[Federal Register Volume 66, Number 98 (Monday, May 21, 2001)]
[Notices]
[Pages 27961-27968]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-12880]
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ENVIRONMENTAL PROTECTION AGENCY
[SW-FRL-6982-4]
Renewal of Case-by-Case Extension of the Land Disposal
Restrictions (LDR) Effective Date for Hazardous Wastes Generated by
FMC/Astaris Idaho LLC
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of final decision.
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SUMMARY: Today, EPA is approving the request submitted by FMC/Astaris
Idaho LLC (referred to in this Notice as FMC/Astaris) for a one-year
Case-by-Case (CBC) extension renewal of the May 26, 2001 effective date
of the RCRA land disposal restrictions (LDRs) applicable to hazardous
wastes generated at their Pocatello, Idaho facility. This action
responds to the request submitted by FMC/Astaris to renew their
existing CBC extension for one additional year. FMC/Astaris requested a
renewal of the CBC extension due to the continued lack of available
treatment capacity for five waste streams, and the need for additional
time to design, construct, and begin operation of an on-site treatment
plant to treat the wastes. EPA concludes that FMC/Astaris has
adequately demonstrated that the request should be granted. By RCRA
statute, this is the last CBC extension that can be granted for these
wastes. As a result of today's action, FMC/Astaris can continue to
manage the five waste streams in their on-site surface impoundments
until May 26, 2002 without these wastes being subject to the LDRs.
DATES: This case-by-case extension renewal becomes effective on May 26,
2001.
ADDRESSES: The official record for this action is identified as Docket
Number F-2000-FM2F-FFFFF. Public comments and 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. To review docket materials, we
recommend that you make
[[Page 27962]]
an appointment by calling (703) 603-9230. You 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 about this
notice, contact the RCRA Hotline at (800) 424-9346 or TDD (800) 553-
7672 (hearing impaired). In the Washington, DC, metropolitan area, call
(703) 412-9810 or TDD (703) 412-3323.
For more detailed information on specific aspects of this CBC
extension, contact William Kline, Office of Solid Waste, 5302W, U.S.
Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania
Avenue, NW., Washington, DC 20460, (703) 308-8440, (e-mail address:
[email protected]).
SUPPLEMENTARY INFORMATION: The index of supporting materials evaluated
by EPA in reaching our determination to approve the requested CBC
extension renewal is available on the Internet. You will find this
index at http://www.epa.gov/epaoswer/hazwaste/ldr/fmc.htm>.
The information in this section is organized as follows:
I. Background of This Notice of Final Decision
A. What is the Congressional Mandate Behind the Land Disposal
Restrictions (LDR) and Extensions of the LDR Effective Date?
B. What Actions Have Led to this CBC Extension Renewal?
C. What Other Actions Are Underway at the Pocatello facility?
D. What Decision Has Been Reached by the Tribes and FMC/Astaris
Regarding The Use of High Temperature Dust Filtration System at the
Pocatello Facility?
E. Overview of the FMC/Astaris Request for Renewing Their CBC
Extension
F. Summary of EPA's Evaluations of the FMC/Astaris
Demonstrations Under 40 CFR 268.5(a)
II. What Are EPA's Responses to Comments Submitted on the Notice of
Proposed Approval of Renewal of their existing CBC Extension?
A. Given the Recent Reductions in the Pocatello Facility
Production and Waste Generated, Can FMC/Astaris Now Find Off-Site
Treatment Capacity?
B. Who Will Permit the On-Site Disposal of LDR Treatment Plant
Residue?
C. Does EPA Approval of this Final CBC Extension Impose
Substantial Direct Compliance Costs on the Tribes?
D. How Does this CBC Extension Renewal Affect Pond Emissions
onto the Fort Hall Indian Reservation for an Additional Year?
III. What Is EPA's Final Determination on the FMC/Astaris Request to
Renew their existing CBC Extension?
IV. What Must FMC/Astaris Do Under this CBC Extension Renewal?
V. Administrative Requirements
I. Background of This Notice of Final Decision
A. What Is the Congressional Mandate Behind the Land Disposal
Restrictions (LDR) and Extensions of the LDR Effective Date?
The Resource Conservation and Recovery Act (RCRA) establishes a
program for controlling hazardous waste from the time it is generated,
through its treatment and storage, until its ultimate disposal. RCRA
requires EPA to develop regulations prohibiting the land disposal of
certain hazardous wastes by specified dates in order to minimize
threats to human health and the environment posed by land disposal of
these wastes. These hazardous wastes cannot be land disposed without
first meeting treatment standards established by EPA that 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 (see RCRA section 3004 (m)).
When writing RCRA, Congress recognized that adequate treatment,
recovery, or disposal capacity which is protective of human health and
the environment may not always be available by the applicable statutory
effective dates. Therefore, EPA is authorized to grant a national
capacity variance from the effective date which would otherwise apply
to specific hazardous wastes, based on the earliest dates that such
capacity will be available, but not to exceed two years. EPA also is
authorized to grant an additional extension of the applicable LDR
deadline, on a case-by-case basis, for up to one year. Such an
extension is renewable once for up to an additional year.
The requirements for obtaining a CBC extension of a LDR effective
date are found in 40 CFR 268.5(a). The requirements for obtaining the
renewal of a CBC extension of a Land Disposal Restriction (LDR)
effective date are found in 40 CFR 268.59(e).
