[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