[Federal Register Volume 65, Number 46 (Wednesday, March 8, 2000)]
[Notices]
[Pages 12233-12243]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-5604]


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ENVIRONMENTAL PROTECTION AGENCY

[SW-FRL-6548-7]


Notice of Proposed Decision on Request by FMC Corporation for an 
Extension of the Land Disposal Restrictions Effective Date for Five 
Waste Streams Generated at the Pocatello, Idaho Facility

AGENCY: Environmental Protection Agency.

ACTION: Notice of proposed decision.

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SUMMARY: EPA (``the Agency'' or ``we'' in this notice) is proposing to 
approve the request submitted by FMC Corporation (FMC) for a one-year 
Case-by-Case (CBC) extension of the May 26, 2000, effective date of the 
RCRA land disposal restrictions (LDRs). FMC requested the CBC extension 
due to the 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. For this CBC extension to be 
approved, FMC must make each of the seven demonstrations required in 
the procedures for CBC extensions to an effective date. These 
provisions establish that an applicant who satisfies the conditions for 
a CBC extension will be granted one. If this proposed action is 
finalized, FMC will be allowed to continue to treat, store, or dispose 
of these five waste streams, as currently managed in on-site surface 
impoundments, until May 26, 2001, without being subject to the LDRs 
applicable to these wastes.

DATES: To make sure we consider your comments in developing a final 
decision on FMC's request for a CBC extension of the LDR effective date 
for the subject waste streams, you must submit your comments on or 
before March 29, 2000.

ADDRESSES: You must send an original and two copies of your comments, 
referencing docket number F-2000-FMCP-FFFFF, to: (1) If using regular 
US Postal Service mail: RCRA Docket Information Center, Office of Solid 
Waste (5305G), U.S. Environmental Protection Agency Headquarters (EPA, 
HQ), Ariel Rios Building, 1200 Pennsylvania Avenue, N.W., Washington, 
DC 20460, or (2) If using special delivery, such as overnight express 
service: RCRA Docket Information Center (RIC), Crystal Gateway One, 
1235 Jefferson Davis Highway, First Floor, Arlington, VA 22202. 
Comments may also be submitted electronically through the Internet to: 
[email protected]. Comments in electronic format should

[[Page 12234]]

also be identified by the docket number F-2000-FMCP-FFFFF and must be 
submitted as an ASCII file avoiding the use of special characters and 
any form of encryption.
    You may claim information that you submit in response to this 
notice as confidential by marking any part or all of that information 
as Confidential Business Information (CBI). Information so marked will 
not be disclosed, except in accordance with procedures set forth in 40 
CFR part 2. Commenters should not submit any CBI electronically. An 
original and two copies of CBI must be submitted under separate cover 
to: RCRA CBI Document Control Officer, c/o Regina Magbie, Office of 
Solid Waste (5305W), U.S. EPA, Ariel Rios Building, 1200 Pennsylvania 
Avenue, NW, Washington, DC 20460. If you submit CBI by courier/
overnight express, an original and two copies of the CBI must be sent 
to: RCRA CBI Document Control Officer, c/o Regina Magbie, Office of 
Solid Waste (5305W), U.S. EPA, 2800 Crystal Drive, 7th Floor, 
Arlington, VA 22202. A copy of the comment that does not contain CBI 
must be submitted for inclusion in the public record. Information not 
marked confidential will be included in the public docket by EPA 
without prior notice.
    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, it is recommended that you make 
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 
proposal, 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 proposal, 
contact William Kline, Office of Solid Waste, 5302W, U.S. Environmental 
Protection Agency, 401 M Street, SW, Washington, DC 20460-0002, (703) 
308-8440, [e-mail address: [email protected]].

SUPPLEMENTARY INFORMATION: The index of supporting materials evaluated 
by EPA in reaching our determination to propose approval of the 
requested CBC extension is available on the Internet. You will find 
this index at http://www.epa.gov/epaoswer/hazwaste/ldr/index.htm>.
    The official record for this action will be kept in paper form. 
Accordingly, EPA will transfer all comments received electronically 
into paper form and place them in the official record, which will also 
include all comments submitted directly in writing. The official record 
is the paper record maintained at the location noted in ADDRESSES at 
the beginning of this document.
    EPA responses to comments, whether the comments are written or 
electronic, will be in a notice in the Federal Register or in a 
response to comments document placed in the official record for this 
rulemaking. EPA will not immediately reply to commenters electronically 
other than to seek clarification of electronic comments that may be 
garbled in transmission or during conversion to paper form, as 
discussed above.
    The information in this section is organized as follows:

I. Background and Purpose of This Notice of Proposed Decision

A. Summary
B. What is RCRA?
C. What is the Congressional Mandate Behind the Land Disposal 
Restrictions (LDRs) and Extensions of the LDR Effective Date?
D. What Regulatory and Other Actions Have Led up to the CBC 
Extension Requested by FMC?
E. What Other Actions Are Underway at FMC?
F. What Demonstrations Must Be Evaluated by EPA In Reviewing a 
Request for a CBC Extension of the LDR Effective Date?

II. Overview of FMC's Case-by-Case Extension Request

A. What is FMC's Basis for Requesting a CBC Extension ?
B. How Does FMC's Consent Decree Impact and Correlate with the 
Requested CBC Extension?
C. Summary of the FMC CBC Application

III. EPA's Evaluation of the Seven Demonstrations Made by FMC To 
Support the Requested CBC Extension

A. Section 268.5 (a)(1) demonstration of the lack of available 
treatment capacity.
B. Section 268.5 (a)(2) demonstration of a binding contractual 
commitment to construct the required treatment capacity.
C. Section 268.5 (a)(3) demonstration of circumstances beyond FMC's 
control to obtain necessary treatment capacity by the LDR effective 
date.
D. Section 268.5 (a)(4) demonstration of sufficient treatment 
capacity being constructed to treat the five waste streams to meet 
BDAT standards.
E. Section 268.5 (a)(5) demonstration of a detailed schedule for 
obtaining permits required to construct and operate proposed LDR 
Treatment Plant.
F. Section 268.5 (a)(6) demonstration of adequate capacity to manage 
the five waste streams during the approved extension period.
G. Section 268.5 (a)(7) demonstration that surface impoundments used 
to manage the waste streams during the extension period are designed 
to meet minimum technology requirements.

IV. Consultation with Affected State and Indian Tribes

V. What is EPA's Proposed Action?

VI. How Can I Influence EPA's Thinking on this Rule?

VII. What Happens After We Receive Your Comments?

VIII. Administrative Requirements

A. Executive Order 13084: Consultation and Coordination with Indian 
Tribal Governments
B. Executive Order 13132 (Federalism)

I. Background and Purpose of This Notice of Proposed Decision

A. Summary

    FMC Corporation (FMC) has requested a one-year CBC extension of the 
May 26, 2000, effective date of the RCRA land disposal restrictions 
(LDRs) applicable to five waste streams generated at its facility (EPA 
Identification Number: IDD070929518) in Pocatello, Idaho-- located 
adjacent to and largely on Shoshone-Bannock Tribes' lands, referred to 
as the Fort Hall Indian Reservation. These five waste streams, which 
are generated in the production of elemental phosphorous, are: (1) 
NOSAP Slurry, (2) Medusa Scrubber Blowdown, (3) Furnace Building 
Washdown, (4) Precipitator Slurry, and (5) Phossy Water. FMC requested 
the CBC extension due to the lack of available treatment capacity for 
these five waste streams and the need for additional time to design, 
construct, and begin operation of an on-site LDR Treatment Plant.
    A RCRA Consent Decree (U.S. v. FMC Corporation) was entered in July 
1999, to address past mishandling of these wastes and to avoid future 
environmental contamination. The Consent Decree requires closure of 
certain on-site ponds, tank system upgrades to comply with RCRA 
standards, implementation of SEPs to address air quality, and for FMC 
to design, construct, and commence operation of an LDR Treatment System 
by May 2002. The Tribes recently have appealed the Consent Decree, 
citing, among other reasons, their opposition to the continued 
generation and on-site disposal of these hazardous wastes.

