[Federal Register Volume 62, Number 134 (Monday, July 14, 1997)]
[Rules and Regulations]
[Pages 37694-37699]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-18410]



[[Page 37693]]

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Part IV





Environmental Protection Agency





_______________________________________________________________________



40 CFR Part 268



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

  Federal Register / Vol. 62, No. 134 / Monday, July 14, 1997 / Rules 
and Regulations  

[[Page 37694]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 268

[EPA # -530-Z-96-P33F-FFFFF; FRL-5857-7]


Land Disposal Restrictions Phase III--Emergency Extension of the 
K088 National 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 three (3) months. 
Thus, K088 wastes may be land disposed without being treated to meet 
LDR treatment standards until October 8, 1997, three months from the 
current treatment standard effective date of July 8, 1997. EPA is 
taking this action because it now appears that sufficient treatment 
capacity exists which is capable of achieving the treatment standards 
promulgated by EPA on March 8, 1996, the process provides substantial 
treatment of spent potliners and minimizes the threats posed by land 
disposal of these wastes, and the treatment and disposal capacity 
provided for the waste will be protective of human health and the 
environment because it will occur at subtitle C units. EPA is extending 
the national capacity variance for a further three months in order to 
provide time for generators to make contractual and other logistical 
arrangements relating to utilization of the treatment capacity.

DATES: This rule is effective July 7, 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-P33F-FFFFF. The RCRA Docket is open from 
9:00 a.m. to 4:00 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 no 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:

Availability of rule on Internet

    This Federal Register notice is available on the Internet System 
through the EPA Public Web Page at: http://www.epa.gov/EPA-WASTE/. For 
the text of the notice, choose: Year/Month/Day.

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
    A. The Reynolds' Process Provides Substantial Treatment
    B. Reynolds Will Provide Safe Disposal Capacity
    C. Agency's Conclusion Is That Protective Capacity is Presently 
Available
IV. Disposal of Potliners During National Capacity Variance Period
V. Use Constituting Disposal Issues
VI. Regulatory Requirements
    A. Regulatory Impact Analysis Pursuant to Executive Order 12866
    B. Paperwork Reduction Act
    C. Unfunded Mandates Reform Act and Regulatory Flexibility Act
    D. Submission to Congress and the General Accounting Office
VII. Immediate Effective Date

I. Background

    Land disposal of hazardous wastes without prior treatment is 
largely prohibited by law. RCRA sections 3004(d), (e) and (g). The 
prohibition on land disposal is normally to take effect immediately on 
promulgation, but may be extended if EPA finds that adequate 
alternative treatment, recovery or disposal capacity which protects 
human health and the environment will not be available. RCRA section 
3004(h)(2). In that event, the prohibition is to take effect on the 
earliest date on which such adequate capacity exists, and in no event 
be extended nationally for more than two years from the promulgation 
date. Id.

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 61 FR 15584-15585. 
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. 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 (Reynolds) during studies conducted as part of their 
application for delisting 1 treated K088. See 61 FR 15585. 
Although treatment standards were based upon these technologies, any 
treatment technology (other than impermissible dilution) may be used to 
achieve these established numerical

[[Page 37695]]

standards. Data in the administrative record indicate that these 
treatment standards are achievable by a number of different 
technologies. See the Final BDAT Background Document for Spent 
Potliners from Primary Aluminum 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 measured by TCLP analyses 
for toxic metals, PAHs, cyanide, and fluoride. However, as explained 
later in this Notice, the delisting was incorrect and will be 
withdrawn.
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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; 
see also 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 
brown sand as flux, and the feeding of the combined mixture to a rotary 
kiln for thermal destruction of cyanide and PAHs. 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
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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.
    \3\ Id., pages 4-9 to 4-10.
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    For the purposes of comparing required treatment capacity to 
available capacity, EPA combined all the data available and presented 
in the updated Capacity Background Document 4 to estimate 
that approximately 90,000 tons per year of K088 is expected to require 
treatment. As noted above and in the Background Document, Reynolds 
provides sufficient treatment volume to accommodate this volume of 
waste. 5
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    \4\ Background Document (pages 6--12) for Capacity Analysis 
Update for Land Disposal Restrictions--Phase III: Spent Aluminum 
Potliner (Final Rule), December 1996 (part of the docket files for 
Emergency Extension of the K088 Capacity Variance; Final Rule; 62 FR 
1992, January 14, 1997). The capacity analysis in this document 
reflects generation data and other information submitted after the 
publication date (April 8, 1996) for the LDR Phase III Final Rule.
    \5\ Id., pages 12-16.
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II. Subsequent Events

