[Federal Register Volume 63, Number 185 (Thursday, September 24, 1998)]
[Rules and Regulations]
[Pages 51254-51267]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-25643]



[[Page 51253]]

_______________________________________________________________________

Part VII





Environmental Protection Agency





_______________________________________________________________________



40 CFR Parts 268 and 271



Land Disposal Restrictions; Treatment Standards for Spent Potliners 
From Primary Aluminum Reduction (K088); Final Rule

  Federal Register / Vol. 63, No. 185 / Thursday, September 24, 1998 / 
Rules and Regulations  

[[Page 51254]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 268 and 271

[FRL-6168-7]
RIN 2050-ZA01


Land Disposal Restrictions; Treatment Standards for Spent 
Potliners From Primary Aluminum Reduction (K088)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is promulgating treatment standards for spent potliners 
from primary aluminum reduction (EPA hazardous waste: K088) under its 
Land Disposal Restrictions (LDR) program. The purpose of the LDR 
program, authorized by the Resource Conservation and Recovery Act 
(RCRA), is to minimize threats to human health and the environment due 
to land disposal of hazardous wastes. As a result of today's rule, 
spent potliners will be prohibited from land disposal unless the wastes 
have been treated in compliance with the numerical standards contained 
in this rule. These treatment standards are necessary to minimize 
threats to human health and the environment from exposure to hazardous 
constituents which may potentially leach from landfills to groundwater.

EFFECTIVE DATE: September 21, 1998.

ADDRESSES: Supporting materials are available for viewing in the RCRA 
Information Center (RIC), located at Crystal Gateway I, First Floor, 
1235 Jefferson Davis Highway, Arlington, VA. The RIC is open from 9 
a.m. to 4 p.m., Monday through Friday, excluding federal holidays. The 
Docket Identification number is F-98-K88F-FFFFF. To review docket 
materials, it is recommended that the public make an appointment by 
calling (703) 603-9230. The public may copy a maximum of 100 pages from 
any regulatory docket at no charge. Additional copies cost $0.15/page. 
The index and some supporting materials are available electronically. 
See the ``Supplementary Information'' section for information on 
accessing them.

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 
Elaine Eby, John Austin, or Katrin Kral, Office of Solid Waste (5302W), 
U.S. Environmental Protection Agency, 401 M Street, SW, Washington, DC 
20460. Elaine Eby may be reached at 703-308-8449, 
[email protected]; John Austin may be reached at 703-308-0436, 
[email protected]; and Katrin Kral may be reached at 703-308-
6120, [email protected]. For information on the capacity 
analysis, contact C. Pan Lee (5302W) at 703-308-8478, 
[email protected]. For questions on the regulatory impact 
analysis, contact Paul Borst (5307W) at 703-308-0481, 
[email protected].

SUPPLEMENTARY INFORMATION:

Availability of Rule on Internet

    Please follow these instructions to access the rule: From the World 
Wide Web (WWW), type http://www.epa.gov/rules and regulations.

Affected Entities

    Entities potentially affected by this action are generators of 
spent aluminum potliner from primary aluminum reduction, or entities 
that treat, store, transport, or dispose of these wastes.

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              Category                        Affected entities
------------------------------------------------------------------------
Industry...........................  Generators of the following listed
                                      wastes, or entities that treat,
                                      store, transport, or dispose of
                                      these wastes.
                                     K088--Spent potliners from primary
                                      aluminum reduction.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be affected by this 
action. This table lists those entities of which EPA now is aware that 
potentially could be affected by this action. Other entities not listed 
in the table also could be affected. To determine whether your facility 
is regulated by this action, you should examine 40 CFR parts 260 and 
261 carefully in concert with the amended rules found at the end of 
this Federal Register document. If you have questions regarding the 
applicability of this action to a particular entity, consult the person 
listed in the preceding FOR FURTHER INFORMATION CONTACT section.

Table of Contents

I. Background
    A. Process Description
    B. Regulation
    C. Litigation
II. Prohibition on Land Disposal of Untreated K088
III. Interim Final Treatment Standards
    A. Introduction
    B. Detailed Discussion of the New Treatment Standards
    1. Cyanide, Polyaromatic Hydrocarbons, and Certain Metals
    2. Total Arsenic Standard
    3. Fluoride
IV. Capacity Determination
    A. Introduction
    B. Capacity Analysis Results Summary
V. Compliance and Implementation
    A. Applicability of Rule in Authorized States
    B. Effect on State Authorization
VI. Regulatory Requirements
    A. Regulatory Impact Analysis Pursuant to Executive Order 12866
    1. Methodology Section
    2. Results
    B. Regulatory Flexibility
    C. Unfunded Mandates Reform Act
    D. Executive Order 12875: Enhancing the Intergovernmental 
Partnership
    E. Executive Order 13045 : Protection of Children from 
Environmental Health Risks and Safety Risks
    F. Environmental Justice E.O. 12898
    G. Paperwork Reduction Act
    H. National Technology Transfer and Advancement Act
    I. Executive Order 13084: Consultation and Coordination with 
Indian Tribal Governments
    J. Congressional Review Act
VII. Good Cause for Immediate Final Rule

I. Background

A. Process Description

    K088 (spent potliners from primary aluminum reduction) (40 CFR 
261.32) is generated by the aluminum manufacturing industry. Aluminum 
production occurs in four distinct steps: (1) mining of bauxite ores; 
(2) refining of bauxite to produce alumina; (3) reduction of alumina to 
aluminum metal; and (4) casting of the molten aluminum. Bauxite is 
refined by dissolving alumina (aluminum oxide) in a molten cryolite 
bath. Next, alumina is reduced to aluminum metal. This reduction 
process requires high purity aluminum oxide, carbon, electrical power, 
and an electrolytic cell. An electric current reduces the alumina to 
aluminum metal in electrolytic cells, called pots. These pots consist 
of a steel shell lined with brick with an inner lining of carbon. 
During the pot's service the liner is degraded and broken down. Upon 
failure of a liner in a pot, the cell is emptied, cooled, and the 
lining is removed. In 1980, EPA originally listed spent potliners as a 
RCRA hazardous waste and assigned the hazardous waste code K088. See 45 
FR 47832.

B. Regulation

    The Phase III--Land Disposal Restrictions Rule (61 FR 15566, April 
8, 1996) prohibited the land disposal of spent potliner unless the 
waste satisfied the section 3004(m) treatment standard established in 
the same rulemaking. The

[[Page 51255]]

Phase III rule established treatment standards, expressed as numerical 
concentration limits, for various constituents in the waste (25 in all, 
with standards for both wastewaters and non-wastewaters). These 
constituents included arsenic, cyanide, fluoride, toxic metals, and a 
group of organic compounds called polycyclic aromatic hydrocarbons 
(PAHs).
    With the exception of fluoride, the treatment standard limits 
established for K088 were equivalent to the universal treatment 
standards. See 61 FR 15585; see also 40 CFR 268.48 (``Universal 
Treatment Standards'' Table). The fluoride standard, however, was based 
generally on data submitted in a delisting petition from the Reynolds 
Metals Company. In the Phase III rule, the Agency granted a nine-month 
national capacity variance pursuant to section 3004(h)(2) ``to allow 
facilities generating K088 adequate time to work out logistics.'' See 
61 FR 15589. Unexpected performance problems in the Reynolds treatment 
process resulted in the generation of leachate exhibiting 
characteristics of hazardous waste. In addition, the company was 
disposing of the treatment residues in non-subtitle C units. EPA 
therefore felt that further time was needed to evaluate whether 
adequate protective treatment capacity was available (within the 
meaning of RCRA section 3004(h)(2)), and, as part of this 
determination, whether Reynolds' practices in fact satisfied the 
mandate of section 3004(m) that threats posed by land disposal of the 
hazardous waste be minimized through treatment. Until these questions 
were answered, and a finding of sufficient protective treatment 
capacity made, there was insufficient treatment capacity for the waste 
because Reynolds, at the time, was the only existing commercial 
treatment facility for spent potliners. Consequently, on January 14, 
1997, the Agency extended the national capacity variance, and postponed 
implementing the land disposal prohibition for an additional six months 
to be able to study the efficacy of the Reynolds treatment process and 
the resulting leachate. See generally 62 FR 1992.
    In July 1997, EPA announced that, ``Reynolds'' treatment (albeit 
imperfect) does reduce the overall toxicity associated with the 
waste,'' and that disposal of treatment residues would occur only in 
units meeting subtitle C standards and consequently was an improvement 
over the disposal of untreated spent potliner and provided adequate 
protective treatment capacity. See 62 FR 37696 (July 14, 1997). On 
October 8, 1997, the national capacity extension ended and the 
prohibition on land disposal of untreated spent potliner took effect.

