[Federal Register Volume 62, Number 134 (Monday, July 14, 1997)]
[Rules and Regulations]
[Pages 37694-37699]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-18410]
[[Page 37693]]
_______________________________________________________________________
Part IV
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 268
Land Disposal Restrictions Phase III--Emergency Extension of the K088
National Capacity Variance; Final Rule
Federal Register / Vol. 62, No. 134 / Monday, July 14, 1997 / Rules
and Regulations
[[Page 37694]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 268
[EPA # -530-Z-96-P33F-FFFFF; FRL-5857-7]
Land Disposal Restrictions Phase III--Emergency Extension of the
K088 National Capacity Variance
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: Under the Land Disposal Restrictions (LDR) program of the
Resource Conservation and Recovery Act (RCRA), EPA is extending the
current national capacity variance for spent potliners from primary
aluminum production (Hazardous Waste Number K088) for three (3) months.
Thus, K088 wastes may be land disposed without being treated to meet
LDR treatment standards until October 8, 1997, three months from the
current treatment standard effective date of July 8, 1997. EPA is
taking this action because it now appears that sufficient treatment
capacity exists which is capable of achieving the treatment standards
promulgated by EPA on March 8, 1996, the process provides substantial
treatment of spent potliners and minimizes the threats posed by land
disposal of these wastes, and the treatment and disposal capacity
provided for the waste will be protective of human health and the
environment because it will occur at subtitle C units. EPA is extending
the national capacity variance for a further three months in order to
provide time for generators to make contractual and other logistical
arrangements relating to utilization of the treatment capacity.
DATES: This rule is effective July 7, 1997.
ADDRESSES: Supporting materials are available for viewing in the RCRA
Information Center (RIC), located at Crystal Gateway One, 1235
Jefferson Davis Highway, First Floor, Arlington, VA. The Docket
Identification Number is F-96-P33F-FFFFF. The RCRA Docket is open from
9:00 a.m. to 4:00 p.m. Monday through Friday, except for Federal
holidays. The public must make an appointment to review docket
materials by calling (703) 603-9230. The public may copy a maximum of
100 pages from any regulatory document at no cost. Additional copies
cost $0.15 per page.
FOR FURTHER INFORMATION CONTACT: For general information, contact the
RCRA Hotline at (800) 424-9346 (toll-free) or TDD (800) 553-7672
(hearing impaired). In the Washington, DC, metropolitan area, call
(703) 412-9810 or TDD (703) 412-3323. For specific information, contact
the Waste Treatment Branch (5302W), Office of Solid Waste (OSW), U.S.
Environmental Protection Agency, 401 M Street S.W., Washington, D.C.
20460; phone (703) 308-8434. For information on the capacity analyses,
call Pan Lee or Bill Kline at (703) 308-8440. For information on the
regulatory impact analyses, contact Paul Borst at (703) 308-0481. For
other questions, call John Austin at (703) 308-0436 or Mary Cunningham
at (703) 308-8453.
SUPPLEMENTARY INFORMATION:
Availability of rule on Internet
This Federal Register notice is available on the Internet System
through the EPA Public Web Page at: http://www.epa.gov/EPA-WASTE/. For
the text of the notice, choose: Year/Month/Day.
Table of Contents
I. Background
A. The Existing Treatment Standard and National Capacity
Variance for Spent Potliners
II. Subsequent Events
III. EPA's Decision with Respect to Extending the National Capacity
Variance
A. The Reynolds' Process Provides Substantial Treatment
B. Reynolds Will Provide Safe Disposal Capacity
C. Agency's Conclusion Is That Protective Capacity is Presently
Available
IV. Disposal of Potliners During National Capacity Variance Period
V. Use Constituting Disposal Issues
VI. Regulatory Requirements
A. Regulatory Impact Analysis Pursuant to Executive Order 12866
B. Paperwork Reduction Act
C. Unfunded Mandates Reform Act and Regulatory Flexibility Act
D. Submission to Congress and the General Accounting Office
VII. Immediate Effective Date
I. Background
Land disposal of hazardous wastes without prior treatment is
largely prohibited by law. RCRA sections 3004(d), (e) and (g). The
prohibition on land disposal is normally to take effect immediately on
promulgation, but may be extended if EPA finds that adequate
alternative treatment, recovery or disposal capacity which protects
human health and the environment will not be available. RCRA section
3004(h)(2). In that event, the prohibition is to take effect on the
earliest date on which such adequate capacity exists, and in no event
be extended nationally for more than two years from the promulgation
date. Id.