    Because there is adequate volume of treatment capacity, the issue 
becomes one of the environmental adequacy, specifically whether 
treatment satisfies the requirements of section 3004(m) which says that 
treatment is to be sufficient to minimize threats to human health and 
the environment posed by land disposal of the waste, and section 3004 
(h)(2) which says that to be adequate treatment and disposal capacity 
must be protective of human health and the environment.
    Events occurring after promulgation of the K088 treatment standards 
have raised questions about each of these issues. Reynolds appears able 
to treat spent potliners to meet the promulgated treatment 
standards.6 However, as set out in the January 14 notice, 
the leachate being generated from actual disposal of the treatment 
residues is more hazardous than initially anticipated. In hindsight, it 
is now apparent that spent potliners are themselves highly alkaline, 
and contain cyanide, arsenic, and fluoride--constituents which are most 
soluble under alkaline pH. Reynolds in fact disposed of most of the 
treatment residues from its process in a dedicated monofill (a landfill 
receiving only these treatment residues) where pH is alkaline (the pH 
of the treatment residue is essentially unbuffered by anything in the 
landfill), and the concentrations of these constituents were high. As 
measured in September 1996, total cyanide concentrations in the 
leachate were 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 Co., Sept. 26, 1996).7 
Other residues were used 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 (62 FR 1992, January 14, 1997). The levels 
of hazardous constituents and fluoride in the leachate and runoff from 
this site were less than those from the landfill, undoubtedly because 
the prevailing pH is acidic rather than basic, but still were high 
enough to warrant regulatory concern.
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    \6\ Commenters have questioned this, and EPA responds to those 
comments below.
    \7\ EPA was not aware of these data until the Fall of 1996, and, 
in particular was not aware of these data during the rulemaking 
proceeding leading to establishing 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 at the Hurricane Creek Mine 
Site and that Reynolds has agreed to cease disposal at the mine site 
effective June 1, 1997.
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    As set out in the January 14 notice, EPA had failed to take into 
account the effect of alkaline disposal conditions on potliners and 
potliner treatment residues when promulgating either the treatment 
standard for K088 wastes or the delisting for the treatment residues 
from Reynolds' process. EPA's immediate response, set out in the 
January notice, was to extend the national capacity variance for six 
months for two reasons: (1) because of the delisting, the disposal 
capacity provided by Reynolds was not protective since the wastes could 
be disposed essentially anywhere under federal law, and (2) because 
there was a possibility that the treatment process might actually be 
increasing the hazards posed by land disposal of the waste by 
increasing hazardous constituent and fluoride mobility. See 62 FR 1994. 
Because EPA had some expectation that short-term treatment process 
changes could resolve some of these problems, EPA extended the national 
capacity variance until July 8, 1997 (62 FR 1992).
    Following this extension, Reynolds initiated various full scale 
tests in an attempt to find a process change that would result in 
improved destruction of cyanide, and greater immobilization of arsenic 
and fluoride. On April 9, 1997, Reynolds presented to EPA 
representatives a confidential summary of the research and development 
testing performed pursuant to improving the Gum Springs' treatment 
residue. (See April 4, 1997 letter to William Gallager, EPA Region 6 
from Patrick Grover, Reynolds Metals Company.) These results indicate 
that EPA's prior judgement that the process could be modified 
relatively quickly by substitution of different sand and other means of 
pH control (62 FR 1995), has proven to be overly optimistic. Reynolds 
is continuing to consider options that they believe may both increase 
the thoroughness of combustion of the cyanide, and reduce leachabilty 
of any remaining cyanide in the residue, as well as further reducing 
the mobility of the fluoride and arsenic. Also, Reynolds is continuing 
to try to isolate and remove additional sources of arsenic in the 
process, and is considering ways to lower the pH of the residue, which 
may further reduce leachabilty of the constituents of concern. After 
further discussions with Reynolds and re-analysis of data from the 
existing Reynolds' process,8 EPA too is reconsidering the 
potential causes of the unexpectedly high levels of hazardous 
constituents. As discussed below, however, recent developments have 
satisfied the Agency's immediate concern that safe capacity be 
provided.
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    \8\ See Discussions on TCLP Results and Monofill Leachate 
Quality, Reynolds, May 29, 1997.