[[Page 12235]]

    The EPA is proposing to approve FMC's application for a one-year 
CBC extension of the May 26, 2000, effective date of the RCRA land 
disposal restrictions (LDRs). For this CBC extension to be approved, 
FMC must make each of the seven demonstrations required under 268.5(a), 
including that there is insufficient capacity to treat these wastes, 
that a binding contractual commitment has been made to construct the 
necessary treatment capacity, and that such treatment capacity, due to 
circumstances beyond FMC's control, cannot reasonably be made available 
by the effective date. If this proposed action is finalized, FMC will 
be allowed to continue to treat, store, or dispose of these five waste 
streams, as currently managed in on-site surface impoundments, until 
May 26, 2001, without being subject to the land disposal restrictions 
applicable to these wastes. FMC also may request a renewal, for up to 
one year, of an approved CBC extension. If warranted, EPA may grant a 
renewal of this extension, which, if requested and approved, would 
extend the effective date of the LDRs for these five waste streams to, 
at a maximum, May 26, 2002.

B. What Is RCRA?

    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 
also establishes a program for controlling nonhazardous industrial 
solid waste and municipal solid waste by encouraging states to develop 
comprehensive plans to manage these wastes, by setting criteria for 
municipal solid waste landfills and other solid waste disposal 
facilities, and by prohibiting the open dumping of solid waste. RCRA is 
implemented by EPA and the states.
    EPA's regulations implementing RCRA are listed in Title 40 of the 
Code of Federal Regulations (CFR). Within Title 40, the hazardous waste 
regulations are listed in parts 260 through 279. The solid waste 
regulations also are listed in Title 40, but in parts 240 through 258.
    The specific requirements for obtaining a CBC extension of a LDR 
effective date, the subject of this notice of proposed decision, are 
found in Part 268-Land Disposal Restrictions, Sec. 268.5(a).

C. What is the Congressional Mandate Behind the Land Disposal 
Restrictions (LDRs) and Extensions of the LDR Effective Date?

    Congress enacted the Hazardous and Solid Waste Amendments (HSWA) of 
1984 to amend the Resource Conservation and Recovery Act (RCRA). These 
amendments imposed additional responsibilities on persons managing 
hazardous wastes. Among other things, HSWA required EPA to develop 
regulations that prohibit the land disposal of certain hazardous wastes 
by specified dates in order to protect human health and the 
environment. EPA also was required 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.''
    Congress recognized that adequate alternative 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. As such, 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. In addition, 
EPA 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 one additional year.

D. What Regulatory and Other Actions Have Led Up to the CBC Extension 
Requested by FMC?

    On January 25, 1996 (61 FR. 2338), EPA published a supplemental 
proposed rule that addressed land disposal restrictions applicable, 
among others, to characteristic mineral processing wastes. On behalf of 
its elemental phosphorous plant located in Pocatello, Idaho (FMC 
Pocatello), FMC submitted a petition to request a two-year national 
capacity variance from the Phase IV LDR requirements, citing the lack 
of available treatment capacity in the U.S.
    On June 27, 1996, EPA agreed to a motion for amendment of a 1994 
consent agreement (Environmental Defense Fund, Inc. v. Browner, No. 89-
0598 (D.D.C.)) that allowed EPA to establish a later date for 
promulgating the final Phase IV Supplemental Rule. FMC submitted 
supplemental comments to its petition for a national capacity variance, 
informing EPA that it could not design a treatment unit for its wastes 
until the applicable treatment standards and the wastes subject to 
treatment were defined.
    On May 12, 1997 (62 FR 26041), EPA proposed to grant a two-year 
national capacity variance for three waste streams ( Medusa Scrubber 
Blowdown, Anderson Filter Media Rinsate, and Furnace Building Washdown) 
generated at the Pocatello, Idaho facility. FMC submitted comments, 
noting that the Anderson Filter Media Rinsate now had been eliminated, 
using pollution prevention. However, FMC identified three additional 
waste streams (Precipitator Slurry, NOSAP Slurry, and Phossy Water) 
generated in the same elemental phosphorous production process for 
which treatment capacity was not available and likewise needed to be 
granted the proposed two-year national capacity variance.
    On May 26, 1998 (63 FR 28556), EPA promulgated the Final LDR Phase 
IV rule and granted a two-year national capacity variance for newly 
identified characteristic wastes from elemental phosphorous processing, 
including the five waste streams generated at FMC's facility in 
Pocatello, Idaho. This national capacity variance extended the LDR 
effective date to May 26, 2000.
    The United States also undertook enforcement action against FMC, an 
action not directly connected to the national capacity extension (or 
for that matter, any case-by-case extension). These actions somewhat 
overlapped in time the national capacity variance referred to above. In 
February 1997, attorneys for the United States met with and informed 
the Tribal governing body, the Fort Hall Business Council (representing 
the Shoshone-Bannock Tribes (Tribes)), on whose lands the FMC Pocatello 
facility is located, that the United States intended to file an action 
against FMC for certain violations of the RCRA statute, i.e., FMC's 
past mishandling of hazardous wastes. This action and subsequent 
negotiations led to the eventual entry of a proposed Consent Decree in 
October 1998, as described below. In September 1998, the United States 
agreed to delay the lodging of the Consent Decree so that options for 
penalty sharing with the Tribes could be further explored. The Tribes 
subsequently were offered the 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.

[[Page 12236]]

    On October 16, 1998, the United States lodged the proposed Consent 
Decree in U.S. District Court for the District of Idaho and held a 
public comment period on the proposed Consent Decree until December 18, 
1998.
    On March 29, 1999, the United States filed a Motion for Entry of 
the Proposed Consent Decree (United States v. FMC, Civ. No. 98-0406-E-
BLW), requiring that FMC design and construct a treatment system, 
referred to as the LDR Treatment System, that will treat the FMC 
Pocatello facility's production wastes to the LDR treatment standards. 
Under this RCRA Consent Decree, FMC must begin operating the LDR 
Treatment System by May 2002. The Tribes filed a Motion to Intervene on 
April 23, 1999 and the District Court granted this motion on May 18, 
1999. A Memorandum of Opposition for Entry of the Proposed Consent 
Decree subsequently was filed by the Tribes. The United States 
submitted a Memorandum in Support of Motion of the United States for 
Entry of Proposed Consent Decree, dated May 27, 1999. This reply 
Memorandum addressed the Tribes' concerns and expressed regret that the 
Tribes apparently believe their interests are not being fully protected 
in this matter. It is noted in the ``Reply Memorandum in Further 
Support of Motion of the United States for Entry of Proposed RCRA 
Consent Decree'', dated May 27, 1999, that FMC would need to obtain 
Case-by-Case extensions of the LDR effective date, per the requirements 
of 40 CFR 268.5, 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 13, 1999, after reviewing a Memorandum of Opposition for 
Entry of the Proposed Consent Decree, filed by the Tribes, and 
memoranda filed by the United States and FMC in response to the Tribes' 
Memorandum, the District Court granted the United States' motion for 
leave 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.