A. The Existing Treatment Standard and National Capacity Variance for
Spent Potliners
On April 8, 1996, EPA promulgated a prohibition on land disposing
spent potliners from primary aluminum production (Hazardous Waste K088)
unless the waste satisfied the treatment standards for K088 established
by EPA as part of the same rulemaking. (61 FR 15566, April 8, 1996).
Spent potliners are a highly toxic hazardous waste, whose hazardous
constituents include cyanide (present in concentrations between 0.1 and
1 percent, which are quite high for such a toxic constituent), toxic
metals, and polycyclic aromatic hydrocarbons (PAHs). See the Final BDAT
Background Document for Spent Potliners from Primary Aluminum
Reduction--K088, February 29, 1995. These wastes also contain high
concentrations of fluoride. See generally id. at 61 FR 15584-15585.
Previous improper management of spent potliners has resulted in
widespread groundwater contamination with cyanide and fluoride, and was
an important factor in EPA's decision to list these materials as
hazardous wastes. See 53 FR 35412, September 13, 1988. The treatment
standards for K088 wastes require substantial reductions in the total
concentration of organic hazardous constituents and cyanide, and
substantial reductions in the leachability of toxic metals and
fluoride. See 61 FR 15626. The reduction in leachability is measured by
application of the Toxicity Characteristic Leaching Procedure (TCLP),
SW-846 Method 1311. Id.
These treatment standards are based upon performance of combustion
technology plus stabilization treatment of combustion residues. Id. at
15584. The treatment standard for fluoride is based upon the
performance demonstrated by the treatment process developed by Reynolds
Metals Company (Reynolds) during studies conducted as part of their
application for delisting 1 treated K088. See 61 FR 15585.
Although treatment standards were based upon these technologies, any
treatment technology (other than impermissible dilution) may be used to
achieve these established numerical
[[Page 37695]]
standards. Data in the administrative record indicate that these
treatment standards are achievable by a number of different
technologies. See the Final BDAT Background Document for Spent
Potliners from Primary Aluminum Reduction--K088, February 29, 1995,
available in the docket.
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\1\ EPA granted a final exclusion from the lists of hazardous
wastes contained in 40 CFR 261.32 --i.e., a delisting--for certain
solid wastes derived from the treatment of K088 at Reynolds Metals
Company, Gum Springs, Arkansas (56 FR 67197, December 30, 1991). The
delisting is based on treating the same parameters covered by the
LDR treatment standard, and compliance is measured by TCLP analyses
for toxic metals, PAHs, cyanide, and fluoride. However, as explained
later in this Notice, the delisting was incorrect and will be
withdrawn.
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Notwithstanding that a number of different treatment technologies
can achieve the treatment standard, in fact, virtually all existing
treatment capacity is provided by a single operation, the Reynolds
treatment facility located in Gum Springs, Arkansas. See 61 FR 15589;
see also Background Document for Capacity Analysis for Land Disposal
Restrictions, Phase III (February 1996, Volume I, pages 4-4 to 4-11).
The Reynolds' process entails the crushing and sizing of spent potliner
materials, the addition of roughly equal portions of limestone and
brown sand as flux, and the feeding of the combined mixture to a rotary
kiln for thermal destruction of cyanide and PAHs. Spent potliners (SPL)
are generated in large volumes ranging from 100,000 to 125,000 tons
annually.2 Of the approximate 140,000 tons of treatment
capacity EPA estimated was available, 120,000 tons are provided by
Reynolds.3
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\2\ Background Document for Capacity Analysis for Land Disposal
Restrictions, Phase III (February 1996, Volume I, pages 4-5 to 4-8).
Because SPL are not generated continuously, and because the rate of
generation fluctuates according to the amount of aluminum produced,
it is not possible to estimate this figure with more accuracy.
\3\ Id., pages 4-9 to 4-10.
