[Federal Register Volume 60, Number 208 (Friday, October 27, 1995)]
[Notices]
[Pages 55021-55024]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26657]



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ENVIRONMENTAL PROTECTION AGENCY
[FRL-5320-9]


Underground Injection Control Program: Hazardous Waste Disposal 
Injection Restrictions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of intent to grant a case-by-case extension.

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SUMMARY: EPA is proposing to grant the request from Abbott 
Laboratories, Wichita, Kansas for a case-by-case extension of the RCRA 
land disposal restriction (LDR) treatment standards applicable to waste 
displaying the ignitable characteristic high total organic carbon (TOC) 
(EPA Hazard Code D001). The extension would be granted for a one year 
period beginning September 19, 1995, and allow the continued injection 
of the formerly ignitable, high TOC wastestream into Abbott's 
Underground Injection Control (UIC) Class I Nonhazardous Waste 
injection well.
    This case-by-case extension is only for the waste code impacted by 
the September 19, 1994 Land Disposal Restrictions, Phase II. This 
action responds to a petition submitted under 40 CFR 148.4 according to 
procedures set out in 40 CFR 268.5, which allow any person to request 
that the Administrator grant an extension. To be granted such a 
request, the applicant must demonstrate that the petitioner has entered 
into a binding contractual commitment to construct or otherwise provide 
adequate alternative treatment, recovery, or disposal capacity for the 
petitioner's waste. If this proposed action is finalized, Abbott 
Laboratories would be allowed to continue to land dispose of its 
ignitable characteristic high total organic carbon (TOC) (EPA Hazard 
Code D001) until September 19, 1996, without being subject to the land 
disposal restrictions applicable to such wastes.

DATES: Comments on this notice must be received on or before November 
27, 1995.

ADDRESSES: The public must send an original and two copies of their 
comments to Environmental Protection Agency, Region 7, Water and 
Pesticide Division, Drinking Water Supply 

[[Page 55022]]
Branch, 726 Minnesota Ave., Kansas City, Kansas 66101. The docket is 
available for review during normal business hours, 8:00 a.m. through 
4:00 p.m., Monday through Friday.

FOR FURTHER INFORMATION CONTACT: For information contact Robert L. 
Morby, Chief Drinking Water/Groundwater Management Branch, EPA-Region 7 
or telephone (913) 551-7682.

SUPPLEMENTARY INFORMATION:

I. Background

A. Congressional Mandate

    Congress enacted the Hazardous and Solid Waste Amendments (HSWA) of 
1984 to amend the Resource Conservation and Recovery Act (RCRA), to 
impose additional responsibilities on persons managing hazardous 
wastes. Among other things, HSWA required EPA to develop regulations 
that would impose restrictions on the land disposal of hazardous 
wastes. In particular, Sections 3004 (d) through (g) prohibit the land 
disposal of certain hazardous wastes by specified dates in order to 
protect human health and the environment; except that wastes that meet 
treatment standards established by EPA are not prohibited and may be 
land disposed. Section 3004(m) requires EPA to set ``levels or methods 
of treatment, if any, which 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.''
    In developing such a broad program, Congress recognized that 
adequate alternative treatment, recovery, or disposal capacity which is 
protective of human health and the environment, may not be available by 
the applicable statutory effective dates. Section 3004(h)(1) authorizes 
EPA to grant a variance (based on the earliest dates that such capacity 
will be available, but not to exceed two years) from the effective 
date, which would otherwise apply to specific hazardous wastes. In 
addition, under Section 3004(h)(2), EPA is authorized to grant an 
additional capacity extension of the applicable deadline on a case-by-
case basis for up to one year. Such an extension is renewable once for 
up to one additional year. On November 7, 1986, EPA published a final 
rule (51 FR 40572) establishing the regulatory framework to implement 
the land disposal restrictions program, including the procedures for 
submitting case-by-case extension applications. On July 28, 1988, EPA 
published a final rule (53 FR 28118) establishing restrictions and 
requirements for Class I hazardous waste injection wells, including 
framework for the no-migration petition process and allowing case-by-
case extensions under Sec. 148.4 following Sec. 268.5 procedures. On 
September 19, 1994, EPA finalized changes to the land disposal 
restrictions program that alter how some materials, including toxic 
characteristic wastes are disposed in Class I nonhazardous waste 
injection wells. The rule provided more consistency to the land 
disposal restriction program by setting a single set of requirements--
universal treatment standards. Among other things, this final rule 
required that hazardous constituents in two types of characteristic 
wastes, high total organic carbon (TOC) ignitable liquids (D001), and 
halogenated pesticide wastes that exhibit the toxicity characteristic 
(D012-D017), be fully treated before those wastes are disposed, unless 
the wastes are disposed in an injection well that has a no-migration 
variance.
    The Agency believes that treatment of these particular wastestreams 
is warranted. The D001 wastes are ignitable with potentially high 
concentrations of hazardous constituents, and the pesticide wastes 
contain particularly toxic constituents.

