[Federal Register Volume 66, Number 52 (Friday, March 16, 2001)]
[Notices]
[Pages 15243-15254]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-6724]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

[SW-FRL-6953-1]


Proposed Decision Regarding the Request by Astaris Idaho LLC for 
Renewal of the Current Extension of the Land Disposal Restrictions 
(LDR) Effective Date for Hazardous Wastes Generated at the Pocatello, 
Idaho Facility

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed decision.

-----------------------------------------------------------------------

SUMMARY: The EPA is proposing to approve the request submitted by 
Astaris Idaho LLC for renewal of the current Case-by-Case (CBC) 
extension which established May 26, 2001, as the effective date of the 
Resource Conservation and Recovery Act (RCRA) land disposal 
restrictions (LDR) applicable to hazardous wastes generated at the 
Astaris Idaho LLC facility located in Pocatello, Idaho. This action 
responds to the request submitted by Astaris Idaho LLC to renew the 
original CBC extension, for up to one additional year, if the seven 
demonstrations required still can be made. If approved, this action 
would extend the effective date of the LDR for these waste streams to 
May 26, 2002. By statute, the EPA cannot grant further extensions of 
the effective date.

DATES: To make sure we consider your comments in developing a final 
decision on the Astaris request for renewal of the current CBC 
extension of the LDR effective date for the subject waste streams, you 
must submit your comments on or before April 6, 2001.

ADDRESSES: The official record for this action is identified as Docket 
Number F-2001-FM2P-FFFFF. Public comments and supporting materials are 
available for viewing in the RCRA Information Center (RIC), located at 
Crystal Gateway I, First Floor, 1235 Jefferson Davis Highway, 
Arlington, VA. The RIC is open from 9:00 a.m. to 4:00 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.
    You must send an original and two copies of your comments, 
referencing docket number F-2001-FM2P-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, NW., 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 also be 
identified by the docket number F-2001-FM2P-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, 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 the EPA without prior notice.

FOR FURTHER INFORMATION CONTACT: For general information about this 
notice,

[[Page 15244]]

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 renewal, contact Mr. 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 the EPA in reaching our determination to propose approval of the 
requested CBC extension renewal is available on the Internet. You will 
find this index at http://www.epa.gov/epaoswer/hazwaste/ldr/fmc.htm>. 
The official record for this action will be kept in paper form. 
Accordingly, the 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.
    The EPA's 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. The 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 the Congressional Mandate Behind the Land Disposal 
Restrictions (LDR) and Extensions of the LDR Effective Date?
    C. What Regulatory and Other Actions Have Led up to the CBC 
Extension Renewal?
    D. What Other Actions Are Underway at the Pocatello facility?
    E. What Demonstrations Must be Evaluated by the EPA in Reviewing 
a Request for a CBC Extension (or Renewal of CBC Extension) of the 
LDR Effective Date?
II. Overview of the FMC/Astaris Request for Renewal of the Case-by-
Case Extension
    A. What is the Basis for FMC/Astaris Requesting Renewal of the 
Current CBC Extension?
    B. How Does RCRA Consent Decree Impact and Correlate with the 
Requested Renewal of the CBC Extension?
    C. Summary of the FMC/Astaris Request for Renewal of the Current 
CBC Extension.
    D. Potential Use of a Different Technology by FMC/Astaris to 
Address Generated Wastes.
III. The EPA's Evaluation of Demonstrations Provided by FMC/Astaris 
Under 40 CFR 268.5(a)
IV. Consultation with the State of Idaho and the Shoshone-Bannock 
Tribes
V. What is the EPA's Proposed Determination on the FMC/Astaris 
Request for a renewal of the Current CBC Extension?
VI. How Can I Influence the EPA's Determination Regarding this 
Requested CBC Extension Renewal?
VII. What Happens After We Receive Your Comments?
VIII. Administrative Requirements
    A. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    B. Executive Order 13132 (Federalism)

I. Background and Purpose of This Notice of Proposed Decision

A. Summary

    Effective April 17, 2000, Astaris Idaho LLC became the owner and 
operator of the former FMC Pocatello facility (previously owned by FMC 
Corporation). Astaris Idaho LLC is a joint venture, comprising the 
combined phosphorous chemical businesses of FMC Corporation and 
Solutia, Inc. As such, Astaris Idaho LLC has responsibility for the 
construction, operation, and maintenance aspects of the planned LDR 
Treatment Plant at the Pocatello, Idaho facility. However, FMC 
Corporation retains responsibility for funding the capital costs and 
for implementing all RCRA Consent Decree projects, including the 
proposed LDR Treatment Plant. Likewise, we refer solely to FMC 
Corporation (FMC) when noting any actions that occurred at the 
Pocatello facility prior to the April 17, 2000, effective date of the 
joint venture. Previous notices regarding this facility identified it 
as FMC Pocatello. For the purposes of this notice of proposed decision, 
we simply will refer to FMC/Astaris as the applicant for the CBC 
extension renewal.
    FMC/Astaris requests a one-year renewal of the current (case-by-
case) extension of the RCRA land disposal restrictions (LDR) effective 
date that expires on May 26, 2001. This CBC extension is applicable to 
five hazardous waste streams generated at the Pocatello facility (EPA 
Identification Number: IDD070929518), located on as well as adjacent to 
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) 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 exhibit two characteristics of 
hazardous waste: reactivity due to the presence of cyanide and 
phosphine, and ignitability. The wastes are generated in large 
quantities and pose unique handling, treatment, and disposal 
considerations, given the presence of elemental phosphorous and 
cyanide. Each of these waste streams also contains varying levels of 
Naturally Occurring Radioactive Material (NORM) which most off-site 
commercial TSDs are not permitted to manage.
    The initial CBC extension was approved by EPA due to the 
demonstrated lack of available treatment capacity for these five waste 
streams and the stated need for additional time to complete design 
work, construct, and begin operation of an on-site treatment plant to 
treat these wastes. FMC/Astaris states, as described in more detail in 
section III of this notice, that there is a continued lack of available 
treatment capacity for these wastes. Also, more time is needed to 
finish the design of the treatment plant, construct it, and commence 
operation. If this proposed action is finalized, FMC/Astaris 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, 2002, without being subject to the LDR applicable to these 
wastes.
    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 \1\ to address air quality, and for 
FMC to design, construct, and commence operation of an LDR--Compliant 
Treatment System by May 2002. The Shoshone-Bannock Tribe raised an 
unsuccessful legal challenge to the Consent Decree, citing, among other 
reasons, their opposition to the continued generation and on-site 
disposal of these hazardous wastes.
---------------------------------------------------------------------------