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For the purposes of comparing required treatment capacity to
available capacity, EPA combined all the data available and presented
in the updated Capacity Background Document 4 to estimate
that approximately 90,000 tons per year of K088 is expected to require
treatment. As noted above and in the Background Document, Reynolds
provides sufficient treatment volume to accommodate this volume of
waste. 5
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\4\ Background Document (pages 6--12) for Capacity Analysis
Update for Land Disposal Restrictions--Phase III: Spent Aluminum
Potliner (Final Rule), December 1996 (part of the docket files for
Emergency Extension of the K088 Capacity Variance; Final Rule; 62 FR
1992, January 14, 1997). The capacity analysis in this document
reflects generation data and other information submitted after the
publication date (April 8, 1996) for the LDR Phase III Final Rule.
\5\ Id., pages 12-16.
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II. Subsequent Events
Because there is adequate volume of treatment capacity, the issue
becomes one of the environmental adequacy, specifically whether
treatment satisfies the requirements of section 3004(m) which says that
treatment is to be sufficient to minimize threats to human health and
the environment posed by land disposal of the waste, and section 3004
(h)(2) which says that to be adequate treatment and disposal capacity
must be protective of human health and the environment.
Events occurring after promulgation of the K088 treatment standards
have raised questions about each of these issues. Reynolds appears able
to treat spent potliners to meet the promulgated treatment
standards.6 However, as set out in the January 14 notice,
the leachate being generated from actual disposal of the treatment
residues is more hazardous than initially anticipated. In hindsight, it
is now apparent that spent potliners are themselves highly alkaline,
and contain cyanide, arsenic, and fluoride--constituents which are most
soluble under alkaline pH. Reynolds in fact disposed of most of the
treatment residues from its process in a dedicated monofill (a landfill
receiving only these treatment residues) where pH is alkaline (the pH
of the treatment residue is essentially unbuffered by anything in the
landfill), and the concentrations of these constituents were high. As
measured in September 1996, total cyanide concentrations in the
leachate were 46.5 mg/L (the treatment standards for K088 wastewaters
specify a concentration of 1.2 mg/L); arsenic concentrations are at
6.55 mg/L (treatment standard 1.2 mg/L); and fluoride concentrations
are at 2228 mg/L (treatment standard 35 mg/L). (Gum Springs Leachate
Analytical Results, Reynolds Metals Co., Sept. 26, 1996).7
Other residues were used as fill material in unlined pits at a
Hurricane Creek, Arkansas mining site, and as a test all-weather road
surface at the mining site (62 FR 1992, January 14, 1997). The levels
of hazardous constituents and fluoride in the leachate and runoff from
this site were less than those from the landfill, undoubtedly because
the prevailing pH is acidic rather than basic, but still were high
enough to warrant regulatory concern.
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\6\ Commenters have questioned this, and EPA responds to those
comments below.
\7\ EPA was not aware of these data until the Fall of 1996, and,
in particular was not aware of these data during the rulemaking
proceeding leading to establishing the K088 treatment standard. EPA
notes further that the leachate from the landfill is being
intercepted and collected by Reynolds, and so is not contaminating
the environment at the treatment site. However, EPA also notes that
there is no interception of leachate at the Hurricane Creek Mine
Site and that Reynolds has agreed to cease disposal at the mine site
effective June 1, 1997.
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As set out in the January 14 notice, EPA had failed to take into
account the effect of alkaline disposal conditions on potliners and
potliner treatment residues when promulgating either the treatment
standard for K088 wastes or the delisting for the treatment residues
from Reynolds' process. EPA's immediate response, set out in the
January notice, was to extend the national capacity variance for six
months for two reasons: (1) because of the delisting, the disposal
capacity provided by Reynolds was not protective since the wastes could
be disposed essentially anywhere under federal law, and (2) because
there was a possibility that the treatment process might actually be
increasing the hazards posed by land disposal of the waste by
increasing hazardous constituent and fluoride mobility. See 62 FR 1994.
Because EPA had some expectation that short-term treatment process
changes could resolve some of these problems, EPA extended the national
capacity variance until July 8, 1997 (62 FR 1992).