C. Litigation

    Petitions for judicial review of the Phase III rule, and the 
January 1997, and July 1997 rules were filed by Columbia Falls Aluminum 
Company, and other aluminum producers from the Pacific Northwest. The 
petitioners argued (among other things) that the use of the Toxicity 
Characteristic Leaching Procedure (TCLP) did not accurately predict the 
leaching of waste constituents, particularly arsenic and fluoride, to 
the environment and that it was therefore arbitrary to measure 
compliance with the treatment standard using this test. The United 
States Court of Appeals for the District of Columbia Circuit decided on 
April 3, 1998, that EPA's use of the TCLP as a basis for setting 
treatment standards for K088 was arbitrary and capricious for those 
constituents for which the TCLP demonstratively and significantly 
underpredicted the amount of the constituent which would leach. 139 
F.3d 914; see also 63 FR 28571 (May 26, 1998) (EPA's interpretation 
Court's opinion). Notwithstanding that this finding affected only two 
of the hazardous constituents for which EPA established treatment 
standards, namely arsenic and fluoride nonwastewaters (so that only 2 
of 54 treatment standards were implicated), and the Court's express 
statement that ``[o]ur decision today does not affect the viability of 
the concentration limits established for other constituents,'' 139 F. 
3d at 923, the Court vacated all of the treatment standards and the 
prohibition on land disposal. Id. at 923-24. In its decision, the Court 
expressly invited EPA to file a motion to delay issuance of the mandate 
in this case for a reasonable time in order to develop a replacement 
standard. Id. On May 18, 1998, EPA filed a motion with the Court to 
stay its mandate for four months while the Agency promulgated a 
replacement prohibition and accompanying treatment standards. The 
motion explained at length the type of standard EPA expected to adopt 
and in fact is adopting in this document. The Court granted this motion 
over the objections of Petitioners, indicating that its mandate would 
not issue before September 24, 1998. Today's action promulgates interim 
replacement standards for K088 which will be in place until EPA has 
fully reviewed all information on all treatment processes which may 
serve as a basis for a more permanent revised standard.

II. Prohibition on Land Disposal of Untreated K088

    As just noted, this rule promulgates a land disposal prohibition 
for K088 waste and establishes interim treatment standards. EPA is 
issuing this replacement prohibition to assure that the fundamental 
premise of the statute--a prohibition on land disposal of hazardous 
waste not satisfying treatment standards which result in substantial 
destruction or immobilization of the waste--is not weakened. See 
Chemical Waste Management v. EPA, 976 F. 2d 2, 22, 25 (D.C. Cir. 1992) 
(prohibition and treatment standards are the heart of the RCRA 
hazardous waste management scheme). Congress enacted the prohibition 
regime due to ``the long-term uncertainties associated with land 
disposal, the goal of managing hazardous waste in an appropriate manner 
in the first instance, and the persistence, toxicity, mobility, and 
propensity to bioaccumulate such hazardous wastes and their hazardous 
constituents.'' RCRA section 3004(d)(1)(A)-(C). The legislative history 
states that the statute ``makes Congressional intent clear that land 
disposal without prior treatment of these wastes with significant 
concentrations of highly persistent, highly toxic, highly mobile and 
highly bioaccumulative constituents is not protective of human health 
and the environment.'' 130 Cong. Rec. S9178 (daily ed. July 25, 1984) 
(floor statement of Sen. Chafee introducing amendment which became 
section 3004 (m)).
    Spent potliners are exactly this type of waste: highly toxic, 
containing persistent and bioaccumulative hazardous constituents, and 
associated with numerous damage incidents arising from improper land 
disposal. Among the highly toxic, mobile, and bioaccumulative hazardous 
constituents found in the waste are cyanide, polyaromatic hydrocarbons, 
and toxic metals. The Agency believes that the land disposal of 
untreated spent potliners (K088) is a highly undesirable management 
scenario, that would result in large volumes of hazardous constituents 
being land disposed, constituents which would otherwise be destroyed or 
immobilized by treatment.
    These untreated hazardous constituents can pose significant threats 
to human health and the environment. For example, treatment of K088 
waste to the interim standards promulgated today will ensure that 
cyanide--the most dangerous constituent in spent potliners based on its 
concentration, toxicity, and the extent of

[[Page 51256]]

contamination caused by past land disposal of untreated spent 
potliners--will be largely destroyed. See 62 FR 37696 (July 14, 1997) 
(spent potliners listed as hazardous due to the presence of cyanide). 
See also Docket items PH3F-S0015 and S0016 (summary of damage incidents 
involving improper disposal of spent potliners, showing extensive 
cyanide contamination of groundwater and soil); see also Section VIII 
A. below, revising EPA's previous erroneous analysis that cyanide 
leaching from spent potliners would not pose a threat to groundwater. 
EPA, in fact, estimates that compliance with the land disposal 
prohibition and interim treatment standard for cyanide will result in 
the annual reduction of approximately 300 tons of cyanide being land 
disposed. Docket item P33F-S0012. Cyanide also will leach from 
untreated spent potliners in concentrations hundreds of times higher 
than the highest level observed in leachate from potliners treated to 
meet existing standards. Docket Item PH3F-S0049A at data set J and 62 
FR 37695 (July 14, 1997). EPA thus views the prohibition and treatment 
standards as reducing by orders of magnitude the amount of cyanide 
actually leached from these wastes.
    In addition, treatment to meet the treatment standards will destroy 
all the polyaromatic hydrocarbons in spent potliners. These are highly 
carcinogenic compounds which have caused environmental contamination at 
the spent potliner damage sites. Docket PH3F-S0015 and S0016. Finally, 
virtually all of the toxic metals--some of which likewise caused 
environmental contamination at the damage sites, id.--will be 
immobilized.
    Petitioners nevertheless argue in public comments that EPA should 
not retain a land disposal prohibition at this time, but rather allow 
spent potliners to be disposed untreated until the Agency completes its 
evaluation of different treatment technologies and (potentially) amends 
treatment standards based upon the performance of these technologies. 
This result is antithetical to the statutory scheme. Congress has found 
that land disposal is inherently unsafe because landfills are not 
capable of assuring long-term containment of certain hazardous wastes, 
and that land disposal of hazardous waste should be minimized in favor 
of properly conducted treatment. RCRA sections 1002(b)(7) and 
1003(a)(6). Congress therefore intended to end land disposal of 
hazardous waste without prior treatment: ``The intent here is to 
require utilization of available technology in lieu of continued land 
disposal without prior treatment.'' 130 Cong. Rec. S9178 (July 25, 
1984) (statement of Sen. Chafee). Petitioners' argument to do no 
treatment at all because two treatment standards out of 54 are not 
optimized (and one of which is now being appropriately revised) would 
frustrate this explicit Congressional intent and EPA's overall 
commitment to protection of human health and the environment. EPA is 
simply not willing to permit the continued land disposal of 300 tons of 
untreated cyanide annually in the face of a statutory scheme calling 
for untreated land disposal to cease and calling for destruction of 
cyanide before land disposal. 130 Cong. Rec. S 9179. This is 
particularly the case when destruction of cyanide (and destruction of 
PAHs and immobilization of hazardous constituent metals) and consequent 
minimization of threats will be assured through treatment. Finally, the 
Congressionally mandated date for prohibiting spent potliners from land 
disposal--March, 1989 (per RCRA section 3004(g)(4))--has long since 
passed. Consequently, EPA is acting today to assure that spent 
potliners remain prohibited from land disposal.

