[Federal Register Volume 62, Number 9 (Tuesday, January 14, 1997)]
[Rules and Regulations]
[Pages 1992-1997]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-878]



[[Page 1991]]

_______________________________________________________________________

Part III





Environmental Protection Agency





_______________________________________________________________________



40 CFR Part 268



Land Disposal Restrictions Phase III--Emergency Extension of the K088 
Capacity Variance; Final Rule

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

[[Page 1992]]



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.

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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

[[Page 1993]]

Reduction--K088, February 29, 1995, available in the docket.
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    \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.
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    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.
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    \2\ Background 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.
    \3\ Background Document for Capacity Analysis for Land Disposal 
Restrictions, Phase III (February 1996, Volume I, pages 4-9 to 4-
10).
    \4\ Reynolds 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.
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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
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    \5\ See Table 2, 56 FR 33004, July 18, 1991 and attachments to 
December 9, 1996 letter from Pat Grover to Mike Shapiro.
    \6\ EPA 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.
    \7\ As it happens, this elevated pH could provide a clue to why 
the treatment process is operating less well than predicted, and 
could be rectifiable.
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    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, alkali-metallic 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

[[Page 1994]]

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 co-disposed 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.
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    \9\ Standard Methods for the Examination of Water and 
Wastewater, 16th Edition, APHA, AWWA, & WPCF, 1985, page 327.
    \10\ Id., page 330.
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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
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    \11\ As 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.
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    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 non-subtitle 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 risk-based.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

[[Page 1995]]

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.
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    \12\ As 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.
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    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.
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    \13\ EPA 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.
    \14\ Attachments 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.
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    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.

[[Page 1996]]

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
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    \16\ The 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.
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    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

[[Page 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-and-comment 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-and-comment 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:


Sec. 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