Following this extension, Reynolds initiated various full scale
tests in an attempt to find a process change that would result in
improved destruction of cyanide, and greater immobilization of arsenic
and fluoride. On April 9, 1997, Reynolds presented to EPA
representatives a confidential summary of the research and development
testing performed pursuant to improving the Gum Springs' treatment
residue. (See April 4, 1997 letter to William Gallager, EPA Region 6
from Patrick Grover, Reynolds Metals Company.) These results indicate
that EPA's prior judgement that the process could be modified
relatively quickly by substitution of different sand and other means of
pH control (62 FR 1995), has proven to be overly optimistic. Reynolds
is continuing to consider options that they believe may both increase
the thoroughness of combustion of the cyanide, and reduce leachabilty
of any remaining cyanide in the residue, as well as further reducing
the mobility of the fluoride and arsenic. Also, Reynolds is continuing
to try to isolate and remove additional sources of arsenic in the
process, and is considering ways to lower the pH of the residue, which
may further reduce leachabilty of the constituents of concern. After
further discussions with Reynolds and re-analysis of data from the
existing Reynolds' process,8 EPA too is reconsidering the
potential causes of the unexpectedly high levels of hazardous
constituents. As discussed below, however, recent developments have
satisfied the Agency's immediate concern that safe capacity be
provided.
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\8\ See Discussions on TCLP Results and Monofill Leachate
Quality, Reynolds, May 29, 1997.
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[[Page 37696]]
III. EPA's Decision With Respect to Extending the National Capacity
Variance
The situation EPA is evaluating is thus one where a waste is being
treated to meet the promulgated treatment standard, but actual
performance of the treatment technology is less than predicted for some
of the waste's constituents, and current disposal conditions appear to
EPA to be unprotective of human health and the environment because of
the existing delisting, which allows unregulated disposal of a waste
which generates a hazardous leachate. EPA addresses first issues
related to extent of treatment, and then the resolution of issues
relating to disposal conditions.
A. The Reynolds Process Provides Substantial Treatment
RCRA section 3004 (m) requires that treatment ``substantially
diminish the toxicity of the waste or substantially reduce the
likelihood of migration of hazardous constituents from the waste so
that short-term and long-term threats to human health and the
environment are minimized.'' EPA believes that treatment is normally
adequate to meet these requirements where treatment results in
substantial reduction of toxics and/or substantial reduction of their
mobility. See 62 FR 1994, January 14, 1997 and sources there cited.
The Agency's review of the Reynolds' process shows that polycyclic
aromatic hydrocarbons are destroyed virtually completely 9,
and cyanide is destroyed to a significant, but lesser
degree.10 These are the most significant hazardous
constituents in the waste, based on concentration, potential mobility
and toxicity. However, the current treatment process does not
neutralize the alkalinity of the spent potliner or of the resulting
residual, provides limited treatment of fluoride, and results in an
increase in the concentration of leachable arsenic in the residual.
11 Despite these mixed results, EPA still concludes that on
the whole, the process does provide substantial treatment. The
Reynolds' process destroys PAH constituents virtually 100% through
combustion. Further, cyanide is destroyed to a significant extent by
this same combustion process. Total levels of cyanide appear to be
reduced by the Reynolds' process by an average of over 90% from the
untreated levels. High concentrations of cyanide was a major reason
that K088 was listed as a hazardous waste (53 FR 35412, September 13,
1988), and destruction of cyanide is therefore a key consideration in
whether a K088 process is providing substantial treatment. The
leachability of fluoride, on the other hand, is not being significantly
altered the Reynolds' process. The addition of lime and sand in the
Reynolds' process is meant in part to help reduce the leachability of
the very high amounts of fluoride found in untreated K088. It appears
the Reynolds' process does provide some reduction (perhaps 25%) in the
initial leachability of fluoride. However, while treatment of fluoride
is an important indicator in a K088 treatment process, fluoride is not
a highly toxic constituent (it is not included in Part 261, Appendix
VIII). The Agency views the PAH and cyanide reductions as more
important. Likewise, the Reynolds' process appears to actually increase
the amounts of leachable arsenic as compared to untreated K088. This is
not an encouraging result, but the explanation is apparently that given
the destruction of organic components of the K088, perhaps combined
with arsenic levels in sand that is used as a fluxing agent in the
process, some elevation of arsenic continues to occur.
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\9\ 56 FR 33004-5, July 18, 1991.
