United States Office of
Environmental Protection Solid Waste
Agency Washington DC 20460
Solid Waste
EPA Public Hearing
on the
Proposed
Regulations
Implementing
Sections 3001 to
3004 of the
Resource
Conservation and
Recovery Act
February 22 - 23, 1979
Washington, D.C.
Transcript
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TRANSCRIPT
Public Hearing
V
on Proposed Hazardous Waste Regulations
February 22-23, 1979, Washington, B.C.
This hearing was sponsored by EPA, Office of Solid Waste,
and the proceedings (SW-48p) are reproduced entirely as transcribed
by the official reporter, with handwritten corrections.
U.? rr.v'"o!ir^enl?,I Proteclion Agency
::,,:; •;-.: •;-. :,;-.;:y.rn street „/•'"'
Chicago, iiiinois 6G6Q4 y^
U.S. ENVIRONMENTAL PROTECTION AGENCY
1979
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ENVIRONMENTAL PROTECTION AGENCY
PUBLIC HEARING:
Proposed Regulations Imple-
menting Sections 3001 to 3004
of the Resource Conserva-
tion and Recovery Act
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VOLUME 1 Thursday, February 22, 1979
Main Auditorium
Commerce Department Building
14th and Constitution Ave^, N.
Washington, D, C.
The hearing convened, pursuant to notice, at
8:45 a.m.
BEFORE: LISA FRIEDMAN
CHAIRPERSON
PANEL MEMBERS:
LISA FRIEDMAN
DOROTHY A. DARRAH
Office of General Counsel
Environmental Protection Agency
(Chairperson shared)
AMY SCHAFFER
Office of Enforcement
Environmental Protection Agency (Shared)
JOHN P. LEHMAN, Director
Hazardous Waste Management Division
Office of Solid Waste
Environmental Protection Agency
ALFRED LINDSEY, Chief
Implementation Branch
Hazardous Waste Management Division
Office of Solid Waste
Environmental Protection Agency
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PANEL MEMBERS:(Continued)
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HARRY TRASK, Program Manager (Section 3002-3)
Hazardous Waste Management Division
Office of Solid Waste
Environmental Protection Agency
TIMOTHY FIELDS, Program Manager (Section 3004)
Hazardous Waste Management Division
Office of Solid Waste
Environmental Protection Agency
ALAN ROBERTS, Associate Director
for Hazardous Materials Regulation
Department of Transportation
MATTHEW STRAUS, Manager
Hazardous Waste Guidelines Section
Office of Solid Waste
Environmental Protection Agency
THOMAS C. JORLING, Assistant Administrator
Water and Waste Management
Environmental Protection Agency
STEPHEN PLEHN, Deputy Assistant
Administrator for Solid Waste
Environmental Protection Agency
TERRELL HUNT
Office of Enforcement
Environmental Protection Agency
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IS
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CONTENTS
STATEMENT OF:
THOMAS C. JORLING, Assistant Administrator
For Water and Waste Management, EPA
HONORABLE ALBERT A. GORE, U. S. Representative
From Tennessee
ALFRED E. LINDSEY, Chief, Implementation Branch,
Hazardous Waste Management Division, Office
of Solid Waste, EPA
KARL T. JOHNSON, Vice President, Member Services,
The Fertilizer Institute, Washington, D. C.
ARNOLD SCHIFFMAN, Water Resources Administration,
State of Maryland Department of Natural Resour
DR. STACY L. DANIELS, Environmental Sciences
Department, Dow Chemical, U.S.A.
WALTER D. NEAL, Manager-Operator, Industrial
Chemical Company, Inc., Rock Hill, S. C.
LESLIE DACH, Science Associate, Environmental
Defense Fund (EOF), Washington, D. C.
DR. RICHARD A. AHLBECK, Vice President, Science
and Technology , N-VIOR Energy Systems , Inc . ,
Toledo, Ohio
SY BENSKY, Manager of Regulatory Assessments,
Occidental Chemical Company
PAUL EMLER, JR., Chairman, Policy Commission,
Utility Solid Wasge Activities Group
(USWAG) , Washington, D. C.
DR. E. P. BLANCHARD, General Manager of the
Chemical, Dyes and Pigments Department,
E. I. du Pont de Nemours and Company,
Wilmington, Delaware
GLORIA RAINS, Representative from MANASOTA-88,
Environmental Confederation of Southwest
Florida, Florida Division of Isaac Walton
League of America, and Save our Bays
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CONTENTS- (Continued)
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3 STATEMENT OF; PAGE
MR. CHARLES A. JOHNSON,
Technical Director
National Solid Waters Management
association
Washington, D. C. 169
MR. CAREY STARK
Mississippi Chemical Corporation
Wauchula, Florida 190
9 MR. MARCHANT WENTWORTH
Legislative Representative
10 Environmental Action, Inc.
Washington, D. C. 197
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MR. JOHN H. FABER
12 Executive Vice President and Executive
Director
13 National Ash Association
Washington, D. C. 209
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MR. B. CHARLES MALLOY
15 Chairman, Subcommittee D19.12
American Society for Testing Materials 215
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MS. ELIZABETH TENNANT
17 Environmental Action Foundation
Washington, D. C. 234
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MR. HUGH WILLIAMS
19 Sherwin-Williams
Mission Manager, Waste Management Task
20 Force
National Paint and Coating Association 256
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ROBERT RHODES
22 Associate General Council
Florida Phosphate Council, Inc. 267
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DR. KEITH J. SCHIAGER
24 Technical Consultant
Florida Phosphate Council 271
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CONTENTS (Continued)
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4A
STATEMENT OF:
RICHARD SOBEL
Manufacturing Chemists Association 281
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HUGH MULLEN
I.U. Conversion System, Inc. 291
JANET WELLER
Synthetic Organic Chemical Manufacturers Association 307
DAVID HENSEL
Jervol Mine Company 319
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MS. FRIEDMAN: I like to welcome everyone here
today to the first day of the Washington leg of the EPA
hearings on proposed regulations implementing sections 3001
to 3004 of the Resource Conservation and Recovery Act.
I'd like to start off the meeting with a few remarks
from the Assistant Administrator for Water and Waste Managemen
Thomas Jorling.
OPENING REMARKS BY MR. THOMAS C. JORLING
ASSISTANT ADMINISTRATOR FOR WATER AND WASTE
MANAGEMENT, ENVIRONMENTAL PROTECTION AGENCY
MR. JORLING: Good morning. I'd like to initiate
my remarks by appreciating everyone's forbearance and under-
standing with the last few days of Washington weather. And
there will be announcements further on after we've completed
the initial witnesses on the remaining schedule while we're
here in D. C.
I should also note that the Agency will be sending
to the Federal Register a formal rejection of the request
from about 600,000 Washingtonians that snow be established
as a hazardous substance. We've chosen not to list it as a
hazardous substance. But we are going to include it in the
manifest system so that we have better awareness of when
these things are going to happen.
(Laughter)
MR. JORLING: My remarks are going to be limited.
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l This is a rule-making hearing. One in which the Agency is
2 carrying out the authority granted to us by Congress to take
3 the basic mandate of RCRA, the Resource Conservation and
Recovery Act, and translate that mandate into the implementing
regulations.
Our purpose here is to receive public comment from
all affected interested parties on the content of our proposal
which went into the Federal Register in December. It's an
9 ambitious program, one that we are not very serious on
10 keeping on the schedule that we have established for it.
It's a schedule which is, however, behind the statutory
12 schedule.
13 The schedule under the statute called for the
14 promulgation of these regulations by June of this past year,
15 June of 1978. All of you are aware that the Agency was not
even successful in publishing the proposal by that date. We
17 have not published the proposal. We have a schedule which has
18 now been incorporated into a court order that calls for the
19 promulgation of these regulations by December of this calendar
20 year.
21 Because of the statute's effective date, a six
22 month lag, that means the regulations do not go into effect
93 into July of 1980. We believe that is the longest that any
of us can accept, and therefore we're determined to stay on
the schedule that is now established.
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When RCRA was enacted in — amended in 1976, they'd
added a regulatory program, very similar and probably
equal to toe other regulatory programs within EPA, very similai
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to the water pollution, national elimination of pollutant
discharge system. It caught us at a time, institutionally,
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when the solid waste program was at a low point. It has now
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been given tremendous increase in resources in this new
Administration and we are determined that this regulatory
structure will go into place.
I don't think anyone has any doubt that the events
of the last several months and years concerning the
disclosure of what occurs on bad practices in solid waste
management, and it therefore highlights the need to bring
this program into effect.
It is not an easy program. The scope of it is large.
270,000 generators are potentially included within it,
10,000 transporters and we expect as many as 30,000 permitted
sites. It's complex also because it requires cradle to grave,
as we call it, coverage in the movement of hazardous waste.
The staff is going to be hard put to take the
testimony that we are now receiving. This is the second, or
the third in a set of hearings. We started in New York for
three days, St. Louis last week for three days, here for
some days, how many still is in doubt, although it will
probably be three, including a Saturday hearing. It moves to
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Denver next week and into San Francisco the following week.
The comment period then closes in March and the task of
assimilating all of this material, and we're receiving huge
amounts of material, evaluating it, making the necessary
changes in the rules and promulgating on schedule, is going
to be extremely ambitious, but we are determined to keep our
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effort on track.
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Our first witness today is Congressman Gore, from
Tenesee. Congressman Gore served as Acting Chairman of the
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House oversight committee, investigation and oversight
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committee of the authorizing committee for this statute, and
I appreciate him taking the time to come down to this
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rule-making hearing, and giving us his comments.
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Following Congressman Gore's statement and
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testimony, we will then have an explanation, sort of a pro-
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forma explanation of what it is we're here to do today.
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Fred Lindsey will do that. If not, Jack Lehman, if he comes
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out of the show before that part of the program commences.
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We'll explain the contents of the hearings and make
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a series of other programmatic announcements on schedules and
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other elements. We do welcome you to this hearing, and we
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look forward to the comments that are going to be given to the
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Agency on its proposal. With that, I would like to close and
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ask Congressman Gore if he could appear as the first
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witness. Thank you.
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STATEMENT OF HONORABLE ALBERT A. ,GORE,.JR.
UNITED STATES REPRESENTATIVE FROM TENESSEE
CONGRESSMAN GORE: Thank you very much, Mr.
Jorling. I'd like to say that the reason I'm involved in
this issue is because of the hearing that the Oversight
and Investigation Subcommittee held last year. In the course
of getting deeply involved in this are, I'd like to preface
my remarks by saying that I've been awfully impressed with
the persons within the agency that I've had the opportunity
to work with, Mr. Jorling, Mr. Flynn, Hugh Kaufman, others.
They're dedicated. They've worked hard, and the harshness
of some of my remarks should not be interpreted as a comment
on these individuals. I think there are many, many factors
involved in this rather tortured tale of the RCRA regulations.
I am pleased to be here today to comment on these
proposed hazardous waste regulations. Once promulgated into
law, they will have an enormous impact on how Americans choose
to treat, transport, store, and dispose of hazardous wastes —
wastes that pose a threat to our lives and to our environment.
Almost 100 billion pounds next year.
In commenting on the proposed regulations today, I
would like to first raise a cautionary note. Congress has
begun to carefully scrutinize the EPA's performance in
implementing the Resource Conversation and Recovery Act. In
doing so, the need for new legislation in this area has
become all too apparent. We must eatsblish another mechanism
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to deal with the abandoned sites problem, for example. I
vigorously support new legislation and I've been actively
3 working on the development of such .legislation. But I firmly
4 believe that it might be useless for Congress to consider
5 passing new legislation if it will be administered as poorly
as our investigations have revealed the current RCRA legisla-
tion has been handled.
The two-year delay mentioned earlier continues.
There are many reasons for it. The article in one of the
Nation's leading newspapers this morning I think is revealing
of part of the problem that this agency faces in implementing
these regulations. I think the difficulty in getting a new
program off the ground in an agency that has many ongoing
programs, but budget ceilings and personnel ceilings is also
a good bit of the problem.
But focusing on the subject of this hearing today,
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these regulations were due in the spring of 1978. We are
only now, almost a year later, we're doing drafts of these
regulations. And I believe that the drafts, as I will
shortly point out, are deficient in some respects. Beyond
the timing and the content of the proposed regulations, EPA,
in my opinion, has been dragging its feet in other areas.
Virtually nothing, virtually nothing has been done to identify
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the remaining hazardous waste disposal sites around the
country. Approximately 10 states do have efforts underway,
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with the assistance of EPA. But the remaining 40-odd states
2 have no activity at all underway. And understand that many
3 Americans, in these states,are now living next to or near by
4 a site where hazardous waste has been disposed of. They
5 have not been warned. They have not been told of the potential
dangers, so that they might exercise some self-help remedies.
EPA has apparently been unable, so far, to find resources to
conduct such an inventory. This, too, will be a subject of
g investigation in the coming months by the Congress.
10 I believe the highest immediate priority should be
given to locating the many current waste disposal sites, both
active and abandoned, which are posing imminent health
g hazards to Americans. It is only by understanding the true
14 magnitude of the problem that EPA can plan for the most
15 effective use of its resources. It is only by knowing where
16 the dangerous sites exist that the public can be warned and
17 protected.
18
At the moment, EPA is simply reacting to crises
19 as they emerge. They are doing so in a good faith effort.
20 They're trying to do the best they can. They need more help
21 and they need more resources. However, our purpose this
22 morning is to focus on the belated drafts of regulations
23 pursuant to the current legislation. These regulations ace
24 significant, and I have a number of comments. I'll try to be
25 brief-
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I will first attempt to identify the guiding
2
principles that I think EPA should use in completing these
3 regulations.
First, I've found that some people fear we must
choose between a program that can be implemented without
excessive inflationary effects and a program that virorously
protects the public's health and our environment. I do not
believe that this is true. I am convinced that in this
instance there is no conflict between our public health and
our economic health. A program that does not deal forcefully
and effectively with this problem today will only mean much
larger costs — in both economic and health terms — in the
13
We are all painfully aware of the extreme costs —
running in the hundreds of millions of dollars — some estimates
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are even higher — of cleaning up after the improper disposal
ID
of hazardous wastes. And so I would urge you to adopt rules
that are strong enough to protect the public's health and
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the environment and not to take half-steps that only defer
these costs to future generations.
You might even think of it as a new foundation, for
protecting the environment and the public health.
Secondly, we need comprehensive regulations and the
personnel to administer them. I recognize that your agency
and your counterparts in the states are forced to deal with
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very real limitations on personnel and funding. The General
Accounting Office has recently documented this fact quite
well. However, in my judgment, the magnitude of this problem
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requires that you develop regulations that will ensure that
there are no more Love Canals, no more Valleys of the Drums,
no more leaking cancerous cesspools of toxic wastes. If
these regulations require more money and more -staff, then
come to the Congress — and to the public — and tell us. I
9 can assure you of my support for such requests and I believe
my colleagues in the Congress will definitely respond to the
need for stronger action in this area.
Now, with your indulgence, let me briefly provide
ig you with a few specific concerns about these proposed regula-
.. tions.
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The 3001 regulation includes identification of
eight characteristics of hazardous waste. If a waste is not
already labeled as hazardous through the listing procedure,
,_ a generator must test the waste to determine if it contains
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hazardous features. However, the current regulations only
require testing for four of the eight identified characteris-
21 tics: ignitability, corrosivity, reactivity, and toxicity
Apparently, you have chosen to rely on only these four
23 characteristics, thereby ignoring radioactivity, infectious-
24 ness, phytotoxicity, teratogenicity and mutagenicity, because
they are "the only ones for which the Agency confidently
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believes test protocols are available." You suggest that you
may include tests for these other characteristics at a later
point in time.
4 I take issue with this position, respectfully.
5 Even though there may be no simple, well-accepted tests that
identify all wastes which are oncogenic, mutagenic,
teratogenic, or biolaccumulative, there are procedures to
test for these characteristics. Indeed, there are currently
9 very valuable tests which yield useful information regarding
10 such characteristics, some of which you employ already for
screening under the Toxic Substances Control Act. Perhaps
12 you've chosen not to include these useful procedures within tic
13 proposed RCRA regulations because of the costs of such tests.
14 However, I would suggest that such tests be
included as part of the regulations now and that you publish
an Advance Notice of Proposed Rulemaking to improve upon such
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tests as our technology in the area improves. In short, "I'am
uncomfortable with postponing the promulgation of a comprehen-
10
sive set of rules to test for hazardous wastes not included
in your listing procedure.
I am further discomfited when I realize that wastes
22 included as hazardous under the listing procedure may be
exempted from the program if they are proven not to be ignitaMe
Zo
corrosive, reactive, or toxic (using your extraction procedure)
Such exemptions might be granted, under your proposal, to
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wastes which pose precisely the sorts of danger which
Congress sought to bring under control with this Act.
As a second example of my concerns with these pro-
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4 posed regulations, let me mention your proposed decision to
exclude sewage sludge from publicly owned treatment works
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from coverage under this regulation and instead allow it to be
regulated under Section 405 of the Clean Water Act. Sewage
sludge contains a variety of extremely hazardous substances.
It is absolutely essential that the public be protected from
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the improper disposal of sewage sludge, just as they should
be protected from other wastes.
I understand that you are including sewage sludge
under Section 405 to avoid duplicative permitting; yet, I wish
to raise the issue to stress the importance of making sure
that hazardous sewage sludge is treated like all other
hazardous waste.
lb
In making final revisions to the regulations, I urge
lg you to resist any effort to reduce the number of waste
generators covered by the regulations. I believe it would be
a mistake, for example, to raise the monthly waste level
21 criteria for inclusion in the program above your proposed 100
kilograms. In fact, you may want to consider reducing that
23 level. Many small generators produce highly toxic or
otherwise hazardous wastes. Coming from a rural area, I am
„ particularly aware of this problem. I doubt that the per unit
Zo
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cost of the hazardous waste program will really significantly
affect these small generators.
Along the same lines, I urge you not to consider
postponing the inclusion of any industries under the
regulations. Those industries that may be most heavily
affected by the regulations (electroplaters or wool dye
manufacturers, for example) are also the generators of some
of the most dangerous wastes. I don't believe that we can
g afford to wait much longer to regulate how their wastes are
10 disposed of.
The procedures that waste generators are to follow
to determine whether their wastes are hazardous and to
,„ determine whether such wastes have been disposed of in the
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proper manner and in the safest locations must be clear and
comprehensible. Public officials as well as the general publi
must be able to determine whether proper actions are being
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taken. There must be ample opportunity for outside monitorinc
of the cradle-to-grave handling of hazardous wastes. As I
it*
understand it, you have proposed that the generators of
waste take primary responsibility for monitoring the manifest
system which would detect problems in the cradle-to-grave
tracking system. Annual reports on the manifests would be
made to EPA regional administrators.