    \1\ Supplemental Environmental Projects--environmentally 
beneficial projects undertaken by a defendant in an enforcement case 
in order to reach a settlement, but which the defendant is not 
otherwise legally required to perform.
---------------------------------------------------------------------------

    The EPA is proposing to approve the request made by FMC/Astaris for 
a one-year renewal of the current CBC extension of the RCRA land 
disposal restrictions (LDR) which expires on May 26, 2001. For this CBC 
extension

[[Page 15245]]

renewal to be approved, FMC/Astaris must make each of the seven 
demonstrations required under section 268.5(a), including that there is 
insufficient capacity to treat these wastes to meet current LDR 
requirements, that a binding contractual commitment has been made to 
construct the necessary treatment capacity, and that such treatment 
capacity cannot reasonably be made available by the effective date. If 
this proposed action is finalized, FMC/Astaris will be allowed to 
continue to manage these five waste streams in on-site surface 
impoundments, until May 26, 2002, without being subject to the land 
disposal restrictions (i.e. treatment standards preceding land 
disposal) applicable to these wastes. No further extension of the LDR 
effective date for these five wastes is allowed by law.

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

    The Resource Conservation and Recovery Act (RCRA) establishes a 
program for controlling hazardous waste from the time it is generated, 
through its treatment and storage, until its ultimate disposal. The 
RCRA Hazardous and Solid Waste Amendments (HSWA) of 1984 imposed 
additional responsibilities on persons managing hazardous wastes. Among 
other things, HSWA required the EPA to develop regulations that 
prohibit the land disposal of certain hazardous wastes by specified 
dates in order to minimize threats to human health and to the 
environment posed by land disposal of these wastes. The 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, the 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, 
the 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 
requirements for obtaining a CBC extension of a LDR effective date are 
found in Part 268-Land Disposal Restrictions, section 268.5(a). The 
specific requirements for obtaining the renewal of 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, section 268.59(e).

C. What Regulatory and Other Actions Have Led Up to This CBC Extension 
Renewal?

    On January 25, 1996 (61 FR 2338), the 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 (Pocatello 
facility), 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 facility. FMC later submitted supplemental 
comments to its petition for a national capacity variance, informing 
the 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 June 27, 1996, the 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 the 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 the 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.
    In February 1997, attorneys for the United States met with and 
informed the Tribal governing body of duly elected tribal officials, 
the Fort Hall Business Council, representing the federally recognized 
Shoshone-Bannock Tribes, on whose lands the 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.
    On May 12, 1997 (62 FR 26041), the EPA proposed to grant a two-year 
national capacity variance for three of the facility's waste streams, 
i.e., Medusa Scrubber Blowdown, Anderson Filter Media Rinsate, and 
Furnace Building Washdown. FMC submitted comments, noting that the 
Anderson Filter Media Rinsate had been eliminated by applying pollution 
prevention techniques. 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 that satisfied the LDR requirements was not 
available. As such, FMC likewise stated the need for these three 
additional wastes to be granted the proposed two-year national capacity 
variance.
    On May 26, 1998 (63 FR 28556), the 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 the Pocatello 
facility. This national capacity variance extended the LDR effective 
date for these wastes to May 26, 2000.
    In September 1998, the United States agreed to delay the lodging of 
the Consent Decree to explore options for penalty sharing with the 
Tribes. 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.
    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 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

[[Page 15246]]

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 12, 1999, FMC Corporation submitted to the 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.
    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. This appeal was ultimately denied.
    On March 8, 2000 ( 65 FR 12233), the EPA proposed to approve FMC's 
request for a one-year CBC 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.
    On April 17, 2000, Astaris Idaho LLC, a joint venture comprising 
the combined phosphorous chemical businesses of FMC Corporation and 
Solutia, Inc, became the owner and operator of the former FMC Pocatello 
facility (previously owned by FMC Corporation).
    On May 2, 2000, Elizabeth Cotsworth (Director of the EPA Office of 
Solid Waste) met with the Fort Hall Business Council (duly elected 
tribal members representing the Shoshone-Bannock Tribes, which are 
federally recognized), in Pocatello, Idaho, to consult with the Tribes 
regarding FMC's initial request for a CBC extension of the LDR 
effective date.
    On May 31, 2000 (65 FR 34694), the EPA issued final approval of the 
requested initial CBC extension, extending the LDR effective date to 
May 26, 2001.
    On June 9, 2000, representatives of the Shoshone-Bannock Tribes met 
with Tim Fields (then-Assistant Administrator of the EPA Office of 
Solid Waste and Emergency Response) to discuss issues regarding the 
Fort Hall Indian Reservation. Mr. Fields and the Tribal representatives 
discussed the Agency's consultation process, in general, and, more 
specifically, as applied to both the then-recently approved initial CBC 
extension and the anticipated request by FMC/Astaris for renewal of the 
CBC extension of the RCRA Land Disposal Restrictions (LDR) for the five 
subject waste streams.
    On November 1, 2000, FMC/Astaris submitted a request to the EPA for 
a one-year renewal of the current CBC extension, until May 26, 2002.

D. What Other Actions Are Underway at the Pocatello facility?

    The Consent Decree is only one of several actions underway to 
address the environmental impact of operations at the Pocatello 
facility. Groundwater and soil contamination from 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 perform the Remedial 
Action selected in the ROD. Particulate air emissions at this facility 
are being addressed in the proposed Federal Implementation Plan, issued 
pursuant to the Clean Air Act on February 12, 1999. Once finalized, 
there will be federally enforceable limits/control requirements 
applicable to the particulate emissions.

E. What Demonstrations Must be Evaluated by the EPA in Reviewing a 
Request for a CBC Extension (or Renewal of CBC Extension) of the LDR 
Effective Date?

