[Federal Register Volume 65, Number 105 (Wednesday, May 31, 2000)]
[Notices]
[Pages 34694-34702]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-13547]


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ENVIRONMENTAL PROTECTION AGENCY

[SW-FRL-6707-3]


Notice of Final 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 (EPA).

ACTION: Notice of final decision.

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SUMMARY: The EPA is today approving 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) applicable to hazardous wastes generated by FMC. This action 
responds to the request submitted by FMC, under the procedures for 
case-by-case extensions to an effective date, which allow any person to 
request the Administrator to approve, on a case-by-case basis, an 
extension of the applicable effective date of the 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 to treat 
those wastes. As discussed in the notice of proposed decision (See 
March 8, 2000), EPA concludes that FMC has adequately made each of the 
seven demonstrations required by statute in order for EPA to approve a 
CBC extension to the LDR effective date. As a result of today's action, 
FMC Pocatello can continue to manage the five subject wastes, as 
currently managed in on-site surface impoundments, until May 26, 2001, 
without being subject to the LDRs applicable to these wastes. If 
warranted, EPA may grant a renewal of this extension, for up to one 
year, which, at a maximum, would extend the effective date of the LDR 
for these wastestreams to May 26, 2002.

DATES: This case-by-case extension becomes effective on May 26, 2000.

ADDRESSES: The official record for this action is identified as Docket 
Number F-2000-FMCF-FFFFF. Public comments and supporting materials are 
available for viewing in the RCRA Information Center (RIC), located at 
Crystal Gateway I, First Floor, 1235 Jefferson Davis Highway, 
Arlington, VA.

[[Page 34695]]

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 
notice, contact the RCRA Hotline at (800) 424-9346 or TDD (800) 553-
7672 (hearing impaired). In the Washington, DC, metropolitan area, call 
(703) 412-9810 or TDD (703) 412-3323.
    For more detailed information on specific aspects of this CBC 
extension, contact William Kline, Office of Solid Waste, 5302W, U.S. 
Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania 
Avenue, NW., Washington, DC 20460, (703) 308-8440, [e-mail address: 
[email protected]].

SUPPLEMENTARY INFORMATION: The index of supporting materials evaluated 
by EPA in reaching our determination to 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/fmc.htm>.
    The information in this section is organized as follows:

I. Background of This Notice of Final Decision

A. RCRA and Congressional Mandate
B. Related Regulatory Background
C. Summary of FMC's Request for a CBC Extension
D. Relationship of this CBC Extension with the RCRA Consent Decree 
for FMC Pocatello
E. Summary of EPA's Evaluation of FMC's Demonstrations Under 40 CFR 
268.5(a)

II. What Are EPA's Responses to Comments Submitted on the Notice of 
Proposed Approval of CBC Extension?

A. Will the Proposed LDR Treatment Plant have Sufficient Capacity?
B. Do the Surface Impoundments (Ponds 17 and 18), to be Used During 
the Extension, Meet the Minimum Technological Requirements of 40 CFR 
268.5 (h)(2)?
C. Has EPA Consulted Adequately with the Tribes?
D. Other Issues Not Directly Related to the CBC Extension

III. What Is EPA's Final Determination on FMC's Request for a CBC 
Extension?

IV. Administrative Requirements

I. Background of This Notice of Final Decision

A. RCRA and Congressional Mandate

    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. 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 268, and 270 through 272.
    Congress enacted the Hazardous and Solid Waste Amendments (HSWA) of 
1984 to amend the Resource Conservation and Recovery Act. 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.'' Characteristic 
hazardous wastes must be treated not only to remove the characteristic 
property that identifies them as hazardous, but also to treat any 
hazardous constituents that may be present in the wastes in significant 
concentrations (so-called ``underlying hazardous constituents''). See 
Chemical Waste Management v. EPA, 976 F. 2d 2, 14-17 (D.C. Cir. 1992).
    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. The specific 
requirements for obtaining a CBC extension of a Land Disposal 
Restriction (LDR) effective date, the subject of this notice of 
proposed decision, are found in Part 268--Land Disposal Restrictions, 
Sec. 268.5(a), which rule essentially recites the statutory criteria 
found in RCRA section 3004 (h)(3).

B. Related Regulatory Background

    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. for certain wastes 
generated by its Pocatello, Idaho facility. FMC later 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 for these wastes to May 26, 2000.
    On July 12, 1999, FMC Corporation submitted to EPA a request, along 
with documentation to support the required seven demonstrations in 
section 268.5, for a one-year CBC extension of the LDR effective date 
for the five waste streams generated at its facility located in 
Pocatello, Idaho.