III. Interim Treatment Standards

A. Introduction

    EPA has both a short-term and long-term objective for treatment 
standards for K088 waste. The Agency's long-term goal, expected to be 
completed within two years, is to promulgate another set of treatment 
standards for spent potliners (K088) based on the performance of a 
treatment technology which results in the immobilization of arsenic and 
fluoride, as well as the other toxic metals in the waste (these metals 
will be immobilized by meeting the treatment standards established in 
today's rule). The Agency is aware of numerous technologies that may be 
used to treat K088 waste, a number of which may be finally coming on 
line as commercially available.\1\ However, at the present time, there 
are insufficient data or information on these technologies to provide 
the basis for a rapidly implementable final treatment standard. More 
information is needed to characterize the performance of these 
technologies, as well as to assess their safety and (in some cases) the 
safety of hazardous waste-derived products which may be generated as 
part of these treatment processes. Cf. Chemical Waste Management, 976 
F. 2d at 17 (treatment technologies whose air emissions are not 
adequately controlled are not treating in conformance with requirements 
of section 3004(m)). The Agency is in the process of gathering and 
identifying potential technologies that may be evaluated as the basis 
for a permanently revised treatment standard. EPA is studying 
technologies such as vitrification, gasification, the ``Cashman 
Process,'' and the ``Alcoa-Selca'' process. The Agency plans to propose 
a standard for K088 within the next twelve months.
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    \1\ The Agency notes that although there has been much said 
about potential marketing of potliner treatment technologies, see 60 
FR 11724-11725 (March 2, 1995) (detailing technologies potentially 
able to treat spent potliners), these technologies were not offered 
commercially until EPA's promulgation of an actual land disposal 
prohibition. (The notable exception is the Reynolds Metals process, 
which the company brought to market a bit before spent potliners 
were prohibited from land disposal in 1996. Id. at 11723.) Without a 
prohibition further development of commercial treatment thus could 
easily end. This is another reason EPA believes it imperative to 
retain the prohibition on land disposal of K088 wastes.
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B. Detailed Discussion of the New Treatment Standards

1. Cyanide, Polyaromatic Hydrocarbons, and Certain Metals
    The D.C. Circuit found the existing treatment standards arbitrary 
and capricious because the TCLP was significantly overpredicting the 
extent to which certain hazardous constituents would be immobilized by 
treatment. The problem arose because certain constituents in the waste 
are more soluble in alkaline rather than weakly acidic conditions. 
Since the TCLP uses a weakly acidic extractant for these constituents, 
the TCLP was not modeling a reasonable worst case disposal situation at 
all, but instead was failing to predict what occurs when treated 
potliners are disposed in industrial landfills. See generally 139 F. 3d 
at 922.
    However, only two of the 54 treatment standards suffer from this 
deficiency. The treatment standards for cyanide and PAHs do not use the 
TCLP at all, but rather are implemented on a total constituent 
concentration basis. (As noted earlier, the Court expressly held that 
these standards are reasonable. (139 F. 3d at 923.) ) Likewise, none of 
the standards for wastewaters use the TCLP. In addition, none of the 
standards for metals, except for arsenic and fluoride, suffer from any 
deficiency even though the TCLP is used to measure compliance. These 
other metals are not highly alkaline soluble, so that the TCLP will not 
underpredict environmental performance as occurred with arsenic and 
fluoride. In fact, leachate sampling data from the Reynolds facility 
shows reasonable correlation with levels predicted by the TCLP, and 
further indicates that the TCLP is not

[[Page 51257]]

underpredicting leachate levels of these metals. Docket Item P33F-
S0002.B.\2\
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    \2\ Commenters argued that the TCLP could not be used to measure 
compliance with these standards under the reasoning of Columbia 
Falls, and that there is no information showing that the acidic 
leaching media used in the TCLP would be a reasonable predictor for 
leaching of these metals under alkaline disposal conditions. Comment 
p. 11. As mentioned in the text, these assertions are not correct. 
The TCLP is not underpredictive of actual leaching for these wastes 
because the other metals are not more mobile under alkaline 
conditions. This is borne out by the actual leachate data (cited 
above) showing reasonable correlation between predicted and actual 
leachate levels and, most importantly, confirming that all of the 
other toxic metals are substantially immobilized as required by 
section 3004(m).
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    The Agency is thus today repromulgating those portions of the K088 
treatment standard that do not suffer from the deficiencies noted in 
the Court's opinion. These are the standards for the following 
constituents in both wastewaters and nonwastewaters: acenapthene, 
anthracene, benz(a)anthracene, benzo(a)pyrene, benzo(b)fluoranthene, 
benzo(k)fluoranthene, benzo(g,h,i)perylene, chrysene, 
dibenzo(a,h)anthacene, fluoranthene, indeno(1,2,3-cd)pyrene, 
phenanthrene, pyrene, antimony, barium, beryllium, cadmium, chromium, 
lead, mercury, nickel, selenium, silver, and cyanide. The nonwastewater 
treatment standards for cyanide and the organic constituents, and all 
of the standards for wastewaters, are based on a total composition 
concentration analysis. The nonwastewater treatment standards for the 
metal constituents are based on analysis using the TCLP. As noted 
above, these standards are essential in ensuring that the toxicity of 
K088 is ``substantially diminished'' and threats to human health and 
the environment are thereby minimized (RCRA section 3004(m)(2)) through 
the destruction of cyanides and organics and the immobilization of 
toxic metals prior to land disposal.
2. Total Arsenic Standard
    The Agency is promulgating a revised treatment standard for arsenic 
in nonwastewater forms of K088, based on a total recoverable arsenic 
concentration from strong acid digestion, as defined by EPA SW-846 
Method 3050, 3051, or the equivalent, hereafter referred to as ``total 
arsenic.'' This change to the K088 treatment standard addresses the 
D.C. Circuit's holding that EPA arbitrarily relied on an inaccurately 
predictive model (the TCLP) in promulgating the K088 treatment 
standard. The Agency recognizes that for K088 nonwastewaters, arsenic 
treatment, (i.e., immobilization) may not be accurately predicted 
through the use of the TCLP because the TCLP uses a weakly acidic 
extractant, whereas actual disposal conditions are often highly 
alkaline (due to the potliner's alkalinity), and arsenic is more 
soluble under highly alkaline than weakly acidic conditions. See 62 FR 
1993 (January 14, 1997). Specifically, the TCLP uses a weakly acidic 
leachate (pH 5.0) which, together with the alkaline treatment residual 
(K088), results in a leachate pH of approximately 7.6 and not the 
observed landfill pH of approximately 12.5, at which arsenic is highly 
mobile. However, because there is no other predictive leaching test 
available at this time, the Agency has developed an alternative 
treatment standard for arsenic in K088 nonwastewaters based on the 
total arsenic present in the treatment residue. As explained below, 
this total arsenic treatment standard for K088 will be consistent with 
the current improved performance of the Reynolds process, which has 
been reconfigured to reduce use of arsenic-containing additives during 
treatment. The standard also should ensure that the treatment process 
successfully incorporates the arsenic into the matrix of the treated 
residual and so minimizes environmental release. This is because 
arsenic is soluble under strongly acidic conditions, so that the total 
arsenic analytic method (strong acid digestion) measures all arsenic 
not incorporated into an impervious silica matrix.
    On August 4, 1998 (63 FR 41536), the Agency issued a Notice of Data 
Availability (NODA) identifying four data sets as possible data sets 
from which a total arsenic standard could be developed. Two of the data 
sets represented full-scale data from the treatment of K088 at the 
Reynolds Metals Company treatment facility 3, and two data 
sets represented pilot-scale data from vitrification 4 
treatment studies. We discuss below the Agency's choice of data set for 
establishing a revised treatment standard.
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    \3\ The Reynolds treatment process entails the crushing and 
sizing of spent potliner materials (K088), the addition of roughly 
equal portions of limestone and ``sand'' as flux, and the feeding of 
the combined mixture to a rotary kiln for thermal destruction of 
cyanide and PAHs, while reducing the mobility of the fluoride and 
arsenic in the resulting slag. 62 FR 37694, July 14, 1997.
    \4\ Vitrification is a treatment process which involves 
dissolving the waste at high temperatures into glass or a glass-like 
matrix. High temperature vitrification is applicable to 
nonwastewaters containing arsenic or other characteristic toxic 
metal constituents that are relatively nonvolatile at the 
temperatures at which the process is operated. Volatile arsenic 
compound are usually converted to nonvolatile arsenate salts such as 
calcium arsenate prior to the use of this process. See USEPA 
``Treatment Technology Background Document'', Office of Solid Waste, 
January 1991. (Document is available in the docket for today's rule. 
F-98-K88F-FFFFF)
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    The first data set, generated in late 1997 by the Reynolds Metals 
Company, consists of 30 measurements for total arsenic in treated K088 
waste. Total arsenic concentrations ranged from 8.77 to 27.6 mg/kg. 
Quality assurance/quality control (QA/QC) documentation was provided 
with the data. The second data set has also been generated by Reynolds 
and identified as a one-page ``Special Laboratory Report'' (December 6, 
1996) showing total arsenic concentrations (mg/kg) for K088 potliner in 
both the untreated and treated forms. This data set consists of six 
treated and untreated data pairs. No quality assurance/quality control 
documentation was provided with these data.
    The third data set was submitted to the EPA in 1994 from the Ormet 
Primary Aluminum Corporation facility in Hannibal, Ohio (see 63 FR 
41536, August 4, 1998). These data consisted of arsenic samples, 
analyzed on a total arsenic basis, taken from a pilot-scale 
vitrification unit treating K088 waste. This data set consists of five 
treated and untreated data pairs. Partial quality assurance/quality 
control documentation was provided with this data set.
    The fourth data set, generated in 1997, consists of pilot-scale 
data from two vitrification studies on K088 waste from two different 
generators. The first study consisted of only one datum point on total 
arsenic measuring ``not detected'' (less than 3 mg/kg total arsenic). 
Total arsenic concentrations (mg/kg) for this second study consisted of 
seven data points. No quality assurance/quality control nor any waste 
characterization documentation were provided.
    When evaluating any performance data set with regard to its 
treatment effectiveness on a particular hazardous constituent, the 
Agency's Land Disposal Restrictions Program (LDR) has specific 
requirements for any data set evaluated for possible Best Demonstrated 
Available Technology (BDAT) analysis. A full range of information is 
necessary to determine whether a treatment and its corresponding 
performance data warrants further evaluation for possible development 
of the treatment standard. For example, waste characterization; 
treatment design and operating conditions; and QA/QC documentation are 
all necessary components of a ``BDAT quality'' data set. See USEPA 
``Final Best Demonstrated Available Technology (BDAT) Background 
Document for Quality Assurance/Quality Control Procedures and 
Methodology,'' Office of Solid Waste, October 23, 1991.

