5 U.S.C. section

553(b)(B). EPA believes it would be

contrary to the public interest to force

treatment of many thousands of tons of

hazardous waste which could result in

net environmental detriment, as set out

in the preceding paragraph. For

essentially the same reasons, EPA finds

that use of notice-and-comment

procedures would be impractical (again

within the meaning of 5 U.S.C. section

553(b)(B)).

Finally, EPA notes that it has

endeavored to provide actual notice and

opportunity for comment on this action.

EPA has held a number of meetings

with both Reynolds and affected

primary aluminum generators (noted in

the record for this action), solicited and

accepted written submissions from

these entities (again part of the

administrative record), and made each

sides’ submissions available to the other

for response. The Agency has also had

contacts (albeit more limited) with

representatives of the hazardous waste

treatment industry and the

environmental community. Notice and

opportunity for comment of course

satisfies all procedural requirements of

the Administrative Procedure Act (as to

parties receiving such notice). 5 U.S.C.

section 553(b).

For all of these reasons, EPA finds

that this rule may be made effective

immediately. In addition, because there

is good cause to forego notice-andcomment procedures, the rule may take

effect upon promulgation without prior

submission of the rule to the Congress.

5 U.S.C. section 808. EPA will thereafter

submit the rule to Congress, as required

by 5 U.S.C. section 801(a).

List of Subjects in 40 CFR Part 268

Environmental protection, Hazardous

waste, Reporting and recordkeeping

requirements.

Dated: January 8, 1997.

Carol M. Browner,

Administrator.

For the reasons set out in the

preamble, title 40, chapter I of the Code

of Federal Regulations is amended as

follows:

PART 268—LAND DISPOSAL

RESTRICTIONS

1. The authority citation for part 268

continues to read as follows:

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

and 6924.

2. Section 268.39 is amended by

revising paragraph (c) to read as follows:

§ 268.39 Waste specific prohibitions—

spent aluminum potliners; reactive; and

carbamate wastes.

* * * * *

(c) On July 8, 1997, the wastes

specified in 40 CFR 261.32 as EPA

Hazardous Waste number K088 are

prohibited from land disposal. In

addition, soil and debris contaminated

with these wastes are prohibited from

land disposal on July 8, 1997.

* * * * *

[FR Doc. 97–878 Filed 1–10–97; 9:32 am]

BILLING CODE 6560–50–P