    In order to receive approval for a CBC extension (or renewal of a 
CBC extension), the EPA must evaluate the extent to which the FMC/
Astaris 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/
Astaris) 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 the FMC/Astaris Request for Renewal of the Case-by-
Case Extension

A. What is the Basis for FMC/Astaris Requesting Renewal of the Current 
CBC Extension?

    On November 1, 2000, FMC/Astaris submitted a request to the EPA to 
renew the current CBC extension, that expires on May 26, 2001, for one 
additional year, until May 26, 2002. FMC/Astaris provided documentation 
demonstrating, as was the case when the EPA approved the initial CBC 
extension for these wastes in May 2000 (see 65 FR 34694, May 31, 2000), 
that there still is no available off-site commercial treatment capacity 
for these five waste streams. A more detailed discussion of this 
situation is provided in Section III.A of this notice. FMC/Astaris also 
provided documentation to show that, since approval of the initial CBC 
extension, steady and significant progress has been made toward 
completing the design, procuring equipment, and commencing

[[Page 15247]]

construction of the proposed LDR Treatment Plant (see sections III.B 
through III.E of this notice for further discussion of this matter). 
However, as was anticipated at the time of approval of the initial CBC 
extension, additional time still is needed to complete the design work, 
finish construction, and begin operation of the LDR Treatment Plant. 
The target date for bringing the LDR Treatment Plant on-line remains to 
be May 2002. This CBC extension renewal, if approved, is the final 
extension of the LDR effective date available to these five waste 
streams. The RCRA Consent Decree, entered as final on July 13, 1999, 
likewise requires that the LDR Treatment System be constructed and in 
operation by May 2002. It also prohibits the discharge of untreated 
hazardous wastes to the facility's on-site surface impoundments (Pond 
17 and Pond 18) after May 26, 2002.

B. How Does RCRA Consent Decree Impact and Correlate With the Requested 
Renewal of the CBC Extension?

    The Pocatello facility is located on, as well as adjacent to, 
Shoshone-Bannock Tribes' lands, referred to as the Fort Hall Indian 
Reservation. Elemental phosphorous has been produced at this location 
for the past 50 years. The Tribes are concerned about the cleanup of 
past environmental contamination resulting from these operations and 
the risks posed by the continued discharge of untreated hazardous 
wastes into on-site surface impoundments. The RCRA Consent Decree, 
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 the 
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 
Restrictions Treatment System (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 to 
manage the generated wastes, establishes a Pond Management Plan, and 
mandates certain plant upgrades. These upgrades include, for example, 
the installation of secondary containment for sumps, tanks, and piping 
inside the Furnace Building and at the Phos Dock area.
    The terms of this RCRA Consent Decree address many of the 
demonstrations required under 40 CFR part 268 to obtain a CBC extension 
(or renewal of a CBC extension) of the LDR effective date. However, the 
RCRA Consent Decree does not negate the need for CBC extensions to 
allow the continued discharge of the LDR subject wastes to on-site 
surface impoundments while the planned LDR Treatment Plant is being 
designed and constructed. A detailed discussion of this overlap was 
provided in the March 8, 2000 (65 FR 12233) and May 31, 2000 (65 FR 
34694) Federal Register notices to address the initial CBC extension.
    Compliance with the terms of the RCRA Consent Decree, in essence, 
satisfies what needs to be documented for certain of the required 
demonstrations for a CBC extension, thus ensuring consistency of both 
the CBC extension and RCRA Consent Decree processes. As with the 
initial CBC extension, the requirements mandated under the RCRA Consent 
Decree will support the CBC extension renewal that the EPA is proposing 
to approve today and, used in conjunction, to further compel that 
operation of the LDR Treatment Plant begins by May 2002. Approval of a 
CBC extension renewal of the LDR effective date does not alter any 
terms of the RCRA Consent Decree and, in actuality, would only remain 
effective contingent upon compliance with the terms of the RCRA Consent 
Decree.

C. Summary of the FMC/Astaris Request for Renewal of the Current CBC 
Extension

    The Pocatello facility (EPA Identification Number: IDD070929518), 
located on as well as adjacent to Shoshone-Bannock Tribes' lands, 
referred to as the Fort Hall Indian Reservation, manufactures elemental 
phosphorous. Elemental phosphorous is produced by feeding a combination 
of phosphate ore, coke, and silica rock into electric arc furnaces. The 
elemental phosphorous is shipped to other facilities to produce 
phosphates and other phosphorous-based products, for use in numerous 
products, including processed foods, beverages, detergents, cleaners, 
agricultural chemicals, and water treatment chemicals.
    This elemental production process generates large quantities of 
five waste streams that 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. A more detailed discussion of the 
characteristics and management of these wastes can be found in the 
March 8, 2000 (65 FR 12233) and May 31, 2000 (65 FR 34694) Federal 
Register notices to address the initial CBC extension. Each of these 
waste streams also contains varying levels of Naturally Occurring 
Radioactive Material (NORM) which most off-site commercial TSDs are not 
permitted to manage. These wastes 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. Non-Hazardous Slurry Assurance Project (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.
    The initial CBC extension was requested 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 that would treat these five wastes to meet 
applicable treatment standards. FMC/Astaris requests a one-year renewal 
of the current CBC extension (expires on May 26, 2001) of the effective 
date of the RCRA land disposal restrictions (LDR) applicable to these 
five waste streams. The five waste streams are and would continue to be 
managed in two on-site surface impoundments (Ponds 17 and 18) until the 
LDR Treatment Plant is operational, no later than, May 26, 2002. These 
two surface impoundments into which these wastes would be placed during 
the CBC extension renewal, if approved, were constructed to meet the 
RCRA minimum technological requirements of 40 CFR 268.5(h)(2) (which 
implements section 3005(j)(11) of the statute), including liners and 
groundwater monitoring, and

[[Page 15248]]

must be operated in compliance with the Pond Management Plan, as 
incorporated into the Consent Decree.
    FMC/Astaris has provided documentation that updates and supplements 
the data that initially had been submitted to support the 
demonstrations required to obtain an initial CBC extension. FMC/Astaris 
has submitted an updated survey of available commercial treatment 
capacity. Significant additional design details of the planned LDR 
Treatment Plant and many purchase orders also have been provided--to 
further show their commitment to this project. These additional data 
are discussed in section III of this notice. As required under the 
current CBC extension, FMC/Astaris has submitted monthly progress 
reports to the EPA. In essence, these reports show that FMC/Astaris has 
made continued progress toward completing the design of the treatment 
plant, procuring equipment, and initiating construction of the 
infrastructure for the planned facility.
    FMC/Astaris is in the process of designing and constructing a 
treatment unit, referred to as the LDR Treatment Plant, that will treat 
these five waste streams, using a modified Zimpro treatment process, to 
meet the applicable treatment 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. 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 ultimately will 
eliminate the need for the continued use of the on-site surface 
impoundments.
    The Shoshone-Bannock Tribes oppose the continued generation and 
disposal of these untreated wastes in the Pocatello on-site surface 
impoundments.