[[Page 51258]]

    The Agency has completed a thorough evaluation of the four data 
sets with regard to BDAT protocols. As discussed above, each data set 
has certain limitations. Faced with imperfect data, EPA has used the 
best data available to set this interim standard. EPA has determined 
that the data set consisting of 30 data points submitted by the 
Reynolds Metals Company is the most appropriate for development of a 
total arsenic standard for K088 nonwastewaters. This decision was made 
for a number of reasons. First, when developing any treatment standard, 
the Agency attempts to collect as much data as possible to reflect the 
diversity of the waste stream. With respect to the Reynolds 30-day 
data, the data satisfy this objective by having the most diverse range 
of total arsenic concentrations (8.77 to 27.6 mg/kg) in treated spent 
potliners. In fact, the data represented treatment of spent potliners 
from 15 of the 23 aluminum producers in the United States. 5 
Conversely, the vitrification data sets (covering spent aluminum 
potliners from three different aluminum facilities) show no such 
diversity and are limited to five, one, and seven data points 
respectively. While the Agency does not have untreated data on total 
arsenic concentrations for the Reynolds 30-day data set, the data are 
consistent with the other data sets and previously reported maximum 
arsenic concentrations for untreated and treated spent potliner (56 FR 
33004, July 18, 1991).
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    \5\ Comment K88A-00002.
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    Second, the Reynolds 30-day data are the most current of the four 
data sets and contain all the necessary quality assurance quality 
control documentation, unlike the three other data sets. Third, the 
Reynolds 30-day data set is based on full-scale data while the 
vitrification data set is based on pilot-scale treatability studies. 
EPA as part of its LDR program prefers to use full-scale data when 
developing treatment standards. See ``Final Best Demonstrated Available 
Technology (BDAT) Background Document for Quality Assurance/Quality 
Control Procedures and Methodology,'' Office of Solid Waste, October 
23, 1991.
    Furthermore, the data should be from an optimized and well run 
process. Reynolds has endeavored to isolate and remove additional 
sources of arsenic in their process (by changing treatment reagents) 
and to lower the pH of the residue, which may further reduce arsenic 
leachability. Reynolds' original process appeared actually to increase 
the amount of leachable arsenic in the treated waste, possibly due to 
the destruction of organic components in the K088 combined with the 
arsenic levels in the sand that is used as a fluxing agent in the 
process. 62 FR 37694. Reynolds has recently changed the type of sand 
used as a fluxing agent (from so-called Brown Sand to Red Clay Sand), 
and the 30-day data was produced using Reynold's revised process 
utilizing Red Clay Sand as a treatment additive. Two separate landfill 
leachate analytical results from Reynolds, dated May 26, 1998 and June 
25, 1998, indicate that leachate levels for arsenic in Cell 2 (the cell 
which is currently accepting treated K088 waste and using Red Clay Sand 
as a treatment additive) are significantly lower than arsenic levels 
from the leachate in Cell 1 (no longer receiving treated K088 waste and 
containing instead the waste generated using the Brown Sand fluxing 
agent): 15.7 mg/L and 21.6 mg/L (Cell 1) versus 3.82 mg/L and 1.23 mg/L 
(Cell 2), respectively.6 This suggests that Reynolds is 
minimizing the amount of arsenic imported to their treatment process, 
and further minimizing the amount which is released to the environment 
in accord with section 3004(m). Accordingly, the Agency has calculated 
and is promulgating an interim final treatment standard of 26.1 mg/kg 
total arsenic for nonwastewater forms of K088 based on the Reynolds 30-
day data set. The total arsenic standard adopted today ``by using data 
reflecting this improved performance should ensure the observed 
reduction in mobile arsenic. EPA thus finds that this new standard does 
result in significant reduction in arsenic mobility and consequent 
minimization of threats posed by disposal of spent potliners. See RCRA 
section 3004(m)(1).
---------------------------------------------------------------------------

    \6\ These leachate levels are in fact significantly lower than 
the initial treatment standard (5.0 mg/L measured by the TCLP) for 
arsenic.
---------------------------------------------------------------------------

3. Fluoride
    The solubility of fluoride ions is largely governed by the metal 
ions present and pH. The conditions of the TCLP fail to predict the 
mobility of fluoride under actual disposal conditions, since fluoride 
is more soluble under highly alkaline conditions (like the conditions 
of a dedicated monofill, such as utilized by Reynolds), and not the 
neutral to weakly basic conditions that result during the TCLP test 
conducted on the highly alkaline K088 potliner. 62 FR 1993. 
Consequently, the Court held that the TCLP was not a proper predictive 
model for fluoride mobility from these wastes.
    EPA has decided not to develop an interim standard for fluoride. It 
would take significant technical effort to develop a replacement 
treatment standard for this constituent and EPA would not be able to 
meet the D.C. Circuit's deadline of September 24, 1998. The current 
data are insufficient on which to base a treatment standard that would 
not be TCLP-based. Therefore, EPA would need to engage in a substantial 
testing and/or a data gathering effort using alternative test methods. 
EPA believes that this type of considerable technical resource effort 
is better directed, given current circumstances, to developing the 
long-term, more permanent treatment standard described earlier. 
Moreover, as a practical matter, treatment of K088 potliners to meet 
the other metal treatment standards will result in some immobilization 
of fluoride as well. 7 As a result, looking at the totality 
of additional environmental protection gained from these interim 
standards for the suite of hazardous constituents involved, we conclude 
that immediate promulgation of these interim standards (even without a 
specific fluoride standard) constitutes the best practical approach to 
minimizing threats to human health and the environment. The issue of 
fluoride treatment will of course be fully explored as part of the 
longer-term effort to establish more permanent treatment standards for 
K088 waste.
---------------------------------------------------------------------------

    \7\ For example, the chief existing treatment process, operated 
by Reynolds Metals, does provide some treatment of fluoride, on the 
order of at least 28% reduction in fluoride mobility (based on 
comparison of fluoride leached from untreated potliners using 
neutral extractant column tests and levels of fluoride in actual 
leachate from the Reynolds' disposal unit). Docket Items P33F-S0064 
and S0049 Attachment A data set J. This level of treatment will 
necessarily occur, at least in the Reynolds process, because the 
process does not treat each constituent selectively.
---------------------------------------------------------------------------

IV. Capacity Determination

A. Introduction

    This section summarizes the results of the capacity analysis for 
the wastes covered by today's rule. For a detailed discussion of 
capacity analysis-related data sources, methodology, and summary of 
analysis for K088 covered in this rule, see the background documents 
entitled ``Background Document for Capacity Analysis Update for Land 
Disposal Restrictions--Phase III: Spent Aluminum Potliners (July 
1997)'' (62 FR 37694 i.e., referred to as the ``Capacity Background 
Document'').
    In general, EPA's capacity analysis focuses on the amount of waste 
to be restricted from land disposal that is currently managed in land-
based units and that will require alternative treatment as a result of 
the LDRs. The quantity of wastes that are not managed

[[Page 51259]]

in land-based units (e.g., wastewater managed only in RCRA exempt 
tanks, with direct discharge to a Publicly Owned Treatment Works 
(POTW)) is not included in the quantities requiring alternative 
treatment as a result of the LDRs. Also, wastes that do not require 
alternative treatment (e.g., those that are currently treated using an 
appropriate treatment technology) are not included in these quantity 
estimates.
    EPA's decisions on when to establish the effective date of the 
treatment standards (e.g., whether to grant a national capacity 
variance) are based on the availability of appropriate treatment or 
recovery technologies. Consequently, the methodology focuses on 
deriving estimates of the quantities of waste that will require either 
commercial treatment or the construction of new on-site treatment as a 
result of the LDRs. EPA attempts to subtract from the required capacity 
estimates the quantities of waste that will be treated adequately 
either on-site in existing systems or off-site by facilities owned by 
the same company as the generator (i.e., captive facilities). The 
resulting estimates of required commercial capacity are then compared 
to estimates of available commercial capacity. If adequate commercial 
capacity exists, the waste is restricted from further land disposal 
before meeting the LDR treatment standards. If adequate capacity does 
not exist, RCRA section 3004(h)(2) authorizes EPA to grant a national 
capacity variance for the waste for up to two years or until adequate 
alternative treatment capacity becomes available, whichever is sooner.

