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