D. Potential Use of a Different Technology by FMC/Astaris to Address 
Generated Wastes

    FMC/Astaris recently has informed the EPA that it now is 
considering a technology, referred to as a High Temperature Dust 
Filtration (HTDF) System, that would be incorporated into the elemental 
phosphorus production process. This system would be located directly 
after the electric arc furnaces and replace the existing phosphorus 
recovery system, which comprise a series of two electrostatic 
precipitators (ESP) and two condensers. Eliminating the existing 
phosphorus recovery system also would eliminate three of the five 
hazardous waste streams that are the subject of the CBC extension 
renewal. If employed, the HTDF system would eliminate the Precipitator 
Slurry, NOSAP Slurry, and Phossy Water waste streams. As such, the HTDF 
technology, by eliminating these three hazardous waste streams (it is 
claimed), would eliminate the need for a system to treat these wastes 
to meet the LDR standards. FMC/Astaris claims that the HTDF system 
would impact, but not necessarily eliminate the remaining two waste 
streams, i.e., Medusa Scrubber Blowdown, and Furnace Building Washdown, 
that likewise are the subject of the CBC extension renewal request. 
FMC/Astaris is continuing to evaluate their options for addressing 
these wastes and have stated their intent to submit information to EPA 
in late March 2001 regarding the planned management of these waste 
streams.
    According to FMC/Astaris, advantages of the HTDF technology, a 
version of a baghouse, include:
     Captures a greater quantity of phosphorus than the current 
recovery system.
     Improves the quality of the phosphorus.
     Minimizes cyanide formation.
     Eliminates most water-borne waste streams and the ponds 
needed to manage these waste streams.
     Potentially reduces air emissions from the furnace off-
gas.
    As of today's publication of this notice of proposed decision, FMC/
Astaris has not yet made a final decision whether to choose the HTDF 
technology and thus abandon the planned LDR Treatment Plant that 
already is being constructed. One issue, in particular, that FMC/
Astaris is trying to resolve, with Tribal input, is how to address the 
Pond 18 accumulated solids that are currently mandated by a RCRA 
Consent Decree to be treated within five years of startup of the 
planned LDR Treatment Plant. The HTDF system described above would not 
treat already-generated wastes; it would prevent generation of new 
ones.
    A decision by FMC/Astaris to pursue the HTDF technology, a process 
retrofit, rather than the LDR Treatment Plant technology, as originally 
proposed to address the five wastes subject to the LDRs and on which 
the current CBC extension is based, would not automatically cause the 
EPA to revoke the current CBC extension. However, FMC/Astaris is 
required to immediately notify EPA of any change in the demonstrations 
made in the application for the CBC extension (see 40 CFR 268.5(f)). As 
noted in the FR notice of final approval of the current CBC extension 
(May 31, 2000 (65 FR 34694)), 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 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/Astaris has 
alerted the EPA Region 10 that it is giving serious consideration to 
the HTDF technology as the means to eliminate three of the five 
hazardous waste streams now generated and thus serve as a replacement 
for the planned LDR Treatment Plant. Meanwhile, until FMC/Astaris 
reaches a final decision regarding implementation of the HTDF 
technology, construction of the LDR Treatment Plant is proceeding on 
schedule.
    If FMC/Astaris decides to substitute the HTDF technology in place 
of the LDR Treatment Plant, and this fact is reflected in the RCRA 
Consent Decree, FMC/Astaris would need to submit an amended CBC 
extension renewal application to the EPA. However, EPA anticipates that 
certain of the demonstrations made in support of the November 1, 2000 
application for renewal of the CBC extension, as discussed in section 
III of this notice, will remain unchanged. For any alternative 
technology, FMC/Astaris would need to place emphasis, in particular, on 
(1) their binding contractual commitment to design, install, and 
operate the technology, (2) the reason that this technology could

[[Page 15249]]

not have been implemented earlier, and (3) a schedule that shows the 
milestones, including obtaining the necessary permits, for bringing the 
HTDF system on-line by no later than May 26, 2002. After reviewing the 
new and additional information provided by FMC/Astaris, the EPA would 
determine the most appropriate means by which to provide public notice 
of the change in technology. Options include: (1) Prior to the May 26, 
2001 expiration date of the current CBC extension, publish a 
supplemental notice of proposal regarding our decision on whether FMC/
Astaris has met each of the seven demonstrations in 40 CFR 268.5, (2) 
provide informal notice to interested parties, and (3) proceed through 
the process to reach a final decision regarding the action being 
proposed today followed-up by subsequent action, if needed, to provide 
opportunity for public comment on the supplemental notice of change in 
technology. The EPA is discussing this issue now, even though FMC/
Astaris has not made a definitive decision to proceed with the HTDF 
technology and even though details about using this prospective 
technology rather than the planned LDR Treatment Plant are not fully 
fleshed out, in order to give the public as much notice as possible 
regarding this situation. Also, in light of the pending end of the 
current CBC extension, and the absolute limit of any extension of the 
LDR effective date to no later than May 26, 2002, we think it prudent 
to give as much advance notice as possible, even if the information is 
incomplete at this time.
    In any case, the current CBC extension of the LDR effective date 
for the five subject wastes will expire on May 26, 2001. And, 
regardless of whether FMC/Astaris decides to employ the HTDF technology 
or continue with the planned LDR Treatment Plant, only one additional 
extension of the LDR effective date, until May 26, 2002, remains 
available for these five waste streams. This is because, by the express 
terms of RCRA section 3004(h)(3), case-by-case extensions date from the 
waste prohibition date, and can extend that date no more than four 
years.

III. The EPA's Evaluation of Demonstrations Provided by FMC/Astaris 
Under 40 CFR 268.5(a)

    For the sake of clarity, the only mention of FMC is made when 
referring to actions and events regarding the Pocatello facility and 
the initial CBC extension that are solely attributable to FMC. For all 
other actions/events, for example, matters involving the renewal of the 
current CBC extension, the term FMC/Astaris is used to indicate joint 
involvement and responsibility. The following is a summary of each of 
the seven demonstrations required under 40 CFR 268.5(a) to obtain a CBC 
extension (and renewal of a CBC extension) and the EPA's evaluation of 
the adequacy of the demonstrations made by FMC/Astaris.