2o
I would encourage you to consider requiring such
reporting at more frequent intervals. I also wonder what kind
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of access the public will have to the information compiled by
the generator and submitted to EPA; I would encourage you to
make such information readily available to those who would
like to scrutinize it.
With respect to the siting problem, my concern is
that the very best criteria be used in selecting locations
for the disposal of hazardous waste and that these criteria
be clearly stated. It is my own view that you should offer
criteria to the states to help them in making environmentally
proper decisions about siting, particularly when confronted
with the inevitable political pressures different communities
will bring to bear on the decision-making process.
There will undoubtedly be a lapse in time, as you
mentioned, Mr. Jorling, between the promulgation of these
regulations at the federal level and their implementation at
the state level. During this period, I believe you should
still attempt to enforce the general intent of the RCRA legis-
lation through the use of your imminent hazard authority.
I know this is a controversial matter, but I urge you to
take strong action under this authority, as you have now
begun to do, so that any delays in getting these regulations
promulgated do not pose any undue burden on communities now
facing hazardous waste disposal problems.
In closing, let me say that I recognize the great
responsibility Congress has placed on this agency. You would
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do us all a great disservice to promulgate anything short of
2 a strong and comprehensive set of hazardous waste regulations.
These regulations must be promulaated rapidly and enforced
o
effectively so that the costs of this problem — in dollars
and cents and in human health and lives — will be reduced.
o
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Both Congress and the public expect that you will
7 take strong steps to protect the public health and the
environment.
Thank you for the opportunity to comment this
10 morning.
MR. JORLING: Thank you very much. As I stated
2 at our hearing before your committee, government acts best
when government is scrutinized. And I believe that the
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efforts of your committee and the efforts of those associated
with this legislation bear direct relationship now on the
15
activities of the agency. I can assure you that we will
be working with you and the members of the committee and the
,. staffs of the committee as we continue to go through this
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rulemaking process.
I especially appreciate your comments on the testinc
methodologies we've used and I will also spend some time
22 with your staff onthe Section 405 RCRA relationship on
sewage slude.
We do appreciate your taking the time and do
appreciate the scrutiny that you and your committee are
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giving to the agency in this matter. Thank you very much.
2 MS. FRIEDMAN: Fred Lindsey from EPA's Office of
3 Solid Waste will make a short statement on the purpose and
structure of this meeting.
STATEMENT OF ALFRED LINDSEY, CHIEF, IMPLEMENTATION
BRANCH, HAZARDOUS WASTE MANAGEMENT DIVISION,
OFFICE OF SOLID WASTE, EPA
MR. LINDSEY: Good morning. I am Fred Lindsey, the
Chief of the Implementation Branch of the Hazardous Waste
Division in EPA's Office of Solid Waste here in Washington.
lfl On behalf of the Office of Solid Waste, I would like to
welcome — add my welcome to Mr. Jorling's, to this public
hearing, which is being held to discuss these proposed
regulations to the management of hazardous waste.
14 We appreciate your taking the time to participate
in the development of these regulations, which are being
issued, as was stated a little earlier, I think, under the
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authority of the Resource Conservation and Recovery Act, or.
for those of us who are into acronyms, RCRA, or R-C-R-A, which
Vo
,„ you'll year us talk about frequently.
19
20 I would like to add my apology for the delay caused
by the snow. I hope it didn't seriously inconvenience any
22 of you.
23 For a brief overview of why we're here. The
Environmental Protection Agency, on December 18, 1978, issued
25
proposed rules under Sections 3001, 3002 and 3004 of the
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Solid Waste Disposal Act, as substantially amended by the
2 Resource Conservation and Recovery Act of 1976. That is
3 Public Law 94-580.
4 These proposals respectively cover criteria for
22
identifying and listing hazardous wastes, identification
methods, and a hazardous waste list. They also cover standards
b '
1 applicable to generators of such wastes for record-keeping,
labeling, using proper containers, and using a transport
manifest, and they also cover performance, designs and
0 operating standards for hazardous waste management facilities.
These proposals, together with those already
published, pursuant to Section 3003, which was published on
,, April 28, 1978; Section 3006, which was proposed on February
lo
1, 1978; Section 3008, proposed on August 4, 1978; and
Section 3010, proposed on July 11, 1978; and that of the
16 Department of Transportation, pursuant to the Hazardous
Materials Transportation Act, proposed on May 25, 1978,
along with the Section 3005 regulations, constitute the
hazardous waste regulatory program under Subtitle 3 of the
20
EPA has chosen to intetrate its regulations for
facility permits pursuant to Section 3005 and for state
hazardous waste program authorization pursuant to Section 3006
of the Act, with similar proposals under the National
Pollution — Pollutant Discharge Elimination System, required
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by Section 402 of the Clean Water Act, and the Underground
Injection Control Program of the Safe Drinking Water Act.
This integration of programs will appear soon as proposed
3
rules under 40 C.F.R., parts 122, 123 and 124.
This hearing is being held as part of our public
5
participation process in the development of this regulatory
6
program. First, for the logistics of the meeting. Smoking
is not permitted in this room. There are restrooms and a
8
small conference room where you will find ashtrays, out this
9
door and to the right. The restrooms are not identified
10
from the hallway, but I understand the first door — I'm
sure that the first door to the right, around the corner here,
12
and you go through a hallway and then there's two restrooms
13
and a small smoking room where I think everyone will be able
to smoke.
15
The panel members who share the rostrum with me,
16
in addition to Mr. Jorling, are Amy Schaffer — from your
left — Amy Schaffer, from our Office of Enforcement; Dorothy
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Darrah, from our Office of General Counsel; Stephen Plehn,
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who is the Deputy Assistant Administrator for Solid Waste;
20
Lisa Friedman, from our Office of General Counsel, who will
chair this session; John Lehman, who I believe is still stuck
22
in the snow, we're hoping to see him a little later this
morning. He's our Director of the Hazardous Waste Management
Division. Matt Straus, from the Office of Solid Waste, who
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. of the snow, we will hold these hearings here today. We
O
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sits next to me, and Alan Roberts from our Office — from
the Department of Transportation.
As these hearings proceed, the responsible staff
person for each section will join us on the panel. Because
intend to go into this evening, perhaps as late as 9:00 or
10:00 O'clock.
Tomorrow, we will begin at 8:30 a.m. in the
auditorium of the Health, Education and Welfare North
Building, between C and Independence and Third and Fourth
Streets, Southwest. Okay? That's the Health, Education and
Welfare Building, North Building, between C and Independence,
and Third and Fourth Streets, Southwest. If necessary, we
will also meet on Saturday in the same location. Speakers
who had planned presentations in more than one session are
urged to consolidate their presentations and give them all
at once. Additional time will be allowed for those who are
willing and able to do that.
Comments received at this hearing and other
hearings as noted in the Federal Register, together with the
comment letters we receive, will be a. part of the official
docket in this rule-making process. The comment period
closes on March 16, for Sections 3001, 3002, 3003 and 3004.
This docket may be seen during normal working hours in
Room 2111D, Waterside Mall, 401 M Street, Southwest, Washington,
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23
D. C. That's the EPA headquarters building. In addition, we
expect to have transcripts of each hearing within about two
weeks of the close of the hearing. These transcripts will be
available for reading at any of the EPA libraries. A list of
these locations is available at this table here and at the
table outside of that door over there.
With that as the background, I'd like to lay the
groundwork and rules for the conduct of this hearing. The
focus of a public hearing is on the public's response to a
regulatory proposal of an agency, or in this case agencies,
since both EPA and the Department of Transportation are
involved .
The purpose of this hearing, as announced, in the
April 28, May 25 and December 18, 1978 Federal Registers, is
to solicit comments on the proposed regulations, including
any background information used to develop the comments.
This public tearing is being held not primarily to inform the
public nor to defend a proposed regulation, but rather to
obtain the public's response to these proposed regulations
and thereafter to revise them as may seem appropriate.
All major substantive comments made at the hearing
will be addressed during preparation of the final regulations.
This will not be a formal adjudicatory hearing, with the
right of cross-examination. Members of the public are to
present their views on the proposed regulations to the panel,
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24
and the panel may ask questions of the people presenting
statements to clarify any ambiguities in their presentations.
Since we are time limited, some questions by the panel may be
forwarded in writing to the speaker. His response, if
received within a week of the close of these hearings, will
be included in the transcript. Otherwise, we'll include it
in the docket. In either case, it will be considered.
Due to time limitations, the Chairman reserves the
right to limit lengthy questions, discussions and statements:.
We would ask that those of you who have prepared statements
to make orally, please limit your presentations so we can ge't
all statements in a reasonable time. If you have a copy of
your statement, it will be very helpful if you will submit
it to the court reporter and if there are extra copies, to
the panel members as well.
Written statements will be accepted at the end of
the hearing. If you wish to submit a written, rather than
an oral statement, please make sure the court reporter has
a copy. The written statements will also be included, in
their entirety, in the record.
Persons wishing to make an oral statement who have
not made an advanced request by telephone or in writing
should indicate their interest on the registration card. If
you have not indicated your intent to give a statement, and
you decide you would like to, please return to one of the two
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25
registration tables, fill out another card, and give it to on<
2 of the staff members out there.
As we call upon an individual to make a statement,
o
4 he or she should come up to the lecturn, after identifying
, himself or herself to the court reporter, and deliver his or
0
her statement. At the beginning of the statement, the
chairperson will inquire as to whether the speaker is willing
to entertain questions from the panel. The speaker is under
g no obligation to do so, although in the spirit of this
information sharing, it would be of great assistance to us
if you would allow questions to be asked.
Our days activities, as we currently see them,
appear like this. We will break for lunch at about 12:15
lo
and reconvene at about 1:45 p.m. Then, depending on our
,_ progress, we will probably break for dinner at about 5:00
ID
lg O'clock. If you wish to be added to our mailing list for
future regulations, draft regulations, or proposed regula-
lg tions, please leave your business card or name and address'
10 on a 3 by 5 card at the registration desk. There should be
iy
20 cards, file cards out there for that purpose.
21 The regulations under discussion at this hearing
are the core elements of a major regulatory program to
23 manage and control the country's hazardous waste from
generation to final disposal. The Congress directed this
action in the Resource Conservation and Recovery Act of 1976,
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26
j RCRA, recognizing that the disposal of hazardous waste is a
2 crucial environmental and health problem which must be
controlled. In our proposal, we have outlined requirements
which set minimum norms of conduct for those who generate,
transport, treat, store and dispose of hazardous wastes.
These requirements, we believe, will close the circle of
6
environmental control begun earlier with regulatory
control of emissions and discharges of contaminants to air,
8
water, and the oceans.
We do not underestimate the complexity and
difficulty of our proposed regulations. Rather, they reflect
large amounts of hazardous wastes generated, and the
complexity of the movement of hazardous wastes in our diverse
society. These regulations will affect a large number of
14
industries.
15
Other, non-industrial sources of hazardous wastes,
16
such as laboratories and commercial pesticide applicators,
as well as transporters of hazardous wastes, will also be
18
included. Virtually every day, as Representative Gore alluded
to, the media carries a story on a dangerous situation
20
resulting from improper disposal of hazardous wastes. The
tragedy at Love Canal is just one example. EPA has informa-
tion on over 700 cases of the harmful consequences of
23
inadequate hazardous waste management. These cases include
incidents of surface and ground water contamination, direct
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1
27
contact poisoning, various forms of air pollution, and damage
2 from fires and explosions. Nationwide, half of all drinking
3 water is supplied from ground water sources and in some areas
4 contamination of ground water resources currently poses a
threat to public health.
o
„ EPA studies of a number of generating industries
b
7 in 1975 showed that approximately 90 percent of the potential]
hazardous wastes generated by those industries was managed
by practices which were not adequate for protection of human
health in the environment.
The Resource Conservation and Recovery Act of 1976
was passed to address these problems. Subtitle C establishes
a comprehensive program to protect the public health and
environment from improper disposal of hazardous wastes.
Although the program requirements are to be developed by the
federal government, the Act provides that states with adequate
16 n
programs can assume responsibility for regulation of hazardous
18 wastes.
The basic idea of Subtitle C is that the public
health and the environment will be protected if there is
careful monitoring of transportation of hazardous wastes and
assurance that such waste is properly treated, stored and
disposed of, either at the site where it is generated or aftei
it is carried from the site to a special facility, in
accordance with the standard.
25
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1
2
3
management program. Subtitle C creates a management control
4
system which, for those wastes defined as hazardous, requires
28
Seven guidelines and regulations are being developed
and either have been or will be proposed, as is noted earlier,
under Subtitle C of RCRA to implement the hazardous waste
a cradle-to-grave cognizance, including appropriate
monitoring, record-keeping and recording throughout the
system.
It is important to note that the definition of
solid waste in the Act encompasses garbage, refuse, sludges,
and other discarded materials, including liquids, semi-
solids and contained gases, with a few exceptions from both
municipal and industrial sources.
Hazardous wastes, which are a subset of all solid
wastes and which will be identified by regulations proposed
under Section 3001, are those which have particularly
significant impacts on public health and the environment.
Section 3001 is the keystone to all Subtitle C. Its purpose
is to provide a means for determining whether a waste is
hazardous for the purposes of the Act and therefore whether
it must be managed according to the other Subtitle C regula-
tions.
Section 3001B provides two mechanisms for determinir
whether a waste is hazardous. A set of characteristics of
hazardous wastes and a list of particular hazardous wastes.
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2
3
29
A waste must be managed according to the Subtitle
C regulations if it is either — exhibits any of the charac-
teristics set out in the proposed regulations or if it is
listed. Also, EPA is directed, by Section 3001A of the Act,
to develop criteria for identifying the set of characteristic
of hazardous wastes and for determining which wastes to list.
In this proposed rule, EPA sets out those criteria,
identifies a set of characteristics of hazardous wastes and
establishes a list of particular wastes. Also in the proposei
regulations, provides for demonstration of noninclusion in thi
regulatory program. That is a means for getting off the list
Section 3002 addresses standards applicable to
generators of hazardous wastes. A generator is defined as any
person whose act or process produces a hazardous waste.
Minimum amounts generated and disposed per month are
established to further define a generator. These standards
will exclude household hazardous wastes.
The generator standards will establish requirements
for record-keeping, labeling and marking of containers used
for storage, transport, or disposal of hazardous wastes, use
of appropriate containers, furnishing information on the
general chemical composition of the hazardous wastes, use of
a manifest system to assure that a hazardous waste is
designated to a permitted treatment, storage or disposal
facility, and submitting reports to the Administrator or an
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30
authorized state agency, setting out the quantity generated
and its disposition.
Section 3003 requires the development of standards
applicable to transporters of hazardous wastes. These
proposed standards address identification codes, record-
keeping, acceptance and transportation of hazardous wastes,
compliance with a manifest system, delivery of the hazardous
waste, spills of hazardous wastes and placarding and marking
8
of vehicles.
The agency has coordinated closely with proposed
and current U. S. Department of Transportation regulations.
Section 3004 addresses standards affecting owners and opera-
tors of hazardous waste treatment, storage and disposal
facilities. These standards define the levels of human health
and environmental protection to be achieved by these
facilities and provide the criteria against which EPA or
16
state officials will measure applications for permits.
Facilities on a generator's property as well as all
18
site facilities are covered by these regulations and do requii
permits. Generators and transporters do not otherwise need
permits. Section 3005 regulations set out the scope and
coverage of the actual permit-granting process for facility
owners and operators. Requirements for the permit application
as well as for the issuance and revocation process are
defined by regulations to be proposed under 40 C.F.R., parts
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31
122, 123 and 124, as we previously mentioned.
Section 3005E provides for interim status during
the time period that the agency or the states are reviewing
the pending permit application. Special regulations under
Section 3004 apply to facilities during this interim status
5
period. Section 3006 reauires EPA to issue guidelines under
6
which states may seek both full and interim authorizations to
carry out the hazardous waste program in lieu of EPA-
8
administered program that we are talking about today.
States seeking authorizations in accordance with
Section 3006 guidelines need to demonstrate that their
hazardous waste management regulations are consistent with
and equivalent in effect or degree of control to EPA regula-
13
tions under Sections 3001 through 3005.
Section 3010 requires any person generating,
15
transporting or owning or operating a facility for treatment,
16
17 storage or disposal of hazardous wastes to notify EPA of
this activity within 90 days after promulgation or revision
18
of regulations identifying and listing hazardous wastes
pursuant to Section 3001.
20
No hazardous waste subject to Subtitle C regulation
22 may be legally transported, treated, stored or disposed after
the 90-day period unless this timely notification has been
given to EPA during the above 90-day period. Owners and
operators of inactive facilities are not required to notify.
a
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32
j EPA intends to promulgate final regulations under
2 all sections of Subtitle C by December 31, 1979. However, it
, is important for the regulated community to understand the
j
regulations under Section 3001 and 3005 do not take effect
until six months after promulgation. That would be approximat
. June of 1980.
D
Thus, there will be a time period after promulgation
during which time public understanding of the regulations can
o
be increased. During this same period, notifications
required under Section 3010 are to be submitted and facility
permit applications required under Section 3005 will be dis-
tributed for completion by applicants.
With that as a summary of Subtitle C and the
lo
proposed regulations to be considered at this hearing, I will
return the meeting to the chairperson. Lisa Friedman.
MS. FRIEDMAN: Thank you very much, Fred. We
16
distributed, at the outset of this meeting, a list of people
who had preregistered to make oral statements at this
18
meeting. We will take people as listed in that list, if they
are here. In addition, we've had several people who have
indicated that because of other commitments or travel plans
they would like to speak early. People who haveindicated
that they have such plans are Gloria Rains, Leslie Dach,
Sy Bensky, Paul Emler and Robert Rhodes. If anyone else has
travel plans and would like to speak at a particular time,
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33
would you please see me, I guess either while someone is
speaking or during the break, and I will try and accommodate
you.
People who do have to speak early or leave early,
we will try and shuffle in with other listed speakers.
Congressman Florio has advised us that he will not be making
a statement today.
The next speaker is Mr. Karl T. Johnson with the
-A Q Fertilizer Institute.
1-B ,„ STATEMENT OP KARL T. JOHNSON, VICE-PRESIDENT,
MEMBER SERVICES, THE FERTILIZER INSTITUTE
MR. JOHNSON: Good morning. My name is Karl
Johnson, and I am Vice-President, Member Services, of The
Fertilizer Institute. The Institute (TFI) is a non-profit
national association for the fertilizer industry whose
membership of over 300 companies account for more than 90
percent of the fertilizers produced in the United States.