[[Page 34696]]

    On March 8, 2000, EPA proposed to approve the CBC extension 
requested by FMC Corporation to extend the LDR effective date for the 
five waste streams generated at its facility located in Pocatello, 
Idaho. (See 65 FR 12233 for details of the notice of proposed approval 
of this CBC extension.) The proposed extension would allow FMC 
Pocatello to continue managing these wastes in on-site surface 
impoundments until May 26, 2001, while FMC designs and constructs a 
treatment plant to treat these waste streams to BDAT standards. As 
discussed below in Section II--only the Fort Hall Business Council (on 
behalf of the Shoshone-Bannock Tribes) and FMC Corporation submitted 
comments on the notice of proposed approval of this CBC extension.
    The Federal Trade Commission (FTC) approved the proposed plan by 
FMC and Solutia, Inc. to operate a joint venture company, known as 
Astaris Idaho LLC, comprising the combined phosphorous chemical 
businesses of FMC Corporation and Solutia, Inc. Effective April 17, 
2000, Astaris Idaho LLC became the owner and operator of the Pocatello 
facility. As such, Astaris Idaho LLC is responsible for the 
construction, operation, and maintenance aspects of the LDR Treatment 
Plant. However, FMC retains responsibility for funding the capital 
costs and for implementing all RCRA Consent Decree projects, including 
the proposed LDR Treatment Plant. For the sake of simplicity, for the 
purposes of this notice of final decision on the requested CBC 
extension, we simply will refer to FMC as the applicant for the CBC 
extension. However, where appropriate, the name FMC also is construed 
as encompassing the FMC/Astaris Idaho LLC joint venture.

C. Summary of FMC's Request for a CBC Extension

    FMC's CBC extension request is for five waste streams, generated in 
the production of elemental phosphorous: (1) Non-Hazardous Slurry 
Assurance Project (NOSAP) Slurry, (2) Medusa Scrubber Blowdown, (3) 
Furnace Building Washdown, (4) Precipitator Slurry, and (5) Phossy 
Water. These five waste streams are generated in large quantities (see 
the chart) and pose unique handling, treatment, and disposal 
considerations, given the presence of elemental phosphorous and 
cyanide, causing the wastes to exhibit the characteristic of reactivity 
for phosphine and hydrogen cyanide gas, and also to exhibit the 
characteristic of ignitability. Each of these waste streams also 
contains varying levels of Naturally Occurring Radioactive Material 
(NORM) which pose special treatment concerns for off-site commercial 
TSDs.

                 Quantity of FMC Waste Streams Generated
------------------------------------------------------------------------
                                                             Quantity
                                                           generated in
                          Waste                             millions of
                                                            gallons per
                                                               year
------------------------------------------------------------------------
Precipitator Slurry.....................................               4
NOSAP Slurry (treated precipitator slurry)..............              21
Phossy Water............................................              89
Medusa Scrubber Blowdown................................              55
Furnace Building Washdown...............................              93
------------------------------------------------------------------------

    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 (System). This proposed treatment plant would use a 
combination of clarification, the Anoxic form of the Zimpro treatment 
process (an anoxic aggressive caustic hydrolysis at elevated 
temperature and pressure), pH adjustment, filtration, and stabilization 
to treat the FMC Pocatello waste streams to meet the applicable BDAT 
standards, including reducing 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 
exhibit the characteristic of ignitability.
    Currently, these five waste streams are managed in on-site surface 
impoundments and must be kept covered with water to prevent ignition. 
The surface impoundments into which these wastes will be managed during 
the CBC extension were constructed to meet the RCRA minimum 
technological requirements of 40 CFR 268.5(h)(2). Specifically, the 
off-specification Precipitator Slurry, Furnace Building Washdown, 
Medusa Scrubber Blowdown, and Phossy Water waste streams are pumped to 
a surface impoundment, designated as Pond 18, for clarification. The 
NOSAP Slurry is pumped to another surface impoundment, Pond 17. Once 
the LDR Treatment Plant is operational, precipitator slurry will be 
treated by it and the discharge to Pond 17 will be eliminated, thereby 
eliminating the NOSAP Slurry waste stream. Operating the LDR Treatment 
Plant also will eliminate the need for the continued discharge of these 
five waste streams to the on-site ponds.
    FMC has provided documentation showing that they initiated research 
and development efforts in 1990 to develop the technology needed to 
treat the Pocatello, Idaho facility's elemental phosphorous production 
waste streams to meet anticipated LDR standards. FMC also submitted the 
results of extensive surveys, involving approximately 200 commercial 
TSD facilities nationwide, that it conducted in an attempt to find off-
site available treatment capacity. These surveys indicated that no 
commercial TSD facility contacted was able or willing to treat the 
Pocatello waste streams. The chemical properties of these waste 
streams, along with the volumes generated, are among the reasons given 
by commercial facilities for not being able or desiring to treat these 
waste streams. Corroborating FMC's documentation, EPA has not received 
any statement or other indication from commercial hazardous waste TSD 
facilities that treatment capacity exists for these FMC waste streams.
    FMC spent considerable time and effort on identifying an 
appropriate treatment technology for these waste streams. 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.
    On March 8, 2000, EPA published a notice of intent (65 FR 12233) to 
approve FMC's request for a one-year extension of the LDR effective 
date, based upon a determination that FMC had fulfilled the criteria of 
40 CFR 268.5(a) which sets forth the required demonstrations to be made 
in requesting a CBC extension of a LDR effective date.

