[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: 
<a href="/cdn-cgi/l/email-protection#8ce7e0e5e2e9a2eee5e0e0cce9fcede1ede5e0a2e9fceda2ebe3fa"><span class="__cf_email__" data-cfemail="63080f0a0d064d010a0f0f230613020e020a0f4d0613024d040c15">[email protected]</span></a>).

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,

[[Page 27967]]

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

[[Page 27968]]

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]
BILLING CODE 6560-50-P


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