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[[Page 37696]]

III. EPA's Decision With Respect to Extending the National Capacity 
Variance

    The situation EPA is evaluating is thus one where a waste is being 
treated to meet the promulgated treatment standard, but actual 
performance of the treatment technology is less than predicted for some 
of the waste's constituents, and current disposal conditions appear to 
EPA to be unprotective of human health and the environment because of 
the existing delisting, which allows unregulated disposal of a waste 
which generates a hazardous leachate. EPA addresses first issues 
related to extent of treatment, and then the resolution of issues 
relating to disposal conditions.

A. The Reynolds Process Provides Substantial Treatment

    RCRA section 3004 (m) requires that treatment ``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.'' EPA believes that treatment is normally 
adequate to meet these requirements where treatment results in 
substantial reduction of toxics and/or substantial reduction of their 
mobility. See 62 FR 1994, January 14, 1997 and sources there cited.
    The Agency's review of the Reynolds' process shows that polycyclic 
aromatic hydrocarbons are destroyed virtually completely 9, 
and cyanide is destroyed to a significant, but lesser 
degree.10 These are the most significant hazardous 
constituents in the waste, based on concentration, potential mobility 
and toxicity. However, the current treatment process does not 
neutralize the alkalinity of the spent potliner or of the resulting 
residual, provides limited treatment of fluoride, and results in an 
increase in the concentration of leachable arsenic in the residual. 
11 Despite these mixed results, EPA still concludes that on 
the whole, the process does provide substantial treatment. The 
Reynolds' process destroys PAH constituents virtually 100% through 
combustion. Further, cyanide is destroyed to a significant extent by 
this same combustion process. Total levels of cyanide appear to be 
reduced by the Reynolds' process by an average of over 90% from the 
untreated levels. High concentrations of cyanide was a major reason 
that K088 was listed as a hazardous waste (53 FR 35412, September 13, 
1988), and destruction of cyanide is therefore a key consideration in 
whether a K088 process is providing substantial treatment. The 
leachability of fluoride, on the other hand, is not being significantly 
altered the Reynolds' process. The addition of lime and sand in the 
Reynolds' process is meant in part to help reduce the leachability of 
the very high amounts of fluoride found in untreated K088. It appears 
the Reynolds' process does provide some reduction (perhaps 25%) in the 
initial leachability of fluoride. However, while treatment of fluoride 
is an important indicator in a K088 treatment process, fluoride is not 
a highly toxic constituent (it is not included in Part 261, Appendix 
VIII). The Agency views the PAH and cyanide reductions as more 
important. Likewise, the Reynolds' process appears to actually increase 
the amounts of leachable arsenic as compared to untreated K088. This is 
not an encouraging result, but the explanation is apparently that given 
the destruction of organic components of the K088, perhaps combined 
with arsenic levels in sand that is used as a fluxing agent in the 
process, some elevation of arsenic continues to occur.
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    \9\ 56 FR 33004-5, July 18, 1991.
    \10\ See Reynolds' Special Laboratory Report (P33F-S0020.A).
    \11\ Data set F; letter from Pat Grover, Reynolds Metals Company 
to James R. Berlow, EPA; June 5, 1997.
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    Commenters have argued, however, that Reynolds' process isn't 
providing substantial treatment because levels of hazardous 
constituents and fluoride in actual leachate exceed the K088 standards 
for wastewaters. 12 EPA notes first that this information 
does not alter the fact that the process significantly reduces total 
concentrations of hazardous constituents. Second, EPA would not 
normally consider data reflecting actual disposal as invalidating a 
treatment process unless the results are directly at odds with the 
basic premise of the land disposal restrictions program: that treatment 
reduces the risks posed by disposing of hazardous wastes without 
treatment. EPA believes that the destruction of organic constituents 
and cyanide reduces threats posed by land disposal of the K088 wastes. 
In this regard, the Agency notes that it found in the January notice 
that the Reynolds' process might actually pose greater risks than 
disposal of untreated wastes in subtitle C facilities (62 FR 1993). 
This finding was based in part on the fact that the delisting allowed 
Reynolds to dispose of the waste in units controlled less stringently 
than under federal standards. (62 FR 1992 and 1995). However, EPA also 
thought that the monofill leachate quality might be worse than that 
generated from subtitle C landfills managing untreated potliners. EPA 
now withdraws that finding. It is the Agency's current assessment that 
Reynolds' treatment (albeit imperfect) does reduce the overall toxicity 
associated with the waste. As a result, the disposal of the treated 
residue in a tightly controlled Subtitle C landfill is preferable to 
the disposal of untreated wastes. We base this finding on the 
determination that the total mass of the available cyanide and PAHs has 
been reduced.13 EPA also concludes that the concentration 
observed in Reynolds' monofill leachate are in part the result of the 
high mass to leachate ratio that results from partial cover of the 
unit, resulting in a lower volume but less dilute leachate than results 
from other subtitle C landfills.14
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    \12\ Commenters also suggested that these data show lack of 
compliance with the actual treatment standard. This is incorrect, 
since the treatment standard is measured not on actual leachate 
analysis, but on either a total waste concentration basis, or based 
on leachate generated using the TCLP. Although it is now apparent 
that the TCLP is not a good model for disposal conditions to which 
K088 would be subject, the treatment standard still requires use of 
the TCLP and any results so obtained that do not exceed the 
treatment standard are in compliance.
    \13\ See Agency's calculation of treatment effectiveness from 
Reynolds' 12/8/96 Special Laboratory Report.
    \14\ See Discussion on TCLP Results and Monofill Leachate 
Quality, Reynolds, May 29, 1997.
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    The only alternative to Reynolds' treatment, at present, is no 
treatment at all.15 The whole premise of the law is not to 
land dispose untreated hazardous wastes, and to require expeditiously 
that existing treatment processes providing substantial treatment be 
utilized. See citations at 61 FR 55724 (Oct. 28, 1996). EPA finds that 
the combustion process followed by limited stabilization appears to be 
adequate for the Agency to conclude that Reynolds provides substantial 
treatment which reduces the threats posed by land disposal of untreated 
spent potliners.16
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    \15\ The Agency anticipates that a number of producers will 
pursue the construction of alternative treatment facilities. In 
fact, the Agency is currently evaluating two proposals for recycling 
facilities that would employ vitrification processes that produce a 
glass product and recover fluoride compounds. One of these recycling 
facilities would use a process similar that currently in use at the 
Ormet Corporation, Hannibal, Ohio. The Agency expects to provide 
guidance on the regulatory status of these proposed recycling 
facilities shortly.
    \16\ Commenters suggested that threats might not be minimized by 
the Reynolds' process, within the meaning of RCRA section 3004 (m). 
EPA disagrees. As explained above, the treatment process provides 
treatment which reflects the best commercially available treatment. 
The D.C. Circuit has sustained the use of technology-based treatment 
standards as a reasonable means of implementing the minimize threat 
requirement. Hazardous Waste Treatment Council v. EPA, 886 F.2d 345 
(D.C. Cir. 1989). In any event, EPA has said many times, and the 
legislative history confirms, that the ``minimize threat'' statutory 
language is susceptible to a number of interpretations, and was not 
intended to mean that treatment must remove every conceivable threat 
posed by disposal of a hazardous waste. See 61 FR at 55724 and 
sources there cited.