B. Capacity Analysis Results Summary

    The D.C. Circuit Court decision vacated the prohibition on land 
disposal of this waste. EPA therefore needs to make a capacity analysis 
determination for K088 due to the (nominally) new prohibition of this 
waste.
    As indicated in the Background Documents for Capacity Analysis for 
Land Disposal Restrictions 8, an accurate projection of 
annual generation of K088 is difficult to develop. Primary aluminum 
production rates B one of the key determinants of K088 generation B 
vary from year to year. Other factors include the differences between 
potliners in terms of their useful life spans, the lag time between 
aluminum production and waste generation, and the one-time increases in 
potliner generation due to production starts and stops. Thus, for the 
purpose of comparing required treatment capacity to available capacity, 
EPA combined all the data presented in the Capacity Background Document 
to estimate that approximately 117,000 tons per year of K088 in the 
U.S. may require off-site alternative treatment. (See memo to this 
final rule's docket.)
---------------------------------------------------------------------------

    \8\ Background Document for Capacity Analysis for Land Disposal 
Restrictions--Phase III--Decharacterized Wastewaters, Carbamate 
Wastes, and Spent Potliners (Final Rule, February 1996, Volume I 
Capacity Analysis Methodology and Results, pages 4-5 to 4-8); 
Background Document for Capacity Analysis Update for Land Disposal 
Restrictions--Phase III: Spent Aluminum Potliners (Final Rule, July 
1997). to the Land Disposal Restrictions Phase III--Emergency 
Extension of the K088 Capacity Variance; Final Rule (62 FR 37694, 
July 14, 1997).
---------------------------------------------------------------------------

    When estimating the available treatment or recovery capacity, the 
Agency includes the capacity currently available and operating in its 
analysis if the facility can meet all treatment standards, including 
the new treatment standard for arsenic in K088 waste. Available 
treatment capacity for K088 could vary due to several factors, such as 
the feed rate of the waste into the treatment unit, downtime of the 
units, the number of units that will be able to accept K088, and the 
amount of retreatment needed. Considering these factors, EPA estimates 
that approximately 120,000 tons per year of capacity could be available 
for treating K088. (See the Capacity Background Document for detailed 
analysis and Reynolds' comment to K088 NODA, 63 FR 41536, August 4, 
1998.) In addition, one other commercial facility indicated that its 
treatment process is expected to begin operation sometime this year. 
Also, additional technologies as mentioned in Section III of this rule 
are under development and, therefore, additional treatment or recovery 
capacity may come on-line at on-site or off-site facilities for K088 
waste.
    Based on the results of the Agency's capacity analysis, adequate 
commercially available treatment (or recovery) capacity does currently 
exist for K088 waste. The largely-identical existing prohibition and 
treatment standards are still in effect, so there are no logistical 
barriers to immediate compliance. Therefore, LDR treatment standards 
will become effective immediately for the waste covered under this 
rule. (See RCRA section 3004(h)(1); land disposal prohibitions must 
take effect immediately when there is sufficient protective treatment 
capacity for the waste available).

V. Compliance and Implementation

A. Applicability of Rule in Authorized States

    Under section 3006 of RCRA, EPA may authorize qualified States to 
administer and enforce the RCRA program within the State. Following 
authorization, EPA retains enforcement authority under sections 3008, 
3013, and 7003 of RCRA, although authorized States have primary 
enforcement responsibility. The standards and requirements for 
authorization are found in 40 CFR part 271.
    Prior to the Hazardous and Solid Waste Amendments (HSWA) of 1984, a 
State with final authorization administered its hazardous waste program 
in lieu of EPA administering the Federal program in that State. The 
Federal requirements no longer applied in the authorized State, and EPA 
could not issue permits for any facilities that the State was 
authorized to permit. When new, more stringent Federal requirements 
were promulgated or enacted, the State was obligated to enact 
equivalent authority within specified time frames. New Federal 
requirements did not take effect in an authorized State until the State 
adopted the requirements as State law.
    In contrast, under RCRA section 3006(g), new requirements and 
prohibitions imposed by HSWA take effect in authorized States at the 
same time that they take effect in unauthorized States. EPA is directed 
to carry out these requirements and prohibitions in authorized States, 
including the issuance of permits, until the State is granted 
authorization to do so.
    Today's rule is being promulgated pursuant to sections 3004 (g)(4) 
and (m) of RCRA. Therefore, the Agency is adding today's rule to Table 
1 in 40 CFR 271.1(j), which identifies the Federal program requirements 
that are promulgated pursuant to HSWA. This rule is therefore effective 
in all states immediately pursuant to RCRA section 3006(g). States may 
apply for final authorization for the HSWA provisions in Table 1, as 
discussed in the following section of this preamble.

B. Effect on State Authorization

    As noted above, EPA will implement today's rule in authorized 
States until they modify their programs to adopt these rules and the 
modification is approved by EPA. Because today's rule is promulgated 
pursuant to HSWA, a State submitting a program modification may apply 
to receive interim or final authorization under RCRA section 3006(g)(2) 
or 3006(b), respectively, on the basis of requirements that are 
substantially equivalent or equivalent to EPA's. The procedures and 
schedule for State program modifications for final authorization are 
described in 40 CFR 271.21. All HSWA interim authorizations will expire 
January 1,

[[Page 51260]]

2003. (See Sec. 271.24 and 57 FR 60132, December 18, 1992.)

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 estimated the costs of today's final rule to determine 
if it is a significant regulation as defined by the Executive Order. 
Because the treatment standard for K088 promulgated in the Phase III 
final rule has remained in effect and unchanged except for arsenic and 
fluoride, treatment costs for spent aluminum potliner have been 
accounted for in the Phase III final rule rather than today's final 
rule. Accordingly, EPA believes that there are no costs associated with 
today's final rule. (According to the Court, none of the standards 
measured by means other than TCLP were affected by the ruling, 139 F.3d 
at 923, so no costs should be attributed to treating these constituents 
under this rule in any case.) However, even in the event that treatment 
costs are attributed to today's final rule, the upper bound treatment 
estimate of $42 million is not economically significant according to 
the definition in E.O. 12866. The Agency has, however, determined that 
this rule is significant for novel policy reasons.
    Discussion of the methodology used for estimating the costs and 
economic impacts attributable to today's final rule for K088 wastes may 
be found in the background document ``Economic Assessment for Retention 
of LDR Treatment Standard for Spent Aluminum Potliner (K088) and 
Evaluation of Draft Groundwater Pathway Analysis For Aluminum Potliners 
(K088)'' which was placed in the docket for today's final rule.
1. Methodology Section
    The Agency examined reported values for K088 generation from the 
prior Agency estimates in the Phase III LDR final rule to estimate the 
volumes of K088 affected by today's rule, to determine the national 
level incremental costs (for both the baseline and post-regulatory 
scenarios), economic impacts (including first-order measures such as 
the estimated percentage of compliance cost to industry or firm 
revenues).
2. Results
    a. Volume Results. Spent potliners (SPL) are generated in large 
volumes ranging from 95,000 to 125,000 tons annually.9 EPA 
estimated an average of approximately 120,000 tons annually for 
purposes of assessing cost and economic impacts from today's final 
rule. This estimated generation volume for K088 is greater than the 
estimate used in the capacity section because it includes not only 
volumes requiring alternative treatment, but also volumes currently 
undergoing treatment.
---------------------------------------------------------------------------

    \9\ Background Document for Capacity Analysis for Land Disposal 
Restrictions, Phase III (February 1996, Volume I, pages 4-5 to 4-8)
---------------------------------------------------------------------------

    b. Cost Results. As stated above, because this rule only modifies 
the treatment standard for arsenic, the Agency believes that this rule 
does not impose incremental treatment costs associated with treating 
K088. EPA notes that analytical costs associated with sampling treated 
spent aluminum potliner may actually decrease because the cost of 
completing a totals analysis for arsenic is less than the comparable 
cost per sample of a TCLP analysis.10 For purposes of 
comparison, the Agency has estimated treatment costs for K088. If 
annual treatment costs were attributed to today's rule, they would 
range from $9.6 million to $42 million. EPA previously estimated 
treatment costs between $6.4 million and $42 million for the LDR Phase 
III final rule. 61 FR 15566, 15591 (April 8, 1996). EPA notes that new 
K088 treatment technologies are currently being developed that may 
significantly lower K088 treatment costs nationally.11 EPA 
does not believe that this final rule will create barriers to market 
entry for firms wishing to provide alternative treatment capacity for 
spent aluminum potliner. The Agency believes that the net effect of 
today's rule to modify the existing K088 treatment standard by changing 
the TCLP test for arsenic to a totals number is unlikely to burden 
alternative treatment processes currently under development for the 
treatment of spent aluminum potliner.
---------------------------------------------------------------------------