B. What Actions Have Led to This CBC Extension Renewal?
On January 25, 1996 (61 FR 2338), EPA published a proposed rule
(the Phase IV LDR rule) that addressed land disposal restrictions
applicable to characteristic mineral processing wastes. FMC/Astaris
Corporation's elemental phosphorus plant located in Pocatello, Idaho
(EPA Identification Number: IDD070929518) generated wastes affected by
that proposal. Realizing the lack of adequate treatment capacity for
five affected wastes, FMC/Astaris submitted a petition to EPA
requesting a two-year national capacity variance. FMC/Astaris later
submitted supplemental comments informing EPA that they could not
design a treatment unit for their wastes until the applicable treatment
standards and the wastes subject to treatment were defined by EPA.
In February 1997, attorneys for the United States met with the
Tribal governing body representing the Shoshone-Bannock Tribes (on
whose lands the facility is located), the Fort Hall Business Council.
The Fort Hall Business Council was informed during this meeting that
the United States intended to file an action against FMC/Astaris for
past mishandling of hazardous wastes. This filing and subsequent
negotiations led to the establishment of a proposed Consent Decree in
October 1998, which is described below. This enforcement action's
relevance to this case-by-case extension request is also explained
below.
On May 12, 1997 (62 FR 26041), EPA proposed to grant a two-year
national capacity variance for three of the facility's waste streams,
Medusa Scrubber Blowdown, Anderson Filter Media Rinsate, and Furnace
Building Washdown. FMC/Astaris submitted comments on the proposal that
the Anderson Filter Media Rinsate had been eliminated by applying
pollution prevention techniques. However, FMC/Astaris identified three
additional waste streams (Precipitator Slurry, NOSAP Slurry, and Phossy
Water) generated in the same elemental phosphorus production process
for which treatment capacity was not available. FMC/Astaris requested
that these three additional wastes be included in the proposed two-year
national capacity variance.
On May 26, 1998 (63 FR 28556), EPA finalized the Final LDR Phase IV
rule, which granted a two-year national capacity variance for newly
identified characteristic wastes from elemental phosphorus processing.
This national capacity variance covered the five waste streams
generated at the Pocatello facility, and extended the LDR effective
date for these wastes to May 26, 2000.
In September, 1998, the United States agreed to delay the filing of
the Consent Decree to explore options for penalty sharing with the
Tribes. The Tribes subsequently were offered the
[[Page 27963]]
opportunity to become a formal party to the Consent Decree, but on
October 9, 1998, the Fort Hall Business Council declined to sign the
Consent Decree and passed a resolution opposing it.
On October 16, 1998, the United States filed the proposed Consent
Decree in U.S. District Court for the District of Idaho, and opened a
public comment period on the proposed Consent Decree.
On March 29, 1999, the United States filed the Proposed Consent
Decree (United States v. FMC, Civ. No. 98-0406-E-BLW ), requiring that
FMC/Astaris design and construct a treatment system, referred to as the
LDR Treatment System, which would treat the facility's production
wastes to the LDR treatment standards. Under this RCRA Consent Decree,
FMC/Astaris must begin operating the LDR Treatment System by May, 2002.
In its ``Reply Memorandum in Further Support of Motion of the United
States for Entry of Proposed RCRA Consent Decree,'' (dated May 27,
1999), the United States noted that FMC/Astaris would need to obtain
Case-by-Case extensions of the LDR effective date in order to allow the
continued discharge of wastes to the facility's on-site surface
impoundments beyond the May 26, 2000 expiration date of the national
capacity variance.
On July 12, 1999, FMC/Astaris Corporation submitted to EPA a
request, along with documentation to support the required seven
demonstrations in 40 CFR 268.5, for a one-year CBC extension of the LDR
effective date for the five waste streams.
On July 13, 1999, the District Court granted the United States'
motion to enter as final the Consent Decree.
The Shoshone-Bannock Tribes filed Notice of Appeal on August 11,
1999 and on November 29, 1999, filed an appeal of the final RCRA
Consent Decree (Appeal No. 99-35821) in the United States Court of
Appeals for the Ninth Circuit. This appeal was ultimately denied.
On March 8, 2000 (65 FR 12233), EPA proposed to approve FMC/
Astaris' request for a one-year CBC extension of the LDR effective
date.
On April 17, 2000, FMC/Astaris Idaho LLC, a joint venture combining
the phosphorus chemical businesses of FMC Corporation and Solutia,
Inc., became the owner and operator of the Pocatello facility.
On May 2, 2000, Elizabeth Cotsworth (Director of the EPA Office of
Solid Waste) met with the Fort Hall Business Council in Pocatello,
Idaho to consult with the Tribes regarding FMC/Astaris' request for a
CBC extension.
On May 31, 2000 (65 FR 34694), EPA approved the CBC extension,
extending the LDR effective date to May 26, 2001.
On November 1, 2000, FMC/Astaris submitted a request to EPA for a
one-year renewal of their CBC extension. On March 16, 2001 ( 66 FR
15243), EPA proposed to approve the FMC/Astaris request.
On April 24, 2001 (66 FR 20656), EPA published a ``Notice of Data
Availability'' to provide public notice that FMC/Astaris had provided
additional information relevant to their request for renewal of their
CBC extension.