1. Section 268.5 (a)(1)--The Applicant (FMC/Astaris) Has Made a Good-
Faith Effort To Locate and Contract With Treatment, Recovery, or 
Disposal Facilities Nationwide To Manage its Waste in Accordance With 
the LDR Effective Date of the Applicable Restriction (i.e., May 26, 
2001)

    As discussed in the March 8, 2000 (65 FR 12233) and May 31, 2000 
(65 FR 34694) Federal Register notices to address the initial CBC 
extension, several surveys of treatment, storage, and disposal 
facilities (TSDs) throughout the nation were conducted previously, in 
an effort to locate commercial treatment or disposal capacity. In 
September-October 2000, a follow-up survey of 33 TSD facilities was 
conducted by FMC/Astaris to determine what, if any, commercial 
treatment capacity was available for these waste streams. Results of 
this supplemental survey likewise can be found in the Docket. 
Consistent with the previous surveys, none of these TSD facilities was 
able or willing to provide treatment or disposal capacity for the 
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, the EPA is not aware of any 
available capacity for these waste streams. Given these findings, and 
that no commercial (or other) entity providing waste treatment has 
disputed these conclusions, we believe that FMC/Astaris has made a 
reasonable effort to try to locate adequate, alternative treatment 
capacity for the off-site management of the waste streams for which it 
is requesting a renewal of the current CBC extension of the LDR 
effective date. As such, the EPA concludes that FMC/Astaris has 
adequately fulfilled the requirements of this demonstration.

2. Section 268.5 (a)(2)--The Applicant (FMC/Astaris) Has Entered Into A 
Binding Contractual Commitment To Construct or Otherwise Provide 
Alternative Treatment, Recovery, or Disposal Capacity That Meets the 
Treatment Standards Specified in 40 CFR Part 268, Subpart D or, Where 
Treatment Standards Have Not Been Specified, Such Treatment, Recovery, 
or Disposal Capacity is Protective of Human Health and the Environment

    For the initial CBC extension request, documentation was provided 
showing that a contract had been entered into with Raytheon Engineers 
and Constructors to design and construct the planned LDR Treatment 
Plant. In addition to this contract, other documentation, including 
corporate approval of funds and numerous purchase orders for equipment, 
supplies, and services, was provided to further support the 
demonstration of a binding contractual commitment to construct the LDR 
Treatment Plant. Please see the March 8, 2000 (65 FR 12233) and May 31, 
2000 (65 FR 34694) Federal Register notices, addressing the initial CBC 
extension, for further details on this information.
    Since the EPA approved the initial CBC extension in May 2000, FMC/
Astaris has provided additional documentation to further support their 
binding contractual commitment to providing the necessary treatment 
capacity. As noted earlier, Astaris has responsibility for the 
construction, operation, and maintenance aspects of the planned LDR 
Treatment Plant at the Pocatello facility. However, FMC Corporation 
retains responsibility for funding the capital costs and for 
implementing all RCRA Consent Decree projects, including the proposed 
LDR Treatment Plant. 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. As such, FMC/Astaris has 
provided documentation of an Authorization for Expenditures, approved 
by FMC in June 2000, in the amount of $122.5 million. Copies of 
approximately 70 Purchase Orders to obtain equipment, supplies, 
services also have been provided.
    The EPA concludes that FMC/Astaris 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

[[Page 15250]]

Pocatello facility, to the applicable treatment standards.

3. Section 268.5 (a)(3)--Due to Circumstances Beyond the Applicant's 
(FMC/Astaris) Control, Such Alternative Capacity Cannot Reasonably be 
Made Available by the Applicable Effective Date. This Demonstration May 
Include a Showing That the Technical and Practical Difficulties 
Associated With Providing the Alternative Capacity Will Result in the 
Capacity Not Being Available by the Applicable Effective Date

    As previously discussed in the March 8, 2000 (65 FR 12233) and May 
31, 2000 (65 FR 34694) Federal Register notices, FMC has committed 
considerable resources and intensive effort toward determining and 
developing the most appropriate treatment technology for these five 
waste streams. Aside from the continuing lack of commercial treatment 
capacity and in addition to solving the numerous and essentially unique 
technical problems posed by these waste streams, FMC has needed to know 
the final Phase IV LDR treatment standards and engage in RCRA Consent 
Decree negotiations with the United States government.
    In approving the current CBC extension, the EPA was convinced that 
FMC had acted in good faith to provide the necessary treatment capacity 
but that such capacity could not reasonably be made available by the 
LDR effective date. The EPA concluded that the lack of treatment 
capacity for these waste streams was 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 demonstrated to the EPA's satisfaction 
that it had aggressively pursued the development of a technology 
capable of treating these waste streams to applicable treatment 
standards and was actively engaged in the design and construction of 
the treatment system to employ this technology to provide the necessary 
treatment capacity. However, it was not possible for FMC to construct 
the LDR Treatment Plant needed to provide the treatment capacity and to 
be operating by the May 26, 2000 expiration date of the national 
capacity variance.
    The one-year initial CBC extension that was approved for these 
waste streams will expire on May 26, 2001. The monthly progress reports 
submitted by FMC/Astaris, since June 2000, continue to show that FMC/
Astaris is proceeding ahead of and on schedule. The EPA concludes that 
FMC/Astaris is continuing to make a good-faith and reasonable effort in 
their attempt to provide treatment capacity but that such capacity 
cannot reasonably be made available by May 26, 2001, the current 
effective date of the land disposal restriction for these waste 
streams. The EPA further concludes the lack of treatment capacity for 
these waste streams is due to circumstances beyond the control of FMC/
Astaris. As such, FMC/Astaris has adequately met the demonstration of 
section 268.5(a)(3).