I would like to thank EPA for this opportunity to
appear here today and discuss issues arising under the
regulations proposed by EPA on December 18, 1978, issues whicl
directly affect the fertilizer industry.
Written comments on all aspects of the proposed
rule-making are being prepared and will be submitted by the
due date of March 16. Because of the time limitations here
today, I intend only to confine my remarks to highlights of
the important issues of concern to TFI that are in the
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34
regulations proposed to implement Section 3001. I would
add at this point that TFI wishes to lend its support and
endorsement to the comments of the Florida Phosphate Council
which you will be hearing later on in this hearing.
Initially, TFI wishes to express its support for the
concept of the regulation of hazardous solid wastes, as set
forth in RCRA. TFI believes that the transport and disposal
of hazardous solid wastes is a matter which requires urgent
8
attention. TFI recognizes the Congress has set a Herculean
task in establishing and placing into operation a regulatory j
program for hazardous solid wastes within the relatively
short time frame envisioned by RCRA.
EPA's task is made even more difficult by the
admitted lack of federal involvement in the solid waste
disposal area prior to the enactment of RCRA and the develop-
15
ment of these regulations.
16
Under such circumstances, the Institute believes
that sound public policy requires that EPA develop workable
regulatory approach which can be readily understood by the
regulated and easily implemented by the regulators. Such a
system would concentrate on those solid wastes which are
22 truly hazardous and in fact present a serious environmental
threat when disposed of improperly.
TFI is concerned then that EPA has, in a number of
, respects, failed to propose the necessary streamlined and
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35
stringent regulatory program and has, instead, attempted to
2 regulate vast quantities of virtually inert solid wastes
3 often on the basis of incomplete data. Such an approach coul
actually impede the development of a sound regulatory program
by spawning needless and time-consuming litigation and by
5
creating a backlash of public and Congressional opinion which
o
could undermine the Agency's efforts to regulate in this
most important area.
M
To take a case in point, one which is of immediate
concern to the fertilizer industry, EPA has proposed to list
as hazardous wastes a number of temporary and permanent
12
16
18
by-products of the phosphate mining and processing industry.
Phosphate rock is mined in substantial quantities in a number
of states, including Florida, Idaho, North Carolina and
Tennessee. A portion of the rock is processed into elemental
phosphorus while over 80 percent of it, of the mined
material is processed into phosphate fertilizers. Because of
the nature of the ore deposits, phosphate rock is recovered
through the use of surface mining techniques. As a result
2fl of these mining activities, the natural soil overlying the
ore£ and referred to as "overburden" is temporarily relocated
22 and then used, once mining is completed, in necessary and
23 desirable reclamation activities. The phosphate rock obtainei
24 from the mining is commonly cleaned on-site and then sent for
further processing to produce fertilizer. The cleaning of
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36
phosphate rock produces by-products called phosphatic clays ar
sand tailings. Which are primarily handled in a liquid state.
These are stored for later incorporation into the reclamation
process.
The further processing of the rock into fertilizer
results in a productionof a by-product gypsum. Approximately
five tons of gypsum are produced for every ton of finished
product. And there is no other known economic method for
processing phosphate rock into fertilizer that does not
produce this gypsum.
At some of the plants, all of this by-product
gypsum produced is used for purposes such as conditioning the
soil of Georgia peanut farms. Most of the gypsum, however,
is stored in stacks located near the processing plants.
It is TFI's belief that n none of these by-products
could reasonably be considered hazardous as that term is
defined in Section 1004 of RCRA. However, the EPA has
proposed to list gypsum as hazardous waste, also overburden
and the phosphatic clays. These materials are produced in
vast quantities, some 400 million metric tons per year by
EPA's own estimate.
Although EPA proposes to list the entirety of this
vast quantity of material as hazardous waste, the Agency has
stated in the preamble of the proposed regulations, and I
quote:
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37
°The Agency has very little information on the
composition, characteristics, and the degree of hazard posed
by these wastes". It goes on to say "the limited information
the Agency does have indicates that such waste occurs in very
large volumes, (and) that the potential hazards posed by
o
the waste are relatively low."
Under such circumstances, TFI believes that it is m
sound public policy to list these phosphate-related hazardous
wastes, thereby including some 400 million metric tons per ye.
of material within the scope of the hazardous waste management
program, this being done on the basis of "very little informa-
12
Such action tends only to hurt the credibility of
Icj
the entire regulatory program and to make it unmanageable .
Furthermore, EPA's action attaches the stigma of "hazardous
lo
waste" to materials whose true hazard EPA itself admits it
16
knows little about. Placing this stigma of hazardous on
materials such as mine overburden will complicate or even
In
destroy the current reclamation activities of the phosphate
mining industry, activities which are both mandatory under
other state and federal laws, and highly beneficial. Nor does
it appear from EPA's draft economic analysis of the proposed
regulations that the economic effects of compliance by the
2o
phosphate industry have been adequately evaluated.
In short, as a matter of sound public policy and
25
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38
in order to ensure that the necessary regulatory program can
function effectively and with credibility, EPA should
concentrate on the regulation of wastes which have been
demonstrated to be truly hazardous, and by adequate and
convincing data. Therefore, TFI recommends that EPA "de-list
these phosphate related wastes pending the development of
information sufficient to determine whether or not these
wastes are, in fact, hazardous.
Such information could be developed in the context
of the study of mining wastes which Congress has required.
Going beyond the public policy issues involved and
viewing the proposed regulations in light of the provisions
of the underlying statute, TFI believes that EPA has exceeded
its statutory authority in several respects.
First, the Institute believes that the language of
RCRA which calls for a "detailed and comprehensive" study of
mining wastes by EPA leading to a report to Congress and the
clear legislative history of RCRA prohibit EPA from regulatinc
any mining wastes under any provision of the statute until the
study is completed and there has been further Congressional
action authorizing the regulation of mining wastes.
Secondly, it is believed that the legislative histoi
of RCRA makes it clear that the statute does not cover any
aspect of mine reclamation activities and that, therefore,
the EPA may not list as hazardous or otherwise regulate
-------
39
material such as mine overburden when such material is
2
destined for return to the mine in connection with mine
o
reclamation.
TFI also believes that by including materials which
are reused in the definition of solid waste, EPA has exceeded
the authority given the Agency. EPA has defined materials
which are reused in a manner similar to "disposal" as discard
materials and, therefore, solid wastes. It is clear that
Congress did not intend that any reused materials be defined
as solid waste. Instead, one of the major goals of RCRA is to
encourage the reuse of materials. By including such reused
12
materials in its definition of solid waste, EPA may well
frustrate this Congressional goal and has clearly exceeded it
14
authority.
Turning to another major issue, I would point out a
seriousproblem with the — concerning the hazardous waste
lists proposed by EPA. A considerable number of hazardous
18
wastes have been listed based on criteria other than those
19
proposed be established at this time. TFI believes that the
20
listing of the wastes as hazardous on the basis of criteria
21
which are not even proposed for adoption, much less
22
promulgated and effective, does violence fo the scheme
23
envisioned by Congress. Under the Congressional scheme,
24
wastes are to be listed as hazardous only after the criteria
25
on the basis of which they are listed have been adopted, subject
-------
40
to full public participation and comment. TFI urges EPA to
2 delete from the list of hazardous wastes those wastes for
3 which criteria have not yet been proposed.
4 Another point, the individual waste generator is
required by the proposed regulations to test its solid wastes
by prescribed methods to determine if one of these hazardous
characteristics is present. TFI believes that this"self-
testing" requirement is contrary to the provisions of RCRA
and needlessly complicates and confuses the regulatory
10 program. TFI urges EPA to eliminate the "self-testing"
requirements and to make the listing by EPA subject to
public review the sole method of determining which wastes are
13 hazardous.
While further and more detailed discussions of the
issues I have raised are in the written comments, I hope —
10
and will be in the future ones — I hope that this statement
lo
17 will be of assistance to EPA in identifying important issues
._ and developing a sound, workable regulatory program under
IB
19
„„ (The full statement of Mr. Johnson follows.)
21
22
23
24
25
-------
Statement of
KARL T. JOHNSON
VICE PRESIDENT, MEMBER SERVICES
THE FERTILIZER INSTITUTE
before the
U.S. ENVIRONMENTAL PROTECTION AGENCY
concerning
REGULATIONS PROPOSED DECEMBER 18, 1978 TO
IMPLEMENT PROVISIONS OF THE RESOURCE
CONSERVATION AND RECOVERY ACT
Scheduled Hearing Date: February 20, 1979
-------
-------
Good morning. My name is Karl T. Johnson and I
am Vice-president, Member Services of The Fertilizer
Institute (TFI). TFI is a non-profit national association
for the fertilizer industry whose membership of over
300 companies account for more than 90% of the fertilizer
produced in the United States.
TFI and its member companies are vitally interested
in the development of regulations to implement the provisions
of the Resource Conservation and Recovery Act of 1976
(RCRA), and I would first like to thank EPA for the
opportunity to appear here today and discuss issues
arising under the regulations proposed by EPA on December
18, 1978, issues which directly affect the fertilizer
industry.
My comments today will touch upon those portions
of the proposed regulations intended to implement the
provisions of §3001 of RCRA concerning the identification
and listing of hazardous wastes which are to be subject
to the regulatory scheme established by RCRA to deal
with such wastes.
-------
Written comments on all aspects of the proposed
rulemaking are being prepared and will be submitted
by the due date of March 16, 1979. Because TFI's
written comments are extensive and detailed and because
of the time limitations inherent in a hearing such as
this, I will confine my comments today to highlighting
the most important issues of concern to TFI. TFI's
written comments discuss these and other issues in
great detail and provide citations to statutory language
and legislative history as well as examples and case
histories.
TFI also intends to submit written comments on the
Advance Notice of Proposed Rulemaking, also published
on December 18, 1978, concerning the establishment of
criteria for identifying hazardous wastes pursuant to
§3001 (a) of ECRA.
In preparing its comments on these matters, TFI
has coordinated closely with the Florida Phosphate
Council and TFI wishes to lend its support and endorse-
ment to the comments which the Council intends to present
at this hearing.
Initially, TFI wishes to express its support for the
concept of the regulation of hazardous solid waste as set
forth in RCRA. TFI believes that the transport and
disposal of hazardous solid waste is a matter which
-------
requires urgent attention. TFI recognizes that
Congress has set EPA a herculean task in establishing
and placing into operation a regulatory program for
hazardous solid waste within the relatively short time
span envisioned by RCRA. EPA's task is made even more
difficult by the admitted lack of federal involvement
in the solid waste disposal area prior to the enactment
of RCRA and the development of these regulations.
Under such circumstances, TFI believes that sound
public policy requires that EPA develop workable regulatory
approach which can be readily understood by the regulated
and easily implemented by the regulators. Such a system
would concentrate on those solid wastes which are truly
hazardous and, in fact, present a serious environmental
threat when disposed of improperly. Having identified
such hazardous solid wasues, EPA should proceed to the
establishment of stringent controls which are reasonably
implementable and clearly understandable and which actually
address the potential harm which may be caused by the
hazardous solid waste sought to be regulated. EPA is
just beginning its hazardous waste program. If the
program is to have any credibility, it must be a tight
regulatory scheme which addresses only those solid
wastes which are, in fact, hazardous.
TFI is concerned that EPA has, in a number of respects,
failed to propose the necessary streamlined and stringent
-------
regulatory program and has, instead, attempted to regulate
vast quantities of virtually inert solid wastes often on
the basis of incomplete data. TFI believes that such
an approach could actually impede the development of a
sound regulatory program by spawning needless and time-
consuming litigation and by creating a backlash of
public and Congressional opinion which could undermine
the Agency's efforts to regulate in this most important
area.
To take a case in point which is of immediate concern
to the fertilizer industry, EPA has proposed to list a
number of temporary and permanent by-products of phosphate
mining and processing as hazardous wastes. Phosphate
rock is mined in substantial quantities in states such as
Florida, Idaho, North Carolina and Tennessee. A portion
of the rock is processed into elemental phosphorus while
over 80% of the mined material is processed into phosphate
fertilizers. Because of the nature of the ore deposits,
phosphate rock is recovered through the use of surface
mining techniques. As a result of these mining activities,
the natural soil overlying the ores and referred to as
"overburden" is temporarily relocated and then used, once
mining is completed, in necessary and desirable reclamation
activities. The phosphate rock obtained from mining is
commonly cleaned on-site and then sent for further
processing to produce fertilizer. The cleaning of phosphate
rock produces primarily liquid by-products called
-------
phosphatic clays and sand tailings. These are stored
and incorporated into the reclamation process. The
further processing of phosphate rock into fertilizer
results in the production of by-product gypsum. Approxi-
mately five tons of gypsum are produced for every ton
of finished product. There is no other known economic
method for processing phosphate rock into fertilizer
that does not produce gypsum. At some plants all of the by-
product gypsum is used for purposes such as conaitioning the
soil of Georgia peanut farms. Most of the gypsum, however,
is stored in stacks located near the processing plants.
It is TFI's belief that none of these by-products
could reasonably be considered hazardous as that term is
defined in §1004 RCRA. However, EPA has proposed to list
these materials, overburden, phosphatic clays and by-product
gypsum, as hazardous wastes. These materials are produced
in vast quantities, 400 million metric tons per year by
EPA's own estimate. Although EPA proposes to list the
entirety of this vast quantity of material as hazardous
waste, the Agency has stated in the preamble to the
proposed regulations that:
The Agency has very little information
on the composition, characteristics,
and the degree of hazard posed by these
wastes,. . . the limited information the
Agency does have indicates that such
waste occurs in very large volumes,
(and) that the potential hazards posed
by the waste are relatively low.
(43 Fed. Reg. 58991-2) (emphasis supplied)
-------
Under such circumstances, TFI believes it is not
sound public policy to list these phosphate related
wastes as hazardous/ thereby including 400 million
metric tons per year of material within the scope of
the hazardous waste management program, on the basis
of "very little information". Such action only tends
to hurt the credibility of the entire regulatory program
and to make it unmanageable. Furthermore, EPA's action
attaches the stigma of "hazardous waste" to materials
whose true hazard EPA itself admits is unknown. The
stigmatizing of materials such as mine overburden as
"hazardous" will complicate or even destroy the current
reclamation activities of the phosphate mining industry,
activities which are both mandatory under other state and
federal laws and highly beneficial. Nor does it appear
from EPA's draft economic analysis of the proposed
regulations that the economic effects of compliance by
the phosphate industry have been adequately evaluated
(I will speak to the economic issues in greater detail
on Thursday).
In short, as a matter of sound public policy and in
order to ensure that the necessary regulatory program can
function effectively and with credibility, EPA should con-
centrate on the regulation of wastes which have been
demonstrated to be truly hazardous by adequate and convinc-
ing data. The listing and regulation of 400 million
-------
metric tons per year of phosphate related wastes on
the basis of concededly inadequate data does not further
the legitimate and important regulatory goals of the
RCRA program. TFI recommends that EPA "de-list" these
phosphate related wastes pending the development of
information sufficient to determine whether or not
these wastes are, in fact, hazardous. Such information
could be developed in the context of the study of mining
wastes which Congress has required and which I will
discuss in more detail later. TFX and its member
companies have already submitted significant quantities
of information concerning these wastes to EPA. Of course,
TFI and its member companies stand ready to assist in
the development of adequate data in any way EPA requires.
Going beyond the public policy issues involved and
viewing the proposed regulations in light of the provisions
of the underlying statute, TFI believes EPA has exceeded
its statutory authority in several respects.
First, TFI believes that the language of RCRA which
calls for a "detailed and comprehensive" study of mining
wastes by EPA leading to a report to Congress and the
clear legislative history of RCRA prohibit EPA from
regulating any mining wastes under any provision of the
statute until the study is completed and there has been
further Congressional action authorizing the regulation
of mining wastes.
-------
Secondly, TFI believes that the legislative history
of RCRA makes it clear that the statute does not cover
any aspect of mine reclamation activities and that,
therefore, EPA may not list as hazardous or otherwise
regulate material such as mine overburden when such
material is destined for return to the mine in connection
with mine reclamation.
TFI also believes that by including materials which
are reused in the definition of solid waste EPA has
exceeded the authority given the Agency by Congress.
EPA has defined materials which are reused in a manner
which is similar to "disposal" as that word is defined
in RCRA as discarded materials and, therefore, solid
wastes. However, the legislative history of RCRA
makes it clear that Congress did not intend that any
reused materials be defined as solid waste. Indeed, one
of the major goals of RCRA is to encourage the reuse
of materials. By including such reused materials in
its definition of solid waste, EPA may well frustrate
this Congressional goal and has clearly exceeded its
statutory authority.
Turning to another major issue, TFI believes that,
despite some semantic confusion in the proposed regulations
between the terms "criteria for identifying hazardous
wastes" and "characteristics of hazardous wastes", EPA
-------
is now proposing to establish four criteria for
identifying hazardous wastes as that term is used
in RCRA:
1. Ignitability;
2. Corrosiveness;
3. Reactivity; and
4. Toxicity.
TFI's written comments discuss a number of issues raised
by these proposed criteria. Rather than discuss all
these issues now, I would like to concentrate on a very
serious problem concerning the hazardous waste lists
proposed by EPA. A considerable number of hazardous
wastes have been listed based on criteria other than
those proposed to be established at this time, including:
1. Radioactivity;
2. Bioaccumulation;
3. Presence of infectious agents;
4. Presence of toxic organic substances; and
5. Others
TFI believes that the listing of wastes as hazardous on the
basis of criteria which are not even proposed for adoption,
much less promulgated and effective, does violence to
the scheme envisioned by Congress. Under the Congressional
scheme, wastes are to be listed as hazardous only after
the criteria on the basis of which they are listed have
-------
been adopted subject to full public participation
and comment. TFI urges EPA to delete from the list
of hazardous wastes those wastes for which criteria
have not as yet even been proposed.
TFI also questions the manner in which EPA has
proposed to implement the provisions of §3001 of RCRA
concerning the identification of wastes which will be
subject to identification as hazardous. EPA has inter-
preted S3001 as providing two distinct mechanisms for
identifying hazardous wastes — listing by EPA and
determination by the individual waste generator that
his solid waste, although not listed by EPA, exhibits
certain characteristics determined by EPA to be hazardous.
The individual waste generator is required, by the
proposed regulations, to test his solid waste by prescribed
methods to determine if one of the hazardous characteristics
is present. TFI believes that this "self-testing" require-
ment is contrary to the provisions of RCRA and needlessly
complicates and confuses the RCRA regulatory program.
Furthermore, TFI believes the potential excessive costs
associated with the "self-testing" requirements have not
been adequately recognized or addressed by EPA.