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[[Page 37697]]

    Commenters also questioned whether Reynolds is even achieving 
current treatment standards, focusing on cyanide results in particular. 
If the commenters were correct that the only available treatment 
process consistently is unable to meet a treatment standard, then EPA 
would likely find that insufficient treatment capacity exists. However, 
data provided by Reynolds appears to show compliance with the total and 
amenable cyanide LDR standards (see June 17, 1997 fax from Pat Grover 
to John Austin, U.S. EPA). The Agency believes this data does show 
compliance in all but limited instances. The commenter's argument is 
premised on the notion that addition of fluxing and stabilizing agents 
to the treatment process increases waste volume three-fold, so that 
treatment analytical results should be multiplied by three to reflect 
the amount of dilution occurring. This is not correct. Although certain 
types of dilution--generally, dilution that does not reduce the 
toxicity or mobility of hazardous constituents--is an impermissible 
means of achieving a treatment standard, dilution which is a necessary 
part of a treatment process is normally permissible. See 51 FR at 40592 
(Nov. 7, 1986). Thus, addition of treatment reagents which produce 
physical and chemical changes in the waste and which are a normal part 
of the process of treating a waste are typically permissible. Id. This 
is what occurs in the Reynolds' process, where fluxing agents are a 
usual part of the process, and function to aid the passage of the 
residue through the kiln and the fusion of the reagents. Thus, EPA 
believes that the Reynolds' process does consistently achieve the 
current treatment standards.