D. Relationship of the CBC Extension With the RCRA Consent Decree for 
FMC Pocatello

    To settle charges that it repeatedly had violated hazardous waste 
regulations, including numerous RCRA violations involving the 
mismanagement of ignitable and reactive wastes in on-site ponds, FMC 
negotiated a consent decree with the United States government to pay a 
civil penalty and commit to bringing the Pocatello facility into RCRA 
compliance. On July 13, 1999, the U.S. District Court for the District 
of Idaho entered as final a Consent Decree (United States v. FMC Corp., 
Civ. 98-

[[Page 34697]]

0406-E-BLW) requiring closure of certain on-site ponds, tank system 
upgrades to comply with RCRA standards, and the implementation of SEPs 
to address air quality. This Consent Decree also 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 LDR Treatment Plant for these waste streams 
by no later than May 2002, prohibiting the discharge of untreated 
hazardous wastes to the facility's on-site ponds after May 26, 2002. 
(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.) The RCRA Consent Decree does not 
negate the need for FMC to pursue CBC 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. As we discussed in the March 8, 2000, 
notice of proposed approval of this CBC extension, although there is no 
direct connection between EPA's approval of FMC's request for a one 
year extension to the LDR effective date and the Consent Decree, EPA 
believes that FMC's compliance with the terms of the RCRA Consent 
Decree bolster certain of the demonstrations required by RCRA section 
3004(h)(3) and the implementing rules to obtain the requested CBC 
extension. EPA views these courses of action as ensuring consistency of 
both the CBC extension and RCRA Consent Decree processes and 
complementary in compelling FMC toward providing the necessary 
treatment capacity to properly manage the subject waste streams. 
Conversely, approval of this CBC extension obviously does not alter any 
terms of the RCRA Consent Decree, since there is no direct connection 
between the Consent Decree and this proceeding.

E. Summary of EPA's Evaluations of FMC's Demonstrations Under 40 CFR 
268.5(a)

    The following is a summary of each of the seven demonstrations 
required under 40 CFR 268.5(a) to obtain a CBC extension and EPA's 
evaluation of the adequacy of the demonstrations made by FMC Pocatello.
1. 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)
    When faced with pending regulation under the Land Disposal 
Restrictions, FMC initially surveyed 168 treatment, storage, and 
disposal facilities (TSDs) throughout the nation, in an effort to 
locate commercial treatment or disposal capacity. None of these 
facilities was able or willing to provide treatment or disposal 
capacity for the FMC Pocatello waste streams. Various reasons were 
noted by the TSDs 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. FMC provided 
these findings to EPA in support of its request for a national capacity 
variance for the subject waste streams. Given these findings, as well 
as EPA not being aware of the availability of treatment capacity for 
these waste streams, and no commercial (or other) entity providing 
waste treatment disputing these conclusions, 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 early 1999, FMC conducted a follow-up survey of available 
treatment capacity at TSDs to support its request for a CBC extension. 
This survey indicated that there still was no TSD facility able or 
willing to treat the FMC Pocatello waste streams.
    EPA is convinced that FMC has made concerted and reasonable efforts 
to locate adequate, alternative treatment capacity for the five waste 
streams for which it is requesting a CBC extension of the LDR effective 
date, but that no such treatment capacity exists. EPA's own independent 
evaluation confirms absence of any available alternative treatment 
capacity for these wastes at this time. EPA thus finds that FMC has 
adequately fulfilled the requirements of this demonstration.
2. 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 provided documentation that it has entered into a contract 
with Raytheon Engineers and Constructors to design, engineer, and 
construct the LDR Treatment Plant. In addition to this contract, FMC 
also provided other documentation, including corporate approval of 
funds, purchase orders for equipment, supplies, and services that 
further support its demonstration of a binding contractual commitment 
to construct the LDR Treatment Plant.
    EPA also notes that the RCRA Consent Decree imposes an additional 
binding legal commitment on FMC to construct the LDR Treatment System. 
Under the RCRA Consent Decree, FMC is compelled to design and construct 
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 conclude that FMC has provided the necessary documentation to 
meet this demonstration of its binding contractual commitment to 
provide the on-site treatment capacity needed to treat the subject 
waste streams generated at the Pocatello, Idaho facility to BDAT 
standards.
3. 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 five waste streams for which FMC requests a CBC extension pose 
numerous and essentially unique treatment problems, as evidenced by the 
non-availability of commercial treatment capacity. Since the early 
1990s, FMC has committed considerable resources toward determining and 
developing the most appropriate treatment technology for these waste 
streams, evaluating more than 50 potential waste treatment 
technologies.