4. Section 268.5 (a)(4)--The Capacity Being Constructed or Otherwise 
Provided by the Applicant (FMC/Astaris) Will be Sufficient To Manage 
the Entire Quantity of Waste That is the Subject of the Application

    The initial application for a CBC extension stated that the planned 
LDR Treatment Plant would have sufficient capacity to adequately treat 
the waste streams generated by the Pocatello facility. The 
documentation demonstrated that the treatment system would meet the LDR 
treatment standards, destroying elemental phosphorous and cyanide in 
the subject waste streams and removing the hazardous characteristics 
from these waste streams. Information regarding the process design flow 
and operating conditions of the proposed LDR Treatment Plant was also 
provided. This information showed that sufficient capacity would be 
provided to treat the full annual production of the five waste streams 
that are the subject of the requested CBC extension. Also, FMC/Astaris 
stated that the treatment capacity would likewise be sufficient to 
treat the accumulated solids in Pond 18, within five years of 
commencing operation of the LDR Treatment Plant, as is required by the 
RCRA Consent Decree. In response to questions raised by the EPA and the 
Shoshone-Bannock Tribes regarding the design capacity of the LDR 
Treatment Plant, FMC/Astaris has reaffirmed their 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 renewal as well as the Pond 18 accumulated solids required to 
be treated under the RCRA Consent Decree (see the March 8, 2000 ( 65 FR 
12233) and May 31, 2000 (65 FR 34694) Federal Register notices.). FMC/
Astaris also has noted that waste reduction initiatives being 
implemented at the Pocatello facility, along with upgrades to existing 
operations, will further ensure that the LDR Treatment Plant has 
sufficient capacity. Since approval of the current CBC extension in May 
2000, FMC/Astaris has reduced its estimate of the quantity of Pond 18 
solids that will need to be removed and treated in the LDR Treatment 
Plant. This reduction in solids is attributed to improved efficiency 
and increased use of the NOSAP System. In their November 1, 2000 CBC 
extension renewal application, FMC/Astaris stated that the combined 
total of process waste and Pond 18 excavated material to be treated in 
the LDR Treatment Plant amounts to 3757 pounds/hour, significantly less 
than the 4900 pounds/hour design size of the Plant. If necessary, to 
further ensure sufficient treatment capacity, FMC/Astaris has committed 
to cut back plant production to reduce the quantity of wastes 
generated. The EPA is convinced that FMC/Astaris is committed to 
providing the necessary treatment capacity to ensure that the entire 
quantity of these five waste streams, for which FMC/Astaris is 
requesting a CBC extension renewal, will meet applicable treatment 
standards.

5. Section 268.5 (a)(5)--the Applicant (FMC/Astaris) Provides a 
Detailed Schedule for Obtaining Operating and Construction Permits or 
an Outline of How and When Alternative Capacity Will be Available

    As previously discussed in the March 8, 2000 (65 FR 12233) and May 
31, 2000 (65 FR 34694) Federal Register notices, addressing the initial 
CBC extension request by FMC/Astaris, FMC/Astaris has provided the 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. The EPA, via the monthly progress reports 
submitted by FMC/Astaris, has monitored the progress made by FMC/
Astaris toward its stated schedule for the design, construction, and 
operation of the LDR Treatment Plant. FMC/Astaris has shown that the 
plant design is essentially completed, considerable equipment has been 
procured, and site preparation is underway. The EPA concludes that FMC/
Astaris has made a good faith effort in designing and beginning 
construction of the LDR Treatment Plant.
    FMC/Astaris has provided a detailed schedule of milestones and 
dates for designing, constructing, and bringing the LDR Treatment on-
line by May 2002. The Table below shows some of the recent and 
remaining key milestones

[[Page 15251]]

and dates in the schedule provided by FMC/Astaris. A more detailed 
schedule is in the Docket for this notice.

            Key Milestones and Dates for LDR Treatment Plant
------------------------------------------------------------------------
                          Milestone                               Date
------------------------------------------------------------------------
Start site preparation major work............................   09/25/00
Complete Process Bldg. concrete design.......................   01/08/01
Part B Submittal.............................................   03/01/01
Complete Process Bldg. piping design.........................   03/02/01
Complete Process Bldg. steel erection........................   06/12/01
Complete Large Bore Pipe Installation........................   08/15/01
Commence off gas system startup..............................   01/09/02
Final Mechanical Completion..................................   01/08/02
Plant Operational............................................   05/01/02
------------------------------------------------------------------------

    We conclude, subject to evaluation of public comments, that FMC/
Astaris has provided the necessary design, construction and permitting 
milestones for bringing the LDR Treatment Plant on-line. Given that 
FMC/Astaris has successfully met its milestones to this point, the EPA 
is further convinced of the likelihood that the proposed LDR Treatment 
Plant will be successfully constructed and brought on-line by May 2002.
    The EPA notes that the one-year CBC extension renewal being 
proposed today is the final extension of the LDR effective date 
available for these five wastes. As such, after the May 26, 2002 
expiration date of the proposed CBC extension renewal, these five 
wastes are prohibited from land disposal unless they are treated to 
applicable treatment standards.

6. Section 268.5 (a)(6)--The Applicant (FMC/Astaris) 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/Astaris will continue to manage the five waste streams in two 
on-site surface impoundments, referred to as Ponds 17 and 18. As 
previously discussed in the March 8, 2000 (65 FR 12233) and May 31, 
2000 (65 FR 34694) Federal Register notices, FMC/Astaris has provided 
data showing that each of these surface impoundments will have the 
necessary capacity available to manage these wastes until the planned 
LDR Treatment Plant becomes operational, no later than May 2002. In 
their November 1, 2000 CBC extension renewal application, FMC/Astaris 
provided updated information confirming that adequate capacity exists 
in Ponds 17 and 18 to manage these waste streams during the proposed 
CBC extension renewal period, i.e., until May 26, 2002.
    The EPA tentatively concludes that FMC/Astaris has provided the 
documentation necessary to satisfy the demonstration under section 
268.5(a)(6).

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 continue to 
be managed in the on-site surface impoundments, i.e., Ponds 17 and 18, 
during the proposed CBC extension renewal until May 26, 2002. As 
previously discussed in the March 8, 2000 (65 FR 12233) and May 31, 
2000 (65 FR 34694) Federal Register notices, addressing the initial CBC 
extension request by FMC/Astaris, FMC/Astaris had provided information 
demonstrating that both of these surface impoundments were constructed 
to meet the RCRA minimum technological requirements (MTRs) of 40 CFR 
268.5(h)(2), including such protective measures as double liners, leak 
detection, and groundwater monitoring wells. The EPA concludes that 
FMC/Astaris has provided the documentation necessary to satisfy the 
demonstration under section 268.5(a)(7).