\10\ See Reynolds' Special Laboratory Report (P33F-S0020.A).
\11\ Data set F; letter from Pat Grover, Reynolds Metals Company
to James R. Berlow, EPA; June 5, 1997.
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Commenters have argued, however, that Reynolds' process isn't
providing substantial treatment because levels of hazardous
constituents and fluoride in actual leachate exceed the K088 standards
for wastewaters. 12 EPA notes first that this information
does not alter the fact that the process significantly reduces total
concentrations of hazardous constituents. Second, EPA would not
normally consider data reflecting actual disposal as invalidating a
treatment process unless the results are directly at odds with the
basic premise of the land disposal restrictions program: that treatment
reduces the risks posed by disposing of hazardous wastes without
treatment. EPA believes that the destruction of organic constituents
and cyanide reduces threats posed by land disposal of the K088 wastes.
In this regard, the Agency notes that it found in the January notice
that the Reynolds' process might actually pose greater risks than
disposal of untreated wastes in subtitle C facilities (62 FR 1993).
This finding was based in part on the fact that the delisting allowed
Reynolds to dispose of the waste in units controlled less stringently
than under federal standards. (62 FR 1992 and 1995). However, EPA also
thought that the monofill leachate quality might be worse than that
generated from subtitle C landfills managing untreated potliners. EPA
now withdraws that finding. It is the Agency's current assessment that
Reynolds' treatment (albeit imperfect) does reduce the overall toxicity
associated with the waste. As a result, the disposal of the treated
residue in a tightly controlled Subtitle C landfill is preferable to
the disposal of untreated wastes. We base this finding on the
determination that the total mass of the available cyanide and PAHs has
been reduced.13 EPA also concludes that the concentration
observed in Reynolds' monofill leachate are in part the result of the
high mass to leachate ratio that results from partial cover of the
unit, resulting in a lower volume but less dilute leachate than results
from other subtitle C landfills.14
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\12\ Commenters also suggested that these data show lack of
compliance with the actual treatment standard. This is incorrect,
since the treatment standard is measured not on actual leachate
analysis, but on either a total waste concentration basis, or based
on leachate generated using the TCLP. Although it is now apparent
that the TCLP is not a good model for disposal conditions to which
K088 would be subject, the treatment standard still requires use of
the TCLP and any results so obtained that do not exceed the
treatment standard are in compliance.
\13\ See Agency's calculation of treatment effectiveness from
Reynolds' 12/8/96 Special Laboratory Report.
\14\ See Discussion on TCLP Results and Monofill Leachate
Quality, Reynolds, May 29, 1997.
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The only alternative to Reynolds' treatment, at present, is no
treatment at all.15 The whole premise of the law is not to
land dispose untreated hazardous wastes, and to require expeditiously
that existing treatment processes providing substantial treatment be
utilized. See citations at 61 FR 55724 (Oct. 28, 1996). EPA finds that
the combustion process followed by limited stabilization appears to be
adequate for the Agency to conclude that Reynolds provides substantial
treatment which reduces the threats posed by land disposal of untreated
spent potliners.16
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\15\ The Agency anticipates that a number of producers will
pursue the construction of alternative treatment facilities. In
fact, the Agency is currently evaluating two proposals for recycling
facilities that would employ vitrification processes that produce a
glass product and recover fluoride compounds. One of these recycling
facilities would use a process similar that currently in use at the
Ormet Corporation, Hannibal, Ohio. The Agency expects to provide
guidance on the regulatory status of these proposed recycling
facilities shortly.
\16\ Commenters suggested that threats might not be minimized by
the Reynolds' process, within the meaning of RCRA section 3004 (m).
EPA disagrees. As explained above, the treatment process provides
treatment which reflects the best commercially available treatment.
The D.C. Circuit has sustained the use of technology-based treatment
standards as a reasonable means of implementing the minimize threat
requirement. Hazardous Waste Treatment Council v. EPA, 886 F.2d 345
(D.C. Cir. 1989). In any event, EPA has said many times, and the
legislative history confirms, that the ``minimize threat'' statutory
language is susceptible to a number of interpretations, and was not
intended to mean that treatment must remove every conceivable threat
posed by disposal of a hazardous waste. See 61 FR at 55724 and
sources there cited.