C. What Other Actions Are Underway at the Pocatello facility?
The Pocatello facility is located on Shoshone-Bannock Tribes' lands
(referred to as the Fort Hall Indian Reservation). Elemental phosphorus
has been produced at this location for over 50 years. The Tribes are
concerned about the cleanup of past environmental contamination
resulting from these operations, and the risks posed by the continued
discharge of untreated hazardous wastes into on-site surface
impoundments. The RCRA Consent Decree addresses FMC/Astaris' past
mishandling of hazardous wastes, and directs FMC/Astaris to take
measures to avoid future environmental contamination. The Consent
Decree mandates site-specific treatment requirements to deactivate
ignitable and reactive waste streams, and requires FMC/Astaris to
design, construct, and commence operation of a Land Disposal
Restrictions Treatment System (LDR Treatment System) for these waste
streams by May 2002. It also requires closure of surface impoundments
(ponds) used to manage the wastes, establishes a Pond Management Plan,
and mandates plant upgrades, including the installation of secondary
containment for sumps, tanks, and piping at the facility.
As noted above, the Shoshone-Bannock Tribes raised an unsuccessful
legal challenge to the Consent Decree, citing their opposition to the
continued generation and on-site disposal of these hazardous wastes.
The Consent Decree is one of several actions underway to address
the environmental impact of operations at the facility. Groundwater and
soil contamination from old ponds is being addressed under a Superfund
cleanup. Particulate air emissions will be addressed through a Clean
Air Act Federal Implementation Plan. This Plan established federally
enforceable limits and control requirements for particulate emissions.
D. What Decision Has Been Reached by the Tribes and FMC/Astaris
Regarding The Use of a High Temperature Dust Filtration System at the
Pocatello Facility?
In the Agency's March 16, 2001 Federal Register notice of proposed
decision, we discussed the possibility that FMC/Astaris might switch to
a High Temperature Dust Filtration (HTDF) system that would replace the
LDR Treatment Plant now under construction (see 66 FR 15248). FMC/
Astaris states that this technology, if employed, would eliminate two
of the five waste streams and also cause a substantial change in the
composition of the other three waste streams--such that the LDR
Treatment Plant would no longer be necessary to treat these wastes. On
April 24, 2001 (66 FR 20656), EPA published a ``Notice of Data
Availability'' to provide public notice that FMC/Astaris had sent us
additional information on the HTDF technology.
At this time, the Tribes and FMC/Astaris are discussing the
implications of substituting the HTDF system for the LDR Treatment
Plant. Meanwhile, construction of the LDR Treatment Plant is proceeding
on schedule.
Today, we are approving this final CBC extension renewal based on
the commitment made by FMC/Astaris that they will complete construction
of the LDR Treatment Plant and begin its operation by May 2002. Should
circumstances change, EPA will consider whether the extension remains
warranted. See sections 40 CFR 268.5 (f) and (g), which say that the
case-by-case applicant must notify EPA of changed circumstances, and
that EPA is required to consider whether the approved case-by-case
extension remains warranted in light of these changed circumstances.
Public comments submitted on the April 24, 2001 ``Notice of Data
Availability'' regarding the HTDF system do not apply to our approval
today of the CBC extension renewal, which is keyed to the construction
of the LDR Treatment Plant. EPA will address comments on the April 24,
2001 ``Notice'' if the Tribes and FMC/Astaris come to agreement on
switching to the HTDF system.
E. Overview of the FMC/Astaris Request for Renewing Their CBC Extension
The Pocatello facility manufactures elemental phosphorus that is
shipped to other facilities to produce phosphates and other phosphorus-
based products for use in products such as processed foods, beverages,
detergents, cleaners, agricultural chemicals, and water treatment
chemicals. Elemental
[[Page 27964]]
phosphorus is produced by feeding a combination of phosphate ore, coke,
and silica rock into electric arc furnaces.
As noted earlier, FMC/Astaris' application involves five waste
streams which are generated in the production of elemental phosphorus
and are part of the CBC extension renewal request: (1) Non-Hazardous
Slurry Assurance Project (NOSAP) Slurry, (2) Medusa Scrubber Blowdown,
(3) Furnace Building Washdown, (4) Precipitator Slurry, and (5) Phossy
Water. These waste streams exhibit two characteristics of hazardous
waste: Reactivity due to the presence of cyanide and phosphine,
ignitability, and toxicity due to the presence of metals. The wastes
are generated in large quantities and pose unique handling, treatment,
and disposal considerations, given the presence of elemental phosphorus
and cyanide. Each of these waste streams also contains varying levels
of Naturally Occurring Radioactive Material, which most off-site
commercial treatment, storage and disposal facilities are not permitted
to manage.
FMC/Astaris requested a two-year national capacity variance from
the Phase IV LDR requirements, and a subsequent one-year Case-by-Case
(CBC) extension of the LDR effective date for these five waste streams.
FMC/Astaris stated their need for the extension due to the lack of
available treatment capacity for these five waste streams, the need for
additional time to initially identify an appropriate treatment
technology, and, when such technology subsequently was identified, the
time to design, construct, and begin operation of an on-site LDR
Treatment Plant. The initial CBC extension was approved by EPA.
On November 1, 2000, FMC/Astaris submitted a request to the EPA to
renew for one year their existing CBC extension, set to expire on May
26, 2001. FMC/Astaris provided documentation that there still is no
available off-site commercial treatment capacity for these five waste
streams.
Since approval of the initial CBC extension, progress has been made
toward completing the design, procuring equipment, and commencing
construction of the planned LDR Treatment Plant. As required under
their existing CBC extension, FMC/Astaris has submitted to EPA monthly
progress reports documenting this. A detailed discussion of these
showings are in the March 16, 2001 Federal Register document.
However, as was anticipated at the time of approval of the initial
CBC extension, additional time is needed to complete the design work,
finish construction, and begin operation of the LDR Treatment Plant.
