[Federal Register Volume 60, Number 208 (Friday, October 27, 1995)]
[Notices]
[Pages 55021-55024]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26657]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-5320-9]
Underground Injection Control Program: Hazardous Waste Disposal
Injection Restrictions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of intent to grant a case-by-case extension.
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SUMMARY: EPA is proposing to grant the request from Abbott
Laboratories, Wichita, Kansas for a case-by-case extension of the RCRA
land disposal restriction (LDR) treatment standards applicable to waste
displaying the ignitable characteristic high total organic carbon (TOC)
(EPA Hazard Code D001). The extension would be granted for a one year
period beginning September 19, 1995, and allow the continued injection
of the formerly ignitable, high TOC wastestream into Abbott's
Underground Injection Control (UIC) Class I Nonhazardous Waste
injection well.
This case-by-case extension is only for the waste code impacted by
the September 19, 1994 Land Disposal Restrictions, Phase II. This
action responds to a petition submitted under 40 CFR 148.4 according to
procedures set out in 40 CFR 268.5, which allow any person to request
that the Administrator grant an extension. To be granted such a
request, the applicant must demonstrate that the petitioner has entered
into a binding contractual commitment to construct or otherwise provide
adequate alternative treatment, recovery, or disposal capacity for the
petitioner's waste. If this proposed action is finalized, Abbott
Laboratories would be allowed to continue to land dispose of its
ignitable characteristic high total organic carbon (TOC) (EPA Hazard
Code D001) until September 19, 1996, without being subject to the land
disposal restrictions applicable to such wastes.
DATES: Comments on this notice must be received on or before November
27, 1995.
ADDRESSES: The public must send an original and two copies of their
comments to Environmental Protection Agency, Region 7, Water and
Pesticide Division, Drinking Water Supply
[[Page 55022]]
Branch, 726 Minnesota Ave., Kansas City, Kansas 66101. The docket is
available for review during normal business hours, 8:00 a.m. through
4:00 p.m., Monday through Friday.
FOR FURTHER INFORMATION CONTACT: For information contact Robert L.
Morby, Chief Drinking Water/Groundwater Management Branch, EPA-Region 7
or telephone (913) 551-7682.
SUPPLEMENTARY INFORMATION:
I. Background
A. Congressional Mandate
Congress enacted the Hazardous and Solid Waste Amendments (HSWA) of
1984 to amend the Resource Conservation and Recovery Act (RCRA), to
impose additional responsibilities on persons managing hazardous
wastes. Among other things, HSWA required EPA to develop regulations
that would impose restrictions on the land disposal of hazardous
wastes. In particular, Sections 3004 (d) through (g) prohibit the land
disposal of certain hazardous wastes by specified dates in order to
protect human health and the environment; except that wastes that meet
treatment standards established by EPA are not prohibited and may be
land disposed. Section 3004(m) requires EPA to set ``levels or methods
of treatment, if any, which substantially diminish the toxicity of the
waste or substantially reduce the likelihood of migration of hazardous
constituents from the waste so that short-term and long-term threats to
human health and the environment are minimized.''
In developing such a broad program, Congress recognized that
adequate alternative treatment, recovery, or disposal capacity which is
protective of human health and the environment, may not be available by
the applicable statutory effective dates. Section 3004(h)(1) authorizes
EPA to grant a variance (based on the earliest dates that such capacity
will be available, but not to exceed two years) from the effective
date, which would otherwise apply to specific hazardous wastes. In
addition, under Section 3004(h)(2), EPA is authorized to grant an
additional capacity extension of the applicable deadline on a case-by-
case basis for up to one year. Such an extension is renewable once for
up to one additional year. On November 7, 1986, EPA published a final
rule (51 FR 40572) establishing the regulatory framework to implement
the land disposal restrictions program, including the procedures for
submitting case-by-case extension applications. On July 28, 1988, EPA
published a final rule (53 FR 28118) establishing restrictions and
requirements for Class I hazardous waste injection wells, including
framework for the no-migration petition process and allowing case-by-
case extensions under Sec. 148.4 following Sec. 268.5 procedures. On
September 19, 1994, EPA finalized changes to the land disposal
restrictions program that alter how some materials, including toxic
characteristic wastes are disposed in Class I nonhazardous waste
injection wells. The rule provided more consistency to the land
disposal restriction program by setting a single set of requirements--
universal treatment standards. Among other things, this final rule
required that hazardous constituents in two types of characteristic
wastes, high total organic carbon (TOC) ignitable liquids (D001), and
halogenated pesticide wastes that exhibit the toxicity characteristic
(D012-D017), be fully treated before those wastes are disposed, unless
the wastes are disposed in an injection well that has a no-migration
variance.