    \10\ One commercial testing laboratory provided an estimate of 
$40 per sample for an arsenic totals analysis. Today's final rule 
should lower testing costs overall because the $40 cost of total 
test for arsenic is less expensive than the $90 to $140 that would 
be required to run a TCLP test for arsenic for a treated residue.
    \11\ For example, previously Reynolds Metals Company has 
provided data indicating that the treatment and disposal cost of 
their process, though variable depending on a series of factors, is 
between $200 and $500 per ton. Personal Communication with Jack 
Gates, Vice-President, Reynolds Metals Company, September 28, 1994 
as cited in Regulatory Impact Analysis of the Phase III Land 
Disposal Restrictions Final Rule, U.S. Environmental Protection 
Agency, Office of Solid Waste, February 15, 1996. Recently, Waste 
Management has quoted treatment and disposal charges at $160 per ton 
for treatment capacity now being developed at its Arlington, Oregon 
facility. Letter from Mitchell S. Hahn, Manager, Environment Health 
and Safety, Waste Management Inc. to Paul A. Borst, Economist, 
USEPA, Office of Solid Waste, June 4, 1998. The Waste Management 
treatment and disposal charge is determined by subtracting the $85 
storage price from a new customer price of $245 per ton. 
Transportation costs are not factored into this estimate. Of the 
$160 per ton treatment and storage cost, $80 per ton is attributable 
to treatment and $80 is attributable to disposal. Personal 
Communication between Mitch Hahn, Chemical Waste Management, and 
Paul Borst, U.S.E.P.A. August 13, 1998.
---------------------------------------------------------------------------

    c. Economic Impact Results. To estimate potential economic impacts 
resulting from today's proposed rule, EPA has used first order economic 
impacts measures such as the estimated costs of today's final rule as a 
percentage of affected firms' sales and/or revenues. When the annual 
costs of regulation are less than one percent of a firm's annual sales 
or revenues, this analysis presumes that the regulation does not pose a 
significant economic impact on the affected facilities absent 
information to the contrary. Because EPA does not view this rule as 
imposing costs, the Agency does not believe that this rulemaking 
imposes economic impacts on regulated entities. But even if treatment 
costs are attributed to this rulemaking, no significant economic impact 
will result. In 1996, U.S. primary aluminum producers sold 3.6 million 
metric tons of aluminum at an average market price of $1400 per ton 
yielding total sales of $5.04 billion.12 The $42 million 
upper bound of the treatment cost estimate represents only 0.8 percent 
of the total value of the aluminum sold by primary aluminum producers. 
It is likely, as discussed, that treatment costs will decrease as new 
firms develop commercial technologies for K088. As a result, this final 
rule will not pose a significant economic impact on primary aluminum 
producers in the United

[[Page 51261]]

States. More detailed information on this estimate can be found in the 
economic assessment placed into today's docket.
---------------------------------------------------------------------------

    \12\ Mineral Commodity Summaries 1997, U.S. Department of the 
Interior, U.S. Geological Survey, February 1997, p. 18.
---------------------------------------------------------------------------

    d. Benefits Assessment. EPA has not calculated benefits associated 
with the total limitation on arsenic in today's final rule. Because 
today's final rule promulgates a prohibition and treatment standard for 
K088 with modest changes from the previous treatment standard for K088, 
the Agency believes that there is only likely to be a modest risk 
reduction because most of the risk reduction has already been accounted 
for through the K088 treatment standard in the Phase III final rule (as 
has the cost of treatment), although, as noted earlier, the total 
arsenic standard will ensure the minimization of leachable arsenic, as 
shown by recent monitoring data. However, the Agency wishes to correct 
an error in previous groundwater risk analysis for K088 with respect to 
cyanide.
    EPA's groundwater risk analysis for K088 completed for the Phase 
III rulemaking indicated that cyanide did not pose a risk to human 
health.13 A review of the analysis indicates that the 
analysis results may have underestimated groundwater risk from cyanides 
in potliners for a variety of reasons. First, the analysis modeled 
cyanide ion, CN-(CAS # 57-12-5), as the cyanide species being 
considered for mobilization.14 However, other data indicate 
that ferrocyanide, Fe(CN)6 -4 (CAS # 13408-63-4), 
rather than cyanide ion is the prevalent cyanide species in spent 
potliner leachate typically accounting for 89 percent of total cyanide 
present.15 This is significant because cyanide ion may be 
less persistent in the environment than ferrocyanide. Cyanide ion may 
decompose in soil environments through hydrolysis, biodegradation or 
other means. Ferrocyanide is an extremely persistent cyanide 
species.16 Ferrocyanide mobility may be limited in soil but 
yet retains the ability to form more toxic forms of cyanide--either 
hydrogen cyanide or free cyanide decomposition products.17
---------------------------------------------------------------------------

    \13\ Groundwater Pathway Analysis for Aluminum Potliners (K088), 
Draft, U.S. Environmental Protection Agency, Office of Solid Waste, 
February 16, 1996. Tables 3-2 and 3-3.
    \14\ Ibid. p. 9.
    \15\ F.M. Kimmerle, et al., ``Cyanide Destruction in Spent 
Potlining.'' Light Metals 1989, Proceedings of the Technical 
Sessions by the TMS Light Metals Committee, 117th TMS Annual 
Meeting. Phoenix Arizona, January 25-28, 1988 as cited in Jim Mavis, 
CH2M Hill, ``Aluminum Industry'' in Pollution Prevention Handbook, 
ed. Thomas Higgins (Boca Raton: CRC Press, 1995), p.379.
    \16\ Adrian Smith and Terry Mudder, Chemistry and Treatment of 
Cyanidation Wastes (London: Mining Journal Books Ltd, 1991) p.11.
    \17\ U.S.E.P.A., Listing Background Document--Primary Aluminum 
Production/Spent Potliners from Primary Aluminum Production, p.7.
---------------------------------------------------------------------------

    In addition, the groundwater risk analysis modeled K088 cyanide 
leachate concentrations in a manner lower than what real-world 
experience has shown. The analysis modeled approximate TCLP cyanide 
concentrations of 110 ppm.18 However, in its K088 listing 
background document, EPA noted slab liquor (the runoff from concrete 
slabs on which spent potliners were placed during open storage) total 
cyanide concentrations of 13,000 mg/L total cyanide, more than two 
orders of magnitude greater than leachate concentration used in the 
modeling analysis.19 A second source reports typical cyanide 
concentrations in potliner leachate at 5000 ppm.20 See also 
Docket Item P33F-S0049A data set J (column testing of untreated 
potliners with neutral extractant showing cyanide concentrations 
between 1325 and 2885 ppm.)
---------------------------------------------------------------------------

    \18\ Groundwater Pathway Analysis, p.9.
    \19\ Listing Background Document, p.5.
    \20\ Kimmerle as cited in Mavis, supra note 6, p.379.
---------------------------------------------------------------------------

    Third, EPA's groundwater analysis may have underestimated 
groundwater risk from cyanide by not accounting for high pH conditions 
caused by the alkalinity of the potliner itself. The analysis used a 
national distribution of pH values for the saturated zone parameters 
from EPA's STORET database. This national distribution modeled low 
(4.9), medium (6.8) and high (8.0) values. However, the pH of the 
saturated zone in a site where spent potliner is leaching may be 
substantially higher than the national distribution. Spent aluminum 
potliner typically has a pH of 12.3 to 12.6.21 Under these 
elevated pH conditions, volatilization of cyanide ion as hydrogen 
cyanide gas, and hydrolysis and biodegradation are limited so cyanide 
available to contaminate groundwater would not be attenuated (as 
initially incorrectly modeled).22
---------------------------------------------------------------------------

    \21\ Special Laboratory Report, Reynolds Metals Company, 1996.
    \22\ Adrian Smith and Terry Mudder, Chemistry and Treatment of 
Cyanidation Wastes (London: Mining Journal Books Ltd, 1991) p.49, 
64, and 82.
---------------------------------------------------------------------------