E. What Other Actions Are Underway at FMC?

    The Consent Decree is only one of several actions underway to 
address the environmental impact of operations at the FMC facility. 
Groundwater and soil contamination from FMC's old ponds are being 
addressed under a CERCLA Record of Decision (ROD), issued on June 8, 
1998. The United States is negotiating a separate Consent Decree with 
FMC and the owner of another nearby facility to commit to perform the 
Remedial Action selected in the ROD. FMC's particulate air emissions 
are being addressed in the proposed Federal Implementation Plan, issued 
pursuant to the Clean Air Act on February 12, 1999 and scheduled to 
become effective by July 2000. Once finalized, there will be federally 
enforceable limits/control requirements applicable to FMC's particulate 
emissions.

F. What Demonstrations Must Be Evaluated by EPA in Reviewing a Request 
for a CBC Extension of the LDR Effective Date?

    In order to receive approval for a CBC extension, EPA must evaluate 
the extent to which the FMC Pocatello has addressed the following seven 
demonstrations, as specified in 40 CFR 268.5:

    1. Made a good-faith effort to locate and contract with 
treatment, recovery, or disposal facilities nationwide to manage the 
waste streams (40 CFR 268.5(a)(1).
    2. Entered into a binding contractual commitment to construct or 
otherwise provide alternative capacity (40 CFR 268.5(a)(2).
    3. Showed that due to circumstances beyond the applicant's ( 
FMC's) control, alternative capacity cannot reasonably be made 
available by the applicable effective date (40 CFR 268.5(a)(3).
    4. Showed that the treatment capacity to be provided will be 
sufficient to manage the entire quantity of the five waste streams 
for which the CBC extension is requested (40 CFR 268.5(a)(4).
    5. Submitted a detailed schedule for obtaining required 
operating and construction permits or an outline of how and when 
alternative capacity will be available (40 CFR 268.5(a)(5).
    6. Showed that sufficient capacity has been arranged to manage 
the entire quantity of waste which is the subject of the application 
during the requested extension period, and document the location of 
all facilities at which the waste will be managed during the 
extension period (40 CFR 268.5(a)(6).
    7. Showed that any surface impoundment used to manage these five 
wastes during the extension period meets minimum technological 
requirements (40 CFR 268.5 (a)(7).

II. Overview of FMC's Case-by-Case Extension Request

A. What Is FMC's Basis for Requesting a CBC Extension?

    FMC has provided documentation showing that research and 
development efforts were initiated in 1990 to develop the technology 
needed to treat the Pocatello, Idaho facility's elemental phosphorous 
production waste streams to meet anticipated LDR standards. When EPA 
issued the supplemental proposal to Phase IV in January 1996, FMC 
requested a two-year national capacity variance for three waste streams 
( Medusa Scrubber Blowdown, Anderson Filter Media Rinsate, and Furnace 
Building Washdown) generated at the Pocatello facility to enable it to 
design and construct appropriate on-site pollution prevention and 
treatment technologies. At this time, FMC also submitted the results of 
an extensive nationwide survey that it conducted in an attempt to find 
off-site available treatment capacity. This survey indicated that no 
commercial TSD facility contacted was able or willing to treat the 
Pocatello waste streams. FMC submitted supplemental comments in August 
1996, subsequent to EPA and the Environmental Defense Fund amending the 
1994 consent agreement, thereby postponing the promulgation of the 
Phase IV Supplemental rule. In these comments, FMC informed EPA that it 
could not design and construct a treatment system until the final 
treatment standards and applicable wastes were determined.
    In August 1997, FMC requested that EPA modify the national capacity 
variance that was proposed for the initial three waste streams, by 
removing AFM Rinsate, and adding three additional waste streams 
(Precipitator Slurry, NOSAP Slurry, and Phossy Water). Each of the five 
waste streams for which FMC requested a national capacity variance are 
generated in the elemental phosphorous production process and 
essentially share the same issues regarding feasibility of treatment 
off-site. FMC indicates that it was able to further proceed with 
developing appropriate treatment technology processes for these waste 
streams but that specific treatment technologies could only be 
pointedly pursued once the actual final LDR standards were promulgated 
by EPA in May 1998. In finalizing the Final Phase IV rule, EPA did 
grant a two-year national capacity variance for these five waste 
streams generated at the Pocatello facility, extending the LDR 
effective date until May 26, 2000.
    FMC likewise had been engaged in RCRA Consent Decree negotiations 
with the United States, via the Department of Justice (DOJ) and EPA 
Region 10, regarding the management of its waste streams. The RCRA 
Consent Decree was initially filed in October 1998 to promptly address 
FMC's past mishandling of hazardous wastes and to avoid future 
environmental

[[Page 12237]]

contamination. FMC states that its uncertainties regarding the 
selection of treatment standards and approval of selected technology 
under the RCRA Consent Decree also were factors that delayed final 
selection and development of a treatment technology. The RCRA Consent 
Decree, proposed in October 1998 and entered as final on July 13, 1999, 
requires FMC to complete construction and begin operation of the LDR 
Treatment System by May 2002 and prohibits the discharge of untreated 
hazardous wastes to the facility's on-site ponds after May 26, 2002. 
The RCRA Consent Decree does not negate the requirement for FMC to 
pursue case-by-Case extension(s), as needed, to allow the continued 
discharge of the LDR subject wastes to on-site surface impoundments 
beyond the May 26, 2000 expiration date of the current national 
capacity variance.
    Since promulgation of the final LDR standards and entry of the RCRA 
Consent Decree, FMC states that it was finally able to ascertain the 
specific treatment technology that was needed to treat the FMC 
Pocatello waste streams. In July 1999, FMC decided to employ the Zimpro 
Anoxic hydrolysis process, using caustic hydrolysis at elevated 
temperature and pressure, as the principal treatment for the proposed 
on-site LDR Treatment Plant at the Pocatello facility. However, FMC 
determined that it could not finalize development of the treatment 
technology, design the LDR Treatment Plant, obtain permits, construct 
the LDR Treatment Plant, and begin operating the LDR Treatment Plant 
within the two-year period of the current national capacity variance 
that expires on May 26, 2000. As such, in July 1999, FMC submitted its 
request to EPA for a CBC extension to further extend the LDR effective 
date for the subject five waste streams generated at its Pocatello, 
Idaho facility.
    FMC's Phosphorous Chemicals Division (the current owner/operator of 
the FMC Pocatello, Idaho facility) and Solutia, Inc. have proposed a 
plan to operate a joint venture company comprising the combined 
phosphorous chemical businesses of FMC and Solutia. If this joint 
venture is approved by the Federal Trade Commission (FTC), this joint-
venture company will be known as Astaris LLC. If approved, Astaris will 
own the Pocatello facility. However, under this joint venture, FMC 
would retain responsibility for funding the capital costs and 
implementing all RCRA Consent Decree projects, including the proposed 
LDR Treatment Plant. FMC's liability under the RCRA Consent Decree is 
not transferable. Astaris would be responsible for the construction, 
operation, and maintenance aspects of the LDR Treatment Plant and thus 
be considered the owner and operator of the Pocatello facility. This 
CBC extension, if approved, then would be granted to FMC/Astaris. 
However, as of today, for the purposes of this notice, we will continue 
to refer to the CBC applicant as FMC Pocatello.