IV. Consultation With the State of Idaho and the Shoshone-Bannock 
Tribes

    In accordance with 40 CFR 268.5(e), the 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 the Pocatello facility that the EPA should take into 
consideration in deciding to approve or deny the request for renewal of 
the current CBC extension of the LDR effective date. The State of Idaho 
has indicated its support for the approval of the CBC extension renewal 
requested by FMC/Astaris.
    The majority of the Pocatello site, including most of the 
processing areas, is located on as well as adjacent to Shoshone-Bannock 
Tribes' lands, referred to as the Fort Hall Indian Reservation, on 
which is located the community of the Shoshone-Bannock Tribes. The 
Shoshone-Bannock Tribes oppose the continued generation and disposal of 
these untreated wastes in the Pocatello on-site surface impoundments.
    Consistent with the Presidential Memorandum of April 29, 1994, the 
EPA has engaged in advance consultation with representatives of the 
Tribes on both the initial CBC extension and this proposed CBC 
extension renewal. The EPA has taken numerous steps to engage the 
Tribes on this matter, including the meeting on May 2, 2000 to formally 
consult with the Tribes, consisting of:
     Requested FMC/Astaris to make sure that the Tribes are 
provided the same information as is provided to the EPA in evaluating 
both the initial CBC extension request and the extension renewal 
request.
     Held staff level discussions to obtain feedback on both 
the initial CBC extension and CBC extension renewal.
     For both the initial CBC extension and CBC extension 
renewal, 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 notices. In 
conveying the draft Federal Register notices, the EPA asked for 
information and comments on whether FMC/Astaris adequately met the 
seven demonstrations required to qualify for a CBC extension. See 
section II of the May 31, 2000 (65 FR 34694) Federal Register notice 
for a discussion of the Tribes' comments on the initial CBC extension.
     Sent a letter offering to meet with Staff and/or the Fort 
Hall Business Council to discuss their comments on the draft Federal 
Register notices.
     Evaluated information submitted by the Tribes and, when 
appropriate, requested and reviewed additional information from FMC/
Astaris.
     Subsequent to a meeting held on May 2, 2000, provided the 
Fort Hall Business Council with an additional opportunity to provide 
comments.
     Requested FMC/Astaris to make sure the Tribes were 
provided the monthly progress reports required as part of the approved 
CBC extension and that these reports be provided at the same time as 
when submitted to the EPA.
     Held a meeting on June 9, 2000, with representatives of 
the Shoshone-Bannock Tribes to discuss issues regarding the Fort Hall 
Indian Reservation, including the Agency's consultation process in 
general and specifically for the CBC Extension of the LDR for treating 
FMC/Astaris waste.
     Invited the Tribes to participate in a meeting, requested 
by FMC/Astaris held on August 1, 2000, to discuss the planned November 
2000 submission by FMC/Astaris of a request to renew the current CBC 
extension.
     On September 1, 2000, the Tribes participated in a meeting 
with the EPA HQ and Region 10 staff to jointly develop a draft schedule 
by which the

[[Page 15252]]

EPA, in consultation with the Tribes, will address the FMC/Astaris CBC 
extension renewal.
     On October 31, 2000, the Tribes, along with the EPA HQ and 
Region 10 staff, participated in a meeting, requested by FMC/Astaris, 
to discuss the imminent submission and content of a request by FMC/
Astaris that the EPA renew the current CBC extension.
     On December 12, 2000, a representative each for the 
Tribes, the EPA HQ, and the EPA Region 10, held a meeting to discuss 
concerns/issues regarding the information submitted by FMC/Astaris in 
their CBC extension renewal application of November 1, 2000. In 
followup to this meeting, a letter was sent to FMC/Astaris, requesting 
additional information and clarification of certain issues in their 
submittal.
    The Tribes opposed granting the current CBC extension of the land 
disposal prohibition and pretreatment requirement, and remain opposed 
to any renewal of the current CBC extension, continuing to believe that 
these hazardous wastes must be treated prior to being land disposed. 
The United States continues to recognize and concurs that it does owe 
an important trust responsibility to the Tribes, on whose lands the 
Pocatello facility is located. Included in this responsibility is the 
duty of the United States to perform its obligations under RCRA and 
other statutes intended to protect the environment. We certainly 
recognize the Tribes's concerns regarding the continued placement of 
untreated hazardous wastes in on-site surface impoundments at the 
Pocatello facility. However, the EPA has closely evaluated FMC/Astaris 
efforts under section 3004 (h)(3) of the statute and the rules in 40 
CFR 268.5 which implement that provision. The EPA is bound by the 
controlling law, and the ultimate and controlling issue in evaluating 
the FMC/Astaris application for renewal of the current CBC extension is 
whether FMC/Astaris has satisfied these statutory and regulatory 
conditions. The EPA finds that FMC/Astaris has met the rigorous 
requirements of those rules, and therefore, the mandatory renewal is 
triggered upon that finding.