The language of §3001 of RCRA contemplates a regulatory
process under which EPA develops and promulgates criteria
for identifying which wastes are to be treated as
hazardous. Following development and promulgation of such
-------
criteria, EPA is required to identify those wastes
which fit the hazardous criteria and specify the
characteristics of a given waste which causes it to
meet the criteria. The requirement that the characteristics
of hazardous wastes be specified is designed to ensure
that the basis for EPA's listing of a given waste as
hazardous is plainly stated so as to allow informed
public participation and proper judicial review. The
requirement was not contemplated by Congress as a separate
and additional method, over and above actual listing,
to identify and regulate hazardous waste. Indeed, the
legislative history of RCRA clearly sanctions the
regulatory process just outlined and provides no support
whatsoever for EPA's attempted expansion of that process
through imposition of waste generator "self-testing"
requirements.
Furthermore, the self-testing requirements inject
an undesirable uncertainty into the RCRA regulatory
program. Many of the characteristics of hazardous waste
proposed by EPA as the self-testing standards are vague,
general descriptions which are subject to differing
interpretations by differing individuals and under
differing physical conditions. It is improper to place
waste generators in jeopardy of criminal penalties on
the basis of such general and vague standards. TFI
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urges EPA to eliminate the self-testing requirements
and to make listing by EPA the sole method of deter-
ming which wastes are hazardous.
While further and more detailed discussions of the
issues I have raised are contained in TFI's written
comments, I hope that this statement will be of assistance
to EPA in identifying important issues and in developing
a sound, workable regulatory program under RCRA.
Once again, let me thank you for the opportunity
to present this statement.
Respectfully submitted,
Karl T. JohnBon
Vice President, Member Services
The Fertilizer Institute
1015 18th Street, N.W.
Washington, D.C. 20036
(202)466-2700
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41
j MS. FRIEDMAN: Thank you very much, Mr. Johnson.
Will you accept questions?
MR. JOHNSON: Yes.
O
MS. LINDSEY: Mr. Johnson, you discussed the word
to "de-list" these particular materials, page 58, line 58
. on the list, third, fourth and fifth products listed there.
0
Those particular materials were listed because they demonstrate
radioactivity — and specifically are delisted under Section
o
250.15 on an individual case by case, if they do not meet
these characteristics of points of concentration and so forth
Just as a matter of interest, does your Council believe that
12 the wastes which are listed do not fail these characteristics
,, or do you rather feel the characteristics which are listed
lo
under 250.15 for delisting, that those levels are not
hazardous?
16 MR. JOHNSON: The answer to the first part of it,
are some of them failed of the tests or do they pass those
tests, I think we find that there is a wide range of levels
lo
19 which the materials will exhibit in regard to that criteria,
20 that characteristic.
21 So it's hard to say on a broad basis whether they
„„ categorically do or do not meet it. In regard to the questior
23 of hazard, I think I would like to defer that to your other
24 experts later in the program who will be testifying on that
25 particular issue. Our main thrust is that these, by EPA's owr
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42
admission, have a very low potential for hazard and there are
substantial quantities which we believe are not envisioned foi
coverage under RCRA by the Congress or the EPA in its earlier
work.
4
MR. STRAWS: Mr. Johnson, you said there is a wide
range of levels as to whether these wastes will fail the
6
charcteristics which are listed. Do you know if companies
have tested any of these tests to find if they meet the
8
characteristics and if so could that data be available to us?
MR. JOHNSON: Well, there has been extensive testinq
10
by the Environmental Protection Agency itself, probably by
this time millions of dollars. So that it is well documented
12
as to the levels that have been found by the agency and I
13
think this has been corroborated by independent studies of the
industry.
15
MS. SCHAFFER: Mr. Johnson, a point of clarification
16
You said on the last point you made concerning generator
self-testing, were you specifically talking about testing to
determine whether the waste is hazardous or self-monitoring
2Q testing?
MR. JOHNSON: Testing to determine whether the waste
is hazardous.
22
MS. SCHAFFER: Thank you.
MS. FRIEDMAN: Thank you very much, Mr. Johnson.
Our next listed speaker is Mr. Arnold Schiffman.
25
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19
43
STATEMENT OF ARNOLD SCHIFFMAN, WATER
RESOURCES ADMINISTRATION, STATE
DEPARTMENT OF NATURAL RESOURCES
1 RESOURCES ADMINISTRATION, STATE OF MARYLAND
2
MR. SCHIFFMAN: My name is Arnold Schiffman, Mary-
3
4 land Department of Water Resources.
Maryland has had a — program similar to the — Act
5
for a couple of years now, being implemented. I am going to
comment on these regulations today. First of all, I'd like
to note that they are highly complex. The various sections ar«
closely related, and it would be very difficult to discuss
them independently.
In addition, the limited time for this presentation
means that I'll be commenting mainly on the negative aspects
of the regulations. I mention that because there are a lot of
positive aspects also.
,, In order to tie these three days of hearings
1O
together, I will concentrate my discussion on a single theme.
I believe that through these proposed regulations, EPA has
set up an iron man that will knock down the hazardous waste
program.
20 The main problem is not so much technical, but a
policy issue of EPA to reject the approach of varying the
degree of regulation and protection to the degree of hazard
„, or risk. In taking this approach, EPA has created a set of
24 regulations that are both too stringent to work and inadequat*
to protect the public health and the environment, the worst
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44
of all possible worlds. The world of hazardous wastes is one
2
of degree of risk. There is no question that it is technically
3 difficul- to set up different standards for different wastes.
However, our experience in Maryland has shown that differences
must be recognized in order to administer the program and
6 make it work.
Successful administration of the program requires
that the punishment fit the crime. It's a type of decision
that is very difficult to live with but it's a type of
10 decision that you really cannot live without. I'll try to
make my case by showing how the policy of relatively thick
standards for a broad spectrum of wastes is the main reason
by major parts of these regulations are technically
indefensible and unworkable.
I want to emphasize that I'm discussing all regula-
.„ tions and the ground rules here are I'm going to have to do
ID
it in pieces. So as I go on I'll have to say tune in tomorro*
for the rest of the story.
15
My first example with Section 3001 is the extractior
19
procedure as a part of the toxicity determination or identifi-
cation of hazardous wastes. As set out, this technique
provides one of the main ways that a waste is classified as
23 hazardous. This is a critical determination, requiring
24 dependable assumptions or procedures. I feel the extraction
„. procedure does not measure up to that.
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45
j First, the ground water models permitted guesswork.
It ignores ground water discharge to streams,is inconsistent
with the requirement to protect ground water from endanger-
ment, pursuant to the provisions of the Safe Drinking Water
Act, and implies pollution is the solution to pollution.
There are no data as to the reproduceability of
D
the EP procedure nor it's applicability to a real landfill
environment. Use of the drinking water standards, time
standards and measure of toxicity is not really valid. The
report by the National Academy of Sciences on drinking water
and health shows that the limits for inorganic parameters have
different factors of safety for lack of a better word. In
3 other words, known health effect level is some multiple of
14 the drinking water standard.
For example, the standard for lead may be too high
by a factor ot two. While the value for chromium may be
too low by a factor of 100. Therefore multiplying by 10
times, you are off either way you go.
18
However, probably the real problem that I have is
20 that a key drinking water standard is omitted. It's not the -orjly
21 one, but I think' it' s a'key one. The standard is the one for
22 nitrate, at 10 milligrams per litre. There is no safety
23 factor for nitrate. That standard is a known health effect
24 level.
25 I can understand the political or other word you
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15
46
want to use reasons for leaving out nitrate. The overall
rigidity of these regulations makes this omission almost
mandatory. I cannot understand what is the apparent technical
reason for the omission. A key assumption in EPA's use of
drinking water standards is that of chronic toxicity,-chronic
toxicity. Nitrate is not believed to exhibit chronic
toxicity. Toxicity is acute. It kills babies. Using this
rationale to leave out nitrate is indeed a pernicious argument
unworthy of EPA.
I hope there is some other explanation for that
u other than the one I just gave you.
12 The unfortunate thing is that the concept of an
extraction procedure is needed, not to determine whether a
lo
waste is to-be regulated, but how it's to be regulated,
leaching characteristics of a waste are -' important guides for
designing landfulls and waste handling methods. Used in this
7 manner, is it not too important as to whether an extract has
0.50 milligrams per litre of lead, or 0.51 milligrams per
lo
g litre lead.
On the other hand, under the procedure EPA has set
21 up, small differences in contaminants in an extract make a.
22 big difference in determining whether or not a waste is to be
„„ regulated. And big differences equal regulation, economic
24 impact, et cetera.
25 Another problem under Section 3001 regulation is the
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47
exemption for sewage sludge. I'm not saying that sewage
sludge should not be exempt. We have enough sludge disposal
g problems without the additional burden of these regulations
4 And that's the problem. The regulations. Sewage sludge will
.. largely be handled by the municipal discharge requirement
O
program under the Clean Water Act. A program that is not
noted for successful enforcement against municipalities.
To make matters worse, publicly owned treatment
works are defined to exclude federally or privately owned
sewage treatment plants. Thus we'll have a situation where
u like and sometimes identical hazardous wastes are regulated
12 under two different procedures. One very complicated and
13 rigid, RCRA, the other of questionable effectiveness.
u The consequences of this are predictable. I'm afraid we'd
16 start driving wastes towards the area of least regulation of
16 sewage treatment plants, in spite of the pretreatment program
As EPA stated in their 1970 report to Congress,
aa hazardous waste rule was needed to close the circle on
waste disposal and control land pollution as well as air and
water pollution. I'm afraid the circle has been closed all
21 right, now close the loophole. The general thrust of the
22 Section 3001 regulations for ocverage of a fourth center of
23 waste I feel is correct, absolutely correct. We need to get
24 the manifest system going, we need to start tracking these
25 things to find out what we are really look at, see a-ditional
-------
4
48
estimates of quantities, et cetera. We've started the system,
we find out the real world's a lot different. However, the
potentially severe economic effect of unflexible regulations
will cause industry to attack the soft underbelly of the law.
The word hazardous itself. I'm doing a li-tle predicting now.
I came in late, didn't hear what anybody else said. But I
feel an irresistable argument will be made to regulate only
hte "most hazardous" wastes.
From what I see, there generally appears to be an
inverse relationship between the degree of hazard and the
significance in terms of quantity as a waste. In this
country, because of various laws we have, we're tending to
ban or restrict the use, distribution, or whatever, of the
most dangerous materials. We'll probably always have waste
gasses,. I guess, and except for the James River, I don't
think we'll have much keypone waste.
In short, actions to restrict a number of waste
products or exempt certain quantities, simply because the
regulations are unusable, does not serve the purpose of
Subtitle C of RCRA.
And I want to emphasize this point. You're dealing
with a/broad term, the term "hazardous." I'd like to say
when the hazardous waste laws were passed, at the state and
federal level, they all came with a curse, the curse of the
word "hazardous." It's very easy to attack the definitions
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49
in the terms and to say regulate this, don't regulate that.
2
1
In truth, we need to some degree or another to find out
what it is, make sure where it's going. That's as a minimum.
3
And to make arguments to exempt things because of other
4
factors in the regulation that might be serious but you're
5
making it impossible for somebody to dispose of their waste,
doesn't solve the problem.
I'm saying economic impact is a function of the
way the regulations are written and not to start giving
exemptions based on arguments as to the unworkability of the
regulations. Make the regulations workable and include
the broad spectrum of wastes.
I'll continue tomorrow on the same theme, that the c
lo
cision to have relatively uniform quantities for all hazardous
wastes regardless of degree of risk, causes moreproblems
15
than it's worth.
16
MS. FRIEDMAN: Thank you, Mr. Schiffman. Would you
entertain questions from the panel?
18
MR. SCHIFFMAN: Sure.
2Q MR. LINDSEY: You said that you felt that wastes
would be driven to publically owned treatment plants. With
the treatment standards that will bein place I wonder how
you would see that as being an effect, if you will, of a
rather stringent set of standards.
MR. SCHIFFMAN: What I'm saying is thi-s. -That if
25
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50
the pre-treatment standards are not as rigorous as the RCRA
2 standards, and the RCRA standards, as you'll go through these
„ hearings, I think there are some real difficulties in certain
4 issues such as available capacity of the site.
. If they're not as stringent, many municipalities
0
serve industries. The enforcement is going to be on the
municipal level, largely. There's going to be a. lot of
pressure built up, in terms of what's permissible, what's not
permissible.
10 There's going to be things such as credits, what the
n sewage treatment plant removes. The main issue of the
12 sewage treatment sludge itself, how much is EPA going to
13 restrict waste going into sewage treatment plants, based on
14 the "usability" of the sludge. What if sludge is incinerated?
,, All right? Where does the usability factor come in? Except,
Jo
I guess, for the residue, which may or may not be a hazardous
17
,_ There's a problem. What I'm looking at, I'm lookinc
18 *•
9 at a different program. In Maryland I have the responsibility
for both, and I see differences in implementation. That's
21
22 What I'm saying to EPA is, if you're going to
2g exempt sewage sludge, make damn sure that the pretreatment
24 program is as rigorously enforced, and if there is an
institutional framework, make it equivalent, that's all.
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51
MR. LINDSEY: You're making the case then, that
we heard from,Representative Gore'earlier, that'we:should not
exempt sewage sludge if it is a hazardous waste, at least
not exempt them from these regulations, or handle them under
4005.
MR. SCHIFPMAN: I don't disagree with the exemption,
per se. There's some logic problems in it. I can't defend
the exemption logically.
Maryland has certain unique problems with handling
the sewage sludge and disposal. All 1 need to do is to give
that the title of "hazardous" and — I don't know what would
happen. And that's not a good defense for exempting. All
I'm saying, I'm saying there are practical reasons and I
think a few are defensible practical reasons.
MR. LINDSEY: Let me change the subject briefly
here if we could and get to something that's — we've heard a
number of people suggest that we should be regulating on
degree of hazard rather than on flexibility of disposal. If
we were to set up some kind of regulation, which I think
everybody agrees is very difficult to do, based, categorizing
wastes by different degree of hazards, I think that
presupposes that once we have done this categorization that
we're going to treat each one of these categories somewhat
differently. Maybe drop the manifests for some of them or
maybe have different classifications as well of disposal
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52
j facilities.
Can you comment on Maryland's approach to doing thai?
And how successful that's been?
4 MR. SCHIFFMAN: Yes., and —
MR. LINDSEY: In other words, what do you do — I
guess the question I have is what do you do differently, once
b
you've categorized wastes into different categories of
hazard level?
o
9 MR. SCHIFFMAN: All right. The answer to your
question is that our program seems to be working. And the
reason it seems to be working is that most people have an
12 intuitive feel as of degrees of risks, all right? And we
13 haven't had too much objection from the people being regulated.
I
14 Mainly, because we've only instituted what basically is a
15 manifest tracking system and have not put the crunch or
squeeze on disposal aspects yet.
We're operating under the interim premises where
there are virtually little requirements for disposal. There
lo
are very few disposal facilities. We're mainly interested in
keeping track.
Now there are certain things that are obviously
22 for political and also for technical reasons extremely
risky and dangerous. There are some of the things you can
point out. There's no way that you can take broad steps to
replace and classify each one, that's impossible to do. In
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53
terms of degree of risk. What you end up with is a small
list of really bad things. That you can get done. We have
advisory committees and councils who give us advice on that.
And a broad spectrum of everything else, all right?
And because we have that, we have cost factors
involved, too. We have found that the industries are not, do
not object too much to the tracking system, to the controls,
'to the state's fees, as long as they have a place to take
their waste.
And by putting it in categories of Class 1, 2 and
3, which we've done, which is perfectly arbitrary, frankly,
we've enabled us to say well, this classification has minimum
controls. The minimum controls basically is the manifest.
These other type categories have more stringent controls. To
be frank, we found out that as one would expect that most of
the wastes we're dealing with are in our lowest category.
One, precipitate and sludges, things like that. Maryland has
large quantities of waste chrome. We handle that a little
bit differently. We adjust the facility design to that. But
that's a fairly unique situation.
I really can't predict what's going to happen when
the crunch comes on the actual permitting of the facilities.
As far as dealing with the generators, and the
manifest system, not too much of a problem. I guess the real
issue is that you can't defend a classification system. You
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54
also can't defend an unclassification system. And all I can
say is, it works. And it works mainly because people don't
object too strenuously to it.
4 MR. LINDSEY: Are you going to classify as sludges
and handle -different classes of wastes —
6
MR. SCHIFFMAN: We're already done that to a degree.
7 Obviously in the rural areas you have hazardous waste
8 generators, small ones. Transportation is a big issue. So
we've had a policy of permitting conventional municipal refuse
lfl landfills, your so-called Subtitle D ones. We try to get one
in each county, so to speak, and if you look at hazardous wastes
as a class, treating them all the same, you know, again, we
13 have problems. I'm starting to discuss other parts of the
regulation .
But if you look at them as all having to go to
certain types of places, we've basically said they can go to
17 this other type of place, because it's close and we want tj
lg have it. And even then, we've met resistance from the people
who own those facilities in terms of taking anything. But
we've kind of forced the issue. I won't put it into detail
how we forced it now, but we forced the issue, to require thai
moderate quantities can go to other types of facilities other
23 than our very few, main industrial ant hills. So you have
,4 to — there's a difference. These type of wastes can go here,
those type of wastes can go there. Don't ask me for the
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IB
s 2A
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
55
gomplete justification how I make those decisions, because I
really can't give you one. We make it on a practical
basis. We have to have the wastes go somewhere and in order
to get my manifest system working, I need a permit on the
facility, we also permit the haulers, and I need to track the
generators. So I have to give it the facility permit to get
the manifest system working.
So, I'm so anxious to get that working, I do
almost anything to permit these facilities and get them under
the system.
MS. FRIEDMAN: Thank you very much, Mr.
Schiffman.
Our next speaker will be Doctor Stacy Daniels.
STATEMENT OF DR. STACY L. DANIELS, HEALTH
AND ENVIRONMENTAL SCIENCES DEPARTMENT,
DOW CHEMICAL U.S.A.
DR. DANIELS: Thank you for your indulgence, Ms.
Chairman, for letting me come on early. After waiting 12
hours to leave St. Louis' hearing and 48 hours for this one
to begin, I think patience should be added as a characteristic
of hazard.
I am Dr. Stacy L. Daniels, Research Specialist in
Environmental Sciences in the Health and Environmental
Sciences Department of Dow Chemical U.S.A. As Chairman of
our corporate RCRA Task Force, I wish to summarize our concerns
in response to the Agency's solicitations for comments
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56
specific to the issues raised by the Agency in the Proposed
2 Identification and Listing of Hazardous Wastes in Subpart A,
3 the associated ANPR and the pertinent background documents.
