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.

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. 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: kline.bill@epamail.epa.gov].

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, § 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.

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.

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. 98-0406-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. 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.

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 § 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 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.
• 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.

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).