The Agency believes that treatment of these particular wastestreams
is warranted. The D001 wastes are ignitable with potentially high
concentrations of hazardous constituents, and the pesticide wastes
contain particularly toxic constituents.
B. Demonstrations Requirements Under 40 CFR 268.5 for Case-by-Case
Extension
1. Summary of Requirements
Case-by-case extension applications must satisfy the requirements
outlined in 40 CFR 268.5. These requirements include those specified in
RCRA section 3004(h)(3): The applicant must have entered into a binding
contractual commitment to construct or otherwise provide alternative
capacity [40 CFR 268.5 (a)(2)], but due to circumstance beyond
applicants control, this alternative capacity cannot reasonably be made
available by the applicable effective date. [40 CFR 268.5 (a)(3)].
In addition, EPA has established by regulation the following
requirements: In Sec. 268.5(a)(1), the applicant must make a good-faith
effort to locate and contract with treatment, recovery, or disposal
facilities nationwide to manage its waste in accordance with the
effective date of the applicable restriction. In Sec. 268.5(a)(3), due
to circumstances beyond the applicant's control, such alternative
capacity cannot reasonably be made available by the applicable
effective date. This demonstration may include a showing that the
technical and practical difficulties associated with providing the
alternative capacity will result in the capacity not being available by
the applicable effective date.
The applicant must also show that the capacity being constructed or
otherwise provided by the applicant will be sufficient to manage the
entire quantity of waste that is the subject of the application
[Sec. 268.5(a)(4)]. In section 268.5(a)(5), the applicant must provide
a detailed schedule for obtaining operating and construction permits or
an outline of how and when alternative capacity will be available.
Further, the applicant has arranged for adequate capacity to manage its
waste during an extension, and has documented the location of all sites
at which the waste will be managed [Sec. 268.5(a)(6)].
If the waste would be disposed of in a surface impoundment or
landfill during the period of the extension, Sec. 268.5(a)(7) states,
any waste managed in a surface impoundment or landfill during the
extension period will meet the requirements. After an applicant has
been granted a case-by-case extension, he is required to keep EPA
informed of the progress being made towards obtaining adequate
alternative treatment, recovery, or disposal capacity.
Any change in the demonstration made in the petition must be
immediately reported to the Agency [40 CFR 268.5(f)]. Also, at
specified intervals, he must submit progress reports which describe the
progress being made towards obtaining alternative capacity, identify
any delay or possible delay in developing capacity, and describe the
mitigating actions being taken [40 CFR 268.5(g)].
2. Commitment to Provide Protective Disposal Capacity
EPA believes that the applicant has shown the necessary commitment
to provide protective disposal capacity within the meaning of RCRA
section 3004 (h)(3) and 40 CFR 268.5 (a)(1). These provisions require
an applicant to make two showings: (1) That the proposed ``disposal
capacity'' is ``protective of human health and the environment'', and
(2) that the applicant has made ``a binding contractual commitment to
construct or otherwise provide such capacity.'' The Agency construes
the first phrase to mean a no migration unit. No migration findings in
40 CFR parts 148 and 268 provide for a variance to the land disposal
prohibition accordingly, are functionally equivalent to compliance with
treatment standards under part 268.