In the interest of time I have summarized our
. major concerns regarding the interpretation of hazard,
6 hazardous waste characteristics, hazardous waste lists, and
- demonstration of non-inclusion, that is, delisting.
„ I believe the interpretation of what actually
constitutes a hazardous waste is the most critical decision
10 facing the Agency in the entire set of regulations. If
characteristics of hazard, specific listings, and testing
12 protocols are literally interpreted and then adopted as
presently proposed without considering degree of hazard, we
are concerned that essentially all solid wastes in many
industrial and municipal sectors will be overclassified as
19
,„ hazardous.
lb
17 The total volume of such wastes may be beyond the
18
total economically available disposal capacity.
19 With regard to other discarded materials, we agree
with the Agency that materials which contain material
constituents that are recoverable by subsequent processing
22 definitely should not be classified as wastes. A material
23 only becomes a waste when it no longer has economic value as
24 a recoverable material and is truly discarded.
25 We agree with the agency that used solvesnt sent to
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1
57
a solvent reclaiming facility, empty drums being delivered
for reconditioning and reuse and production residues and
chemical intermediates prepared for further processing or in
the process of being recycled are not discarded materials.
, We strongly disagree with the Agency, however,that
0
„ "waste" oil burned as a fuel is a discarded material as
b
interpreted within the RCRA. The recoveries of both energy
and material values from used materials are equally important
to our national economy and are major objectives of the RCRA.
j It is our position that materials used as sources of energy
should not be considered discarded materials and should be
specifically excluded from these regulations. Incineration
of truly discarded materials which are deemed to be hazardous
lo
are covered elsewhere within Subpart D.
We recommend therefore that any material burned for
energy recovery should not be considered as a discarded material
and should not be subject to the regulations.
10 The Agency has also considered other discarded
lo
material, which is reused by placement into or on the land
or water so that any constituent thereof may enter the
21 environment. We agree with the agency on this view, on the
22 control of dispersive reuses of discarded materials, only if
2g it is limited to those truly hazardous constituents which
24 may cause adverse and irreversible effects in the environment.
25 We believe that the present interpretation of the
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58
j Agency is overly broad, however, and that certain commonly
2 practiced dispersive reuses are environmentally acceptable an<
3 that proven unacceptable uses could be better regulated
4 elsewhere.
We recommend that these acceptable dispersive
„ reuses of discarded materials be excluded from regulation
7 under RCRA.
„ Inherent in the Agency's interpretation of hazard
is the application of the worst-case scenario of improper
10 management. This assumes: unsegregated disposal of both
.. hazardous and nonhazardous solid wastes in an unlined
landfill which is subject to biological degradation producing
a leachate capable of migrating with only minimal attenuation
14 directly into an underlying aquifer which is an immediate
]5 source of drinking water.
We recommend that the Agency review the scenario
of improper waste management and adopt realistic characteris-
tics of hazard and realistic standards of performance for
]g proper management.
20 with regard to criteria of hazardous wastes, we
21 have several reservations concerning the various criteria
22 which are used in the development and refinement of the
23 candidate list of characteristics.
24 With regard to the selection of characteristics from
,5 the Act itself, we feel the Agency has confused characteristicl s
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59
of effect with characteristics of exposure. Hazard is a
2 combination of both exposure and effect, that,is, how much,
„ where and when, does what.
o
Physical, chemical, or infectious characteristics
are mentioned specifically within the Act, as are toxicity,
accumulation in tissue and other related factors such as
flammability and corrosiveness. These characteristics of effect
are considered by the Agency. Persistence and degradability
in nature also are specifically mentioned within the Act but
10 are generally ignored by the Agency.
u With regard to the use of damage cases for the
selection of characteristics, the Agency has relied upon several
hundred document incidents. Some of these incidents are valic
Id
14 cases of improper management of significant quantities of
15 recognized hazardous wastes adversely affecting human health
.„ and the environment,
ID
17 Many documented incidents, however, were the
18
direct result of human error or acts of God, or involved very
19 small or unknown quantities of uncharacterized waste
materials which produced limited or questionable damages.
j The Agency has repeatedly overstated the significance of
22 these cases.
23 With regard to the application of characteristics
from other regulations or recommendations, the Agency is
26 guilty of wholesale transfer of items which are specific to pi|re
-------
60
materials used for express purposes in media other than land
2 disposal. Characteristics of hazard are uniquely different
among air, water, wastewater, and land. They are not directly
o
transferrable in all cases because of different degradation
, and attenuation processes.
O
We recommend that the Agency restrict the choice
of charcteristics only to those applicable to solid wastes
and recognize that degradability of materials reduces hazard
potential.
10 We do not dispute the selections of ignitability,
corrosivity, and reactivity as valid characteristics of
effect. We do dispute, however, certain limits on these
characteristics as proposed by the Agency.
io
We disagree that wastes are subject to much higher
temperatures than transported articles of commerce having
similar physical characteristics. The converse is true when
17 wastes are diluted with water, mixed with inert solids, or
,. covered with soil.
10
We also feel that the conservative limits of pH
defining corrosivity are arbitrary, and are not fully
substantiated by the damage cases or prior state regulations
22
cited in the background document. Slight adjustments at either
end of the pH range would exclude many common materials while
LO
24 retaining sufficient protection. We do support the prose
definition of reactivity which provides flexibiltiy in
-------
61
judgment and selection of test protocols.
We recommend therefore the following modifications.
3 The flash point of a flammable liquid should be less
than 100 degrees Fahrenheit, consistent with the DOT definiti
and, second, the limits of a corrosive waste should be
pH less than 2.0 and greater than pH 12.5
Toxicity is the single most controversial
characteristics in these regulations, for three reasons:
It requires an extraction procedure dependent upon the worst-
10 case scenario; it has promoted transfer of questionable
criteria from other media; and three, it is subject to
12 overly broad interprecation of related characteristics of
ig effect. The proposed liberal interpretation of toxicity in
the background document will lead to significant over-
. classification of many solid wastes as hazardous.
le The background complications of the extraction
17 procedure upon subsequent toxicity tests, has been widely
.„ confirmed.
io
19 We support the efforts of SBM in developing a more
20 meaningful test. We recommend that the extraction procedure
2] be modified to reflect real-life conditions of disposal by
22 using water as the leaching fluid.
23 The application of the interim primary drinking
water standards to extracts from solid wastes is improper, an
does not recognize differing degrees of effect of each
-------
62
individual component, as pointed out by the previous speaker,
2
and documented by the National Academy of Sciences. The
3
majority of the listings in the background document by
reason of toxicity are based on concentrations of components
5
only marginally greater than the conservative ten-fold factor
6
applied to the IPDWS, or are based on analysis of the total
waste and not the extractable and available portion.
8
Drinking water standards and water quality criteria
9
are not applicable, because they are not intended as
10
performance criteria and do not recognize site specificity of
disposal.
12
We recommend that the cnaracceristics of toxicity
13
be restricted to the results of actual bioassays of leachates,
of potentially hazardous wastes obtained under actual
conditions of disposal.
The Agency is correct in their assessment that
reliable testing protocols are not available for characteris-
18
tics other than the basic four, of ignitability, corrosivity,
19
reactivity to a limited degree, and to a limited degree,
20
toxicity. We are aware that the Agency is considering
21
additional characteristics in the ANPR for possible inclusion
22
in these regulations. It is our position that any additional
23
characteristics are unnecessary at the present time and are
24
unjustified for purposes of regulation of hazardous wastes as
25
intended by RCRA.
-------
63
We recommend that all candidate characteristics for
both listing and delisting of hazardous wastes be limited to
the basic four and that all others be deleted from the
o
present consideration.
The Agency has proposed lists of specific wastes,
5
sources and processes. The justifications are supposedly
6
contained within the 476-page background document. We suggest
that the Agency should reconsider its justification in at
least four specific areas: broadly interpreting "other
discarded material", arbitrarily excluding or including certain
u large volume, low-hazard waste sources, the application of
12 certain characteristics without acceptable testing protocols,
and listing specific processes for incorrect or marginally
justifiable reasons.
The list of hazardous wastes is vague and ambiguous.
This is true for the inclusion of several wastes, which I'll
ID
skip for the moment, they're in my written submittal.
Several of these are not justified and are — unnecessarily
lo
include many solid wastes which are degradable or inert, and
which can be adequately disposed of in a solid waste
21 management facility.
22
24
Specific hazardous components of these wastes are
not adequately addressed in the background document. Several
items are process-specific and could be consolidated
elsewhere in the listings.
-------
64
1 We recommend, therefore, that the listing of
2 specific hazardous wastes be restricted to those containing
scientifically recognizable components of proven hazard.
The interpretation of other discarded material
is not clearly evident from the list of specific hazardous
wastes. We object to the wholesale inclusion of all material
named specifically in the lists of pesticides; DOT poisons,
and particularly to the gross mis-use of "selected" priority
pollutants. The Agency has also incorporated a list of
10 controlled substances based on mutagenicity and a potential
u list of in excess of 10,000 or more toxic organics, in the
12 NIOSH Registry. Many of the materials contained within these
13 various lists have little likelihood of even being present
because of limited production or high value, have never been
15 detected in solid wastes, or have not been demonstrated to
16 constitute specific hazards even if present in solid wastes.
17 We recommend that the lists of specific components
lg of hazardous wastes be limited to major items with reasonable
probability of presence in solid wastes and which meet
20 criteria for hazard,including both effect and exposure.
21 The list of hazardous waste sources is generally
22 restricted to sources of potentially infectious wastes. The
23 inclusion of the CDC lists of etiological agents is an
unnecessary complication and does not distinguish truly
infectious agents from those which are attenuated strains of
-------
65
microorganisms used in vaccines, microorganisms commonly
found in nature, or other microorganisms used in testing
protocols proposed by the Agency. The exclusion 6 POTW
sludges from regulation under RCRA by the Agency is arbitrary
unless sludges from all wastewater treatment plants treating
5
6 sanitary sewage are excluded. Sludges from potable water
treatment plants regardless of source appear to remain
included.
o
We recommend that sludges from all water and waste-
water treatment plants be given equal consideration, regardless
of ownership.
The list of processes capable of producing potentially
,, hazardous wastes is broadly categorized by Standard Industrial
lo
Code. Several of these processes are incorrectly listed,
because of the suspected general presence of toxic components
which are reflective only of limited product lines or specific
lb
segments of large industries. Others are listed because of
cursory documentation of data from a few grab samples analyzed
10
19 for limited composition by EPA contractors.
„ Still others are included because the concentrations
2U
of certain metals found in limited samples exceeding lOx the
22 IPDWS values or the concentrations of certain organics are
above background levels.
In some cases, analyses were conducted on total
25 analyses or on extracts that were not obtained using the
-------
66
EP test protocol.
2 There are 46 entries listed for characteristics
3 for which acceptable test protocols are not available
a-cording to the Agency.
We recommend that the list of processes generating
hazardous wastes be reviewed and corrected. The Agency
7 should develop acceptable testing characteristics and then
g demonstrate that specific wastes meet these characteristics
before listing.
The Agency has developed a dichotomy in its
listing and delisting procedures. Testing for inclusion is
12 restricted to only four characteristics: ignitability,
13 corrosiveness, reactivity, and toxicity, for which specific
14 testing protocols were considered to be availble for verifi-
15 cation or refutation.
Testing for exclusion, however, also includes certaj
17 additional characteristics: mutagenicity, bioaccumulation an
lg toxic organic substance, for which specific test protocols
ig are unavailable or not validated by consensus standard
20 setting groups.
21 Mutagenic testing for pesticides for example, has
22 not been supported by the FIFRA Science Advisory Board.
23 We agree with the Agency that generators should be required tc
24 test for only those characteristics of their waste used for
25 purposes of inclusion on the lists, if substantiated. We
-------
67
object, however, to any such listings based on unsubstantiated
data or requiring unproven tests for demonstration of non-
inclusion. We believe the Agency is premature in prelisting
o
any wastes for reasons of the additional characteristics whict
are being considered within the ANPR.
o
. We recommend that all listings based solely on the
b
characteristics of mutagenicity, bioaccumulation,and toxic
organic substance be deferred until validated tests are
available and sound data bases are generated.
We further recommend that all listings and
deslitings be based upon similar tests and tests results.
We will provide detailed comments on specific
characteristics, listings, and testing protocols in our
written comments. We will also be providing an alternative
classification based on degree of hazard, to the Agency.
One final comment to be taken collectively by the
panel and the audience, if we take the hazard out of
hazardous waste, that leaves ous.and waste.
Thank you for the opportunity to summarize our
results.
(The full statement of Dr, Daniels follows.)
-------
-------
RESOURCE CONSERVATION AND RECOVERY ACT
Hazardous Waste Management
Comments on Section 3001 (Subpart A)
Identification and Listing of Hazardous Waste
by
Dow Chemical U.S.A.
to the
U.S. Environmental Protection Agency
Hazardous Waste Management Division
Office of Solid Waste
Public Meeting
Washington, D.C.
February 20, 1979
-------
Mr. Chairman, I am Dr. Stacy L. Daniels, Research Specialist
in Environmental Sciences in the Health and Environmental
Sciences Department of Dow Chemical U.S.A. As Chairman of
our corporate RCRA Task Force, I wish to summarize our con-
cerns in response to the Agency's solicitation for comments
specific to the issues raised by the Agency in the Proposed
Identification and Listing of Hazardous Waste of Subpart A
(43 FR 58946-9, 58949-68, December 18, 1978), the Advanced
Notice of Proposed Rulemaking (43 FR 59022-8), and the per-
tinent background documents (BD's 1-7).
We have worked closely with the Agency, and with various
trade associations, professional societies, and standard
setting groups, over the past two years to develop a con-
sistent set of meaningful regulations for hazardous waste
management that will provide adequate benefits in protec-
tion of public health and the environment from unreasonable
risks while demanding realistic expenditures of resources.
Toward this goal, we have provided comments pertaining to
all major aspects of the draft regulations and those pre-
viously proposed. Today we wish to summarize our major con-
cerns regarding: (1) interpretation of hazard, (2) hazardous
waste characteristics, (3) hazardous waste lists, and (4)
demonstration of non-inclusion (delisting).
-------
(1) Interpretation of Hazard
The interpretation of what actually constitutes a hazardous
waste is the most critical decision facing the Agency in the
entire set of regulations. If characteristics of hazard,
specific listings, and testing protocols are literally inter-
preted and then adopted as presently proposed without consid-
ering degree of hazard, we are concerned that essentially all
solid wastes in many industrial and municipal sectors will be
over class ified as hazardous. The total volume of such wastes
iy be beyond the total economically available disposal capacity.
ma
(a) Other Discarded Material
The Agency has interpreted "other discarded material" to mean
any material which is: (1) not reused, (2) reused as to con-
stitute disposal, or (3) a waste oil which is incinerated or
burned as a fuel. We agree with the Agency that materials
which contain material constituents that are recoverable by
subsequent processing definitely should not be classified as
wastes. A material only becomes a waste when it no longer has
economic value as a recoverable material and is truly discarded,
We agree with the Agency that used solvents sent to a solvent
reclaiming facility should not be considered discarded materials.
We also agree with the Agency that empty drums being delivered
for reconditioning and reuse should not be considered to be
-------
discarded. Production residues and chemical intermediates
prepared for further processing or in the process of being
recycled also are not discarded materials according to the
Agency and we agree.
We strongly disagree with the Agency, however, that "waste"
oil burned as a fuel is a discarded material as interpreted
within the RCRA. The recoveries of both energy and material
values from used materials are equally important to our na-
tional economy and are major objectives of the RCRA. It is
our position that materials used as sources of energy should
not be considered discarded materials and should be specifically
excluded from these regulations. Incineration of truly discarded
materials which are deemed to be hazardous are covered elswhere
within Subpart D (Section 3004).
We recommend that any material burned for energy recovery should
not be considered to be a discarded material and should not be
subject to regulation under RCRA.
The Agency has also considered other discarded material, which
is reused by placement into or on the land or water so that
any constituent thereof may enter the environment. This cate-
gory is to include dispersively reused materials as soil con-
ditioners, fertilizers, fill materials, dust suppressantrs, etc.
Waste oil was singled out for special treatment because of
purported adverse environmental effects.
-------
We agree with the Agency only if this view is restricted to
the control of dispersive reuses of discarded materials which,
because of hazardous constituents, may cause adverse and irre-
versible effects in the environment. He believe that the inter-
pretation of the Agency is overly broad, however, and that cer-
tain commonly practiced dispersive reuses are environmentally
acceptable and that provenr unacceptable uses could be better
regulated elsewhere.
We recommend that accepted dispersive reuses of discarded
materials be excluded from regulation under RCRA.
(b) Worst-Case Scenario
Inherent in the Agency's interpretation of hazard is the
application of the worst-case scenario of improper manage-
ment to all discarded materials. This assumes: unsegregated
disposal of both hazardous and nonhazardous solid wastes in
an unlined landfill which is subject to biological degradation
producing a leachate capable of migrating with only minimal
attunuation directly into an underlying aquifer which is an
immediate source of drinking water. This is clearly not the
intent of Congress, who recognized that there are varying
degrees of hazard. Hazard is a function of characteristics
of both effect and exposure.
-------
Acceptance by the Agency of the supposed needs for manifesting!
the selection of an acid extraction procedure, and the specifi-
cation of strict operational guidelines for HWM facilities are
evident throughout the regulations. These are the major con-
tributory factors to over-classification of wastes and over-
specification of facilities.
We recommend that the Agency review the scenario of improper
hazardous waste management and adopt realistic characteristics
of hazard and realistic standards of performance for proper
management.
-------
(2 ) Hazardous Haste Characteristics
(a) Criteria
We have several -reservations concerning the various criteria
used by the Agency in developing and refining the candidate
list of characteristics.
With regard to the selection of characteristics from the Act
itself, we feel the Agency has confused characteristics of
effect with characteristics of exposure. Hazard is a combi-
nation of both exposure and effect, i.e. how much where and
when, does^r what. Physical, chemical, or infectious charact-
eristics are mentioned specificaaly within the Act, as are
toxicity, accumulation in tissue, and other related factors
such as flammability and corrosiveness. These characteristics
of effect are considered by the Agency. Persistence and degra-
ability in nature also are specifically mentioned within the
Act but are generally ignored by the Agency.
With regard to the use of damage cases for selection of char-
acteristics , the Agency has relied upon several hundred docu-
mented incidents. Some of these incidents are valid cases of
improper management of significant quantities of recognized
hazardous wastes adversely affecting human health and the envi-
ronment. Many documented incidents, however, were the direct
result of human error or acts of God, or involved very small
-------
or unknown quantities of uncharacterized waste materials which
produced limited or questionable damages. The Agency has
repeatedly overstated the significance of these cases.