B. Demonstrations Requirements Under 40 CFR 268.5 for Case-by-Case 
Extension

1. Summary of Requirements
    Case-by-case extension applications must satisfy the requirements 
outlined in 40 CFR 268.5. These requirements include those specified in 
RCRA section 3004(h)(3): The applicant must have entered into a binding 
contractual commitment to construct or otherwise provide alternative 
capacity [40 CFR 268.5 (a)(2)], but due to circumstance beyond 
applicants control, this alternative capacity cannot reasonably be made 
available by the applicable effective date. [40 CFR 268.5 (a)(3)].
    In addition, EPA has established by regulation the following 
requirements: In Sec. 268.5(a)(1), the applicant must make a good-faith 
effort to locate and contract with treatment, recovery, or disposal 
facilities nationwide to manage its waste in accordance with the 
effective date of the applicable restriction. In Sec. 268.5(a)(3), due 
to circumstances beyond the applicant's 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.
    The applicant must also show that the capacity being constructed or 
otherwise provided by the applicant will be sufficient to manage the 
entire quantity of waste that is the subject of the application 
[Sec. 268.5(a)(4)]. In section 268.5(a)(5), the applicant must provide 
a detailed schedule for obtaining operating and construction permits or 
an outline of how and when alternative capacity will be available. 
Further, the applicant has arranged for adequate capacity to manage its 
waste during an extension, and has documented the location of all sites 
at which the waste will be managed [Sec. 268.5(a)(6)].
    If the waste would be disposed of in a surface impoundment or 
landfill during the period of the extension, Sec. 268.5(a)(7) states, 
any waste managed in a surface impoundment or landfill during the 
extension period will meet the requirements. After an applicant has 
been granted a case-by-case extension, he is required to keep EPA 
informed of the progress being made towards obtaining adequate 
alternative treatment, recovery, or disposal capacity.
    Any change in the demonstration made in the petition must be 
immediately reported to the Agency [40 CFR 268.5(f)]. Also, at 
specified intervals, he must submit progress reports which describe the 
progress being made towards obtaining alternative capacity, identify 
any delay or possible delay in developing capacity, and describe the 
mitigating actions being taken [40 CFR 268.5(g)].
2. Commitment to Provide Protective Disposal Capacity
    EPA believes that the applicant has shown the necessary commitment 
to provide protective disposal capacity within the meaning of RCRA 
section 3004 (h)(3) and 40 CFR 268.5 (a)(1). These provisions require 
an applicant to make two showings: (1) That the proposed ``disposal 
capacity'' is ``protective of human health and the environment'', and 
(2) that the applicant has made ``a binding contractual commitment to 
construct or otherwise provide such capacity.'' The Agency construes 
the first phrase to mean a no migration unit. No migration findings in 
40 CFR parts 148 and 268 provide for a variance to the land disposal 
prohibition accordingly, are functionally equivalent to compliance with 
treatment standards under part 268.
    With respect to showing a ``binding contractual commitment'', where 
applicants have already constructed 