B. Reynolds Will Provide Safe Disposal Capacity

    The above discussion of the Reynolds' process focused on the 
destruction of organic constituents and cyanide, and the limited 
stabilization of fluoride, leading to the conclusion that from an 
engineering perspective, substantial treatment is occurring which 
reduces the threats posed by land disposal of the hazardous wastes. 
However, as explained above, EPA, in determining when a prohibition on 
land disposal takes effect, must consider whether the treatment and 
disposal capacity being offered ``protects human health and the 
environment.'' RCRA section 3004(h)(2). EPA's assessment has been that 
Reynolds' disposal of the delisted waste in non-subtitle C units failed 
to adequately protect human health and the environment, and that the 
delisting allows unsafe disposal practices to continue. As long as the 
treated residual retains its current delisted status such practices 
could continue.
    However, Reynolds has very recently agreed to give up the delisting 
and to manage the waste--that is, the residue from its treatment 
process--subject to full subtitle C controls, including disposal in a 
landfill satisfying minimum technology design criteria (i.e. double 
liners and leachate collection system). Based on this new development, 
it now appears that the residues will in fact be managed safely 
(indeed, must be managed safely under the federal standards), so that 
protective disposal capacity exists.
    Today's decision is premised on the understanding that EPA will 
issue to Reynolds Metals Company an administrative order specifying 
Subtitle C management for their residues and the monitoring of 
Reynolds' compliance with applicable LDR treatment standards, no later 
than September 5, 1997. This order would serve as an interim bridge 
until the administrative process of withdrawing the delisting (which 
entails amending a final rule) is completed. The order will require 
Reynolds to conduct daily sampling of key constituents for at least the 
first 30 days of the order to document further that LDR treatment 
standards are being met. Reynolds will operate under a Federal 
administrative order until EPA action formally amends the Code of 
Federal Regulations to repeal the subject delisting, and then they will 
operate as an interim status facility pending application for and 
receipt of a permit. If for some reason an administrative order is not 
in place by September 5, 1997, EPA could extend the deadline up to 
April 8, 1998.
    EPA also notes that the finding that the Reynolds process provides 
substantial treatment of the spent potliner, sufficient to justify the 
technology's use to satisfy the requirements of the Land Disposal 
Restrictions program, is not at odds with the finding that the 
treatment residue is still a hazardous waste. There is no inherent 
conflict between a finding that a waste has been treated substantially 
enough to satisfy LDR requirements and that the treatment residue 
nevertheless remains a hazardous waste. This in fact is the normal case 
(few residues from treating listed wastes have been delisted even after 
being treated to satisfy LDR requirements), and is directly 
contemplated in RCRA section 3004(m)(2), which states that after 
treatment which minimizes threats the treated waste may be disposed in 
a subtitle C facility (i.e. the treatment residue remains a hazardous 
waste). In this particular case, EPA has found that most cyanides in 
the initial potliner are destroyed by Reynolds' thermal treatment 
process, and that polycyclic aromatic hydrocarbons are essentially 
fully destroyed. Other constituents' mobility is reduced. Thus, 
substantial treatment has reduced (but not eliminated) the hazardous 
properties of the waste, so that the resulting treatment residue 
remains hazardous.

C. Agency's Conclusion Is That Protective Capacity is Presently 
Available

    Based on all of the above discussion, the Agency's conclusion is 
that there is adequate treatment capacity for spent potliners at this 
time, because the Reynolds process meets LDR treatment standards and 
because ultimate disposal of the treatment residues is protective of 
human health and the environment. (RCRA section 3004(h)(2)). The 
Reynolds' process provides virtually all available treatment capacity 
(See 62 FR 1995). However, given that generators need some time to make 
arrangements with Reynolds, which in some cases involves cross-country 
shipment, the Agency is extending the national capacity variance by 
three months until October 8, 1997. EPA is selecting that length of 
extension because it is the Agency's judgment (based on current facts, 
and the pattern of previous discussions on the issue) that this is a 
sufficient amount of time to make necessary logistical arrangements.

IV. 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 F R 22659-22660, June 1, 1990).

[[Page 37698]]

    Accordingly, 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). While Reynolds' treatment 
residue is not subject to these requirements at this time because it 
has been delisted, a process will soon be initated to reclassify it as 
a hazardous waste. Should the national capacity extension still be in 
effect when Reynolds treatment residue is reclassified as hazardous, 
such residues would also be required to be disposed in landfill units 
satisfying minimum technology requirements (assuming that landfill 
disposal is utilized) during the extension period.