[[Page 34698]]

However, in addition to solving the technical problems posed by these 
waste streams, FMC also has needed to know the final Phase IV LDR 
treatment standards. FMC's documentation shows that it has made an 
intensive effort to determine the treatment technology most appropriate 
to treat the FMC Pocatello waste streams to meet the LDR requirements. 
Now that an appropriate treatment technology/process has been 
identified, 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.
    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. These waste streams pose unique handling, 
safety, and treatment considerations, including the presence of 
elemental phosphorous and cyanide, and the potential for generation of 
phosphine and hydrogen cyanide gas. FMC has demonstrated to EPA's 
satisfaction that it has aggressively pursued the development of 
technology capable of treating the FMC Pocatello waste streams to BDAT 
standards and is actively engaged in the design and construction of the 
treatment system employing this technology to provide the necessary 
treatment capacity. However, it is not possible for FMC to construct 
the LDR Treatment Plant needed to provide the treatment capacity and to 
be operating by May 26, 2000.
4. 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
    The proposed LDR Treatment uses a combination of lime treatment, 
anoxic hydrolysis, metals precipitation, filtration, and stabilization. 
FMC, in its application for a CBC extension, 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. FMC has provided documentation that demonstrates this 
treatment system will treat the subject waste streams to meet the LDR 
treatment standards, destroying elemental phosphorous and cyanide, and 
removing the hazardous characteristics from these waste streams. FMC 
has made available information, initially designated as CBI, regarding 
the process design flow and operating conditions of the proposed LDR 
Treatment Plant. The documentation shows that FMC plans to design, 
construct, and operate the LDR Treatment Plant with sufficient capacity 
to treat not only the annual production of the five waste streams that 
are the subject of the requested CBC extension but also treat, within 
five years of commencing operation of the LDR Treatment Plant, the 
accumulated solids in Pond 18, as is required by the RCRA Consent 
Decree. As discussed below, the Tribes, in comments provided to EPA, 
expressed concern that the proposed LDR Treatment Plant may not have 
sufficient capacity, in light of recent revised FMC estimates of the 
quantity of Pond 18 solids to be removed and treated. Based on the data 
submitted by FMC (as discussed in the March 8, 2000 FR notice) in 
support of its request for a CBC extension, the projected design 
capacity of the LDR Treatment Plant will be sufficient to treat the 
five subject waste streams and the Pond 18 solids. FMC also notes waste 
reduction initiatives being implemented at the Pocatello facility will 
further ensure that the LDR Treatment Plant will be able to accommodate 
the full annual production of the five waste streams and also meet the 
requirement to treat the Pond 18 solids. In a letter, dated April 24, 
2000, FMC reaffirmed its commitment to ensure that the Pocatello 
facility definitely will have sufficient capacity to manage the five 
waste streams that are the subject of this CBC extension. FMC states 
that it does not anticipate reducing the production of elemental 
phosphorous during the one-year CBC extension, but, if necessary, it 
will reduce plant production to reduce the quantity of its waste 
streams in order to further ensure sufficient treatment capacity.
    The RCRA Consent Decree likewise requires that the LDR Treatment 
System have sufficient capacity to treat the production wastes and the 
accumulated solids from Pond 18. At this point, FMC has completed 
approximately 20% of the design of the proposed LDR Treatment Plant. 
Design work is scheduled to be completed in January 2001. EPA is 
convinced that FMC is committed to providing the necessary treatment 
capacity to ensure that the entire quantity of these five waste 
streams, for which FMC is requesting a CBC extension, will meet 
applicable BDAT standards. FMC has noted it will need to request an 
extension of this CBC extension to provide additional time to complete 
the construction of the proposed LDR Treatment Plant. At that time, FMC 
will have completed the design of the LDR Treatment Plant and will need 
to provide further confirmation that sufficient treatment capacity is 
being constructed.
5. 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 proposed schedule for the design, 
construction, and permitting of the LDR Treatment Plant to be 
constructed at its Pocatello, Idaho facility. This schedule, in effect, 
coincides with the schedule outlined under the Consent Decree for 
bringing the LDR Treatment System on-line by May 2002. This schedule 
provides 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. EPA notes that the one-year CBC extension being 
approved today, extending the LDR effective date until May 26, 2001, 
likely will not provide sufficient time for FMC to bring the LDR 
Treatment Plant into operation. FMC likely will need to request a 
renewal of this CBC extension to provide additional time to complete 
construction and commence operation of the LDR Treatment Plant. As 
noted in the March 8, 2000 FR notice, FMC provided a number of 
milestones, including the startup of onsite construction in July 2000 
and the completion of design and engineering work in January 2001. EPA 
will closely monitor the progress being made by FMC toward its stated 
schedule for the design, construction, and operation of the LDR 
Treatment Plant. FMC must provide a monthly progress report, as 
discussed below, that identifies any delay or possible delay in 
developing this treatment capacity and describes the actions being 
taken to remedy any such delay. EPA further will examine FMC's progress 
in meeting these milestones at such time when FMC reapplies for an 
additional CBC extension, as anticipated.
    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.