V. What is the EPA's Proposed Determination on the FMC/Astaris 
Request for a Renewal of the Current CBC Extension?

    As previously discussed in the March 8, 2000 (65 FR 12233) and May 
31, 2000 (65 FR 34694) Federal Register notices, the United States 
continues to recognize and concur that it owes an important trust 
responsibility to the Tribes, on whose lands the Pocatello facility is 
located. Of course, this includes the United States' responsibility to 
perform its obligations under RCRA and other statutes intended to 
protect the environment. We also acknowledge the Tribes's concerns 
regarding the continued placement of untreated hazardous wastes in the 
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. The EPA 
notes that the controlling law here is section 3004(h)(3) of the 
statute and the rules in 40 CFR 268.5 which implement that provision. 
These provisions establish that an applicant who satisfies the rigorous 
conditions for a CBC extension (or renewal of a CBC extension) will be 
granted one. Consequently, the ultimate and controlling issue in 
evaluating the initial CBC extension application, as well as this 
request for renewal of the extension, is whether FMC/Astaris has 
satisfied these statutory and regulatory conditions.
    As previously noted, the EPA initially concludes that it is not yet 
feasible for FMC/Astaris to treat these wastes prior to placement in 
the on-site surface impoundments, constructed to meet the RCRA minimum 
technological requirements of 40 CFR 268.5(h)(2), and that there still 
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 by May 2002. The 
EPA remains convinced that the Tribes's concerns about continued on-
site disposal can most practically and judiciously be addressed by 
compelling FMC/Astaris to expeditiously proceed with the construction 
of the proposed treatment plant so as to have it operational at the 
earliest possible date. Based on progress made subsequent to the EPA's 
approval of the initial CBC extension for these five wastes, the EPA is 
satisfied that FMC/Astaris has made and is continuing to make a good-
faith effort toward providing sufficient and appropriate treatment 
capacity for the five waste streams that are the subject of its request 
for a CBC extension renewal of the LDR effective date. The EPA also 
concludes that FMC/Astaris has made the necessary demonstrations to be 
granted a one-year renewal of the current CBC extension. Therefore, the 
EPA proposes to approve 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, 2002. If this proposed action is finalized, 
FMC/Astaris will be allowed to manage these five waste streams in on-
site surface impoundments (Ponds 17 and 18), until May 26, 2002, 
without being subject to the land disposal restrictions applicable to 
these wastes. At that time, the proposed LDR Treatment Plant will have 
been constructed and will be in operation. No further extension of the 
LDR effective date is allowed. This extension renewal, 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, or the facility violates any law or regulations implemented by 
the EPA. The EPA will maintain close oversight of the scheduled 
progress being made by FMC/Astaris towards bringing the LDR Treatment 
Plant into operation. Consistent with the current CBC extension, the 
EPA proposes that FMC/Astaris continue to submit a monthly progress 
report by the 26th day of each month, until June 26, 2002. FMC/Astaris 
continue to be bound by the terms of the RCRA Consent Decree to have 
this treatment plant operational by May 2002. If FMC/Astaris should 
fail to adhere to this schedule, such that compliance with the 
requirements of the Consent Decree is jeopardized, the EPA has the 
authority to terminate the current CBC extension, or proposed renewal 
of this extension of the LDR effective date.

VI. How Can I Influence the EPA's Determination Regarding This 
Requested CBC Extension Renewal?

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

[[Page 15253]]

     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 notice of 
determination to either approve or deny the FMC/Astaris request for a 
one-year CBC extension renewal of the LDR effective date. We plan to 
publish a final notice regarding the Agency's decision on this request 
for a one-year CBC extension renewal, prior to the May 26, 2001, 
expiration date of the current CBC extension for the subject waste 
streams. The extension renewal, if approved, would remain in effect 
until its expiration on May 26, 2002, 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 the 
EPA.

VIII. Administrative Requirements

    As discussed in the March 8, 2000 (65 FR 12233) and May 31, 2000 
(65 FR 34694) Federal Register notices, 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, the EPA is proposing to approve the FMC/Astaris request for 
a one-year renewal of the current CBC extension of the effective date 
of the RCRA land disposal restrictions, for a facility located on 
Tribal Lands. This action, if approval is finalized, 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 
until May 26, 2002. This action will not impose any direct compliance 
costs on the communities.
    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.

A. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    On November 6, 2000, the President issued Executive Order 13175 (65 
FR 67249) entitled, ``Consultation and Coordination with Indian Tribal 
Governments.'' Executive Order 13175 took effect on January 6, 2001, 
and revokes Executive Order 13084 as of that date. Under section 5(b) 
of Executive Order 13175, the EPA may not issue a regulation that is 
not required by statute that has tribal implications, 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 if the EPA 
consults with those governments. Under section 5(c) of Executive Order 
13175, the EPA may not promulgate any regulation that has tribal 
implications and that preempts tribal law unless it consults with 
Tribes. If the EPA complies by consulting under sections 5(b) and 5(c) 
of Executive Order 13175 requires the 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 the 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, section 5(a) Executive Order 
13175 requires the EPA to develop an accountable process to ensure 
meaningful and timely input by tribal officials in the development of 
regulatory policies that have tribal implications.
    Today's decision will not impose substantial direct compliance 
costs on such communities or preempt tribal law. Accordingly, the 
requirements under sections 5(b) and 5(c) of Executive Order 13175 do 
not apply to this action.
    However, this decision does have Tribal implications according to 
section 1(a) of Executive Order 13175, defined as substantial direct 
effects on (1) one or more federally-recognized Indian Tribes; (2) the 
relationship between the federal government and Tribes; or (3) the 
distribution of power and responsibility between the federal government 
and Tribes. The decision permits the facility to continue to treat, 
store, or dispose of five waste streams as currently managed in on-site 
surface impoundments until May 26, 2002. These impoundments are located 
on the Fort Hall Indian Reservation.
    Because this decision has Tribal implications, several principles 
and policies of section 2 and 3 of Executive Order 13175 are triggered. 
In particular, the decision must respect, honor, and adhere to the 
unique government-to-government relationship between the federal and 
the Tribes, the Tribes' status as domestic dependent nation, and the 
federal government's trust responsibility to federally-recognized 
Indian Tribes.
    The EPA believes it has honored the government to government 
relationship through the consultation processes elaborated upon in 
section IV, in particular through numerous meetings and calls with 
Tribal government officials from May to December 2000 concerning the 
CBC extension, such as the visits by Elizabeth Cotsworth, and the 
meeting with Tim Fields. The Agency will continue to consult with the 
Tribe in this process, as well as all other efforts to address 
environmental contamination affecting the Fort Hall Indian Reservation.
    In addition, the Agency has closely evaluated the CBC extension in 
light of its trust responsibility to Tribes. We acknowledge the Tribes' 
concerns regarding the continued placement of untreated hazardous 
wastes in on-site surface impoundments at the Pocatello facility. 
However, the EPA has closely evaluated FMC/Astaris' efforts under 
section 3004 (h)(3) of the statute and the rules in 40 CFR 268.5 which 
implement that provision, and find it is acting in good faith. While 
the EPA is bound by the controlling law if FMC/Astaris meets the 
rigorous requirements of these rules--i.e. upon such a finding the 
extension is granted mandatorily--the EPA also believes that this 
decision is best to ensure the most effective mitigation of the 
environmental contamination for the long term benefit of the Tribes, 
consistent with the federal government's trust responsibility.

B. Executive Order 13132 (Federalism)

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires the 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

[[Page 15254]]

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, the 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 the EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. The 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, the EPA did consult 
with the State of Idaho in developing this notice, 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 7, 2001.
Michael Shapiro,
Acting Assistant Administrator, Office of Solid Waste and Emergency 
Response.
[FR Doc. 01-6724 Filed 3-15-01; 8:45 am]
BILLING CODE 6560-50-P