With respect to showing a ``binding contractual commitment'', where
applicants have already constructed
[[Page 55023]]
(and, indeed, are operating) the disposal unit at issue, EPA interprets
the regulatory language to require objective indicia of applicant's
commitment to provide this capacity. EPA approach is in line with
similar practical interpretations of regulatory language. For example,
the Agency has construed the term ``commenced construction'' to include
facilities which have completed construction, but did not commence
operations. See 40 FR 2344, 2346 (January 8, 1981).
EPA does not believe that the simple filing of a no migration
petition provides sufficient indication that the applicant will provide
protective disposal capacity. Where an applicant seeks to provide
treatment capacity, EPA can rely on design criteria as a basis to
predict that the treatment capacity will provide for treatment in
compliance with 40 CFR part 260. Because the Agency was less certain
that the no migration finding would be forthcoming in a given
circumstance, EPA had previously stated that a no migration petition
and the Agency's failure to process such petition before an effective
date cannot itself provide a basis for case-by-case extensions. See 53
FR 28124 (July 20, 1988). EPA has reevaluated this interpretation and
believes that where the Agency has concluded that a no migration
petition is sufficient to propose a no migration finding, this proposed
finding is legitimate indicia that the applicant is, in good faith,
committed to providing protective disposal capacity for purposes of 40
CFR 268.5. See 55 FR 22520.
If EPA were to require an actual no migration finding as a
condition for a case-by-case extension, such a reading would
effectively read the phrase ``protective disposal capacity'' out of
RCRA 3004(b)(3) in violation of all standard tenets of statutory
construction, which require that all terms be given effect when
possible. The term would be read out of the statute, because once the
no migration petition was granted, there is no need to seek a case-by-
case extension as wastes could be disposed directly in the unit. In
addition, case-by-case extensions necessarily involve predictions about
future capacity. For example, such predictive findings specifically
include the need for permits that may not yet be issued. See 40 CFR
286.5(a)(5).
The proposed case-by-case extensions is based on objective indicia
of the applicants' commitment to provide disposal capacity. First, the
petitioner's application is based on an already constructed well. Thus,
the petitioner's commitment is more definitive than petitions based
solely on contracts to construct such capacity. [See RCRA section
3004(b)(3)] Secondly, the injection well has been permitted under both
RCRA and SDWA standards, thus further demonstrating a commitment to
provide this capacity. Thirdly, the applicant has made substantial
contractual commitments in preparing the no migration petition.
3. Requirement To Seek Other Alternative Capacity
The applicant's commitment to provide protective disposal capacity
is not the sole basis for EPA granting a case-by-case extension. Under
40 CFR 268.5 (a)(1), applicants must also make a good faith effort to
seek other protective treatment, recovery or disposal, where feasible
during the period that the proposed alternative capacity is not
available. Such good faith efforts under 268.5(a)(1) can be evaluated
considering both the expected time period that the alternative capacity
will take to become available and technical difficulties that the
operator will face in bringing the waste to alternative capacity in
consideration of factors in 268.5(a)(3).
There is limited other capacity under (a)(1) to eventually handle
the waste from the well operator in this proposal. However, due to
logistic problems of retooling, repiping, and transportation of the
large volume of waste at issue, this other capacity is not reasonably
available during the short period of time EPA anticipates is necessary
to process final no migration approvals or denials for this well.
4. Reasons Alternative Capacity Cannot Reasonably Be Made Available by
the Applicable Effective Date
The applicant has, in good faith, pursued the no migration process
with reasonable belief that the Agency would provide a no migration
finding by September 19, 1995, effective date. The operator submitted
their no migration petition in a timely manner, and have responded
appropriately to Agency requests for additional information in order to
make a determination on the petition. The timing of the actual finding
is beyond the applicant's control. The order in which decisions are
made is primarily a function of the Agency resources and priorities.
This no migration review process is the reason that the applicant's
well may not be available as a no migration unit by the effective
prohibition date. The applicant has documented several logistic
problems that make short-term capacity not reasonably available. The
facility in question involves production operations directly connected
by piping, or otherwise rely on immediate disposal in an on-site
injection well. In order to make the necessary adjustments, the
facility would need to temporarily shutdown, perform necessary
retooling and repiping, and construct a transportation system to move
the large volumes of waste at issue. The receiving facility would also
need to make substantial adjustments to receive these large waste
volumes. Also, there is not sufficient offsite capacity. These factors
indicate that the other capacity is not reasonably available for short-
term waste management. EPA has relied on similar criteria in providing
nationwide variances under RCRA 3004 (h)(2). See 55 FR 22520.