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[[Page 37697]]
Commenters also questioned whether Reynolds is even achieving
current treatment standards, focusing on cyanide results in particular.
If the commenters were correct that the only available treatment
process consistently is unable to meet a treatment standard, then EPA
would likely find that insufficient treatment capacity exists. However,
data provided by Reynolds appears to show compliance with the total and
amenable cyanide LDR standards (see June 17, 1997 fax from Pat Grover
to John Austin, U.S. EPA). The Agency believes this data does show
compliance in all but limited instances. The commenter's argument is
premised on the notion that addition of fluxing and stabilizing agents
to the treatment process increases waste volume three-fold, so that
treatment analytical results should be multiplied by three to reflect
the amount of dilution occurring. This is not correct. Although certain
types of dilution--generally, dilution that does not reduce the
toxicity or mobility of hazardous constituents--is an impermissible
means of achieving a treatment standard, dilution which is a necessary
part of a treatment process is normally permissible. See 51 FR at 40592
(Nov. 7, 1986). Thus, addition of treatment reagents which produce
physical and chemical changes in the waste and which are a normal part
of the process of treating a waste are typically permissible. Id. This
is what occurs in the Reynolds' process, where fluxing agents are a
usual part of the process, and function to aid the passage of the
residue through the kiln and the fusion of the reagents. Thus, EPA
believes that the Reynolds' process does consistently achieve the
current treatment standards.
B. Reynolds Will Provide Safe Disposal Capacity
The above discussion of the Reynolds' process focused on the
destruction of organic constituents and cyanide, and the limited
stabilization of fluoride, leading to the conclusion that from an
engineering perspective, substantial treatment is occurring which
reduces the threats posed by land disposal of the hazardous wastes.
However, as explained above, EPA, in determining when a prohibition on
land disposal takes effect, must consider whether the treatment and
disposal capacity being offered ``protects human health and the
environment.'' RCRA section 3004(h)(2). EPA's assessment has been that
Reynolds' disposal of the delisted waste in non-subtitle C units failed
to adequately protect human health and the environment, and that the
delisting allows unsafe disposal practices to continue. As long as the
treated residual retains its current delisted status such practices
could continue.
However, Reynolds has very recently agreed to give up the delisting
and to manage the waste--that is, the residue from its treatment
process--subject to full subtitle C controls, including disposal in a
landfill satisfying minimum technology design criteria (i.e. double
liners and leachate collection system). Based on this new development,
it now appears that the residues will in fact be managed safely
(indeed, must be managed safely under the federal standards), so that
protective disposal capacity exists.
Today's decision is premised on the understanding that EPA will
issue to Reynolds Metals Company an administrative order specifying
Subtitle C management for their residues and the monitoring of
Reynolds' compliance with applicable LDR treatment standards, no later
than September 5, 1997. This order would serve as an interim bridge
until the administrative process of withdrawing the delisting (which
entails amending a final rule) is completed. The order will require
Reynolds to conduct daily sampling of key constituents for at least the
first 30 days of the order to document further that LDR treatment
standards are being met. Reynolds will operate under a Federal
administrative order until EPA action formally amends the Code of
Federal Regulations to repeal the subject delisting, and then they will
operate as an interim status facility pending application for and
receipt of a permit. If for some reason an administrative order is not
in place by September 5, 1997, EPA could extend the deadline up to
April 8, 1998.
EPA also notes that the finding that the Reynolds process provides
substantial treatment of the spent potliner, sufficient to justify the
technology's use to satisfy the requirements of the Land Disposal
Restrictions program, is not at odds with the finding that the
treatment residue is still a hazardous waste. There is no inherent
conflict between a finding that a waste has been treated substantially
enough to satisfy LDR requirements and that the treatment residue
nevertheless remains a hazardous waste. This in fact is the normal case
(few residues from treating listed wastes have been delisted even after
being treated to satisfy LDR requirements), and is directly
contemplated in RCRA section 3004(m)(2), which states that after
treatment which minimizes threats the treated waste may be disposed in
a subtitle C facility (i.e. the treatment residue remains a hazardous
waste). In this particular case, EPA has found that most cyanides in
the initial potliner are destroyed by Reynolds' thermal treatment
process, and that polycyclic aromatic hydrocarbons are essentially
fully destroyed. Other constituents' mobility is reduced. Thus,
substantial treatment has reduced (but not eliminated) the hazardous
properties of the waste, so that the resulting treatment residue
remains hazardous.