    Finally, at least four damage incidents to groundwater from 
cyanides from disposed potliner demonstrate the potential of cyanide in 
this waste to contaminate groundwater. In EPA's listing background 
document for spent potliner, the Agency documents cyanide contamination 
of drinking water wells in Washington State from Kaiser Aluminum's Mead 
Works facility near the Spokane aquifer. Some drinking water wells had 
levels of cyanide of 1 ppm exceeding the maximum contaminant level 
(MCL) of 0.2 ppm.23 In addition, cyanide concentrations in 
leachate from a landfill containing potliner at a primary aluminum 
smelter site on the National Priority List (NPL) ranged between 373 and 
1280 ppm.24 Additional damage incidents showing cyanide 
groundwater contamination caused by improper disposal of spent 
potliners are summarized at Docket item PH3F-S0015. EPA thus believes 
the risks of groundwater contamination due to potliner disposal were 
incorrectly understated in the earlier RIA, and hereby withdraws the 
earlier conclusions regarding the low possibility and nature of cyanide 
contamination. Moreover, given the long-term inability of Subtitle C 
disposal to fully contain hazardous wastes, see RIA for Phase III final 
rule at 4-13 (Feb. 1996); and Inyang and Tomassoni, Indexing of Long-
Term Effectiveness of Waste Containment Systems for a Regulatory Impact 
Analysis, EPA OSW (Nov. 1992), and the demonstrated cyanide 
contamination of exceeding health-based levels of groundwater already 
caused by improper disposal of these wastes, EPA finds that disposal of 
untreated potliners does pose a risk of cyanide contamination of 
groundwater at levels harmful to human health.
---------------------------------------------------------------------------

    \23\  K088 Listing Background Document, p.8.
    \24\  Record of Decision, Martin Marietta Corp., RODS DATA, 
September 29, 1988.
---------------------------------------------------------------------------

B. Regulatory Flexibility

    The Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement and Fairness Act, 5 U.S.C. 601-612, 
generally requires an agency to conduct a regulatory flexibility 
analysis of any rule subject to notice and comment rulemaking 
requirements unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
However, the Agency has determined that this final rule is not subject 
to the Regulatory Flexibility Act (RFA) and, moreover, it will not have 
a significant economic impact on a substantial number of small 
entities.
    First, by its terms, the RFA applies only to rules subject to 
notice-and-comment rulemaking requirements under the Administrative 
Procedure Act (APA) or any other statute. Today's rule is not subject 
to notice and comment requirements under the APA or any other statute. 
Although today's rule is

[[Page 51262]]

subject to the APA, the Agency has invoked the ``good cause'' exemption 
under APA section 553(b). As discussed below, the good cause exemption 
provides the notice and comment rulemaking requirements of the APA do 
not apply to a rulemaking when an agency finds them to be 
impracticable, unnecessary or contrary to the public interest.
    Second, the Agency nonetheless has assessed the potential of this 
rule to adversely impact small entities. The Agency finds that this 
final rule does not have the potential to adversely impact small 
entities. As discussed above, today's final rule does not impose 
incremental costs to regulated entities. Also, the Agency has evaluated 
K088 treatment costs previously accounted for under the Phase III final 
rule and determined that even if these costs were attributed to today's 
final rule, they would not exceed 1 percent of the sales of small 
entities subject to this final rule. More information on this analysis 
can be found in the background document ``Economic Assessment for 
Retention of LDR Treatment Standard for Spent Aluminum Potliner (K088) 
and Evaluation of Draft Groundwater Pathway Analysis For Aluminum 
Potliners (K088)'' placed in the public docket.

C. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. 
L. No. 104-4, establishes requirements for Federal agencies to assess 
the effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under Section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective, or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective, or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    EPA 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. The rule 
would not impose any federal intergovernmental mandate because it 
imposes no enforceable duty upon State, tribal or local governments. 
States, tribes and local governments would have no compliance costs 
under this rule. It is expected that states will adopt similar rules, 
and submit those rules for inclusion in their authorized RCRA programs, 
but they have no legally enforceable duty to do so. For the same 
reasons, EPA also has determined that this rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments. In addition, as discussed above, the private sector is not 
expected to incur costs exceeding $100 million. By these findings, EPA 
has fulfilled the requirement for analysis under the Unfunded Mandates 
Reform Act.

D. Executive Order 12875: Enhancing the Intergovernmental Partnership

    To reduce the burden of Federal regulations on States and small 
governments, President Clinton issued Executive Order 12875 on October 
26, 1993, entitled ``Enhancing the Intergovernmental Partnership.'' 
Under Executive Order 12875, EPA may not issue a regulation that is not 
required by statute unless the Federal Government provides the 
necessary funds to pay the direct costs incurred by the State and small 
governments or EPA provides to the Office of Management and Budget both 
a description of the prior consultation and communications the agency 
has had with representatives of State and small governments and a 
statement supporting the need to issue the regulation. In addition, 
Executive Order 12875 requires EPA to develop an effective process 
allowing elected and other representatives of State and small 
governments ``to provide meaningful and timely input in the development 
of regulatory proposals containing significant unfunded mandates.''
    For the reasons described above, today's final rule will not impose 
any enforceable duty or contain any unfunded mandate upon any State, 
local, or tribal government; therefore Executive Order 12875 does not 
apply to this action.

E. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    The Executive Order 13045, entitled ``Protection of Children from 
Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 
1997), applies to any rule that EPA determines (1) ``economically 
significant'' as defined under Executive Order 12866, and (2) the 
environmental health or safety risk addressed by the rule has a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children; and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency. This final 
rule is not subject to E.O. 13045 because this is not an economically 
significant regulatory action as defined by E.O. 12866, and because the 
Agency does not have reason to believe the environmental health or 
safety risks addressed by this action present a disproportionate risk 
to children. The Agency has concluded this because this rulemaking 
establishes treatment standards for hazardous constituents in spent 
aluminum potliner that minimize both short-term and long-term threats 
to human health and the environment. The environmental health risks or 
safety risks addressed by this action do not have a disproportionate 
effect on children.

F. Environmental Justice E.O. 12898

    EPA is committed to addressing environmental justice concerns and 
is assuming a leadership role in environmental justice initiatives to 
enhance environmental quality for all residents of the United States. 
The Agency's goals are to ensure that no segment of the population, 
regardless of race, color, national origin, or income bears 
disproportionately high and adverse human health and environmental 
impacts as a result of EPA's policies, programs, and activities, and 
that all people live in clean and sustainable communities. In response 
to Executive Order 12898 and to concerns voiced by many groups outside 
the Agency, EPA's Office of Solid Waste

[[Page 51263]]

and Emergency Response formed an Environmental Justice Task Force to 
analyze the array of environmental justice issues specific to waste 
programs and to develop an overall strategy to identify and address 
these issues (OSWER Directive No. 9200.3-17).
    Today's final rule covers K088 spent potliner wastes from primary 
aluminum operations. It is not certain whether the environmental 
problems addressed by this rule could disproportionately affect 
minority or low income communities due to the location of primary 
aluminum operations. However, because today's final rule establishes 
treatment standards for K088 being land disposed, the Agency does not 
believe that today's rule will increase risks from K088. Indeed, as 
discussed earlier, these treatment standards will ensure that risks to 
human health and the environment are minimized for all communities. It 
is, therefore, not expected to result in any disproportionately 
negative impacts on minority or low income communities relative to 
affluent or non-minority communities.

G. Paperwork Reduction Act

    To the extent that this rule imposes any information collection 
requirements under existing RCRA regulations promulgated in previous 
rulemakings, those requirements have been approved by the Office of 
Management and Budget (OMB) under the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq., and have been assigned OMB control numbers 2050-
120 (ICR no. 1573, Part B Permit Application); 2050-120 (ICR 1571, 
General Facility Standards); 2050-0028 (ICR 261, Notification to Obtain 
an EPA ID); 2050-0034 (ICR 262, Part A Permit Application); 2050-0039 
(ICR 801, Hazardous Waste Manifest); 2050-0035 (ICR 820, Generator 
Standards); and 2050-0024 (ICR 976, Biennial Report).

H. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Pub. L. No. 104-113, section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    EPA is not aware of existing voluntary consensus standards that 
could be used for treatment standards of spent aluminum potliner. EPA 
believes that such voluntary consensus standards are therefore 
unavailable. This rulemaking also involves environmental monitoring or 
measurement. As stated above, this final rule promulgates a revised 
treatment standard for arsenic in nonwastewater forms of K088, based on 
a total recoverable arsenic concentration from strong acid digestion as 
defined by EPA SW-846 Method 3050, 3051 or the equivalent. Consistent 
with the Agency's Performance Based Measurement System (PBMS), EPA has 
decided not to require the use of specific, prescribed analytic 
methods. Rather, the rule will allow the use of any method that meets 
the prescribed performance criteria. The PBMS approach is intended to 
be more flexible and cost-effective for regulated entities. It is also 
intended to encourage innovation in analytical technology and improve 
data quality. EPA is not precluding the use of any method, whether it 
constitutes a voluntary consensus standard or not, as long as it meets 
the performance criteria specified.