[[Page 34699]]

6. 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
    During this CBC extension, FMC will continue to manage the five 
waste streams in two of its on-site surface impoundments, referred to 
as Ponds 17 and 18. FMC has provided data showing that each of these 
surface impoundments will have the necessary capacity available to 
manage these wastes during the extension, i.e., until May 26, 2001. 
Further assurance of adequate capacity and proper management of these 
surface impoundments (ponds) will be provided by FMC's adherence 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 concludes that FMC has provided the documentation necessary to 
satisfy this demonstration.
7. Section 268.5(a)(7)--Any Waste Managed in a Surface Impoundment or 
Landfill During the Extension Period Will Meet the Requirements of 40 
CFR 268.5(h)(2)
    As previously described, the subject waste streams will be piped 
directly to the on-site surface impoundments, i.e., Ponds 17 and 18. 
FMC has provided information demonstrating that both of these surface 
impoundments were constructed to meet the RCRA minimum technological 
requirements of 40 CFR 268.5(h)(2), including such protective measures 
as double liners, leak detection, and groundwater monitoring wells. EPA 
concludes that FMC has provided the documentation necessary to satisfy 
this demonstration.

II. What Are EPA's Responses to Comments Submitted on the Notice of 
Proposed Approval of the CBC Extension?

    The Fort Hall Business Council (representing the Shoshone-Bannock 
Tribes) and FMC Corporation submitted comments in response to the March 
8, 2000 FR notice. These comments previously had been provided to EPA 
in response to EPA's advance communication with the Tribes on the draft 
notice `` prior to the notice being published in the Federal Register. 
The comments provided by FMC essentially address each of the issues 
raised by the Tribes in these comments. Additional comments were 
submitted by the Fort Hall Business Council, subsequent to a meeting 
held with EPA on May 2, 2000. The following is a discussion of and 
EPA's response to each of the issues raised in the comments, pertinent 
to the proposed CBC extension for the five subject waste streams 
generated at FMC Pocatello.

A. Will the Proposed LDR Treatment Plant Have Sufficient Capacity?

    FMC recently completed a dispersion modeling study of Pond 18 
emissions to better understand the emissions of phosphine and hydrogen 
cyanide that will occur during removal of solids from Pond 18. FMC 
found that the potential magnitude of these emissions during removal of 
sediments within the five-year period is significantly greater than FMC 
had anticipated when the RCRA Consent Decree was negotiated. As such, 
FMC requested that the RCRA Consent Decree requirement to remove and 
treat the Pond 18 solids within five years of the start of the LDR 
Treatment System be extended to 10 years in order to comply with acute 
health standards for phosphine emissions. EPA denied the request. The 
Tribes also noted that FMC recently had informed them that the amount 
of sediment expected from Pond 18 would be greater than originally 
calculated. As such, the Shoshone-Bannock Tribes questioned whether the 
proposed LDR Treatment Plant was being designed to provide sufficient 
capacity to treat the five subject waste streams as well as the 
accumulated solids from Pond 18.
    The removal and treatment of accumulated solids from Pond 18 within 
a five-year period are mandated by the RCRA Consent Decree and are not 
requirements of this CBC extension. However, the demonstration under 
Sec. Section 268.5(a)(4), requiring FMC to design the LDR Treatment 
Plant with adequate treatment capacity, is impacted by the RCRA Consent 
Decree requirement that FMC remove and treat the Pond 18 solids within 
five years of the treatment plant commencing operation. As such, EPA 
must be assured that the proposed LDR Treatment Plant indeed will have 
sufficient capacity to treat not only the subject five waste streams 
but also the Pond 18 solids. Addressing this issue, FMC, in its 
comments of March 28, 2000, states ``The LDR Treatment Plant is 
designed to manage the quantity of production wastes generated at FMC 
Pocatello as well as the Pond 18 dredged material that will be 
generated after start-up in early 2002.'' FMC, in a letter, dated April 
24, 2000, further reaffirmed its commitment to ensure that the 
Pocatello facility definitely will have sufficient capacity to manage 
the five waste streams that are the subject of this CBC extension. FMC 
has indicated that, if necessary, it will reduce plant production to 
ensure adequate treatment capacity.
    It is critical that FMC provides adequate treatment capacity to 
manage the entire quantity of waste it generates that is the subject of 
this CBC extension. Based on design capacity information provided by 
FMC to EPA in support of its request for a CBC extension, FMC's 
subsequent statements that further assure its commitment to provide 
adequate treatment capacity and to cut production, if needed, we 
conclude the proposed LDR Treatment Plant will be designed and operated 
so that sufficient capacity is available to treat the five subject 
waste streams as well as the Pond 18 solids. EPA will continue to 
monitor FMC's efforts to provide this treatment capacity. If 
information becomes available, leading EPA to conclude that FMC is no 
longer able or willing to meet its commitment to provide adequate 
treatment capacity, EPA will need to consider revoking this CBC 
extension.

B. Do the Surface Impoundments (Ponds 17 and 18) That Will be Used 
During the Extension, Meet the Minimum Technological Requirements of 40 
CFR 268.5(h)(2)?