B. How Does FMC's Consent Decree Impact and Correlate With the 
Requested CBC Extension?

    The FMC Pocatello facility is located on Shoshone-Bannock Tribes' 
lands, referred to as the Fort Hall Indian Reservation. FMC owns over 
1,000 acres on the Reservation and has conducted business at this 
location for the past 50 years. The resulting environmental 
contamination, and means of redressing it, is of obvious direct concern 
to the Tribes. The RCRA Consent Decree, initially filed in October 
1998, was negotiated to promptly address FMC's past mishandling of 
hazardous wastes and to avoid future environmental contamination. On 
July 13, 1999, the U.S. District Court for the District of Idaho 
entered as final the RCRA Consent Decree (United States v. FMC Corp., 
Civ. 98-0406-E-BLW). This RCRA Consent Decree mandates certain 
requirements regarding the management of FMC Pocatello waste streams, 
including site-specific treatment requirements to deactivate ignitable 
and reactive waste streams, and the requirement to design, construct, 
and commence operation of a Land Disposal Restriction Treatment System 
\1\ (LDR Treatment System) for these waste streams by no later than May 
2002. It also specifically requires closure of specified on-site 
surface impoundments (ponds used by FMC to manage the generated 
wastes), establishes a Pond Management Plan, and mandates certain plant 
upgrades, for example, the installation of secondary containment for 
sumps, tanks, and piping inside the Furnace Building and at the Phos 
Dock area.
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    \1\ The terms ``LDR Treatment System'' and ``LDR Treatment 
Plant'', as used in the RCRA Consent Decree and the FMC CBC 
extension application, respectively, are essentially referring to 
the same treatment unit and associated ancillary equipment, needed 
to be designed, constructed, and operated in order to treat the FMC 
Pocatello hazardous waste streams to meet the applicable LDR 
requirements.
---------------------------------------------------------------------------

    Many of the demonstrations required under 40 CFR part 268 to obtain 
a CBC extension of the LDR effective date are indeed addressed under 
the terms of this RCRA Consent Decree. For example, under the RCRA 
Consent Decree, FMC is required to design and construct a Land Disposal 
Treatment System that provides sufficient capacity to manage the waste 
streams to satisfy LDR requirements, provide a detailed schedule for 
obtaining operating and construction permits, provide adequate capacity 
and management of the waste streams while the LDR Treatment System is 
being constructed, and ensure that, at a minimum, surface impoundments/
landfills used to manage these waste streams, meet minimum 
technological requirements.
    In essence, FMC's compliance with the terms of the RCRA Consent 
Decree likewise satisfies what needs to be documented for certain of 
the required demonstrations for a CBC extension. If anything, this 
overlap ensures consistency of both the CBC extension and RCRA Consent 
Decree processes. In effect, the requirements mandated under the RCRA 
Consent Decree will support the CBC extension that EPA is proposing to 
approve today and will further bolster FMC's commitment to begin 
operation of the LDR Treatment Plant by May 2002. In developing the 
RCRA Consent Decree, EPA and DOJ assumed that FMC still would need to 
pursue the CBC extension allowed under 40 CFR Part 268. This intent was 
elaborated upon on pages 10-11 in the ``Reply Memorandum in Further 
Support of Motion of the United States for Entry of Proposed RCRA 
Consent Decree,'' dated May 27, 1999.
    Although the RCRA Consent Decree and CBC Extension, if approved, 
obviously are being used in conjunction to compel FMC to properly 
manage the subject waste streams, approval of a CBC extension of the 
LDR effective date does not alter any terms of the RCRA Consent Decree 
and, in actuality, would only remain effective contingent upon FMC's 
compliance with the terms of the RCRA Consent Decree. We also note that 
should FMC subsequently request a renewal of an approved extension, the 
LDR effective date could, at a maximum, be extended only to May 26, 
2002--consistent with the RCRA Consent Decree date by which untreated 
hazardous wastes generated at the FMC Pocatello facility are prohibited 
from discharge to the facility's on-site surface impoundments (ponds).

C. Summary of the FMC CBC Application

    The FMC facility, located in Pocatello, Idaho, manufactures 
elemental phosphorous. The elemental phosphorous is shipped to other 
facilities to produce phosphates and other phosphorous-based products, 
for use in numerous products, including

[[Page 12238]]

processed foods, beverages, detergents, cleaners, agricultural 
chemicals, and water treatment chemicals. Elemental phosphorous is 
produced by feeding a combination of phosphate ore, coke, and silica 
rock into electric arc furnaces. This case-by-Case LDR extension 
application addresses five waste streams generated during the 
production of elemental phosphorous at the FMC Pocatello facility. 
These five waste streams are:
    1. Precipitator Slurry: a mixture of water and dust, consisting of 
the suspended particulates removed from the electric arc furnace off 
gases by electrostatic precipitators and collected in slurry pots.
    2. NOSAP Slurry: precipitator slurry that, when mixed with lime, 
meets minimum quality criteria.
    3. Phossy Water: water that had been used in contact with the 
phosphorous from the point the elemental phosphorous leaves the primary 
condensers and is handled in various intermediate operations leading to 
transfer to railroad tank cars for off-site shipment.
    4. Medusa Scrubber Blowdown: wastewater from Medusa venturi 
scrubbers that are used to treat smoke and fumes from furnace tapping, 
slag and metal runners, and the ferrophos cooling area.
    5. Furnace Building Washdown: water collected in four sumps from 
numerous sources within the furnace building.

Quantity Generated and Environmental Concerns for FMC Waste Streams

------------------------------------------------------------------------
            Waste              Quantity generated       Concerns \2\
------------------------------------------------------------------------
Precipitator Slurry.........  4 million gallons/    Due to presence of
                               year (3,000 tons/     elemental
                               year of solids).      phosphorous,
                                                     exhibits ignitable
                                                     and reactive
                                                     hazardous waste
                                                     characteristics.
NOSAP Slurry................  21 million gallons/   Due to generation of
                               year (15,000 tons/    phosphine gas,
                               year of solids).      exhibits reactive
                                                     hazardous waste
                                                     characteristic.
Phossy Water................  89 million gallons/   Due to presence of
                               year.                 elemental
                                                     phosphorous,
                                                     exhibits ignitable
                                                     and reactive
                                                     hazardous waste
                                                     characteristics.
Medusa Scrubber Blowdown....  55 million gallons/   Exhibits toxicity
                               year.                 hazardous waste
                                                     characteristic for
                                                     cadmium.
Furnace Building Washdown...  93 million gallons/   Exhibits toxicity
                               year.                 (cadmium) and
                                                     reactive hazardous
                                                     waste
                                                     characteristics.
------------------------------------------------------------------------
\2\ Each of these waste streams contain varying levels of elemental
  phosphorous and Naturally Occurring Radioactive Material (NORM) which
  pose unique treatment concerns for off-site commercial TSDs.

    Currently, the off-specification Precipitator Slurry, Furnace 
Building Washdown, and Medusa Scrubber Blowdown waste streams are piped 
to a holding tank, designated as Tank V3600, from which the mixture is 
pumped to a surface impoundment, designated as Pond 18, for 
clarification. Until recently, this mixture had been pumped to another 
surface impoundment, Pond 16S, that now is filled to capacity and 
scheduled for closure during the summer of 2000. Clarified water from 
Cell B of Pond 18 is pumped back to the production process for reuse.
    The NOSAP Slurry is pumped from each of the eight slurry pots to a 
surge tank, designated as Tank V3700, where it is mixed with decant 
water from another surface impoundment, Pond 17, to increase flow and 
prevent settling of solids in the pipeline during transfer of the 
contents of Tank V3700 to Pond 17.
    The Phossy Water is sent to a clarification unit to remove residual 
phosphorous. Clarifier overflow water is transferred to a sump for 
reuse in the production process. Currently, any excess water that 
cannot be used is pumped to Pond 18. In the future, FMC plans to first 
pump this excess water to a new tank, Tank V3800, from which the water 
then will be pumped to Pond 18. Clarifier underflow is directed to a 
centrifuge to remove the phosphorous from dirt and water. Water from 
the multistage centrifuge is directed to a sump and subsequently also 
pumped to Pond 18.
    FMC, both in the CBC application and RCRA Consent Decree, indicates 
its intent to design and construct a treatment unit, referred to as the 
LDR Treatment Plant (System), that will treat the FMC Pocatello waste 
streams to meet the applicable BDAT standards. This treatment system 
will reduce the levels of elemental phosphorous and cyanide in the 
wastes such that the treated wastes do not exhibit the characteristic 
of reactivity for phosphine and hydrogen cyanide gas or the 
characteristic of ignitability. Underlying hazardous constituents, 
contained in the wastes, also must be maintained or fixed in a 
nonleachable form for stabilization treatment prior to disposal. FMC 
has chosen the Anoxic form of the Zimpro treatment process to achieve 
these goals. The LDR Treatment Plant, employing this treatment 
technology, will process three primary waste streams:

    1. Discharge from Tank V3800 (Phossy Water),
    2. Discharge from Tank V3600 in the Furnace Building (Medusa 
Scrubber Blowdown, Furnace Building Washdown, and Precipitator 
Slurry), and
    3. Solids reclaimed from Pond 18 (the RCRA Consent Decree 
requires that solids accumulated in Pond 18 be removed and treated 
within five years after the LDR Treatment System commences 
operation).

    Once the LDR Treatment Plant is operational, the NOSAP system will 
no longer be necessary, thereby eliminating the NOSAP Slurry waste 
stream. Operating the LDR Treatment Plant also will eliminate the need 
for the continued use of the on-site ponds. The LDR Treatment Plant is 
expected to be completed and functional by May 2002. At this time, FMC 
plans to dispose the non-hazardous stabilized treatment residual, that 
meets LDR and RCRA Consent Decree requirements, at a FMC silica mine 
located about nine miles from the FMC Pocatello facility. FMC is 
seeking approval from the State of Idaho to use this site as a landfill 
for this treatment residual.
    The Shoshone-Bannock Tribes oppose the continued generation and 
disposal of these untreated wastes in the FMC Pocatello on-site surface 
impoundments. However, as discussed in Section III.A., off-site 
treatment capacity is not available. It is not yet feasible for FMC to 
treat these wastes to meet the LDRs. The necessary treatment capacity 
and capability only will be realized once the proposed LDR Treatment 
Plant is constructed and commences operation by May 2002. Also, as 
discussed below in Sections III.F. and III.G., the surface

[[Page 12239]]

impoundments into which these wastes would be placed during the CBC 
extension, if approved, were constructed to meet the RCRA minimum 
technological requirements of 40 CFR 268.5(h)(2), including liners and 
groundwater monitoring, and must be operated in compliance with the 
Pond Management Plan, as incorporated into the Consent Decree.

III. EPA's Evaluation of the Seven Demonstrations Made by FMC To 
Support the Requested CBC Extension

    In order for EPA to approve FMC's CBC extension application, FMC 
must satisfy the requirements outlined in 40 CFR 268.5 and fully 
address each of the required seven demonstrations of 40 CFR 
268.5(a)(1)-(7). EPA evaluated FMC's demonstrations, as follows:

A. Sec. Section 268.5 (a)(1)--the applicant (FMC) has made a good-
faith effort to locate and contract with treatment, recovery, or 
disposal facilities nationwide to manage its waste in accordance 
with the LDR effective date of the applicable restriction (i.e., May 
26, 2000).

    In 1995, in support of its request for a national capacity variance 
for several of the subject waste streams, FMC surveyed 168 treatment, 
storage, and disposal facilities (TSDs) throughout the nation, in an 
effort to locate commercial treatment or disposal capacity. The results 
of this survey can be found in the Docket established for this notice. 
Not one of the surveyed facilities was able or willing to provide 
treatment or disposal capacity for the FMC Pocatello waste streams. 
TSDs cited a number of factors in declining to manage these waste 
streams, including the presence of elemental phosphorous, the potential 
for generation of phosphine gas, levels of naturally occurring 
radioactive materials (NORM), and the volume of wastes to be managed. 
Likewise, EPA was not aware of any available capacity for these waste 
streams. As such, EPA granted a national capacity variance for the FMC 
Pocatello waste streams, extending the LDR effective date for these 
waste streams to May 26, 2000. See 63 FR 28556, May 26, 1998.
    In support of its request for this case-by-Case extension of the 
LDR effective date, FMC performed another survey in February--May 1999 
that supplemented the initial 1995 survey of available commercial 
treatment capacity. This supplemental survey was designed to focus on 
those facilities likely to have developed additional or new capacity 
since the 1995 survey. A list of 33 facilities were contacted by FMC. 
Again, not one of these TSD facilities was able or willing to treat the 
FMC Pocatello waste streams. Many of the same reasons given by TSDs in 
the original survey for not being able to treat these waste streams 
were again cited in the supplemental survey. Results of this 
supplemental survey likewise can be found in the Docket.
    We believe that FMC has made reasonable efforts, over the past four 
years, to try to locate adequate, alternative treatment capacity for 
the off-site management of the waste streams for which it is requesting 
a CBC extension of the LDR effective date. Likewise, we are not aware 
of any available commercial treatment capacity for these wastes. As 
such, EPA concludes that FMC has adequately fulfilled the requirements 
of this Sec. 268.5(a)(1) demonstration.

B. Sec. Section 268.5(a)(2)--the applicant (FMC) 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.

    FMC has committed considerable resources toward the development of 
a treatment technology necessary to treat the subject Pocatello waste 
streams to meet BDAT standards. The appropriate treatment technology/
process now has been identified and FMC is proceeding with plans to 
construct the LDR Treatment Plant, incorporating the Zimpro anoxic 
hydrolysis process as the principal treatment technology in the 
treatment system. On June 24, 1999, FMC entered into a contract with 
Raytheon Engineers and Constructors to design, engineer, and construct 
the LDR Treatment Plant. A copy of this contract has been provided to 
EPA as Confidential Business Information (CBI). To further support its 
demonstration of a binding contractual commitment to construct the LDR 
Treatment Plant, FMC also has provided EPA with the following 
documentation:

     Corporate approval of funds to purchase and construct 
the proposed LDR Treatment Plant at the Pocatello, Idaho facility to 
treat the wastes to BDAT standards.
     Documentation of Supplemental Authorization for 
Expenditures by FMC, dedicating a total, thus far, of $15.1 million 
toward the LDR Treatment System (process design and engineering, 
development of Part A and interim status applications, analytical 
efforts, etc.).
     Purchase Orders for equipment.
     Contracts with vendors for supplies and services.

    In addition to this documentation of contractual commitment, the 
RCRA Consent Decree places an additional binding legal commitment on 
FMC to construct the LDR Treatment System. Under the RCRA Consent 
Decree, FMC is compelled to design, construct, and permit the proposed 
LDR Treatment System by May 2002. If FMC fails to meet the stipulations 
of this RCRA Consent Decree, it will be subject to significant monetary 
penalties.
    We believe, as evidenced by the resources committed by FMC toward 
the design and construction of the LDR Treatment Plant, that it is 
fully committed to and aggressively pursuing construction of the 
necessary on-site treatment capacity to treat the subject waste streams 
generated at the Pocatello, Idaho facility to BDAT standards. EPA 
believes FMC has provided the necessary documentation to demonstrate 
its binding contractual commitment to provide the necessary treatment 
capacity.