[[Page 55023]]
(and, indeed, are operating) the disposal unit at issue, EPA interprets 
the regulatory language to require objective indicia of applicant's 
commitment to provide this capacity. EPA approach is in line with 
similar practical interpretations of regulatory language. For example, 
the Agency has construed the term ``commenced construction'' to include 
facilities which have completed construction, but did not commence 
operations. See 40 FR 2344, 2346 (January 8, 1981).
    EPA does not believe that the simple filing of a no migration 
petition provides sufficient indication that the applicant will provide 
protective disposal capacity. Where an applicant seeks to provide 
treatment capacity, EPA can rely on design criteria as a basis to 
predict that the treatment capacity will provide for treatment in 
compliance with 40 CFR part 260. Because the Agency was less certain 
that the no migration finding would be forthcoming in a given 
circumstance, EPA had previously stated that a no migration petition 
and the Agency's failure to process such petition before an effective 
date cannot itself provide a basis for case-by-case extensions. See 53 
FR 28124 (July 20, 1988). EPA has reevaluated this interpretation and 
believes that where the Agency has concluded that a no migration 
petition is sufficient to propose a no migration finding, this proposed 
finding is legitimate indicia that the applicant is, in good faith, 
committed to providing protective disposal capacity for purposes of 40 
CFR 268.5. See 55 FR 22520.
    If EPA were to require an actual no migration finding as a 
condition for a case-by-case extension, such a reading would 
effectively read the phrase ``protective disposal capacity'' out of 
RCRA 3004(b)(3) in violation of all standard tenets of statutory 
construction, which require that all terms be given effect when 
possible. The term would be read out of the statute, because once the 
no migration petition was granted, there is no need to seek a case-by-
case extension as wastes could be disposed directly in the unit. In 
addition, case-by-case extensions necessarily involve predictions about 
future capacity. For example, such predictive findings specifically 
include the need for permits that may not yet be issued. See 40 CFR 
286.5(a)(5).
    The proposed case-by-case extensions is based on objective indicia 
of the applicants' commitment to provide disposal capacity. First, the 
petitioner's application is based on an already constructed well. Thus, 
the petitioner's commitment is more definitive than petitions based 
solely on contracts to construct such capacity. [See RCRA section 
3004(b)(3)] Secondly, the injection well has been permitted under both 
RCRA and SDWA standards, thus further demonstrating a commitment to 
provide this capacity. Thirdly, the applicant has made substantial 
contractual commitments in preparing the no migration petition.
3. Requirement To Seek Other Alternative Capacity
    The applicant's commitment to provide protective disposal capacity 
is not the sole basis for EPA granting a case-by-case extension. Under 
40 CFR 268.5 (a)(1), applicants must also make a good faith effort to 
seek other protective treatment, recovery or disposal, where feasible 
during the period that the proposed alternative capacity is not 
available. Such good faith efforts under 268.5(a)(1) can be evaluated 
considering both the expected time period that the alternative capacity 
will take to become available and technical difficulties that the 
operator will face in bringing the waste to alternative capacity in 
consideration of factors in 268.5(a)(3).
    There is limited other capacity under (a)(1) to eventually handle 
the waste from the well operator in this proposal. However, due to 
logistic problems of retooling, repiping, and transportation of the 
large volume of waste at issue, this other capacity is not reasonably 
available during the short period of time EPA anticipates is necessary 
to process final no migration approvals or denials for this well.
4. Reasons Alternative Capacity Cannot Reasonably Be Made Available by 
the Applicable Effective Date
    The applicant has, in good faith, pursued the no migration process 
with reasonable belief that the Agency would provide a no migration 
finding by September 19, 1995, effective date. The operator submitted 
their no migration petition in a timely manner, and have responded 
appropriately to Agency requests for additional information in order to 
make a determination on the petition. The timing of the actual finding 
is beyond the applicant's control. The order in which decisions are 
made is primarily a function of the Agency resources and priorities. 
This no migration review process is the reason that the applicant's 
well may not be available as a no migration unit by the effective 
prohibition date. The applicant has documented several logistic 
problems that make short-term capacity not reasonably available. The 
facility in question involves production operations directly connected 
by piping, or otherwise rely on immediate disposal in an on-site 
injection well. In order to make the necessary adjustments, the 
facility would need to temporarily shutdown, perform necessary 
retooling and repiping, and construct a transportation system to move 
the large volumes of waste at issue. The receiving facility would also 
need to make substantial adjustments to receive these large waste 
volumes. Also, there is not sufficient offsite capacity. These factors 
indicate that the other capacity is not reasonably available for short-
term waste management. EPA has relied on similar criteria in providing 
nationwide variances under RCRA 3004 (h)(2). See 55 FR 22520.