May 2002 remains the date for bringing the LDR Treatment Plant on-line.
The LDR Treatment Plant will treat the five waste streams using a
modified Zimpro treatment process. The Zimpro process will reduce the
levels of elemental phosphorus and cyanide in the wastes so that the
wastes will not exhibit the characteristic of reactivity for phosphine
and hydrogen cyanide gas, or the characteristic of ignitability.
Underlying hazardous constituents contained in the wastes will meet all
of the applicable treatment standards found in 40 CFR 268.48 for these
constituents.
Until the LDR Treatment Plant is finished, the five waste streams
will continue to be managed in two on-site surface impoundments (Ponds
17 and 18). These surface impoundments may be used until May 26, 2002.
The surface impoundments are constructed to meet the RCRA minimum
technological requirements of 40 CFR 268.5(h)(2), including liners and
groundwater monitoring. They must be operated in compliance with the
Pond Management Plan that is part of the Consent Decree. The LDR
Treatment Plant will eliminate the need for these surface impoundments.
F. Summary of EPA's Evaluations of the FMC/Astaris Demonstrations Under
40 CFR 268.5(a)
The following summarizes our evaluation of the adequacy of the
demonstrations made by FMC/Astaris for each of the seven criteria
required under 40 CFR 268.5(a) to obtain a CBC extension renewal.
1. Section 268.5 (a)(1)--the Applicant (FMC/Astaris) Has Made a Good-
Faith Effort To Locate and Contract With Treatment, Recovery, or
Disposal Facilities Nationwide To Manage Their Waste in Accordance With
the LDR Effective Date of the Applicable Restriction (May 26, 2001)
As discussed in the March 16 (66 FR 15243) Federal Register notice
of proposed decision (and the referenced March 8, 2000 (65 FR 12233)
and May 31, 2000 (65 FR 34694) Federal Register notices to address the
initial CBC extension), several surveys of treatment, storage, and
disposal facilities (TSDFs) throughout the nation were conducted by
FMC/Astaris to locate commercial treatment or disposal capacity. Each
of these surveys showed that no TSDFs were able or willing to provide
treatment or disposal capacity for these waste streams.
The presence of elemental phosphorus, the potential for generation
of phosphine gas, lack of a permit to handle naturally occurring
radioactive materials (NORM), and the volume of wastes to be managed
were the primary reasons noted by the TSDFs in declining to manage
these waste streams. EPA itself is not aware of any available capacity
for these waste streams. No commercial entity providing waste treatment
has disputed these conclusions, which have been made available for
public comment in several Federal Register notices spanning a five-year
time period.
On March 30, 2001, FMC/Astaris notified us that as a consequence of
the current power shortage in the western United States, the facility
reached a two-year agreement with Idaho Power Company to sell back
electricity. As a result, the Pocatello facility will operate at a
reduced level for an indefinite time. This reduction in production will
result in a 30% reduction in the volume of the waste streams that are
generated at the facility.
Except for one TSDF (Environmental Enterprises) contacted in the
FMC/Astaris survey, the levels of phosphorus and NORM were the main
reasons provided by TSDFs for not being able to manage the Pocatello
waste streams. Several other TSDFs also said that they do not have the
railcar capability to handle these waste streams. Based on our review
of the survey information provided by FMC/Astaris and our follow-up
discussion with Environmental Enterprises, the reduction in waste
quantity at the Pocatello facility does not alter the conclusion that
there still is no available capacity for these waste streams. At this
point, even if a TSDF expressed an interest in taking these wastes, the
time needed to design and construct the infrastructure for both the
railcar loading and unloading facilities at Pocatello and the receiving
TSDF would make this option unreasonable--given that the LDR Treatment
Plant will be operational by May 2002.
FMC/Astaris has made a reasonable effort to locate adequate,
alternative treatment capacity for the off-site management of the waste
streams, and therefore has fulfilled the requirements of this
demonstration.
[[Page 27965]]
2. Section 268.5 (a)(2)--The Applicant (FMC/Astaris) Has Entered Into a
Binding Contractual Commitment To Construct or Otherwise Provide
Alternative Treatment, Recovery, or Disposal Capacity That Meets The
Treatment Standards Specified in 40 CFR Part 268, Subpart D or, Where
Treatment Standards Have Not Been Specified, Such Treatment, Recovery,
or Disposal Capacity Is Protective of Human Health and the Environment.
As discussed in the March 16 (66 FR 15243) Federal Register notice
of proposed decision (and the referenced March 8, 2000 (65 FR 12233)
and May 31, 2000 (65 FR 34694) Federal Register notices to address the
initial CBC extension), FMC/Astaris has a contract with Raytheon
Engineers and Constructors to design and construct the LDR Treatment
Plant. FMC/Astaris has provided EPA with documentation of their binding
contractual commitment, such as a June 2000 Authorization for
Expenditures for $122.5 million. In addition, copies of many purchase
orders for equipment, supplies, and services have been provided to EPA.
And, since approval of the initial CBC extension in May 2000, FMC/
Astaris has provided monthly reports documenting progress made in the
design and construction of the LDR Treatment Plant. These progress
reports show a good-faith effort by FMC/Astaris to construct the LDR
Treatment Plant, with approximately $60 million spent to date on this
project. We also note that the RCRA Consent Decree imposes an
additional binding legal commitment on FMC/Astaris to construct the LDR
Treatment System. Under the RCRA Consent Decree, FMC/Astaris is
compelled to design and construct the LDR Treatment System by May 2002.