    C. Sec. Section 268.5(a)(3)--Due to circumstances beyond the 
applicant's (FMC'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 unique nature of the waste streams, for which the CBC extension 
is being requested by FMC, pose numerous treatment problems. The non-
availability of commercial treatment capacity attests to the unique 
nature of these waste streams. FMC has been grappling with these 
problems for quite some time and has provided documentation that 
details its efforts--involving literature searches, laboratory testing, 
process design, permitting, pilot plant studies and operations, etc. in 
attempting to determine the most appropriate treatment technology. FMC 
states that it has evaluated more than 50 potential waste treatment 
technologies. However, prior to selecting the most appropriate 
treatment technology and developing the construction plans, FMC needed 
to know the final Phase IV LDR treatment standards for these waste 
streams, promulgated on May 26, 1998, and the requirements of the 
proposed RCRA Consent Decree which was lodged with the Court on October 
16, 1998. Upon learning these requirements, FMC made an intensive 
effort to determine the treatment technology most appropriate to treat 
the FMC Pocatello waste streams to meet the LDR requirements. In August 
1999, FMC finally chose the Zimpro Anoxic treatment process as the 
treatment technology to be employed in the proposed LDR Treatment 
Plant.

[[Page 12240]]

    The two-year national capacity variance that was approved for these 
waste streams in the final Phase IV rulemaking will expire on May 26, 
2000. Now that a treatment technology has been chosen, the design, 
construction, and permitting of the proposed LDR Treatment Plant has 
commenced. The mandate of the RCRA Consent Decree that FMC begin 
operation of the LDR Treatment System by May 2002 is already ambitious. 
However, it is virtually impossible for FMC to construct the LDR 
Treatment Plant needed to provide the treatment capacity and to be 
operating by May 26, 2000.
    Based on the above, we believe that FMC has made a good-faith and 
reasonable effort in its attempt to provide treatment capacity by the 
effective date. FMC has aggressively pursued the development of 
technology capable of treating their wastes to BDAT standards. We 
believe FMC has acted in good faith to provide the necessary treatment 
capacity but that such capacity could not reasonably be made available 
by May 26, 2000, the current effective date of the land disposal 
restriction for these waste streams. EPA believes the lack of treatment 
capacity for these waste streams is due to circumstances beyond the 
control of FMC. As such, FMC has adequately met the demonstration of 
Sec. 268.5(a)(3).

D. Section 268.5 (a)(4)--The capacity being constructed or otherwise 
provided by the applicant (FMC) will be sufficient to manage the 
entire quantity of waste that is the subject of the application.

    FMC, in its CBC application, states that the LDR Treatment Plant to 
be constructed will have sufficient capacity to adequately treat the 
waste streams generated by the Pocatello, Idaho facility. The RCRA 
Consent Decree likewise makes this a requirement. The treatment train 
to be provided by FMC uses a combination of lime treatment, anoxic 
hydrolysis, metals precipitation, filtration, and stabilization. FMC 
has provided test results that demonstrate that the treatment system 
will meet the LDR treatment standards as well as the requirements 
specified in the RCRA Consent Decree. This treatment system is designed 
to destroy elemental phosphorous and cyanide in the subject waste 
streams and remove the hazardous characteristics from these waste 
streams. FMC has submitted information, designated as CBI, regarding 
the process design flow and operating conditions of the proposed LDR 
Treatment System. As such, the planned LDR Treatment Plant is expected 
to have sufficient treatment capacity. Included in the capacity 
calculations are the estimated 39 acre-feet of accumulated solids in 
Pond 18 that is required per the RCRA Consent Decree to be removed and 
treated in the LDR Treatment System within five years of commencing 
operation. Using historic and predicted elemental phosphorous 
production and waste generation data and taking into consideration 
design requirements mandated in the RCRA Consent Decree, FMC states 
that it has designed the proposed LDR Treatment Plant to manage 610 
gallons per minute of waste, thus providing adequate treatment 
capacity, including reasonable unexpected increases in waste generation 
flow rates. FMC anticipates a significant reduction of the quantity of 
wastes it generates and thus needs to treat in the proposed LDR 
Treatment Plant. For one thing, FMC anticipates, as part of the 
proposed joint venture with Solutia, Inc., that the construction of a 
new raw material supply plant, that produces purified phosphoric acid, 
potentially will serve as a substitute for some of the elemental 
phosphorous currently generated at Pocatello. FMC states that this 
plant should be operational within two to three years. Also, the joint 
venture's intention to develop additional wet phosphoric acid capacity 
is expected to reduce the need for elemental phosphorous and thus 
reduce the quantity of the subject waste streams generated. FMC also 
describes several ongoing waste minimization projects, including the 
control of the quantity of fine feed material to the electric arc 
furnaces and upgrades to operations at the Phos Dock. FMC anticipates 
that these efforts further will reduce the quantity of wastes, 
especially solids, needed to be treated in the LDR Treatment Plant. 
Both the current and anticipated generation rates for the subject waste 
streams are adequately covered by the design size of the proposed LDR 
Treatment Plant. The following table shows the current and anticipated 
generation rates for the waste streams to be treated in the LDR 
Treatment Plant.
    In initial comments on the draft notice, the Tribes questioned 
whether FMC is constructing alternative treatment capacity sufficient 
to treat the volume of wastes which are to be removed from Pond 18 
(Letter of February 25, 2000). EPA will investigate this issue further. 
EPA notes that the Consent Decree requires the on-site LDR Treatment 
System be designed with the capacity necessary to treat all of the 
phossy wastes, including all sediment collected in Pond 18. More 
specifically, as previously mentioned above, the Consent Decree 
mandates that FMC remove and treat all of the Pond 18 sediment within 
five (5) years after the LDR Treatement System begins operation.

                        Current and Anticipated Quantities of Waste Streams for Treatment
----------------------------------------------------------------------------------------------------------------
                                       Current waste generation
            Waste stream                         rate                    Expected waste generation rate 3
----------------------------------------------------------------------------------------------------------------
Precipitator Slurry................  55 gallons per minute......  28 gallons per minute.
Phossy Water (from Tank V3800).....  200 gallons per minute.....  180 gallons per minute.
Medusa Scrubber Blowdown and         300 gallons per minute.....  250 gallons per minute.
 Furnace Building Washdown (from
 Tank V3600).
Pond 18 Excavated Solids 4.........  Not Applicable.............  18 gallons per minute.
----------------------------------------------------------------------------------------------------------------
      Total........................  555 gallons per minute.....  476 gallons per minute.
----------------------------------------------------------------------------------------------------------------
3 Based on projections of reduced production of elemental phosphorous.
4 Per the RCRA Consent Decree, the Pond 18 excavated solids must be treated in the LDR Treatment System within
  five years of commencement of operation of the LDR Treatment System.

    EPA believes that FMC has adequately demonstrated that the LDR 
Treatment Plant to be constructed will provide the necessary treatment 
capacity to ensure that the entire quantity of these waste streams, for 
which FMC is requesting a CBC extension, and will meet applicable BDAT 
standards. The proposed LDR Treatment Plant is projected to generate 
approximately 242 cubic yards/day of non-hazardous stabilized treatment 
residual. FMC plans to transport this treatment residual in 20 cubic 
yard roll-off containers for disposal at the FMC silica mine, an off-
site facility, located

[[Page 12241]]

nine miles from the FMC Pocatello Plant. This proposed landfill 
currently has an existing capacity of 260 acre feet and is expected to 
provide disposal capacity for about 5 years. FMC is evaluating several 
options to manage the treatment residuals generated beyond that time, 
including expanding the proposed landfill or using other landfill 
sites. FMC currently is preparing the application to be submitted to 
the State of Idaho for approval of this site as a landfill.

E. Sec. Section 268.5 (a)(5)'' the applicant (FMC) provides a 
detailed schedule for obtaining operating and construction permits 
or an outline of how and when alternative capacity will be 
available.