II. Petitioner

A. Facility Summary

    Abbott Laboratories has petitioned EPA for a six month extension of 
the September 19, 1995, effective date of the RCRA land disposal 
restrictions (LDR) treatment standards applicable to waste displaying 
the ignitable characteristic high (TOC) total organic carbon (EPA 
Hazard Code D001).
    EPA is proposing to grant an extension of the effective date of the 
applicable restrictions for six months from the hazardous waste 
injection restrictions effective date of September 19, 1995, for the 
above, referenced waste from this facility. Abbott Laboratories request 
and supporting documentation is available in the public docket for this 
rulemaking. Interested persons are invited to submit comments or 
written data on this petition. All comments will be considered by EPA 
and addressed in a Federal Register notice stating the Agency's final 
decision to grant or deny the petition.

B. Description of Petitioning Facility

    Abbott Laboratories which is a chemical manufacturing company 
operates a restricted nonhazardous waste injection well in Wichita, 
Kansas.

C. Case-By-Case Extension Petition Demonstrations

    Abbott Laboratories application for an extension of the effective 
date includes the following demonstrations:
    40 CFR 268.5(a)(1)  Abbott Laboratories has made a good-faith 
effort on a nationwide basis to locate and contract for adequate 
alternative treatment, recovery, or disposal capacity, or establish 
such capacity by the effective date of the applicable restrictions.
    40 CFR 268.5(a)(2)  Abbott Laboratories has entered into a binding 

[[Page 55024]]
    contractual commitment to provide alternative treatment, recovery, or 
disposal capacity.
    40 CFR 268.5(a)(3)  Abbott Laboratories has shown the lack of 
alternative capacity is beyond its control.
    40 CFR 268.5(a)(4)  Abbott Laboratories has shown that there will 
be adequate alternative treatment, recovery, or disposal capacity for 
all waste after the effective date established by the extension.
    40 CFR 268.5(a)(5)  Abbott Laboratories has provided a detailed 
schedule for obtaining alternative capacity including dates.
    40 CFR 268.5(a)(6)  Abbott Laboratories has arranged for adequate 
capacity to manage waste during the extension period.
    40 CFR 268.5(a)(7)  No surface impoundments or landfills will be 
used by Abbott Laboratories to manage the waste during the extension 
period.

III. EPA's Proposed Action

    For the reasons discussed above, the Agency believes that Abbott 
Laboratories demonstrations have satisfied all the requirements for a 
case-by-case extension of the September 19, 1995, effective date of the 
hazardous waste injection well restriction.
    Therefore, EPA is proposing to grant an extension of the September 
19, 1995, effective date on the waste for Abbott Laboratories. If the 
extension is granted for this waste, which would not be prohibited from 
land disposal, it could be injected over a 12 month period, starting 
from the effective date of September 19, 1995, but not later than 
September 19, 1996. If during the time frame of this case-by-case 
extension, a final decision of the applicant's no migration petition is 
made, then the case-by-case extension will expire.
    If Abbott Laboratories obtains a case-by-case extension, they would 
have to submit a report two months after the date the extension is 
granted, addressing the status or any progress being made to obtain 
alternative disposal capacity. The Agency must be notified of any 
change in the conditions specified in the petition. The extension would 
remain in effect unless Abbott Laboratories fails to make a good faith 
effort to meet the schedule for completion, the Agency denies or 
revokes any required permit conditions certified in the application 
change, or if Abbott Laboratories violate any law or regulations 
implemented by EPA. 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: October 6, 1995.
Dennis Grams,
Regional Administrator, Region VII.
[FR Doc. 95-26657 Filed 10-26-95; 8:45 am]
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