With regard to the applicability of characteristics from other
regulations or recommendations, the Agency is guilty of whole-
sale transfer of items which are specific to pure materials
used for express purposes in media other than land disposal.
Characteristics of hazard are uniquely different among air,
water, wastewater, and land. They are not directly transfer-
rable in all cases because of different degradation and atten-
uation.
We recommend that the Agency restrict the choice of char-
acteristics to only those applicable to solid wastes and
recognize that degradability of materials reduces hazard
potential.
(b) Candidate Characteristics
We do not dispute the selections of ignitability, corro-
sivity, and reactivity as valid characteristics of effect.
We do dispute, however, certain limits on these characteristics
proposed by the Agency. We disagree that wastes are subject
to much higher temperatures than transported articles of commerce
having similar physical properties (BD-1). The converse is
true when wastes are diluted with water, mixed with inert solids,
or covered with soil, etc. We also feel that the conservative
-------
limits of pH defining corrosivity are arbitrary, and are not
fully substantiated by the damage cases or prior state regu-
lations cited in the background document (BD-2). Slight
adjustments at either end of the pH range would exclude many
common materials while retaining sufficient protection. We
do support the prose definition of reactivity (BD-3) which
provides flexibility in judgement and selection of test pro-
tocols.
We recommend the following modifications: (a) the flash
point of a flammable liquid should be <100°F consistent
with the DOT definition and (b) the limits of a corrosive
waste should be pH < 2. 0 and pH>12.5.
(c) Toxicity
Toxicity is the single most controversial characteristic
in these regulations for three reasons: (1) it requires an
extraction procedure dependent upon the worst-case scenario,
(2) it has promoted transfer of questionable criteria from
other media, and (3) it is subject to overly broad interpretation
of related characteristics of effect. The proposed liberal
interpretation of toxicity (BD-4) will lead to significant
overclassification of many solid wastes as hazardous.
The extraction procedure used to obtain fluid for toxicity
evaluation is unrealistic and is based on the assumption of
-------
unsegregated disposal by landfill of a hazardous waste with
a degradable solid waste producing conditions of low pH and
leaching of toxic components. This is not the case in the
majority of industrial landfills which are segregated and
stabilized. The background complications of the extractant
upon subsequent toxicity tests has been widely confirmed.
tfe recommend that the extraction procedure be modified to
reflect real-life conditions of disposal by using water as
the leaching fluid.
The application of the interim primary drinking water standards
(IPDWS) to extracts from solid waste is improper and does not
recognize differing degrees of effect by each individual com-
ponent. The majority of the listings (BD-5) by reason of toxi-
city are based on concentrations of components only marginally
greater than the conservative ten-fold factor applied to the
IPDWS, or are based on analysis of the total waste and not
the extractable and available portion. Drinking water stand-
ards and water quality criteria are not applicable because 1;hey
are not intended as performance criteria and do not recognize
site specificity of disposal.
We recommend that the characteristic of toxicity be restricted
to the results of actual bioassays of leachates of potentially
hazardous wastes obtained under actual conditions of disposal.
-------
(d) Other Characteristics
The Agency is correct in their assessment that reliable
testing protocols are not available for characteristics
other than the basic four: (1) ignitability, (2) corro-
sivity, (3) reactivity, to a limited degree, (4) and toxicity.
We are aware that the Agency is considering additional char-
acteristics in the ANPR for possible inclusion in these regu-
lations. There is no precedent for arbitrary inclusion of
characteristics from all air, water, or wastewater laws other
than for specific materials. It is our position that any
additional characteristics are unnecessary at the present time
and are unjustified for purposes of regulation of hazardous
wastes as intended by RCRA.
We recommend that all candidate characteristics for both listing
and delisting of hazardous wastes be limited to the basic four
and that all others be deleted from present consideration.
-------
(3) Hazardous Waste Lists
The Agency has proposed listings in three categories: (1)
specific hazardous wastes, (2) specific hazardous waste
sources, and (3) specific processes capable of producing
potentially hazardous wastes. The justifications are suppos-
edly contained within a t76-page background document. We
suggest that the Agency should reconsider its justification in
at least four specific areas: (1) broadly interpreted "other
discarded material", (2) arbitrary excluded or included certain
large volume, low-hazard waste sources, (3) applied certain
characteristics without acceptable testing protocols, and (4)
listed specific processes for incorrect or marginally justifiable
reasons.
(a) Specific Hazardous Wastes
The list of hazardous wastes [250.1t(a)] is vague and ambiguous.
This is true for the inclusion of "waste chlorinated hydrocarbons
(I.T.O)", "non-halogenated solvents (1,0)", "waste oils (T,0)",
"water-borne paint wastes (T)", "solvents and solvent recovery
still bottoms (I and/or 0)", and particularly for "leachate
from hazardous waste landfills (T,0,M,B)". We contend that
these arbitrary listings are not justified and unnecessarily
include many solid wastes which are degradable or inert, and
which can be adequately disposed of in a solid waste management
(400t) facility. Specific hazardous components of these wastes
-------
are not adequately addressed in the background document. Several,
items are process-specific and could be consolidated elsewhere
in the listings.
We recommend that the listing of specific hazardous wastes
be restricted to those containing scientifically recogniz-
able components of proven hazard.
The interpretation of other discarded material [250.10(b)]
is not clearly evident from the list of specific hazardous
wastes. We object to the wholesale inclusion of all materials
named specifically in the lists of pesticides; DOT poisons,
A or B, or ORM-A materials; and particularly to the gross mis-
use of "selected" priority pollutants. The Agency has also
incorporated a list of controlled substances based on muta-
genicity (K) and a potential list of >10,000 or more toxic
organics (0). Many of the materials contained within these
various lists: (a) have little likelihood of even being present
because of limited production or high value, (b) have never
been detected in solid wastes, or (c) have not been demonstrated
to constitute specific hazards even if present in solid wastes.
We recommend that the lists of specific components of hazardous
wastes be limited to major items with reasonable probability
of presence in solid wastes and which meet criteria for hazard,
including both effect and exposure.
-------
(b) Hazardous Waste Sources
The list of hazardous waste sources [250.m(b)(D] is gener-
ally restricted to sources of potentially infectious wastes.
The inclusion of the CDC lists of etiologic agents is an
unnecessary complication and does not distinguish truly infec-
tious agents from: (a) attenuated strains of microorganisms
used in vaccines, (b) microorganisms commonly found in nature,
or (c) other microorganisms used in testing protocols proposed
by the Agency. The exclusion of POTW sludges from regulation
under RCRA by the Agency is arbitrary unless sludges from all
wastewater treatment plants treating sanitary sewage are excluded.
Sludges from potable water treatment plants regardless of source
appear to remain included.
We recommend that sludges from all water and wastewater treat-
ment plants be given equal consideration regardless of ownership.
(c) Processes Generating Hazardous Wastes
The list of processes capable of producing potentially hazardous
wastes [250.m(b) (2)] is broadly categorized by Standard Indus-
trial Code (SIC). The process listing contains 110 entries con-
centrated in only I1* SIC's. A total of 46 entries are included
because of an 0, H, or B designation; a total of 75 entries are
included because of a T designation. The bulk of the background
document (BD-5) is the supposed justification for inclusion of
-------
these 126 processes. Several of these processes are incorrectly
listed because of the suspected general presence of toxic com-
ponents which are reflective only of limited product lines or
specific segments of large industries. Others are listed because
of cursory documentation of data for a few grab samples analyzed
for limited composition by EPA contractors. Still others are
included because the concentrations of certain metals found in
limited samples exceed lOx the IPDWS values or the concentrations
of certain organics are above background levels. In some cases,
analyses were conducted on total samples or on extracts that
were not obtained using the proposed EP test protocol.
There are 46 entries listed for characteristics for which accep-
table test protocols are not available according to the Agency.
We recommend that the list of processes generating hazardous
wastes be reviewed and corrected. The Agency should develop
acceptable testing criteria and then demonstrate that specific
wastes meet these criteria before listing.
-------
(4) Demonstration of Non-Inclusion
The Agency has developed their listing of specific hazardous
wastes, sources, and processes based on one or more selected
characteristics. The Agency, however, has developed a dicho-
tomy in its listing and delisting procedures. Testing for
inclusion is restricted to only four characteristics [ignita-
bility (I), corrosiveness (C), reactivity (R), and toxicity (T)]
for which specific testing protocols were considered to be avail-
able for verification or refutation. Testing for exclusion,
however, also includes certain additional characteristics
Cmutagenicity (M), bioaccumulation (B), and toxic organic
substance (0)] for which specific testing protocols are unavail-
able or not validated by consensus standard setting groups.
We agree with the Agency that generators should be require to
test for only those characteristics of their waste used for
purposes of inclusion on the lists. We object, however, to any
such listings based upon unsubstantiated data or requiring
unproven tests for demonstration of non-inclusion. We believe
the Agency is premature in prelisting any wastes for reasons
of characteristics being considered within the ANPR.
We recommend that all listings based solely on the character-
istics of mutagenieity, bioaccumulation, and toxic organic
substance (M,B,0) be deferred until validated tests are
available and sound data bases are generated.
-------
We further recommend that all listings and delistings be
based upon similar tests and tests results.
We will provide detailed comments on specific characteristics,
listings, and testing protocols in our written comments. Thank
you for the opportunity to summarize our concerns.
REFERENCE:
1. Daniels, S. L., (Dow Chemical U.S.A., Environmental Sciences
Research Laboratory), General Comments on Hazardous Waste
Management, to U.S. EPA, public hearing, St. Louis, MO,
February 14, 1979.
-------
63
j MS. FRIEDMAN: Thank you very much, Dr. Daniels.
2 Dr. Daniels, will you take questions from the panel?
, DR. DANIELS: Certainly.
O
MR. LINDSEY: Dr. Daniels, one of the objections
which you had was to our not including waste oil which is
5
. burned in boilers, et cetera, as a recycled waste, in other
b
words, subject to the exclusion of the control mechanism for
recycled wastes.
8
A problem which we have here is that waste oil,
particularly crank case oil, which contains large amounts of
heavy metals, which I'm sure you're aware of, and other
materials as well, frequently are blended or sold directly
for burning in school boilers and other places 1-ke that.
My concern was that if we didn't, that without control, this
might be a major problem.
We do have a mechanism in here whereby the burning
16
of these kinds of wastes and industrial boilers and so forth
can be taken care of simply through the permit mechanism.
I wonder, I guess my question is, if we do not control the us<:
of waste oil, or simply burning it in boilers is what I am
talking about, the less sophisticated kinds of boilers,
like school boilers and so on, do you feel that that's not
going to be a problem or is there some other way we can
control this in your opinion or do we need to control it?
DR. DANIELS: I think you're justified in controlling
-------
69
the dispersive uses such as spreading it on rollers
indiscriminately and things like this but I think there's
, too broad a classification of the waste oils, presently,
6
whether they're animal, vegetable or mineral, at this point ir
time, to be considered to be wastes. I think this should be
clarified a little bit.
b
MR. LINDSEY: Suppose we were to say, waste crankcas
oil for example is just one category, and limit reuse of that
or control the reuse of that. Making use require a permit.
Would that be unsuitable?
DR. DANIELS: That could be a possibility. The
waste oils that I'm thinking of are generally ones that are
not really connected with engine maintenance and things like
14
MR. LINDSEY: You say —
lo
DR. DANIELS: — the semantic interpretation of
ID
what constitutes a waste oil.
lg MR. LINDSEY: Okay. Another thing that you
discussed was the — what you felt was the lack of suitability
2Q I guess of our screening method, I'll call it that, the
scenario we use for determining which wastes are in the
system and which aren't, which as I think you pointed out is
23 based on the potential for wastes to leach readily into the
24 ground water, and ground water being the — used directly.
The whole purpose of 3001 regulations is to be used, including
-------
70
extraction procedures and so forth, is to be used to determine
2 whether or not wastes should be controlled, as opposed to whether
or not the specific method which is being proposed for use
with the waste is actually a problem or not.
A problem I guess we have with not using a
screening method such as the extraction procedure is that—
let me change that. Our approach here is to try to determine
under which conditions or what is reasonably likely to
happen to wastes if they are not controlled, that is, if they
do not enter the system, and that of course is the use of
this scenario, in other words. Our idea here is that if
wastes are not in the system, a considerable amount of them
will become into sanitary landfills, and surface dumps if
you will, and thus the materials will be available to the
environment.
I guess if we don't use such a scenario, such a
16
screening technique, I'm wondering — it seems to me we will
be running a risk then of not getting materials into the
lo
system that perhaps should be.
Do you have any further comment on that?
DR. DANIELS: I'm not opposed to screening
techniques as such, but I think that there should be a
„, series of these so that you have the greater opportunity to
iO
24
put less hazardous wastes into 4004 facilities, recognizing
26 these schemes of degree of hazard, a water extract, possibly
-------
71
followed by a more extensive acid extract for those that are
truly going to a mixed facility. But for monolandfills that
are exclusively industrial, with stabilized wastes that are
biologically stable I don't think that is necessary.
MR. LINDSEY: Let's pursue that a little bit.
Would a possible suggestion then be that we may have to
extracting solutions of water and the acid solution as we
have now. If it fails the water test it would always be
hazardous and it failed the acid test then it would be
4
9
hazardous to send to a municipal landfill. Is that the--way
you would see it?
DR. DANIELS: You would essentially get that — you
would have a choice more than just saying an either/or.
You would have a facility for the truly hazardous wastes
that would be a very securely controlled 3004 facility, and
then based on quantities of generation you would be excluded
in 4004. There are wastes that are more hazardous than for
instance the 100 kilograms per month levels and there are
others that are less.
MR. LINDSEY: Would that be ~
DR. DANIELS: And there need to be —
MR. LINDSEY: — would that be sufficient
categorization of wastes on the basis of hazard? Such a
steam effect?
DR. DANIELS: That would be a start, but you also
-------
72
have to recognize the characteristics of the effect and
exposure. That's part of the exposure part, when you're
g doing the extraction, the availability portion. Bioaccumula-
tion is the second and the degradability which is not
considered except as an out on the bioaccumulation test is
a third area of exposure.
MS. STRAWS: Dr. Daniels, you had indicated in your
testimony that the extraction procedure should be modified to
reflect real-life conditions, and that is instead of using thi:
lfl acetic acid use water as a leaching fluid.
n Now are you indicating that real-life conditions
12 occur in all landfills or are you talking about monolandfills
or industrial landfills?
la
DR. DANIELS: Well, I'm addressing ray comments
15 primarily toward monolandfills, as opposed to the background
16 document that assumes 95 percent degradable municipal wastes
and 5 percent industrial.
lg MR. STRAWS: So you're saying that water would not
be a good indicator for example with that formulation?
2Q DR. DANIELS: Would you say that again?
MR. STRAWS: .You were saying that water would not
22 be a good leaching fluid for " sanitary landfills, for
,, industrial landfill —
(.A
DR. DANIELS: It would be an acceptable fluid if
there are less degradable wastes like this.
-------
73
MR. STRAWS: Okay. You had also indicated that
2 the — should be modified from 140, which is currently in the
regulations to 100 degrees Fahrenheit. And you disagree with
4 us that the temperatures that we say will be achieved in a
landfill, that they will not achieve temperatures above 100
0
degrees of Fahrenheit.
I was just wondering if you had any data to
substantiate this, or if you had any which you could provide
to us.
DR. DANIELS: Again I believe the agency is assuming
that there would be degradability occurring in a landfill
that would increase temperatures, and looking at it from the
standpoint that a drum of material, whether it's a waste or a
product on a loading dock, is subject to the same temperature
in the sun and it's — the drum of waste is put into a land-
fill, it's also mixed with an earth solid, so — I have a
compost pile at home and I had a tough time keeping the
temperature in.
Thank you.
MS. FRIEDMAN: Thank you very much. We will take
one more speaker and then we'll have a short, ten-minute
break. Our next speaker is Mr. Walter Neal.
It would help us a great deal if speakers, after
introducing themselves, would indicate what sections of the
regulations they intend to speak on, and also whether they
-------
74
intend to come to tomorrow's session.
2 STATEMENT OF MR. WALTER D. NEAL, MANAGER-
OPERATOR, INDUSTRIAL CHEMICAL COMPANY, INC.,
, ROCK HILL, SOUTH CAROLINA
>}
MR. NEAL: In preparing my statement I did
,. include all three sections of the regulation.
0
g My name is Walter D. Neal. I am Manager-Operator c
Industrial Chemical Company, Incorporated, Rock Hill, South
Carolina.
I thank you for this opportunity to comment on the
proposed regulations entitled "Hazardous Waste".
Ladies and gentlemen, many large corporations
12 failed in our last recession period. An even larger volume
of small, hardworking businesses also failed in this period.
lo
I would like to refer to an article in "Business Week",
15 January 29, 1979, stating one consequence of these proposed
.„ regulations is the demise of small, aggressive, chemical
17
18
Companies.
In 1977, with taxpayers' money, the Office of
lg Management and Budget cited the importance of small
businesses,noting that from 1953 to 1973, they accounted for
21 more than half of all scientific and technological develop-
22 ments.
23 In this same issue of "Business Week", EPA was
quoted as saying that less than 10 percent of all hazardous
waste-is being disposed of properly. Also stated in this
-------
75
quote, EPA stated that 30 million tons to 45 million tons
2 were being generated. Please, ladies and gentlemen, keep in
, mind that small businesses just like Industrial Chemical
o
Company, Incorporated, are part of the 10 percent that are
disposing of hazardous waste properly.
Industrial Chemical Company was organized about 18
years ago. Our basic operation is reclamation of byproducts
from manufacturing processes. These byproducts according to
9 these regulations are hazardous waste for our customers, but
are the main raw material for our operation. If you took your
coat to the cleaners would you consider it waste, even though
a cleaning facility might produce some waste cleaning it?
13
I would like to address the "Financial Responsibility
Section". This section as written would eliminate my facility
no small business with gross annual sales in the $200 to
10
16 $400,000 range could afford the $5 million coverage if it wert
available to them.
lg In all fairness, don't you think there's an
alternative measure that could be taken? I say there is; a
20 fund just such as your regulations prescribe for closure
21 could just as well be applied to operation. If ray company
22 disposes of 10 tons, charge me accordingly. If a company
„ disposes of 1 million tons, charge him.
These regulations, when imposed on small businesses,
25 forcing them to close, will cost jobs, taxes, and more
-------
76
recession in our economy. In talking with one state official
who will be enforcing these regulations, he estimated that
coverage for my site would range $70,000 to $80,000 annually.