C. Agency's Conclusion Is That Protective Capacity is Presently
Available
Based on all of the above discussion, the Agency's conclusion is
that there is adequate treatment capacity for spent potliners at this
time, because the Reynolds process meets LDR treatment standards and
because ultimate disposal of the treatment residues is protective of
human health and the environment. (RCRA section 3004(h)(2)). The
Reynolds' process provides virtually all available treatment capacity
(See 62 FR 1995). However, given that generators need some time to make
arrangements with Reynolds, which in some cases involves cross-country
shipment, the Agency is extending the national capacity variance by
three months until October 8, 1997. EPA is selecting that length of
extension because it is the Agency's judgment (based on current facts,
and the pattern of previous discussions on the issue) that this is a
sufficient amount of time to make necessary logistical arrangements.
IV. Disposal of Potliners During National Capacity Variance Period
Section 3004 (h) (4) states that during periods of national
capacity variances (and case-by-case extensions), hazardous wastes
subject to those extensions that are disposed in landfills (and surface
impoundments) may only be so disposed if the landfill (or impoundment)
is in compliance with the minimum technology requirements of section
3004 (o). EPA has interpreted this language as requiring the individual
unit receiving the waste to be in compliance with those so-called
minimum technology standards, an interpretation sustained in Mobil Oil
v. EPA, 871 F. 2d 149 (D.C. Cir. 1989). In addition, EPA has indicated
that this requirement only applies to wastes that are still hazardous
when disposed (55 F R 22659-22660, June 1, 1990).
[[Page 37698]]
Accordingly, this means that during the extended period of the
national capacity extension, generators other than Reynolds will
dispose of K088 wastes in landfill units that satisfy the minimum
technology requirements of section 3004(o). While Reynolds' treatment
residue is not subject to these requirements at this time because it
has been delisted, a process will soon be initated to reclassify it as
a hazardous waste. Should the national capacity extension still be in
effect when Reynolds treatment residue is reclassified as hazardous,
such residues would also be required to be disposed in landfill units
satisfying minimum technology requirements (assuming that landfill
disposal is utilized) during the extension period.
V. Use Constituting Disposal Issues
Although not directly related to the LDR capacity determination
being promulgated today, EPA is also taking this opportunity to address
concerns that have been raised regarding the use of Reynold's residue
in a manner constituting disposal.
In a separate action, EPA is intending to propose to withdraw the
existing delisting for the residues from Reynold's treatment process.
EPA remains concerned, however, that even if the residues are a listed
hazardous waste, Reynolds may be able under current regulations to use
those residues in uses constituting disposal if they can demonstrate
that such uses are ``legitimate'' product uses under 40 CFR 266.20(b) .
EPA is concerned about possible environmental impacts such uses
might have because of the concerns EPA has about the leachate generated
from the treated potliner and data from road test beds Reynolds
constructed using the residues. (See 62 FR 1993; January 14, 1997.)
EPA understands that Reynolds has since ceased such uses under the
terms of a compliance order from the State of Arkansas.
EPA remains concerned about this possibility and intends to monitor
the situation. If the Agency determines at some point in the future
that such uses are taking place or are being pursued, and if we
determine such uses may pose health or environmental concerns, EPA may
consider amendments to Section 266.20(b) to further restrict such uses.
See, e.g., 62 FR 26061; May 12, 1997. At that time, EPA may decide on
whether to prohibit uses of the Reynolds residue.
VI. Regulatory Requirements
A. Regulatory Impact Analysis Pursuant to Executive Order 12866
Executive Order No. 12866 requires agencies to determine whether a
regulatory action is ``significant.'' The Order defines a
``significant'' regulatory action as one that ``is likely to result in
a rule that may: (1) Have an annual effect on the economy of $100
million or more or adversely affect, in a material way, the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
governments or communities; (2) create serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients; or
(4) raise novel legal or policy issues arising out of legal mandates,
the President's priorities, or the principles set forth in the
Executive Order.''
The Agency considers today's final rule to be nonsignificant as
defined by the Executive Order and therefore not subject to the
requirement that a regulatory impact analysis has to be prepared.