If FMC/Astaris fails to meet the stipulations of this RCRA Consent
Decree, they will be subject to significant financial penalties.
We conclude that FMC/Astaris has demonstrated their binding
contractual commitment to construct the LDR Treatment Plant.
3. Section 268.5 (a)(3)--Due to Circumstances Beyond the Applicant's
(FMC/Astaris) Control, Such Alternative Capacity Cannot Reasonably Be
Made Available by the Applicable Effective Date. This Demonstration May
Include a Showing That the Technical and Practical Difficulties
Associated With Providing the Alternative Capacity Will Result in the
Capacity Not Being Available by the Applicable Effective Date
FMC/Astaris has committed considerable resources toward determining
and developing the most appropriate treatment technology for these
waste streams, which pose numerous and unique handling, safety, and
treatment considerations. The lack of available commercial treatment
capacity also attests to the difficulties encountered in managing these
waste streams.
FMC/Astaris' search for appropriate treatment technology was
delayed because they had to wait for EPA to finalize the Phase IV LDR
treatment standards. As discussed in the March 16 (66 FR 15243) Federal
Register notice of proposed decision (and the referenced March 8, 2000
(65 FR 12233) and May 31, 2000 (65 FR 34694) Federal Register notices
to address the initial CBC extension), FMC/Astaris documents that they
made an intensive effort to determine the treatment technology most
appropriate to treat the waste streams. Now that an appropriate
treatment technology and treatment process have been identified, FMC/
Astaris is constructing the LDR Treatment Plant.
We are convinced that FMC/Astaris has acted in good faith to
provide the necessary treatment capacity, and that it is engaged in
constructing the LDR Treatment Plant to provide the necessary treatment
capacity. The monthly progress reports submitted by FMC/Astaris since
June 2000 show that FMC/Astaris is proceeding on schedule to construct
the LDR Treatment Plant. However, FMC/Astaris will not be able to begin
operation of the LDR Treatment Plant by the May 26, 2001 expiration
date of their existing CBC extension.
We conclude the lack of treatment capacity for these waste streams
is due to circumstances beyond the control of FMC/Astaris. Therefore,
FMC/Astaris has met the Sec. 268.5(a)(3) demonstration.
4. Section 268.5 (a)(4)--The Capacity Being Constructed or Otherwise
Provided by the Applicant (FMC/Astaris) Will Be Sufficient To Manage
the Entire Quantity of Waste That Is the Subject of the Application
As discussed in the March 16, 2001 (66 FR 15243) Federal Register
notice of proposed decision (and the referenced March 8, 2000 (65 FR
12233) and May 31, 2000 (65 FR 34694) Federal Register notices to
address the initial CBC extension), the LDR Treatment Plant being
constructed will use a combination of lime treatment, anoxic
hydrolysis, metals precipitation, filtration, and stabilization. This
treatment will reduce the levels of elemental phosphorus and cyanide in
the waste so that the waste does not exhibit the characteristic of
reactivity or ignitability. The treatment will also stabilize the waste
by permanently and irreversibly bonding the waste into the molecular
structure of a solid product so that it does not leach heavy metals in
concentrations greater than applicable LDR universal treatment
standards. FMC/Astaris has provided documentation demonstrating that
this treatment system will meet the LDR treatment standards.
FMC/Astaris states that the LDR Treatment Plant will have
sufficient capacity to treat the full annual production of five waste
streams. Within five years of commencing operation of the LDR Treatment
Plant, it will also be able to treat all the accumulated solids in Pond
18, as required by the RCRA Consent Decree.
As previously mentioned, FMC/Astaris notified us that the facility
will operate at a reduced level for an indefinite time. This reduction
in production will result in an approximately 30% reduction of the
quantity of the five waste streams generated. Since approval of their
existing CBC extension in May, 2000, FMC/Astaris has reduced by
approximately 20% their estimate of the quantity of Pond 18 solids that
will need to be removed and treated in the LDR Treatment Plant. This
reduction in solids is due to improved efficiency and the increased use
of the NOSAP System. The combination of reduced solids in Pond 18,
along with the reduction in quantity of waste generated, reinforces our
conclusion that the planned LDR Treatment Plant will provide sufficient
treatment capacity.
[[Page 27966]]
5. Section 268.5 (a)(5)--The Applicant (FMC/Astaris) Provides a
Detailed Schedule for Obtaining Operating and Construction Permits or
an Outline of How and When Alternative Capacity Will Be Available
As discussed in the March 16 (66 FR 15243) Federal Register notice
of proposed decision (and the referenced March 8, 2000 (65 FR 12233)
and May 31, 2000 (65 FR 34694) Federal Register notices to address the
initial CBC extension), FMC/Astaris has provided EPA with a schedule
for the design, construction, and permitting of the LDR Treatment
Plant, which will be on-line by May 2002. FMC/Astaris has submitted
monthly progress reports to us since June, 2000 showing that they are
meeting their schedule. We conclude that FMC/Astaris has made a good
faith effort to construct the LDR Treatment Plant in a timely manner.
6. Section 268.5 (a)(6)--The Applicant (FMC/Astaris) Has Arranged for
Adequate Capacity To Manage Their Waste During an Extension, and Has
Documented the Location of all sites at Which the Waste Will Be Managed
As discussed in the March 16 (66 FR 15243) Federal Register notice
of proposed decision, FMC/Astaris will continue to manage the five
waste streams in two of their on-site surface impoundments, referred to
as Ponds 17 and 18, during this CBC extension renewal. FMC/Astaris has
provided data showing that each of these surface impoundments will have
the necessary capacity available to manage these wastes during the
extension.