I. Executive Order 13084: Consultation and Coordination With Indian 
Tribal Governments

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments. If the mandate is unfunded, 
EPA must provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected and other representatives of 
Indian tribal governments ``to provide meaningful and timely input in 
the development of regulatory policies on matters that significantly or 
uniquely affect their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. Aluminum potliners are not 
currently generated or treated on any known Indian tribal lands. 
Today's rule does not create a mandate on State, local or tribal 
governments. The rule does not impose any enforceable duties on these 
entities. Accordingly, the requirements of section 3(b) of Executive 
Order 13084 do not apply to this rule.

J. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. Section 808 allows the issuing agency to make a rule 
effective sooner than otherwise provided by the CRA if the agency makes 
a good cause finding that notice and public procedure is impracticable, 
unnecessary or contrary to the public interest. This determination must 
be supported by a brief statement. 5 U.S.C. 808(2). In the following 
section, EPA has made such a good cause finding, including the reasons 
therefore, and established an effective date of September 21, 1998. EPA 
will submit 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 United States prior to publication of 
the rule in the Federal Register. This action is not a ``major rule'' 
as defined by 5 U.S.C. 804(2).

VII. Good Cause for Immediate Final Rule

    Under the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B), 
an agency may forego notice and comment in promulgating a rule when the 
agency for good cause finds (and incorporates the finding and a brief 
statement of the reasons for that finding into the rule) that notice 
and public comment procedures are impracticable, unnecessary, or 
contrary to the public interest. For the reasons set forth below, EPA 
finds good cause to conclude that notice and comment would be 
unnecessary and contrary to the public interest, and therefore is not 
required under the APA.
    EPA believes that notice and opportunity for comment has been 
provided here, albeit not through the means of a proposed rule. The 
Agency has been in protracted discussions with

[[Page 51264]]

the regulated community both directly and through court pleadings. 
Therefore, members of the regulated community have had opportunity to 
comment and make their views known. Most recently, the Agency provided 
for specific notice and comment on the data to be used in the 
development of a standard based on total arsenic content in treatment 
residue. See 63 FR 41536, August 4, 1998. EPA received comments 
addressing every aspect of these standards in response to this 
document, and is responding to these comments in this preamble and also 
in a separate Response to Comment Background Document. Furthermore, 
other than for the arsenic standard, this document makes conforming 
changes that reinstate and maintain the current standards which were 
already the subject of exhaustive notice and comment in both the Phase 
III rulemaking and in response to the January 14 document extending the 
national capacity variance date. Petitioners in the K088 litigation, 
for example, filed a multitude of different comments in response to 
these various documents. Further opportunity to comment therefore is 
not necessary.
    Consequently, EPA today is preserving the core of the K088 
treatment standards promulgated in the Phase III rule by ensuring that 
the K088 wastes are prohibited from land disposal unless they first 
meet the treatment standards in this rule. At the same time, EPA is 
eliminating the standards found to be arbitrary by the Court. The 
Agency also concludes that this action must be taken immediately and 
that notice and comment would be contrary to the public interest in 
these special circumstances. Delay past the projected date of issuance 
of the Court's mandate (September 24, 1998) could result in land 
disposal of untreated spent potliners, contrary to explicit statutory 
command that land disposal of this waste be prohibited. (See as well 
the earlier discussion in this Preamble of the need to assure that this 
prohibition does not lapse.) For these reasons, EPA believes that there 
is good cause to issue this final rule immediately without prior notice 
and comment. This is not to say that EPA would, or could, invoke this 
type of good cause rationale whenever contemplating promulgation of LDR 
prohibitions and treatment standards. However, in the present 
circumstances, where the waste already is prohibited and untreated land 
disposal of the waste has therefore ended, it appears especially 
important to avoid backsliding to a regime of untreated land disposal.
    For the same reasons, EPA finds, for purposes of 5 U.S.C. 553(d), 
that there is good cause to make the rule effective immediately. In any 
case, the statute indicates that LDR prohibitions are to take effect 
immediately. See RCRA section 3004(h)(1). (Prohibitions on land 
disposal are effective immediately so long as there is adequate 
protective treatment capacity available at that time.)

List of Subjects

40 CFR Part 268

    Environmental protection, Hazardous waste, Reporting and 
recordkeeping requirements.

40 CFR Part 271

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous material transportation, 
Hazardous waste, Indians-lands, Intergovernmental relations, Penalties, 
Reporting and recordkeeping requirements, Water pollution control, 
Water supply.

    Dated: September 21, 1998.
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:

    1. The authority 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 paragraphs (c) to read as 
follows:


Sec. 268.39  Waste specific prohibitions--spent aluminum potliners; and 
carbamate wastes.

* * * * *
    (c) On September 21, 1998, 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.
* * * * *
    3. Section 268.40 is amended by revising the entry for K088 in the 
table of Treatment Standards to read as follows: (The footnotes are 
republished without change.)

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Footnotes to Treatment Standard Table 268.40

1  The waste descriptions provided in this table do not replace 
waste descriptions in 40 CFR part 261. Descriptions of Treatment/
Regulatory Subcategories are provided, as needed, to distinguish 
between applicability of different standards.
2  CAS means Chemical Abstract Services. When the waste code and/or 
regulated constituents are described as a combination of a chemical 
with its salts and/or esters, the CAS number is given for the parent 
compound only.
3  Concentration standards for wastewaters are expressed in mg/L and 
are based on analysis of composite samples.
4  All treatment standards expressed as a Technology Code or 
combination of Technology Codes are explained in detail in 40 CFR 
268.42 Table 1--Technology Codes and Descriptions of Technology-
Based Standards.
5  Except for Metals (EP or TCLP) and Cyanides (Total and Amenable) 
the nonwastewater treatment standards expressed as a concentration 
were established, in part, based upon incineration in units operated 
in accordance with the technical requirements of 40 CFR Part 264, 
Subpart O, or Part 265, Subpart O, or based upon combustion in fuel 
substitution units operating in accordance with applicable technical 
requirements. A facility may comply with these treatment standards 
according to provisions in 40 CFR 268.40(d). All concentration 
standards for nonwastewaters are based on analysis of grab samples.
* * * * *
7  Both Cyanides (Total) and Cyanides (Amenable) for nonwastewaters 
are to be analyzed using Method 9010 or 9012, found in ``Test 
Methods for Evaluating Solid Waste, Physical/Chemical Methods'', EPA 
Publication SW-846, as incorporated by reference in 40 CFR 260.11, 
with a sample size of 10 grams and a distillation time of one hour 
and 15 minutes.
* * * * *

PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE 
PROGRAMS

    4. The authority citation for Part 271 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), and 6926.

    5. Section 271.1(j) is amended by adding the following entries to 
Table 1 and Table 2 in chronological order by date of publication to 
read as follows.


Sec. 271.1  Purpose and scope.

* * * * *
    (j) * * *

               TABLE 1--REGULATIONS IMPLEMENTING THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984
----------------------------------------------------------------------------------------------------------------
                                                           Federal Register
        Promulgation date           Title of Regulation        reference                 Effective date
----------------------------------------------------------------------------------------------------------------
                         *        *        *        *        *        *        *
Sept. 21, 1998...................  Treatment Standards   [insert Federal       Sept. 21, 1998
                                    for Hazardous Waste   Register page
                                    K088.                 numbers].
                         *        *        *        *        *        *        *
----------------------------------------------------------------------------------------------------------------


                   TABLE 2--SELF-IMPLEMENTING PROVISIONS OF THE SOLID WASTE AMENDMENTS OF 1984
----------------------------------------------------------------------------------------------------------------
                                     Self-implementing
          Effective date                 provision           RCRA citation         Federal Register reference
----------------------------------------------------------------------------------------------------------------
                         *        *        *        *        *        *        *
Sept. 21, 1998...................  Prohibition on land   3004(g)(4)(C) and     Sept. 24, 1998
                                    disposal of K088      3004(m).             [Insert FR page numbers].
                                    wastes, and
                                    prohibition on land
                                    disposal of
                                    radioactive waste
                                    mixed with K088
                                    wastes, including
                                    soil and debris.
                         *        *        *        *        *        *        *
----------------------------------------------------------------------------------------------------------------

[FR Doc. 98-25643 Filed 9-23-98; 8:45 am]
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