    As previously discussed, FMC, under this CBC extension, will 
continue to pipe the five subject waste streams to the on-site surface 
impoundments, i.e., Ponds 17 and 18. As such, both of these surface 
impoundments must meet the RCRA ``minimum technology requirements'' of 
40 CFR 268.5(h)(2) which requires that impoundments receiving wastes 
subject to a CBC extension include such protective measures as double 
liners, leak detection, and groundwater monitoring wells. The Tribes 
stated that they do not believe that waste managed in these surface 
impoundments, during the extension period, will meet the requirements 
of 40 CFR 268.5(h)(2). However, no specific information was provided by 
the Tribes as to why they believe Ponds 17 and 18 do not meet these 
requirements. The Tribes further stated that 40 CFR 265.229 prohibits 
the placement of ignitable or reactive wastes in an impoundment unless 
the requirements of 40 CFR part 268 have been met and the waste is 
treated, rendered, or mixed before or immediately after placement in 
the impoundment so that it no longer meets the definition of ignitable 
or reactive waste. FMC, in its comments, noted that the RCRA Consent 
Decree and the RCRA

[[Page 34700]]

Pond Management Plan establish standards for properly managing these 
wastes so as to satisfy these alternative provisions. FMC notes that 
Occupational Safety and Health Administration (OSHA) standards will be 
followed to protect workers, that dredging will be performed by 
remotely controlled apparatus, that phosphine monitoring and response 
measures will be in-place, and that there are no residences or 
recreational areas within the projected area of offsite impact.
    The Tribes also expressed concerns regarding the capacity and 
management of Ponds 17 and 18. In their comments, the Tribes questioned 
whether these ponds would have sufficient capacity given FMC's current 
design criteria for the planned LDR Treatment Plant, coupled with 
potential delays in construction and possible equipment failures during 
demonstration or other unexpected events. The Tribes also stated that 
FMC has not demonstrated the ability to manage waste and water in 
existing surface impoundments as evidenced by previous incidents of 
overtopping of other on-site ponds.
    FMC has provided data showing that each of the two surface 
impoundments, that will be used during the CBC extension, have the 
necessary capacity available to manage these wastes during the 
extension, i.e., until May 26, 2001. Although it is feasible that 
construction delays, equipment failure, etc. could occur, EPA cannot 
speculate on the probability of occurrence of such events. At this 
point, EPA is convinced that FMC is continuing to make a good-faith 
effort toward the design and construction of the proposed LDR Treatment 
Plant so that operation will commence by May 2002. Although there may 
have been past problems with certain other on-site FMC ponds, EPA 
continues to conclude that the two surface impoundments (Ponds 17 and 
18) to be used during the CBC extension do meet the minimum technology 
requirements, and in addition, will be operated in a protective manner 
and in compliance with other applicable EPA rules during the one-year 
CBC extension.
    EPA is convinced that the requirements of the RCRA Consent Decree 
and the Pond Management Program adequately address the proper design 
and operation of these surface impoundments--to meet the requirements 
for managing these wastes in Ponds 17 and 18 during this CBC extension. 
In addition to designing the ponds to meet the RCRA minimum technology 
requirements, FMC, for example:
     Treats precipitator slurry per the Non-Hazardous Slurry 
Assurance Project (NOSAP) system operating requirements prior to 
discharging this waste to Pond 17
     Provides electronic leak detection in Pond 18
     Provides a tertiary liner, to serve as the sacrificial 
liner, to allow removal of sediments from Pond 18 without jeopardizing 
the integrity of the other liners/leak detection system
     Provides around the clock, seven days a week, 
surveillance, inspections, and recordkeeping
     Manages pond water levels to minimize water level 
fluctuations so that solids in the ponds remain covered thereby 
preventing fires. Electronic level monitoring/alarm devices and a video 
surveillance system are used to continuously measure and record water 
levels.
     Manages volume of water generated during normal plant 
operation and a 100-year, 24-hour storm event to maintain adequate 
freeboard and prevent overtopping.
     Follows the Occupational Safety and Health Administration 
(OSHA) standards to protect workers.
    Based on EPA's knowledge of these surface impoundments and the 
documentation provided by FMC, we continue to conclude that these 
surface impoundments (Ponds 17 and 18) do meet the minimum technology 
requirements, and in addition, will be operated in a protective manner 
and in compliance with other applicable EPA rules during the one-year 
CBC extension.
    The Tribes also commented that certain air emission standards, in 
particular, the standards of 40 CFR part 265.1086. must be met for 
these two surface impoundments. As previously noted in the notice 
proposing to approve the requested CBC extension (65 FR 12233, March 8, 
2000), EPA believes that the level of volatile organics, if any, in 
these wastes is below the threshold set out in EPA's regulations in 40 
CFR parts 264 and 265 subpart CC so that these rules do not apply. 
These regulations address air emissions from hazardous waste surface 
impoundments (but see the limitation that only impoundments receiving 
certain types of volatile wastes are subject to the rules (40 CFR 
265.1083(c)(1)). Should the rules be applicable, FMC must, of course, 
comply with them. FMC submitted a letter, along with data, to EPA, 
dated April 21, 2000, that reaffirms FMC's position that the regulatory 
threshold for 40 CFR Part 265, Subpart CC is not exceeded for materials 
entering the surface impoundments, based on direct measurements 
obtained from sampling the waste streams at the point of waste 
origination. Based on EPA's knowledge of these wastes and the 
information made available by FMC, EPA continues to believe that these 
rules do not apply to the two surface impoundments that FMC will use to 
manage the subject five waste streams during the CBC extension.