The reduction (approximately 30%) in quantity of waste generated,
due to the electric power shortage, and the approximately 20% decrease
in the quantity of Pond 18 solids that will need to be removed and
treated in the LDR Treatment Plant, also ensures that there will be
sufficient capacity in Ponds 17 and 18. Even prior to this reduction
(see March 16, 2001 (66 FR 15243) Federal Register notice of proposed
decision), we concluded that Ponds 17 and 18 had adequate capacity to
manage these waste streams until May 2002.
Further assurance of adequate capacity and proper management of
these surface impoundments (ponds) will be provided by FMC/Astaris'
adherence to the Pond Management Plan, as required by the RCRA Consent
Decree.
We conclude that FMC/Astaris has satisfied this demonstration.
7. Section 268.5 (a)(7)--Any Waste Managed in a Surface Impoundment or
Landfill During the Extension Period Will Meet the Requirements of 40
CFR 268.5(h)(2)
As previously described, the waste streams will continue to be
managed in the on-site surface impoundments (Ponds 17 and 18) during
this CBC extension renewal, until May 26, 2002. As discussed in the
March 16 (66 FR 15243) Federal Register notice of proposed decision
(and the referenced March 8, 2000 ( 65 FR 12233) and May 31, 2000 (65
FR 34694) Federal Register notices to address the initial CBC
extension), FMC/Astaris has provided information demonstrating that
these surface impoundments were constructed to meet the RCRA minimum
technological requirements of 40 CFR 268.5(h)(2), including such
protective measures as double liners, leak detection, and groundwater
monitoring wells. We conclude that FMC/Astaris has satisfied this
demonstration.
II. What Are EPA's Responses to Comments Submitted on the Notice of
Proposed Approval of the CBC Extension Renewal?
The Fort Hall Business Council and FMC/Astaris submitted comments
in response to the March 16, 2001 Federal Register notice. The Fort
Hall Business Council expressed the Tribes' continued opposition to the
generation and disposal of untreated wastes in the on-site surface
impoundments. The following section discusses specific issues raised in
the comments made by the Fort Hall Business Council and FMC/Astaris.
FMC/Astaris expressed support of our proposed decision to approve
the renewal of their existing CBC extension. FMC/Astaris noted the non-
availability of off-site treatment capacity, and the need for
additional time to construct the LDR Treatment Plant and bring it on-
line to meet the May 2002 startup date. FMC/Astaris also provided
clarification of several statements made by us in the March 16, 2001
``Notice''. In a letter to EPA, dated May 3, 2001, FMC/Astaris
responded to the comments submitted by the Fort Hall Business Council.
A. Given the Recent Reductions in the Pocatello Facility Production and
Waste Generated, Can FMC/Astaris Now Find Off-Site Treatment Capacity?
With the recent announcement by FMC/Astaris of a reduction in
production and a resultant reduction in waste generated, the Fort Hall
Business Council believes it may now be possible for a TSDF to handle
the reduced volume of waste. They note the 40 CFR 268.5(a)(3)
requirement--that alternative capacity cannot reasonably be made
available by the effective date--may no longer be successfully
demonstrated by FMC/Astaris.
As discussed earlier, except for one facility (Environmental
Enterprises) contacted in the FMC/Astaris survey, the levels of
phosphorus and NORM were the main reasons provided by TSDFs for not
being able to manage the Pocatello waste streams. Several other TSDFs
also said that they did not have the railcar capability to handle these
waste streams. We reiterate that based on our review of the survey
information provided by FMC/Astaris and our follow-up discussion with
Environmental Enterprises, there is no available treatment capacity for
these waste streams. At this point, even if a TSD facility expressed an
interest in taking these wastes, the time needed to design and
construct the infrastructure for both the railcar loading and unloading
facilities at Pocatello and the receiving TSDF facility would make this
option unreasonable `` given that the LDR Treatment Plant is well under
construction and will be in operation by May 2002.
B. Who Will Permit the On-Site Disposal of the LDR Treatment Plant
Residue?
The LDR Treatment Plant will generate non-hazardous treatment
residues (that no longer exhibit a characteristic of hazardous waste)
that will be stabilized prior to disposal. The Fort Hall Business
Council states that under 40 CFR 268.5(a)(5), FMC/Astaris must obtain a
permit from the Shoshone-Bannock Tribes for construction of any on-site
landfill for the disposal of these residuals .
FMC/Astaris states on page 89 of their November 1, 2000 submittal
to us that: ``Treated waste that has been verified to meet LDR and
Consent Decree requirements will be disposed of in compliance with all
applicable regulatory standards either on-site at the Astaris Idaho
plant or at an off-site location.'' The Consent Decree only requires
FMC/Astaris to treat their waste in the LDR treatment facility so that
upon completion of treatment, the waste will have met all LDR
requirements and also will no longer exhibit a characteristic of
hazardous waste. The subsequent disposal of the waste will not be
governed by RCRA hazardous waste rules, but by solid waste rules,
including applicable Tribal requirements. Plans and schedules for the
disposal of waste once it has met all RCRA LDR requirements are not
required for the CBC extension. Finally,
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FMC/Astaris has advised us that no final decision has been made on
where waste treated by the LDR Treatment Plant will be disposed.