    FMC has provided EPA with a detailed schedule for the design, 
construction, and permitting of the LDR Treatment Plant to be 
constructed at its Pocatello, Idaho facility. This schedule, in effect, 
reflects the requirements for bringing the LDR Treatment System on-line 
under the Consent Decree. The Table below shows some of the key 
milestones and dates in the schedule. FMC anticipates actual physical 
on-site construction to begin in July 2000 and start-up and operation 
of the LDR Treatment Plant by May 2002.

Key Milestones and Dates in FMC's Schedule for The LDR Treatment 
Plant

----------------------------------------------------------------------------------------------------------------
          Milestone                                       Scheduled date of completion
----------------------------------------------------------------------------------------------------------------
Design and Engineering.......  January 2001.
RCRA Permitting (Submittal)..  Part A--November 1999; Interim Status--March 2000.
                               Part B--March 2001.
Equipment Procurement........  June 2000 through July 2001.
Physical On-Site Construction  July 2000 through April 2002.
Start-up/Commence Operation..  May 2002.
----------------------------------------------------------------------------------------------------------------

    We believe that FMC has provided the necessary design, construction 
and permitting milestones for bringing the LDR Treatment Plant on-line 
and therefore providing the treatment capacity needed to treat the 
subject waste streams to BDAT standards. However, the CBC extension 
that EPA is proposing to approve today would only extend the LDR 
effective date until May 26, 2001. Even this extension apparently will 
not provide sufficient time for FMC to bring the LDR Treatment Plant 
into operation. FMC likely will need to request a renewal of any 
approved CBC extension to provide additional time to complete 
construction and commence operation of the LDR Treatment Plant. 
However, any such renewal cannot extend the LDR effective date beyond 
May 26, 2002.

F. Sec. Section 268.5(a)(6)--the applicant (FMC) 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.

    FMC would continue to manage these waste streams in two of its on-
site surface impoundments, referred to as Ponds 17 and 18, that it has 
been using for this purpose. FMC has provided data showing that these 
surface impoundments would have the necessary capacity available to 
manage these wastes during the extension, if approved. As of November 
1, 1999, FMC estimated that Pond 17 has approximately 58 acre feet of 
capacity remaining. Pond 17 only is used to manage NOSAP Slurry, which 
is estimated to accumulate solids at a rate of almost 20 acre feet per 
year. FMC, however, views this accumulation rate as an upper bound and 
anticipates that waste minimization efforts and a reduced production 
mode will reduce the quantity of solids going to Pond 17. Thus, Pond 
17, even at the current rate of inflow NOSAP Slurry, would have enough 
capacity for another three years. Once the LDR Treatment Plant is 
operating, Pond 17 will no longer be needed and will be closed. As of 
November 1, 1999, FMC indicated that Pond 18, composed of Cells A and 
B, has approximately 127 acre-feet of remaining capacity. The bulk of 
the solids are contained in Cell A, with a capacity of 40 acre-feet. 
FMC states that solids accumulate in Pond 18 at the rate of about 12.6 
acre-feet per year. At this rate of solids accumulation and assuming 
that most of the solids precipitate out of the water while in Cell A, 
Pond 18 also would have sufficient capacity for another three years. 
Once the LDR Treatment Plant is operating, Pond 18 will no longer be 
needed. The RCRA Consent Decree requires that the solids accumulated in 
Pond 18 be treated in the LDR Treatment System within five years of 
commencement of plant operation.
    To provide even more assurance of adequate capacity and proper 
management of these surface impoundments (ponds), FMC is adhering to 
the Pond Management Plan, as required by the RCRA Consent Decree. Among 
other requirements, the Pond Management Plan requires that pond levels 
be maintained within defined minimum and maximum levels.
    EPA believes that FMC has provided the documentation necessary to 
satisfy the demonstration under Sec. 268.5(a)(6).

G. Sec. 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).

    During the extension period, if approved, the subject waste streams 
would be piped directly to the on-site surface impoundments, i.e., 
Ponds 17 and 18, as described above. Both of these surface impoundments 
were constructed to meet the RCRA minimum technological requirements of 
40 CFR 268.5(h)(2). Pond 17 has double liners, a leak detection system, 
and is equipped with one upgradient and three downgradient groundwater 
monitoring wells. Pond 18 (both Cells A and B) are lined with a double 
composite geosynthetic/soil liner and a leak detection system. Each 
liner consists of a flexible membrane overlying a low permeability soil 
layer. The soil component of the primary liner is a geosynthetic clay 
liner; the soil component of the secondary liner is compacted bentonite 
amended soil. A sacrificial 80-mil high-density polyethylene liner 
covered with one foot of bentonite soil overlays the liner system--
constructed to allow sediment removal once the LDR Treatment System is 
operational. Pond 18 has a groundwater monitoring system composed of 
two upgradient and four downgradient monitoring wells.
    As previously mentioned, the RCRA Consent Decree, incorporating the 
Pond Management Plan, requires these ponds to meet the minimum 
technology requirements (MTRs). The Pond Management Plan also imposes 
stringent operating conditions on the use and management of the FMC 
Pocatello ponds. These conditions include:


[[Page 12242]]


     Pond 18 must have an electronic leak detection system 
and a sacrificial liner to allow for sediment removal once the LDR 
Treatment System is operational.
     Human exposure to phosphine and hydrogen cyanide must 
be minimized at the ponds by installing additional fencing and 
continuous gas monitors.
     Fires must be prevented by managing pond water levels, 
using electronic level monitoring and alarm devices.
     Wildlife injuries or fatalities must be prevented at 
the ponds by installing netting and/or bird balls over pond surfaces 
to deter avian intrusion.

    However, the Shoshone-Bannock Tribes oppose the continued disposal 
of these untreated wastes in the FMC Pocatello on-site surface 
impoundments. In initial comments on the draft notice, the Tribes 
questioned whether the FMC's surface impoundments (Ponds 17 and 18), 
that would be used to manage the wastes during the requested extension, 
were capable of meeting the requirements of 268.5 (h)(2). These 
standards require compliance with the so-called minimum technology 
requirements of double liners and a leachate collection system. EPA's 
review of all available information indicates that the impoundments 
satisfy the minimum technology requirements.
    The Tribes further questioned whether the impoundments met other 
substantive design and operating standards, particularly those relating 
to air emissions. EPA notes that compliance with air emission standards 
is not directly relevant to this case-by-case extension (section 3005 
(j)(11) of the statute and the codifying regulations in 268.5 (h)(2) 
refer only to the minimum technology requirements). The regulations in 
40 CFR Parts 264 and 265 subpart CC, relate to air emissions from 
certain hazardous waste surface impoundments. EPA's review of all 
available information indicates that these provisions do not apply to 
the FMC impoundments in question because only certain types of volatile 
organic wastes are subject to the rules (40 CFR 265.1083 (c)(1) ), and 
we do not believe volatile organic wastes are present in these 
impoundments.
    EPA believes that FMC has provided the documentation necessary to 
satisfy the demonstration under Sec. 268.5(a)(7), but we will of course 
review any new information received during the comment period to ensure 
that all conditions are satisfied.