Again, I say, we cannot afford this. If a few
large corporations are left to do the job for all industry,
my question is, will industry afford the large corporations
cost and charges. In a study for EPA, Battelle Memorial
Institute concluded that it would cost about $55 per ton to
g operate a secure landfill for small waste volumes. But this
is the cost, not the price. "The price is going to be what
traffic will bear," says one observer. If only large
12 corporations had a license, and charged $300 to $400 a ton,
.„ who could argue?
14 I would like to also note that increased regulation
16 doesn't necessarily mean that the problem will be solved.
Increased regulation will make a more profitable business for
17 the illegal transporters and disposers. I would like to cite
18 the PCB case in North Carolina. This material, although
already regulated, was poured or dumped illegally over miles
20 of North Carolina highways, for a profit.
Another area of concern is the "non-climbable"
22 fencing requirements. We do not believe one has been
2g invented. Determined fence-climbers can climb any fence in
24 less time than it takes to open a locked auto with a coat
26 hanger. In fact, we wonder if it is wise for the government
-------
77
to dictate in regulations the design of all possible future
2 facilities. For example, we were told at one time to conert
to oil all our boilers and equipment. Now we are told we
don't have the oil. Our site is not in an area that should
require fencing.
In further researching the regulation we find
permeability requirements. I ask you, is 1 times 10 to the
minus 7 centimeters per second necessary? No clay or other
soil is available in our state to meet these requirements, but
1 times 10 to the minus 6 centimeters per second is available
u in certain areas.
My question is, will this variation be that
critical? This variation would eliminate substantial costs.
lo
is one inch or one foot per 20 years that critical?
In considering these regulations, transportation is
addressed. We need no further regulation in this field. I
refer you to the transportation regulation parts 100 to 199,
18
a masterpiece of 1,235 pages — Volume 49. This regulation
covers every conceivable situation, including a large
section on "Hazardous Substances".
Along with this masterpiece we also have the Federal
Motor Carriers Safety Regulations, a book of approximately
23 400 pages. This only includes parts 390 to 397. My question
24 is, is there anything left to be regulated?
I apologize for my lengthiness in this matter. But
-------
78
I hope my comments and thoughts are accepted in the sincerity
2 they were prepared. In closing, I would like to address the
g "Secrecy" of information portion. My personal experiences
4 proven very poor control has been maintained in some state
agencies. A time period protected by specific penalty should
be included.
For example, in South Carolina, the Director of
Solid Waste Management and another department employee left
9 the Department of Health and Environmental Control and took
10 positions in management of a firm they had regulated.
u Thank you, ladies and gentlemen.
(The full statement of Mr. Neal follows.)
13
14
15
16
17
18
19
20
21
22
23
24
25
-------
Statement to be made at Public Hearing - February 20-22, 1979
Dept. of Commerce, Main Auditorium, 14th Street Entrance
Washington, D.C. Concerning Proposed Regulations Entitled
"Hazardous Wastu".
My name is Walter D. Neal. I am Manager-Operator of Industrial
Chemical Company, Inc. Rock Hill, South Carolina. I thank you
for this opportunity to comment on the proposed regulations
entitled "Hazardous Waste". Federal Register, Vol. 43, No. 243.
I would like to refer to an article entered into the Congressional
Record of September 15, 1977 (page E5590) by the Hon. Andrew Jacobs
Jr., of Indiana. It is entitled "In The Beginning".
"God created Heaven and Earth. Quickly He was faced with a class
action suit for failure to file an environmental impact statement.
He was granted a temporary permit for the Heavenly part of the
project, but was stymied with a Cease and Desist Order for the
earthly part.
"Appearing at the hearing, God was asked why He began his earthly
project in the first place. He replied that He just liked to be
creative.
"Then God said, 'Let there be light', and immediately the officials
demanded to know how the light would be made. Would there be strip
mining? What about thermal pollution? God explained that light
would come from a huge ball of fire. God was granted provisional
permission to make "light, assuming that no smoke would result from
the ball of fire, that He would obtain a building permit, and to
conserve energy, would have the light out half the time. God
agreed and said He would call the light DAY and the darkness NIGHT.
Officials replied that they were not interested in sermanties.
-------
"God said, "Let the Earth bring forth green herb and such as
may seed." The EPA agreed so long as native seed was used.
Then God said, "Let the waters bring forth the creeping creatures
having life; and the fowl that nay fly over the Earth."
Officials pointed out that this would require approval of the
Game and Fish Commission coordinated with the Heavenly Wildlife
Federation and Audubongelic Society.
"Everything was OK until God said He wanted to complete the
project in six days. Officials said it would take at least 100
days to review the application and impact statement. After that
there would be public hearings. Then there would be 10 to 12
months before
And God said "Let's forget it".
Ladies and Gentlemen that is just about the point many of us are
today. Many large corporations failed in our last recession period,
an even larger volume of small hard working businesses also failed
in this period. I would like to refer to an article in Business
Week, January 29, 1979, stating one consequence of these proposed
guidelines is the demise of small aggressive, innovative chemical
companies. In a 1977 study, with taxpayers money, the Office of
Management and Budget cited the importance of small businesses,
noting that from 1953 to 1973 they accounted for more than half
of all scientific and technological developments.
In this same issue of Business Week EPA was quoted as saying that
less than 10% of all hazardous waste is being disposed of properly.
Also stated in this quote EPA stated that 30 million tons to 45
million tons were being generated. Please ladies and gentlemen
keep in mind that small businesses just like Industrial Chemical
Co., Inc. are part of the 10% that are disposing of Hazardous
Waste properly.
-------
Industrial Chemical Co, Inc. was organized about 18 years ago.
Our basic operation is reclamation of by products from manu-
facturing processes. These by products according to these
regulations are hazardous waste for our customers, but are the
main raw material for our operation. If you took your coat
to the cleaners would you consider it waste even though a
cleaning facility might produce some waste cleaning it.
I would like to address the "Financial Responsibility Section".
This section as written would eliminate my facility, no small
business with gross annual sales in the $200,000 to $400,000
range could afford the $5 million coverage if it were available
to them. In all fairness don't you think there's an alternative
measure that could be taken. I say there is, a fund just such
as your regulations prescribe for closure could just as well be
applied to operation. If my company disposes of 10 tons charge
me accordingly, if a company disposes of one million tons charge
him. These regulations when imposed on small businesses forcing
them to close will cost jobs, taxes, and more recession in our
economy. In talking with one state official who will be enforcing
the regulations he estimated that coverage for my site would range
$70,000 to $80,000 annually. Again, I say we cannot afford this.
If a few large corporations are left to do the job for all industry,
my question is will industry afford the large corporation's cost
and charges. In a study for EPA, Battelle Memorial Institute
concluded that it would cost about $55 per ton to operate a secure
landfill for small waste volumes. But this is the cost, not the
price. "The price is going to be what traffic will bear," says
one observer. If only large corporations had a license, and charged
$300 to $400 a ton, who could argue.
I would like to also note that increase regulation doesn't necessarily
mean that the problem will be solved. Increased regulation will make
-------
a more profitable business for illegal transporters and disposers.
I would like to cite the PCB case in North Carolina. This material
although already regulated was poured or dumped illegally over miles
of North Carolina highways for a profit.
Another area of concern is the "non-climbable" fencing requirements.
We do not believe one has been invented. Determined fence-climbers
can climb any fence in less time than it takes to open a locked
auto with a coat hanger. In fact, we wonder if it is wise for the
government to dictate in regulations the design of all possible
future facilities. For example, we were told at one time to convert
to oil all our boilers and equipment, now we are told we don't have
the oil. Our site is not in an area that should require fencing.
In further researching the regulation we find permeability require-
ments. I ask you is (1X10" CM/Sec.) necessary. No clay or other
soil is available in our state to meet these requirements, but
(1x10" CM/Sec.) is available in certain areas. My question is
will this variation be that critical. This variation would eliminate
substantial costs. Is one inch or one foot per 20 years that
critical.
In considering these regulations transportation is addressed. We
need no further regulation in this field. I refer you to a trans-
portation regulation parts 100 to 199 a masterpiece of 1235 pages-
Vol. 49. This regulation covers every conceivable situation
including a large section on "Hazardous Substances". Along with
this masterpiece we also have the Federal Motor Carriers Safety
Regulations a book approximately 400 pages this only includes
Parts 390-397. My question is thpre anything left to be regulated.
I apologize for my lengthiness in this matter but I hope my thoughts
and comments are accepted in the sincerity they were prepared. In
-------
closing I would also ask that the "Secrecy" of information be
protected in some feasiable manner. My personal experiences
have proven very poor control has been maintained in some
state agencies. A time period protected by specific penalty
should be included. For example, in South Carolina, the Director
of Solid Waste Management and another department employee left
the Department of Health & Environmental Control and took
positions in management of a firm they had regulated.
Thank you ladies and gentlemen,
-------
2
MR. NEAL: Yes, Ma'am.
3
4 MR. LINDSEY: Mr. Neal, I may have missed it, I'm nqt
sure, but could you put your comments in perspective?
Industrial Chemical Company is a generator and a disposer?
79
MS. FRIEDMAN: Thank you very much, Mr. Neal.
Will you respond to questions from the panel?
You have disposal operations onsite?
MR. NEAL: We're basically a solid reclamation
company, and in our process there was no feasible way to
dispose of some of the solid waste that was left so we
applied for a permit to the state of South Carolina for
a permitted industrial landfill site and we do have a
permitted industrial landfill site.
We also have a permitted incinerator for the
disposal of any liquid waste.
MR. LINDSEY: I see. And I guess one contention
which you made earlier was that the financial responsibility,
I guess specifically the insurance provisions, would be, you
would not be able to back'charge_that to the people -r. the
people who send their wastes to you, to cover the — you
said $50 to $80,000; according to information which we've
gotten more recently, that may be high. It depends on your
facility, because the premiums depend on what the insurance
companies feel the risk associated with your operation is.
But you don't feel you'd be able to back charge that back to
-------
80
l the people who send wastes to you?
2 MR. NEAL: Like I stated, I think that the increase.
cost to the business is going to be reflected back to the
4 economy. In increasing this cost I think you're going to
6 find that you're going to surpass the value of the reclaimable
6 material and you're going to cause the people to have a
7 product that will be basically a disposal problem, that's
8 being recycled by the thousands of gallons now and put back
9 into the market for a usable product.
10 MR. LINDSEY: Okay. I guess the one point I'd like
u to make on this is that the cost of disposal, as you pointed
12 out, is going to go up considerably, and tnus, the people
ig who now send .their 'waste solids to you to be reclaimed, are
14 also going to face higher charges if they were to try to do
1S ' something differently, like trying to dispose of it on the
lg land or whatever the other options may be, because of these
17 regulations.
18 That's what I'm saying is, I would think there
19 would be some — and maybe you can dispute this — but I
20 would think there'd be some capability here for backcharging
21 some of these costs back to the — these additional costs —
22 back to those people who send you the waste.
23 MR. NEAL: Well, to give you an example, the cost
24 of a 55-gallon drum, to meet the transportation standards for
25 waste will be around $13 to $15, depending on the area. And
-------
,
0
11
81
this is required to be — these wastes will be required to be
placed into a container that meets DOT specifications, which
is one time pass and it will either have to be cleaned or
either a new container be applied.
If a small operation had three or four different
types of wastes, and small quantities, say they have a
chlorinated waste and a paint solvent waste. If they blended
the two together, you would have a product that you couldn't
o
use. You would have a hazardous waste that would have to be
0 treated in two different ways. And that would be where the
loss would come in, in your smaller suppliers, and probably
the large ones will go to tanks and there probably can be some
costs written in but I don't think you can write in that much
cost in a business that only has $200 to $400,000 a year to
work with.
15
MR. LINDSEY: Well, I'll ask one more and then
16
give somebody else a chance. You spoke about, specifically
you focused on the fencing requirement, the fact that
lo
disposal facilities, treatment facilities for that matter,
permit facilities have to have or are required to have certair
fencing requirements.
22 And I think you mentioned that you didn't feel that
23 in your particular case that was needed. Our reason for the
4 fencing is to prevent people who do these things from time to
time from going in and either scavenging, or children from,
-------
82
you know running through the woods and coming up on sites and
starting playing around in them. However, you did mention
that you didn't feel in your case that was necessary. Why
4 would that be?
MR. NEAL: Our landfill site, for instance, is in
a very remote area, and we're required to cover it with six
inches of soil at the close of each day, and if you .closed i
with six inches of soil at the close of the day, if a child
ran across it, that night, while you were away, there would
10 be no danger to that child.
u MR. ROBERTS: You made several comments about
transportation regulations. Do you have any specific
13
12
comments on —
14 MR. NEAL: No, sir. I think that the manifest
system will be a workable system, in — provided there's
some guideline that will allow small business to operate,
then I think that the transportation, as it's addressed in
lg the manifest system, in this sort of thing, I think it will
ig be a benefit to our country.
But if we overregulate the thing, we've already,
21 you know, addressed in the safety standards the placarding,
22 the — to the degree of hazard that the material is that we
23 transport.
24 This is what I was addressing inthe transportation
guidelines. Because you know, some people talk about a
-------
83
specific route to transport it over, but how do you have a
specific route to go into a town and pick up a solid that's
used in every garage in town, or a solvent that's used in
every body shop in town or a solvent that's used in each
little printing process, -that tyour newspapers and your
television stations and these sorts of places, how would
7 you propose a. specific route?
g MR. ROBERTS: Well, you're addressing 397.?, the
9 Motor Carrier Safety Regulations. And it says unless there
10 is no practical alternative, use routes that bypass cities
and populated areas, so obviously if your pickup is within a
12 populated area, you are not subject to that restriction.
13 MR. NEAL: Yes, sir.
14 MR. ROBERTS: Your comment about drums. ' Could you
15 me during the lunch break? I could have a chat with you,
16 to discuss the drum property ratings. Because I think .you
will -find the .DOT:-proposal-'is a-rather relaxatory -proposal in
18 terms of transporting hazardous wastes. In other words,
a relaxation from existing standards for a one-time trip,
20 for the disposal of coal. And also there is no additional
21 requirement being proposed to require DOT specifications —
22 beyond what the requirement says.
23 On the permanent regulations, even if nothing here
24 is adopted, — if you could see me during the break, we
25 could — I'm sure we'd be glad to discuss this with you so
-------
End 2A
Tape 2B
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
84
you would have a better understanding of it.
Just one final comment about your statement. I
appreciate the statement about the laborious number of
pages in CFRf some of which'deal With pipelines:and many
other topics that you're not"concerned with. For your.
information, we' estimate that the DOT proposal will result in
a net increase in the C.F.R. of three and a half pages.
I hope this will be of some redeeming value to you.
Thank you.
MR. NEAL: Thank you.
MS. FRIEDMAN: We're going to take a 10-minute
break, and we will reconvene at quarter of 11, when our
speaker will be — next speaker will be Leslie Dach. Is Mr.
William Gilly here? You have an urgent message. Could
you please —
(Whereupon, a brief recess was taken.)
MS. FRIEDMAN: Fred Lindsey of the EPA's Office of
Solid Waste would like to make a few remarks before we
reconvene.
MR. LINDSEY: I'd like to make one quick announcemen
and I have one request. The people representing State
Governments and any regional people, EPA regional people who
are here now, who were expecting to attend the discussion
session on Tuesday night, that had to do with ADP and some
other things, if those folks would now exit over here to my
-------
2
So all state and regional people, would you exit over here
o
and talk to these two gentlemen that are standing there like
guards at the door. Just for a minute. It won't take but
a few seconds to decide how to handle that.
(Discussion off the record.)
STATEMENT OF LESLIE DACH, SCIENCE ASSOCIATE,
ENVIRONMENTAL DEFENSE FOND (EDF)
WASHINGTON, D. C.
85
left, your right, we'll come to some sort of a consensus as
to what we're going to do with regard, to rescheduling that.
MR. DACH: Good morning. My name is Leslie Dach.
I am a Science Associate with the Environmental Defense
Fund. At today's session we will be discussing our comments
on Section 3001 and Section 3002, and we will be reserving
our comments on Section 3004 for tomorrow's proceeding.
EDF considers the Nation's current hazardous waste
management practices to be an environmental catastrophe of
staggering proportions. We consider the threat to ground
water to be the particularly serious one. Over half the
American population relies on ground water for its drinking
water supplies and almost one-fifth of the population uses
that water without any treatment works to remove poisonous
chemicals from the water.
In addition, ground water is an extremely fragile
resource. It doesn't clean itself like surface water. Once
dirty, it remains that way for hundreds of years. The disease
-------
1
22
86
and dislocation caused by improperly managed hazardous waste
2 is not visions from some radical environmentalist's nightmare
„ They are already upon us, and new disasters are reaching us
o
every day. The publicized incidents we've heard about, in
Denver and Tenessee and Love Canal, EPA itself admits are
5
only the tip of the iceberg.
EPA estimates that there are 30,000 hazardous waste
sites acro-s the country, and a variety of recent EPA
studies indicates that the majority of these are improperly
designed and pose a threat to human health. We've heard
some this morning and I'm sure we will hear more about the
high cost of complying with the RCRA program. I'd like to
speak for awhile about the cost of not complying with the
RCRA complying and the cost of not implementing a strict
regulation of hazardous waste.
It's clear that the costs of an inadequate hazardous
16
waste regulation are astronomical. Cleaning up faulty
hazardous wastes disposal sites costs much more than doing it
right in the first place. For example, it would cost only
$4 million to properly dispose of the waste in Love Canal.
The estimated-cost to clean it up is now about $23 million.
That figure doesn't include the cost of physical or psycholo-
„ gical damage suffered by residents of the area for which
2.6
over $2.billion in damage claims have already been filed.
In the other famous example, someone paid $75,000 to have
-------
87
PCS' s dumped illegally on the roads in North Carolina,
2 would have cost 5100,000 to do that job right. And it's
3 going to cost almost $12 million to clean it up. The price
society will have -to pay as a whole for the years of neglect
of the hazardous waste issue have recently been estimated by
0
EPA. Based on an estimated 1,200 hazardous waste sites that
o
threaten public health and the environment , the Agency put
the cost of cleaning those up, of retrofitting those sites
to meet adequate environmental standards, at a staggering
1Q $22 billion.
n
And that figure doesn't include the cost of cleaning
up the ground water itself, or again, the cost of the
monetary or psychological costs of the illness, lost
productivity and dislocation caused by those sites themselves.
Furthermore, the 1,200 sites could very well be an under-
estimate of those sites that require that kind of cleanup.
16
It seems clear to us in this time of legitimate worry about
the inflationary impact of environmental regulations that the
proper anti-inflation strategy is to strictly regulate
hazardous wastes.