Construction of an on-site landfill may not be required if FMC/Astaris
selects an off-site facility for this waste. In any case, as noted in
their May 3, 2001 to EPA, FMC/Astaris states: ``If Astaris continues
with its current plan to dispose of this material on-site, it will
apply for and obtain any solid waste permit that may be necessary.''
C. Does EPA Approval of This Final CBC Extension Impose Substantial
Direct Compliance Costs on the Tribes?
The Fort Hall Business Council disagrees with our interpretation
that this action will not impose substantial direct compliance costs on
the Tribes. They state that this CBC extension renewal will require the
Tribes to monitor the facility for compliance with the Pond Management
Plan. EPA's view is that it, not the Tribes, is responsible for
monitoring compliance with the Pond Management Plan.
The Pond Management Plan requires air monitoring at operating ponds
and the fence line near the ponds. It also requires monitoring off-site
if threshold values for phosphine and hydrogen cyanide are exceeded at
the fence line. The Consent Decree does require FMC/Astaris to provide
the Tribes with copies of reports on implementation of the Pond
Management Plan.
EPA welcomes the Tribes' interest and involvement in this
monitoring, and will continue to seek additional opportunities for
Tribal involvement.
D. How Does This CBC Extension Renewal Affect Pond Emissions Onto the
Fort Hall Indian Reservation for an Additional Year?
The Fort Hall Business Council states that allowing an additional
year for hazardous waste disposal in the impoundments allows an
additional year for toxic gases (phosphine and hydrogen cyanide) to be
emitted onto the Fort Hall Indian Reservation.
There will be gas emissions associated with the discharge of the
five hazardous wastes to the on-site surface impoundments (Ponds 17 and
18). The Pond Management Plan is designed to ensure that these
emissions do not pose a danger to public health, however. There are no
residences or businesses near the ponds. However, there is a potential
for workers, such as railroad workers, to be in the area. Under the
Pond Management Plan, FMC/Astaris must continuously monitor for
phosphine and hydrogen cyanide around the ponds, and evacuate workers
without respiratory protection if the specified limits for workers are
exceeded. In addition, the Pond Management Plan requires monitoring
every four hours at the fence line to ensure that dangerous levels of
phosphine and hydrogen cyanide are not present. If health-based levels
are exceeded at the fence line, FMC/Astaris must monitor off-site and
evacuate off-site areas near the ponds. FMC/Astaris also must provide
immediate notice of any confirmed exceedance of the specified health-
based levels to the Shoshone-Bannock Tribes, EPA, and the County
Sheriff.
Once the LDR Treatment System comes on line in May 2002, further
discharges to the on-site surface impoundments will be eliminated. The
LDR Treatment Plant will also allow the removal and treatment of
accumulated solids from Pond 18, thereby eventually eliminating the
hazards posed by Pond 18 to the Fort Hall Indian Reservation.
III. What Is EPA's Final Determination on the FMC/Astaris Request
To Renew Their Existing CBC Extension?
EPA concludes that FMC/Astaris has made each of the seven
demonstrations required by 40 CFR 268.5(a) to be granted a renewal of
their existing CBC extension. There is insufficient capacity to treat
these wastes to meet the LDR requirements, a binding contractual
commitment has been made to construct the necessary treatment capacity,
and treatment capacity cannot reasonably be made available by the May
26, 2001 LDR effective date. Furthermore, EPA is satisfied that FMC/
Astaris has made and is continuing to make a good-faith effort toward
providing sufficient and appropriate treatment capacity for the five
waste streams.
Therefore, EPA today is approving a final one-year extension of the
applicable LDR effective date, until May 26, 2002, for these five waste
streams: (1) NOSAP Slurry, (2) Medusa Scrubber Blowdown, (3) Furnace
Building Washdown, (4) Precipitator Slurry, and (5) Phossy Water,
generated at the Pocatello, Idaho facility. These wastes may continue
to be managed in on-site surface impoundments (Ponds 17 and 18) without
being subject to the land disposal restrictions applicable to these
wastes until the LDR Treatment Plant commences operation (which must
happen by May 26, 2002).
As previously mentioned, the Tribes are opposed to any extension of
the LDR effective date, arguing that these hazardous wastes must be
treated prior to being land disposed. As discussed in the March 16,
2001 Notice of proposed decision (and the referenced March 8, 2000 (65
FR 12233) and May 31, 2000 (65 FR 34694) Federal Register notices), the
United States recognizes that it owes an important trust responsibility
to the Tribes, on whose lands the facility is located. This includes
the United States' responsibility to perform its obligations under RCRA
and other statutes to protect the environment and the natural resources
of tribal lands. We also acknowledge the Tribes' concerns regarding the
continued placement of untreated hazardous wastes in the on-site
surface impoundments. As noted in sections I B and I C of this notice,
the United States entered into a RCRA Consent Decree with FMC/Astaris
to address FMC/Astaris' past mishandling of hazardous wastes and to
direct FMC/Astaris to take measures to avoid future environmental
contamination. The Consent Decree mandates site-specific treatment
requirements to deactivate ignitable and reactive waste streams, and
requires FMC/Astaris to design, construct, and commence operation of a
LDR Treatment Plant for these waste streams by no later than May 2002.
It also requires closure of specified surface impoundments (ponds) used
to manage the wastes, establishes a Pond Management Plan, and mandates
plant upgrades, including the installation of secondary containment for
sumps, tanks, and piping at the facility. The United States must also
consider facts such as section 3004(h)(3) of RCRA, which establishes
that an applicant who satisfies the conditions for a CBC extension (or
renewal of a CBC extension) will be granted one.