IV. Consultation With Affected State and Indian Tribes

    In accordance with 40 CFR 268.5(e), EPA consulted with the State of 
Idaho--Idaho Division of Environmental Quality (IDEQ) to determine if 
the State had any permitting, enforcement, or other concerns regarding 
this respective facility that EPA should take into consideration in 
deciding to grant or deny FMC's application for a CBC extension of the 
LDR effective date. The State of Idaho has indicated its support for 
the approval of the CBC extension requested by FMC.
    The majority of the FMC Pocatello site, including most of the 
processing areas, is located on the Fort Hall Indian Reservation. 
Consistent with the Presidential Memorandum of April 29, 1994, EPA has 
engaged in advance consultation of this proposed CBC extension with 
representatives of the Tribes and also sent a copy of this Notice to 
the Tribes in advance of the public comment period in order to further 
provide opportunities for comment. It is EPA's understanding that the 
Tribes do not wish for the FMC facility to close, and support the 
overall federal and company efforts to remediate groundwater and soil 
contamination caused by historic facility operations, and to better 
control particulate air emissions from the facility. However, the 
Tribes continue to believe that FMC's hazardous waste should be treated 
now before being land disposed, and consequently oppose granting a CBC 
extension of the land disposal prohibition and pretreatment 
requirement. EPA will continue to consult with the Tribes prior to 
finalizing any decision on the capacity extension.

V. What Is EPA's Proposed Action?

    We believe that FMC has made and is continuing to make a good-faith 
effort toward providing sufficient and appropriate treatment capacity 
for the five waste streams that are the subject of its request for a 
CBC extension of the LDR effective date. The United States recognizes 
and concurs that it does owe an important trust responsibility to the 
Tribes, on whose lands the FMC Pocatello facility is located, including 
a responsibility to perform its obligations under RCRA and other 
statutes intended to protect the environment. We also recognize the 
Tribes's legitimate concerns regarding the continued placement of 
untreated hazardous wastes in the FMC Pocatello on-site surface 
impoundments. However, as well as considering tribal concerns and 
recommendations, the United States must also consider other relevant 
facts when choosing a course of action. EPA notes that the controlling 
law here is section 3004 (h) (3) of the statute and the rules in 268.5 
which implement that provision. These provisions establish that an 
applicant who satisfies the rigorous conditions for a CBC extension 
will be granted one. The ultimate and controlling issue in processing 
FMC's application consequently is whether the company has satisfied the 
statutory and regulatory conditions.
    We see no reasonable and quick way of achieving the goal of the 
Tribes, i.e., the immediate cessation of on-site disposal of these 
wastes. As explained earlier in this Notice, we believe that it is not 
yet feasible for FMC to treat these wastes prior to placement in the 
on-site surface impoundments, and no other company is willing to accept 
the wastes for off-site treatment. Treatment capacity and capability 
only will be available once FMC constructs and commences operation of 
the proposed LDR Treatment Plant. Short of the FMC facility shutting 
down--which the Tribes do not want to happen--we believe that the 
Tribes's concerns about continued on-site disposal can most practically 
and judiciously be addressed by compelling FMC to expeditiously proceed 
with the construction of the proposed treatment plant so as to have it 
operational at the earliest possible date. We believe FMC is on such a 
schedule.
    As such, EPA is proposing to grant an extension of the land 
disposal restrictions effective date for these wastes, until May 26, 
2001. If this extension is finalized, FMC may continue to manage these 
five waste streams in the on-site surface impoundments (Ponds 17 and 
18) at the Pocatello, Idaho facility until May 26, 2001. FMC likely 
will need to request a renewal of any approved CBC extension to provide 
additional time to complete construction and commence operation of the 
LDR Treatment Plant and may request renewal of the one-year extension, 
if approved. For a renewal of the extension, FMC would need to re-
demonstrate each of the seven required demonstrations in Sec. 268.5(a). 
However, any such renewal cannot extend the LDR effective date beyond 
May 26, 2002.
    Once FMC is granted a one-year CBC extension, it must immediately 
notify EPA of any change in the demonstrations made in its initial 
application (40 CFR 268.5(f)). The approval of this one-year CBC 
extension, and any potential extension renewal, is conditional on FMC 
adhering to its stated schedule for the construction and operation of 
the LDR treatment plant. EPA will maintain close oversight of the 
scheduled progress being made by FMC towards this goal by requiring 
progress reports. FMC would need to submit progress

[[Page 12243]]

reports that describe the progress being made toward constructing and 
bringing the LDR Treatment Plant into operation. EPA proposes that FMC 
submit a monthly progress report and that the first progress report be 
due thirty (30) days after the date of final approval of the requested 
CBC extension. The progress reports also must identify any delay or 
possible delay in providing the planned treatment capacity and describe 
the mitigating actions being taken in response to any such delay (40 
CFR 268.5(g)). Likewise, FMC is bound by the terms of the RCRA Consent 
Decree to have this treatment plant operational by May 2002. If FMC 
should fail to adhere to this schedule, such that compliance with the 
requirements of the Consent Decree is jeopardized, EPA has the 
authority to terminate an approved CBC extension.

VI. How Can I Influence EPA's Thinking on This Notice?

    We welcome your comments on the factual issues associated with each 
of the seven demonstrations made by FMC to support the requested CBC 
extension and EPA's evaluation of these demonstrations. In addition we 
would like your comments on the appropriateness of the proposed one-
year extension of the LDR effective date for the five waste streams 
generated at the FMC Pocatello facility for which the CBC extension is 
requested. We are not requesting comments on the RCRA Consent Decree or 
regarding other ongoing or planned regulatory/enforcement activities at 
the FMC Pocatello facility.
    Your comments will be most effective if you follow the suggestions 
below:

     Explain your views as clearly as possible and why you 
feel that way.
     Tell us which parts you support, as well as those you 
disagree with.
     Provide specific examples to illustrate your concerns.
     Offer specific alternatives.
     Refer your comments to specific sections of the notice, 
such as the units or page numbers.
     Make sure to submit your comments by the deadline in 
this notice.
     Be sure to include the name, date, and docket number 
with your comments.

VII. What Happens After We Receive Your Comments?

    After reviewing comments received, we will issue a final rulemaking 
to either approve or deny FMC's request for a one-year CBC extension of 
the LDR effective date. We plan to publish a final notice regarding the 
Agency's decision on FMC's request for a one-year CBC extension, prior 
to the May 26, 2000, expiration date of the current national capacity 
variance for the subject waste streams. The extension, if approved, 
would remain in effect unless the facility 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, the requirements of the RCRA Consent Decree are not met, or the 
facility violates any law or regulations implemented by EPA.

VIII. Administrative Requirements

A. Executive Order 13084: Consultation and Coordination With Indian 
Tribal Governments

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of Indian tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that significantly or uniquely affect their communities.''
    Today's notice will significantly or uniquely affect the 
communities of Indian tribal governments, but it will not impose 
substantial direct compliance costs on such communities. EPA is 
proposing to approve an application for a one-year CBC extension of the 
May 26, 2000, effective date of the RCRA land disposal restrictions for 
a facility located on Tribal Lands. This action will significantly or 
uniquely affect the communities of Indian tribal governments by 
permitting the facility to continue to treat, store, or dispose of five 
waste streams as currently managed in on-site surface impoundments 
until May 26, 2001. These impoundments are located on Tribal Lands. 
However, this action will not impose any direct compliance costs on the 
communities. Accordingly, the requirements of section 3(b) of Executive 
Order 13084 do not apply to this notice.

B. Executive Order 13132 (Federalism)

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that 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.''
    Under Section 6 of Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law, unless 
the Agency consults with State and local officials early in the process 
of developing the proposed regulation.
    This notice 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 section 6 
of the Executive Order do not apply to this rule. Although section 6 of 
Executive Order 13132 does not apply to this rule, EPA did consult with 
the State of Idaho in developing this rule, as discussed in section IV. 
of this notice.

    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: March 2, 2000.
Michael Shapiro,
Deputy Assistant Administrator, Office of Solid Waste and Emergency 
Response.
[FR Doc. 00-5604 Filed 3-7-00; 8:45 am]
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