C. Has EPA Consulted Adequately With the Tribes?

    The majority of the FMC Pocatello site, including most of the 
processing areas, is located on Shoshone-Bannock Tribes' lands, 
referred to as the Fort Hall Indian Reservation. As such, 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 concerns regarding the continued placement of 
untreated hazardous wastes in the FMC Pocatello on-site surface 
impoundments. The Tribes commented that they do not believe EPA has met 
the consultation mandate required of all federal agencies under the 
government-to-government relationship. EPA has taken numerous steps to 
meet the consultation requirement of the Presidential Memorandum of 
April 29, 1994. Specifically, EPA has:
     Requested FMC to make sure that the Tribes are provided 
the same information as is provided to EPA in evaluating this CBC 
extension request.
     Held staff level discussions to obtain feedback on the CBC 
extension.
     Provided the Tribes with an advance copy of the draft 
Federal Register notice of Proposed Decision and provided the Tribes 
three weeks for review and comment prior to publishing the FR notice. 
In conveying the draft Federal Register notice, EPA asked for 
information and comments on whether FMC adequately met the seven 
demonstrations required to qualify for a CBC extension.
     Sent a letter offering to meet with Staff and/or the Fort 
Hall Business Council to discuss their comments on the draft notice.
     Evaluated information submitted by the Tribes and, when 
appropriate, requested and reviewed additional information from FMC.
     Scheduled conference calls with the Chairman of the Fort 
Hall Business Council.

[[Page 34701]]

     Scheduled a meeting with the Fort Hall Business Council 
for government to government consultation, to follow up on their 
comments and further consult regarding final determination on FMC's 
request for a CBC extension.
     Subsequent to a meeting held on May 2, 2000, provided the 
Fort Hall Business Council with an additional opportunity to provide 
comments.
    EPA believes it has made reasonable and timely efforts to consult 
with the Shoshone-Bannock Tribes on this matter. We will continue our 
efforts to consult with the Tribes on their concerns regarding this CBC 
extension and the anticipated request by FMC for a renewal, up to one 
additional year, of this CBC extension. EPA also will require that FMC 
provide the Tribes with a monthly progress report, as discussed below.

D. Other Issues Not Directly Related to the CBC Extension

    The Tribes raised a number of concerns and issues in their 
comments, concerning the environmental impact of operations at the FMC 
facility, that are beyond the scope of EPA's consideration of FMC's 
request for this CBC extension. The ultimate and controlling issue in 
EPA's evaluation of FMC's request for a CBC extension is whether FMC 
has satisfied the statutory and regulatory conditions, as provided in 
section 3004(h)(3) of the statute and the rules in 268.5. These 
establish that an applicant who satisfies the conditions for a CBC 
extension will be granted one.
    These other concerns, raised by the Tribes, are being addressed 
under the current RCRA Consent Decree or other ongoing EPA actions at 
FMC Pocatello. These concerns include:
     Groundwater and soil contamination from FMC's old ponds 
are being addressed under a CERCLA Record of Decision (ROD).
     Numerous efforts are ongoing/planned at FMC Pocatello to 
address air emissions, including:
    (1) FMC's particulate air emissions are being addressed in the 
proposed Federal Implementation Plan.
    (2) Off-gases from the LDR Treatment Plant must meet EPA's air 
emission (or MACT) standards, issued under the Clean Air Act. The 
consent decree requires that FMC document that the off-gas system will 
meet MACT standards for hazardous waste combustion units. Under the 
consent decree, FMC must submit design and operating plans for the off-
gas system. These plans will allow the Region and the Tribes to 
evaluate the efficacy of the system.
    (3) The consent decree requires numerous Supplemental Environmental 
Projects (SEPs), including the Fort Hall Environmental Health 
Assessment, that address air emissions from the FMC facility.
     Concerns about the radionuclide content of treatment 
residuals and FMC's plans to transport these waste residues off-site, 
across tribal lands, and dispose of them in an unlined landfill outside 
the reservation are being addressed by the State of Idaho and EPA 
Region 10.