The issue in evaluating the initial CBC extension application, as
well as this request for renewal of their existing CBC extension, is
whether FMC/Astaris has satisfied applicable statutory and regulatory
conditions. As previously noted, it is not yet feasible for FMC/Astaris
to treat these wastes prior to placement in the on-site surface
impoundments, and there is no available off-site commercial treatment
capacity for these five hazardous waste streams. The necessary
treatment capacity and capability will not be available until the LDR
Treatment Plant commences operation by May 2002. We are satisfied that
FMC/Astaris has made and is continuing to make a good-faith effort to
construct and commence operation of the LDR Treatment Plant by May
2002.
IV. What Must FMC/Astaris Do Under This CBC Extension Renewal?
Having been granted this CBC extension renewal, FMC/Astaris must
immediately notify EPA of any change in the demonstrations made in the
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petition (see 40 CFR 268.5(f)). FMC/Astaris also must continue to
submit a monthly report describing the progress being made toward
design, construction, and operation of the LDR Treatment Plant. The
monthly progress report also must identify any delay, or possible delay
in developing this treatment capacity and describe the actions being
taken in response to the delay (see 40 CFR 268.5(g)). The monthly
progress report must be submitted every thirty days, by the 26th day of
each month for the duration of this CBC extension renewal, until June
26, 2002.
Four copies of each monthly progress report must be submitted to
the following address: Chief, Analysis and Information Branch, U.S.
Environmental Protection Agency, Office of Solid Waste (5302W), 1200
Pennsylvania Avenue, NW., Washington, D.C. 20460.
A copy of the monthly progress report also must be provided to EPA
Region 10 at the following address: Director, Office of Waste and
Chemicals Management, U.S. Environmental Protection Agency 1200 Sixth
Avenue, Seattle, WA 98101.
A copy of the monthly progress report must be provided to the
Shoshone-Bannock Tribes at the following address: Director, CERCLA/RCRA
Program, Shoshone-Bannock Tribes, P.O. Box 306, Fort Hall, Idaho 83203.
EPA can revoke this CBC extension renewal if FMC/Astaris fails to
make a good-faith effort to meet the schedule for completion; if EPA
denies or revokes any required permit; if conditions certified in the
CBC extension renewal application change; or for a violation of any law
or regulations in parts 260-266 and 268 (see Sec. 268.5(g)). No further
extension of the LDR effective date for these five hazardous wastes is
allowed.
V. Administrative Requirements
Today, the EPA is approving the FMC/Astaris request for a one-year
renewal of their existing CBC extension of the effective date of the
RCRA land disposal restrictions, for a facility located on Tribal
Lands. This action will have a substantial direct effect on the people
of the Shoshone-Bannock Tribes and the Ft. Hall Business Council, as it
will permit this facility to continue treating, storing, or disposing
of five waste streams as currently managed in on-site surface
impoundments until May 26, 2002.
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
and other actions that have ``substantial direct effects on one or more
Indian tribes, on the relationship between the Federal government and
the Indian tribes, or on the distribution of power and responsibilities
between the Federal government and Indian tribes.''
EPA has concluded that this decision has tribal implications, as it
has a substantial direct effect on the people of the Shoshone-Bannock
Tribes (on whose lands the Pocatello facility is located) and the Ft.
Hall Business Council. Consistent with the Executive Order and EPA's
Indian policy, EPA has ensured the meaningful and timely input of
tribal officials of the Ft. Hall Business Council in the development of
this decision.
EPA has had numerous meetings and calls with Tribal government
officials from May 2000 to April 2001. For example, on May 2, 2000,
Elizabeth Cotsworth (Director-EPA Office of Solid Waste) met with the
Ft. Hall Business Council in Pocatello, Idaho to consult with the
Tribes regarding FMC's request for a CBC extension. On June 9, 2000,
Tim Fields (Assistant Administrator-EPA Office of Solid Waste and
Emergency Response), met the Ft. Hall Business Council on the same
issue. EPA has specifically solicited comment on this CBC extension
from the elected officials of the Ft. Hall Business Council, and in
recent months, Chuck Findley (Acting EPA Region 10 Administrator) has
had several meetings and telephone conversations with the Ft. Hall
Business Council to discuss the CBC extension and the HTDF option as an
alternative to the LDR system.
Other consultation measures have included staff level discussions
to obtain feedback from the Tribes on information provided by FMC/
Astaris, providing the Tribes with an advance copy of draft Federal
Register notices of Proposed Decision for their review and comment
prior to publishing the notices, and inviting the Tribes to participate
in all meetings held with FMC/Astaris on the CBC extension, are
described in previous Federal Register notices addressing the CBC
extension.
Finally, in the spirit of Executive Order 13175, and consistent
with EPA policy to promote communications between EPA and tribal
governments, EPA will continue to consult with the Tribes after this
decision on all matters relating to the FMC/Astaris facility which
affect the Tribes' interests.
As discussed in the March 16, 2001 (66 FR 15243) Federal Register
notice, Executive Order 13132, entitled ``Federalism,'' this notice
also does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. Thus, the requirements of this
Executive Order do not apply to this action.
Authority: Sections 1006, 2002(a), 3001, and 3004 of the Solid
Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act of 1976, as amended (42 U.S.C. 6905, 6912(a), 6921, and
6924).
Dated: May 11, 2001.
Stephen D. Luftig,
Acting Principal Deputy Assistant Administrator, Office of Solid Waste
and Emergency Response.
[FR Doc. 01-12880 Filed 5-18-01; 8:45 am]
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