Today's rule delays for three months the imposition of treatment
standards for spent aluminum potliners that were estimated previously
by EPA to cost between $11.9 million and $47.3 million (61 FR 15566 and
15591, April 8, 1996). Thus, today's rule results in net savings over
this period of time and prevents any potential hardship that would
otherwise result from the lack of available treatment capacity for
spent aluminum potliners.
B. Paperwork Reduction Act
This rule does not contain any new information collection
requirements under the provisions of the Paperwork Reduction Act, 44
U.S.C. 3501 et seq. Since there are no new information collection
requirements being promulgated today, an Information Collection Request
has not been prepared.
C. Unfunded Mandates Reform Act and Regulatory Flexibility Act
In addition, this action does not impose annual costs of $100
million or more, will not significantly or uniquely affect small
governments, and is not a significant federal intergovernmental
mandate. The Agency thus has no obligations under sections 202, 203,
204 and 205 of the Unfunded Mandates Reform Act. Moreover, since this
action is not subject to notice-and-comment requirements under the
Administrative Procedure Act or any other statute, it is not subject to
sections 603 or 604 of the Regulatory Flexibility Act.
D. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives and the Comptroller General of the
General Accounting Office prior to publication of the rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
VII. Immediate Effective Date
EPA has determined to make today's action effective immediately.
The Agency believes that there is good cause to do so, within the
meaning of 5 U.S.C. 553 (b) (B). The current capacity extension ends on
July 8, and EPA does not believe it is physically possible for
generators to begin shipping wastes to Reynolds on that date (nor is
the Agency willing to speculate as to existence or non-existence of
generator storage capacity). The reason the Agency is issuing this
notice so close to the deadline is because the whole situation
involving this capacity extension is complicated (involving decisions
relating to both treatment performance and reclassification of the
existing delisting), and, accordingly, the Agency continued considering
new information until just before it was issued. During this time, the
Agency carried on technical and other discussions with all interested
persons. EPA believes that this process was reasonable, and that
putting out a separate proposal during this period when the Agency's
analysis of the existing information was changing based on changing
facts would not have significantly benefitted either the Agency or
interested persons, and could have interfered with the on-going
dialogue by diverting resources from them. EPA has endeavored to obtain
as much public comment on the issues as possible and to avoid issuing a
decision until carrying on as extensive a dialogue as possible with
concerned parties. Thus, EPA has held a number of meetings with both
Reynolds and affected primary aluminum generators (noted in the record
for this action), solicited and accepted written submissions from these
entities (again part of the administrative record), and made each
sides' submissions available to the other for response (which have been
forthcoming in abundance). The
[[Page 37699]]
Agency has also had contacts (albeit more limited) with representatives
of the hazardous waste treatment industry and the environmental
community. This process extended until June 30. Actual notice and
opportunity for comment of course satisfies all procedural requirements
of the Administrative Procedure Act (as to parties receiving such
notice). 5 U.S.C. 553 (b).
In addition, EPA believes that the January 14 notice served as a
type of proposal that EPA would consider and grant a further extension
if there were not significant changes in the disposal and treatment
occurring at Reynolds' Arkansas facility, and at least some of the
comments the Agency has received since January reflect that view.
For all of these reasons, EPA finds that this rule extending the
current national capacity extension until October 8, 1997 may be made
effective immediately.
List of Subjects in 40 CFR Part 268
Environmental protection, Hazardous waste, Reporting and
recordkeeping requirements.
Dated: July 7, 1997.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as follows:
PART 268--LAND DISPOSAL RESTRICTIONS
1. The authority citation for part 268 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, and 6924.
2. Section 268.39 is amended by revising paragraph (c) to read as
follows:
Sec. 268.39 Waste specific prohibitions--spent aluminum potliners;
reactive; and carbamate wastes.
* * * * *
(c) On October 8, 1997, the wastes specified in 40 CFR 261.32 as
EPA Hazardous Waste number K088 are prohibited from land disposal. In
addition, soil and debris contaminated with this waste are prohibited
from land disposal.
* * * * *
[FR Doc. 97-18410 Filed 7-11-97; 8:45 am]
BILLING CODE 6560-50-P