V. Use Constituting Disposal Issues

    Although not directly related to the LDR capacity determination 
being promulgated today, EPA is also taking this opportunity to address 
concerns that have been raised regarding the use of Reynold's residue 
in a manner constituting disposal.
    In a separate action, EPA is intending to propose to withdraw the 
existing delisting for the residues from Reynold's treatment process. 
EPA remains concerned, however, that even if the residues are a listed 
hazardous waste, Reynolds may be able under current regulations to use 
those residues in uses constituting disposal if they can demonstrate 
that such uses are ``legitimate'' product uses under 40 CFR 266.20(b) .
    EPA is concerned about possible environmental impacts such uses 
might have because of the concerns EPA has about the leachate generated 
from the treated potliner and data from road test beds Reynolds 
constructed using the residues. (See 62 FR 1993; January 14, 1997.)
    EPA understands that Reynolds has since ceased such uses under the 
terms of a compliance order from the State of Arkansas.
    EPA remains concerned about this possibility and intends to monitor 
the situation. If the Agency determines at some point in the future 
that such uses are taking place or are being pursued, and if we 
determine such uses may pose health or environmental concerns, EPA may 
consider amendments to Section 266.20(b) to further restrict such uses. 
See, e.g., 62 FR 26061; May 12, 1997. At that time, EPA may decide on 
whether to prohibit uses of the Reynolds residue.

VI. 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 considers 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 three 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 treatment capacity for 
spent aluminum potliners.

B. Paperwork Reduction Act

    This rule does not contain any new information collection 
requirements under the provisions of the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq. Since there are no new information collection 
requirements being promulgated today, an Information Collection Request 
has not been prepared.

C. Unfunded Mandates Reform Act and Regulatory Flexibility Act

    In addition, this action does not impose annual costs of $100 
million or more, will not significantly or uniquely affect small 
governments, and is not a significant federal intergovernmental 
mandate. The Agency thus has no obligations under sections 202, 203, 
204 and 205 of the Unfunded Mandates Reform Act. Moreover, since this 
action is not subject to notice-and-comment requirements under the 
Administrative Procedure Act or any other statute, it is not subject to 
sections 603 or 604 of the Regulatory Flexibility Act.

D. 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).

VII. 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. 553 (b) (B). The current capacity extension ends on 
July 8, and EPA does not believe it is physically possible for 
generators to begin shipping wastes to Reynolds on that date (nor is 
the Agency willing to speculate as to existence or non-existence of 
generator storage capacity). The reason the Agency is issuing this 
notice so close to the deadline is because the whole situation 
involving this capacity extension is complicated (involving decisions 
relating to both treatment performance and reclassification of the 
existing delisting), and, accordingly, the Agency continued considering 
new information until just before it was issued. During this time, the 
Agency carried on technical and other discussions with all interested 
persons. EPA believes that this process was reasonable, and that 
putting out a separate proposal during this period when the Agency's 
analysis of the existing information was changing based on changing 
facts would not have significantly benefitted either the Agency or 
interested persons, and could have interfered with the on-going 
dialogue by diverting resources from them. EPA has endeavored to obtain 
as much public comment on the issues as possible and to avoid issuing a 
decision until carrying on as extensive a dialogue as possible with 
concerned parties. Thus, 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 (which have been 
forthcoming in abundance). The

[[Page 37699]]

Agency has also had contacts (albeit more limited) with representatives 
of the hazardous waste treatment industry and the environmental 
community. This process extended until June 30. Actual 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. 553 (b).
    In addition, EPA believes that the January 14 notice served as a 
type of proposal that EPA would consider and grant a further extension 
if there were not significant changes in the disposal and treatment 
occurring at Reynolds' Arkansas facility, and at least some of the 
comments the Agency has received since January reflect that view.
    For all of these reasons, EPA finds that this rule extending the 
current national capacity extension until October 8, 1997 may be made 
effective immediately.

List of Subjects in 40 CFR Part 268

    Environmental protection, Hazardous waste, Reporting and 
recordkeeping requirements.

    Dated: July 7, 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 October 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 this waste are prohibited 
from land disposal.
* * * * *
[FR Doc. 97-18410 Filed 7-11-97; 8:45 am]
BILLING CODE 6560-50-P