II. Petitioner
A. Facility Summary
Abbott Laboratories has petitioned EPA for a six month extension of
the September 19, 1995, effective date of the RCRA land disposal
restrictions (LDR) treatment standards applicable to waste displaying
the ignitable characteristic high (TOC) total organic carbon (EPA
Hazard Code D001).
EPA is proposing to grant an extension of the effective date of the
applicable restrictions for six months from the hazardous waste
injection restrictions effective date of September 19, 1995, for the
above, referenced waste from this facility. Abbott Laboratories request
and supporting documentation is available in the public docket for this
rulemaking. Interested persons are invited to submit comments or
written data on this petition. All comments will be considered by EPA
and addressed in a Federal Register notice stating the Agency's final
decision to grant or deny the petition.
B. Description of Petitioning Facility
Abbott Laboratories which is a chemical manufacturing company
operates a restricted nonhazardous waste injection well in Wichita,
Kansas.
C. Case-By-Case Extension Petition Demonstrations
Abbott Laboratories application for an extension of the effective
date includes the following demonstrations:
40 CFR 268.5(a)(1) Abbott Laboratories has made a good-faith
effort on a nationwide basis to locate and contract for adequate
alternative treatment, recovery, or disposal capacity, or establish
such capacity by the effective date of the applicable restrictions.
40 CFR 268.5(a)(2) Abbott Laboratories has entered into a binding
[[Page 55024]]
contractual commitment to provide alternative treatment, recovery, or
disposal capacity.
40 CFR 268.5(a)(3) Abbott Laboratories has shown the lack of
alternative capacity is beyond its control.
40 CFR 268.5(a)(4) Abbott Laboratories has shown that there will
be adequate alternative treatment, recovery, or disposal capacity for
all waste after the effective date established by the extension.
40 CFR 268.5(a)(5) Abbott Laboratories has provided a detailed
schedule for obtaining alternative capacity including dates.
40 CFR 268.5(a)(6) Abbott Laboratories has arranged for adequate
capacity to manage waste during the extension period.
40 CFR 268.5(a)(7) No surface impoundments or landfills will be
used by Abbott Laboratories to manage the waste during the extension
period.
III. EPA's Proposed Action
For the reasons discussed above, the Agency believes that Abbott
Laboratories demonstrations have satisfied all the requirements for a
case-by-case extension of the September 19, 1995, effective date of the
hazardous waste injection well restriction.
Therefore, EPA is proposing to grant an extension of the September
19, 1995, effective date on the waste for Abbott Laboratories. If the
extension is granted for this waste, which would not be prohibited from
land disposal, it could be injected over a 12 month period, starting
from the effective date of September 19, 1995, but not later than
September 19, 1996. If during the time frame of this case-by-case
extension, a final decision of the applicant's no migration petition is
made, then the case-by-case extension will expire.
If Abbott Laboratories obtains a case-by-case extension, they would
have to submit a report two months after the date the extension is
granted, addressing the status or any progress being made to obtain
alternative disposal capacity. The Agency must be notified of any
change in the conditions specified in the petition. The extension would
remain in effect unless Abbott Laboratories fails to make a good faith
effort to meet the schedule for completion, the Agency denies or
revokes any required permit conditions certified in the application
change, or if Abbott Laboratories violate any law or regulations
implemented by EPA. Sections 1006, 2002(a), 3001, and 3004 of the Solid
Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act of 1976, as amended [42 U.S.C. 6905, 6912(a), 6921, and
6924)].
Dated: October 6, 1995.
Dennis Grams,
Regional Administrator, Region VII.
[FR Doc. 95-26657 Filed 10-26-95; 8:45 am]
BILLING CODE 6560-50-P