III. What Is EPA's Final Determination on FMC's Request for a CBC 
Extension?

    EPA concludes that FMC, owner/operator of the Pocatello, Idaho 
facility, at which a treatment plant will be constructed to provide 
treatment of the five subject wastes streams to meet BDAT standards, 
has made the necessary demonstrations to be granted a CBC extension. 
EPA concludes 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 request. Therefore, EPA is 
approving an extension of the applicable LDR effective date for these 
five waste streams: (1) NOSAP Slurry, (2) Medusa Scrubber Blowdown, (3) 
Furnace Building Washdown, (4) Precipitator Slurry, and (5) Phossy 
Water, generated at the Pocatello, Idaho facility, until May 26, 2001. 
As such, these wastes may continue to be managed in on-site surface 
impoundments (Ponds 17 and 18) until May 26, 2001 (unless the extension 
is renewed for up to one additional year, in which case the extension 
would expire no later than May 26, 2002), while the proposed LDR 
Treatment Plant is being constructed. This extension remains 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, or the facility 
violates any law or regulations implemented by EPA.
    The majority of the FMC Pocatello site, including most of the 
processing areas, is located on Shoshone-Bannock Tribes' lands, 
referred to as the Fort Hall Indian Reservation. The Tribes oppose 
granting this CBC extension, continuing to believe that FMC's hazardous 
waste must be treated prior to being land disposed. 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' legitimate concerns regarding the continued 
placement of untreated hazardous wastes in the FMC Pocatello on-site 
surface impoundments. However, the controlling law here is section 
3004(h)(3) of the statute and the rules in 268.5 which implement that 
provision. The ultimate and controlling issue in processing FMC's 
application consequently is whether the company has satisfied these 
statutory and regulatory conditions. As previously noted, we conclude 
that it is not yet feasible for FMC to treat these wastes prior to 
placement in the on-site surface impoundments, and that there is no 
available off-site commercial treatment capacity for these five waste 
streams. We continue to be convinced that the necessary treatment 
capacity and capability only will be available once the proposed LDR 
Treatment Plant is constructed and commences operation.
    Having been granted this CBC extension of the LDR effective date, 
FMC must immediately notify EPA of any change in the demonstrations 
made in the petition (40 CFR 268.5(f)). FMC also must submit a monthly 
progress report that describes the progress being made toward its 
stated schedule for the design, construction, and operation of the LDR 
Treatment Plant. The monthly progress report also must identify any 
delay or possible delay in developing this treatment capacity and 
describe the mitigating actions being taken in response to the event 
(40 CFR 268.5(g)). FMC must submit the first monthly progress report by 
June 26, 2000. Subsequent monthly progress reports must be submitted, 
approximately every thirty (30) days, by the 26th day of each month for 
the duration of this CBC extension.
    Four (4) copies of each monthly progress report must be submitted 
to the following address: Chief, Analysis and Information Branch, U.S. 
Environmental Protection Agency, Office of Solid Waste (5302W), 1200 
Pennsylvania Avenue, N.W., Washington, D.C. 20460.
    A copy of the monthly progress report also must be provided to EPA 
Region 10 to the following address: Director, Office of Waste and 
Chemicals Management, U.S. Environmental Protection Agency, 1200 Sixth 
Avenue, Seattle, WA 98101.
    A copy of the monthly progress report must be provided to the 
Shoshone-Bannock Tribes to the following address: Director, CERCLA/RCRA 
Program, Shoshone-Bannock Tribes, P.O. Box 306, Fort Hall, Idaho 83203.

[[Page 34702]]

    EPA can revoke this CBC extension if FMC fails to make a good-faith 
effort to meet the schedule for completion, if EPA denies or revokes 
any required permit, if conditions certified in the CBC extension 
application change, or for a violation of any law or regulations in 
Parts 260-266 and 268 (see 268.5(g)).

IV. Administrative Requirements

    As discussed in the FR notice of March 8, 2000, neither the 
requirements of Executive Order 13084 entitled Consultation and 
Coordination with Indian Tribal Governments nor Executive Order 13132, 
entitled ``Federalism,'' apply to this action.
    Today, EPA is approving FMC's request 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 this facility to continue to treat, store, or 
dispose of five waste streams as currently managed in on-site surface 
impoundments (located on Tribal Lands) until May 26, 2001.
    In their comments, the Tribes stated that by allowing FMC to 
continue to treat, store, and dispose of hazardous waste streams in the 
surface impoundments, EPA is also allowing the continued emissions of 
hydrogen cyanide, phosphine, and other toxic emissions onto the Fort 
Hall Indian Reservation. The Tribes stated they believe continuous 
monitoring of emissions from the ponds is necessary to assure 
compliance with Pond Management Plan in order to protect human health 
and the environment. The Tribes asserted this would result in direct 
compliance costs to the Shoshone-Bannock Tribes.
    Monitoring of emissions from the ponds already is required of FMC 
under the Pond Management Plan, as incorporated into the RCRA Consent 
Decree. FMC is responsible for the costs of this monitoring until the 
ponds are closed. Unless the Tribes actually do their own additional 
monitoring, there are no costs incurred by the Tribes. As such, EPA 
concludes that this action will not impose any direct compliance costs 
on the Shoshone-Bannock Tribes community.
    This notice also does not have federalism implications. It will not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. Thus, the requirements of this 
Executive Order likewise do not apply to this action.

    Authority: Sections 1006, 2002(a), 3001, and 3004 of the Solid 
Waste Disposal Act, as amended by the Resource Conservation and 
Recovery Act of 1976, as amended (42 U.S.C. 6905, 6912(a), 6921, and 
6924).

    Dated: May 25, 2000.
Cliff Rothenstein,
Deputy Assistant Administrator, Office of Solid Waste and Emergency 
Response.
[FR Doc. 00-13547 Filed 5-30-00; 8:45 am]
BILLING CODE 6560-50-U