Congress passed the Resource Conservation and
Recovery Act to prevent Love Canals, gave EPA a strong
mandate to protect the public health and the environment
from the dangers of hazardous waste. The American people,
judging from the reaction to recent incidents in the press,
-------
88
want extremely strong protection. The regulations we were
discussing today are the Agency's response to Congress"
mandates and the public's demands. Unfortunately, in our
opinion, the proposed regulations fall far short of guaranteeing
public safety. While they result clearly in far better
5
hazardous waste management than presently practiced, the
O
regulations, to us, are unacceptable in their present form.
First, looking at Section 3001. The present proposed
o
3001 regulations exempt-significant amounts of toxic
hazardous wastes from RCRA regulation. EPA admits such in
the environmental impact statement wherein it says that the
toxicity characteristics exempt approximately 35 percent of
the potentially hazardous wastes generated by the chemical
and allied products industries, particularly the organic
chemicals industry.
15
Shockingly, even some of the particular chemicals
16
which have forced the evacuation of Love Canal and poisoned
water in other areas of the country will not be completely
18
regulated under the current proposal. The first problem
19
with EPA's approach is that only 14 substances are regulated
under the Safe Drinking Water Act. These are only a few
of the substances known to present a human or environmental
risk. The 14 don't include a significant number of carcinogers,
teratogens , or mutagens.
The organic standard already proposed under the
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89
Safe Drinking Water Act isn't even included under the present
2
proposal.
The Safe Drinking Water Act has a mandate aimed onl>
o
at protecting human health. RCRA's mandate is broader. It
, requires protection of health and the environment, yet we
O
„ still see reliance only on the drinking water standards.
D
The process and waste lists were designed to fill the gap
g left by the specific chemical listing approach. They don't.
They are limited to those processes or wastes for which EPA
has constituent information derived either from contract
studies, damage reports, or state experience. If there
hasn't been a contract study of a particular industry, or
these other studies, its waste usually isn't listed on the
list and even if there has been a contract, the contract only
looks at small subsegments of the total industry.
Therefore, there is not a complete representation
16
of the hazardous wastes generated by industry on the current
process list. For example, the study of the petroleum
18
refining industry looked only to one polynuclear aromatici
out of all the potential hazardous chemicals generated by that
industry. Or the study of the organic chemical industry
looked only at selected processes within a vast array of
23 organic chemicals, and only selected wastes within those
24 processes.
In short, the list is based more on historical
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90
accident than any thorough science and it cannot be argued
2 that it is a complete listing of all properties generating
3 hazardous wastes.
4 The holes in the process list are a mile wide, and
the examples I'll give are only illustrative, not exhaustive
0
of the problems in that list. For example, wastes containing
the acknowledged toxic pollutants targeted for regulation
under the Clean Water Act, or already regulated by EPA under
FIFRA or other statutes, are typically included on the
0 process list only if they are off specification and spill
u materials. Wastes containing the same materials that get in
12 there because they are used as reactants to manufacturing
process or because they are contained in wastes that are not
specifically mentioned are not on the list. Or wastes
... containing hazardous chemicals which a contract did not look
lo
,. for specifically are nowhere on the list. One example of
ID
that would be the di-anomediate orthoanacidian(ph) which
10 caused the National Cancer Institute to cause tumors in
10
over 90 percent of the animals tested. Yet, we don't see
that represented anywhere on the list.
EPA itself has recognised in the preamble the
22 limitations of the two processes.it's currently relying on.
23 It says the process list is "the first step" and it says that
24 the Safe Drinking Water Act standards are inadequate and
2g therefore being currently revised and wi-1 be added when
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91
they are completed. EPA seems content for the present to
allow its current proposal to stand. We're not. To replace
the current proposal, we suggest the following system.
First, that EPA should expand the list of substances
specified in Section 250.13 (d) whose presence in waste above
5
a specified concentration renders that waste hazardous.
6
The list should contain, at a minimum, the following substances
when they are of environmental concern, when they are bio-
8
stable, and when feasible analytical methodology is available.
Pesticides, particularly if they are cancelled, suspended, or
f- i two,, the priority pollutants targeted for regulation
under the Clean Water Act; and three, substances regulated
by EPA, OHSA, FDA, or CPSC or identified in scientific
13 ^
literature as carcinogenic, mutagenic, teratogenic or
neurotoxic.
In most cases analytical methodology is available
16
for detecting these chemicals down to the parts per billion
level. Although this methodology has not been verified
18
on specific types of wastes sampled, it seems to us that
such verification is a doable process. Moreover, the cost
20
of testing for the additional chemicals is minimal compared
to the benefits of including such wastes in the program.
EPA's water program indicates that the cost of
testing for all 129 priority pollutants down to the 10 parts
per billion range, will cost only between ?700 to $2,000.
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7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
92
Moreover, according to EPA, only about 10 percent of
generators will actually have to test their waste against the
list and those that do test can, on the basis of their
knowledge of what's in their process, limit the numbers of
the chemicals that they must actually look for.
best available analytical methodology of the nonthreshhold,
bioaccumulative pollutant, in the extract '.from the extraction
procedure, should make a waste hazardous. We are not
supporting the ten- fold factor currently in place. At the
same time, we're not fully happy with the extraction
procedures currently proposed by EPA. Admittedly, it does no1
mildly affect the management on the waste sample in any site-
specific way. We feel it should be revised to simulate
partial conditions.
In addition, becausee of the weaknesses of any
extraction procedure, the presence of the listed chemical
above certain concentration in the waste itself, should make
a waste hazardous.
As I mentioned, we are not supporting the ten-fold
dilution factor which the Agency proposes to use for the
estimated dilution of a leachate from the point of leaving
the site to the first well. Case studies relied upon by
EPA have indicated dilution levels below 10 and because our
ability to model the site and waste-specific dilution of
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93
leachate in ground water is minimal or non-existent in a
2
site specific way, we feel that protection of the public
3
health demands there be no dilution factor at all allowed.
In comments on Section 3004 we will present a
characterization of ways, according to the criteria of
persistence and biostability. We feel that this characteriza-
tion can result in cost savings through the design of
specialized 3004 facilities. We also feel that EPA should
g
lengthen the list of processes occurring included in the
process list? EDF maintains at the present time the process
list can be expanded to include all processes producing any
12 of the specific chemicals listed in Section 260.13(d) and
that greater use can be made of the process information
available from states already regulating hazardous wastes. Sir
EPA does have a process for delisting specific facilities
when it's contended that that particular process constituent
does not match the rationale for listing in the first place,
18
we feel it is valud to expand the list.
19
Even if EPA adopts out suggestions of lengthening
20
the list of specific chemicals and the list of processes,
21
waste hazards to the public will still be exempt from the
22
RCRA program. Sole reliance on lists relegates the RCRA
23
program to the known, not the unknown. Only waste
24
constituents about which a substantial amount of toxicologica]
information already exists. This approach exempts equally
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94
hazardous materials that by dint of historical accident have
not been the subject of government, academic or industry
scrutiny, a very small number of the total sum of chemicals
in the universe.
EDF maintains that only the'use of toxicology
tests, as those outlined in the advance notice of public
rulmaking, can fully protect the public from hazardous waste.
At the same time, we recognize that because of the limited
toxicology capacity presently existing in contract labs in
this country, that not all wastes produced by small
generators can be tested for toxicity at the present time.
Our written comments will address this testing
capacity issue in detail and suggest a workable approach.
EPA's contention that adequate protocols for
,, toxicological testings of waste is not available. This is a
lo
misrepresentation of scientific fact. EPA itself requires
ID
the same tests as part of the system for demonstrating that a
waste can get off a list, yet, without any support whatsoever,
lo
the Agency simultaneously says that the wastes aren't good
enough to get on the list in Hie first place. This to us is
21 unsupported.
22 The scientific problems with the tests are with
sample preparations from wastes and not with the toxicological
foundations of the tests themselves. It appears to us that
these difficulties can be overcome with a few months of
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95
vigorous effort in time for inclusion in the final proposal.
2 I'd like to turn..now'to Section 3002. The current
3 EPA proposal exempts all farmers and retailers from the
4 regulatory requirements of Section 3002. The proposal further
exempts all generators who produce or dispose of less than
6 100 kg (220 Ibs.) per month of hazardous waste. The
preamble indicates that EPA is considering exempting
certain industries "where the economic impact is most severe,'
and raising the small generator exclusion so that generators
10 producing as much as 1,000 kg per month are exempted.
n Insofar as these exemptions are based solely on
12 economic or volume considerations, we believe them to be cleai ly
]3 illegal. Only environmental considerations can support an
14 exemption, and the environmental arguments offered by the
15 Agency are inadequate to support those exemptions. We
lg consider the exemptions as they are presently purported to be
17 contrary to the statutory intent and wholly unacceptable.
,0 EPA's contention that RCRA is silent on the extent
ID
lg to which economic considerations are to be taken into account
20 in implementing sections 3001 and 3002 of the Act is misleadirg.
21 While it is true that the Act is silent, the legislative
22
24
history is not. The history suggested economic factors
„ are not to be taken into account in defining a hazardous
waste. Once a waste is defined as hazardous, all generators
25 of that waste are to be covered by the requirements of
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96
l Section 3002. There's no room for leaving people out of
2 3002, if they're defined according to 3001.
, The House Committe Report repeatedly stressed the
6
4 Committee's concern with the environmental consequences of
improper hazardous waste disposal. The Report details
g seven pages of illustrative examples of the damage caused by
improper disposal.
And the Committee explicitly recognized that the
cost of protecting health and the environment from hazardous
0 waste was substantial, but it concluded explicitly,
nevertheless, that it was necessary to pay that price. The
12 Report states:
,, "Hazardous wastes typically have little, if any,
lo
economic value; are often not susceptible to neutralization;
present serious danger to human life and the environment; and
16
can only be safely stored, treated or disposed of at considerable
cost to the generator."
Despite this acknowledgement of the high cost of
its
disposal, the Report did not include cost as one of the
cosiderations to be taken into account in the 3001 definition
of hazardous waste. The Report states:
22 "The Committee's intention is that EPA, in the
23 development of the characteristics of a hazardous waste, take
24 into consideration the toxicity of the waste, its persistence
26 and degradability in nature, its potential for accumulation
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97
into tissue, and other related factors, such as flamraability,
corrosiveness or other hazardous criteria."
The Report also indicates that the Committee was
O
4 particularly concerned that the recordkeeping and manifest
requirements of Section 3002 apply to all hazardous wastes,
without exception. The Report states:
"There are seldom records of the deposit or of the
composition of such hazardous wastes. It is generated,
transported and buried without notice until the evidence of
its presence is seen in persons or the environment."
Further, it goes on to say later:
"To gain the information needed to adequately plan
for the disposal of hazardous waste and to ensure its
Id
proper disposal, it is imperative to know what is being
generated, where and by whom."
15
,„ » In summary, we believe that the legislative history
lb
showed clarly that Congress intended that cost not play a
role in identifying hazardous waste or in subjecting
lo
generators of that waste to the requirements of Section 3002.
19
And we are prepared to follow this up in the courts if the
Agency persists in its present plans.
Even if costs could legally be considered in
exempting certain generators from the regulatory requirements
of the Act, the economic analyses available for RCRA do not
provide an economic basis for exemption. EPA has no data
2o
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98
showing severe economic impacts of the RCRA requirements on
small generators. EPA has not explored the possibility of
other forms of financial assistance, such as small business
loans, for the heavily impacted industry segments. And in
terms of the heavily impacted, again,the heavily impacted
6 industry segments, EPA has no information identifying which
7 facilities face a real prospect of closure. It makes neither
regulatory nor environmental sense to exempt an entire
g industry to allevaite a possible hardship on a small subseg-
10 ment of that industry.
u The sole legal basis for excluding a waste generator
12 from the requirements of RCRA's Subtitle c is that the waste
13 is not hazardous, not that it is too expensive or too much of
u a hassle to deal with. EPA, as I said, has failed to
15 demonstrate lack of hazard for any of the waste generators
16 it seeks to exempt.
17 The Agency claims that if exempted waste is dis-
18 posed of in a Subtitle D approved landfill (or for pesticides,
according to the label and FIFRA requirements), that the
2Q waste then would not pose a substantial or potential hazard
21 to human health or the environment. The Agency apparently
22 concludes therefore that it is exempted for both the first
23 or particularly the second half of the definition of the
24 Act, which provides on the way the waste is managed.
2S Unfortunately the Subtitle D program of RCRA does
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99
l not have any recordkeeping, labeling, or manitest require-
2 ments. Without these requirements, there is no way to know
3 how much waste was generated or any documentation of how it
was disposed. In short, there is no mechanism for Agency
, oversight or Agency enforcement. There is no guarantee that tie
5
waste will go to a permitted subtitle D facility. Something
7 exceedingly crucial at a time when only a small fraction of
, municipal landfills currently meet the subtitle D require-
8
g ments, and when it can be expected from EPA's track record
10 in enforcement against municipalities that that ratio is
u unlikely to change in the near future.
12 Without a manifest, the transporter and the
,, municipal fill operator do not know what wastes they are
lo
handling. They do not know what precautions to take in
handling Or transporting that waste or what kind of
contingency plans to have in case of a spill or other emer-
17 gency.
._ Without knowing what is in the fill, the operator
lo
doesn't know what to monitor for. And if water supplies in
19
a region become contaminated, it's impossible to trace that
contamination to a source when it's a landfill that, is full
22 of unknown chemicals.
Moreover, we feel that a. subtitle D-approved
24 landfill does not provide adequate environmental protection
except in very certain, specified circumstances. EPA's
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100
contention that indeed the standards for 3004 or 4004 are
2 fairly close is not su-ported in our minds. There are no
3 requirements on a section 4004 landfill for financial
4 responsibility, closure or post-closure care, or personnel
5 training. There are no specific performance standards for
6 groundwater and air monitoring, surface water runoff collec-
tion, contingency plans, site security, or leachate collectio:
or monitoring. Without these kind of specific oversight,
g we are afraid that the sites will not fulfill these tasks
10 appropriately.
And finally, there is no federal enforcement to
12 ensure that approved sanitary landfills deserve that approval
13 or that they maintain the operating procedures that led to
the approval in the first place.
15 The Agency claim that exempted wastes are non-
16 hazardous has other problems. Logic tells us that a
17 hazardous waste generated by a farmer or retailer is no
„ less hazardous than the same waste generated by anybody else.
]g At EPA, without even an attempt at a scientific justifica-
tion, would have us believe otherwise. The FIFRA regulations
21 and pesticide labeling requirements EPA relies on in partial
22 justification of its farmer exemption are completely inadequa
23 to protect health and the environment.
24 In most cases, instructions on pesticide labels are
completely meaningless. They say usually "bury in a safe
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9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
101
place away from water supplies." It is patently absurd to
expect the individual farmer to know enough about geology,
hydrology or hazardous waste disposal to know where a safe
place away from water supplies is. If safe disposal were that
simple we wouldn't need RCRA in the first place. The FIFRA
regulations are not much better. They prohibit egregious form
of disposal; Open dumping, open burning or direct contaminati
of water but they do not mandate safe disposal practices.
That, according to EPA internal memoranda, was purposely left
up to the RCRA program, which it was thought could do a
better job.
The proposed exemption of certain heavily impacted
industry segments is on even weaker legal footing. Here,
EPA again doesn't even attempt to justify the exemption on
environmental and scientific grounds — undoubtedly in
recognition that such a justificationwould be impossible.
The heavily impacted industry segments, including segments
of the fabric dyeing, electroplating, and copper and lead
smelting industries, generate exceedingly hazardous waste.
Their wastes often contain an assortment of heavy metals, j
mercury, cadmium or lead, and they can also contain a number
of highly toxic organic chemicals, including benzidine-based
dyes or other aromatic amine dyes. Again, a waste is no less
hazardous just because it is generated by a highly impacted
industry.
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102
EPA has failed to demonstrate that exempting
generators producing less than 100 kg per month of hazardous
waste is consistent with RCRA's mandate to protect health and
the environment. Shipping 200 pounds a month of a hazacdous
waste, without recordkeeping, .manifest or transportation
5
requirements, poses serious environmental hazards.
EOF also disagrees with EPA's feeling that because -o
shortage in resources, enforcement of small generators will
be difficult and therefore they should be exempted. It is our
feeling that voluntary compliance and the possibility of
citizen suits can bring a lot of small generators into the
12 system, even without direction, EPA oversight. And again, EPA
,, tries to justify environmentally the exemption or small
Id
generators by saying that they will go to a 4004 approved
15 landfill site. The same objections I mentioned previously app^y
16 here and there are some more.
17 One can easily envision that dumps in areas with
high concentrations of small generators will be handling
lo
19
large amounts of hazardous waste. Without any manifests or
recordkeeping notifications to know what they're dealing'with.
21 taken to the extreme, the regulations even allow the creation
22 of specialized landfills to cater specifically to the small
23 hazardous waste generator. Since the reulgations are geared
24 to generator size, such a site could legally dispose of
25
hundreds of tons of hazardous waste, as long as they all came
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103
from small generators.
2 EDF believes that changes in the administrative
requirements currently proposed for small generators and other
highly impacted groups could satisfactorily reduce the burden
of complying with the RCRA regulations, while maintaining
appropriate environmental protection.
Possible modifications along these lines include a
lessening of the reporting requirements in terms of the number
of times per year the reports must be submitted, or compliance
with these requirements by the transporter or racility
operator for the small generator.
Another possibility might be use of 4004 municipal
landfills for disposal of small quantities of certain
selected wastes. And rewriting the section 3004 regulations,
to allow a broader spectrum of disposal sites geared to
16 handling specialized hazardous wastes that pose handleable
environmental problems. And again, EDF will describe our
18
21
thoughts on this kind-of categorization of wastes and also
19 the potential alternative sites in section 3004 in more
detail tomorrow.
These comments I've given today on 3001 and 3002
22 express only a small part of our concerns with both those
23 sections. We'11 expand on these greatly in our written
testimony. Thank you.
(The full text of Mr. £achl s^ comment a .fOilow».i
25
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Environmental
Defense
1525 18th Street, NW, Washington, D.C. 20036 • 202/833-1484
February 22, 1979
For more information contact:
Leslie Dach, (o) 202/833-1484
(h) 202/244-9055
STATEMENT OF THE ENVIRONMENTAL DEFENSE FUND
ON THE ENVIRONMENTAL PROTECTION AGENCY'S PROPOSED
REGULATIONS IMPLEMENTING SECTION 3002 OF THE
RESOURCE CONSERVATION AND RECOVERY ACT
Good Morning. My name is Leslie Dach. I am a Science Associate
with the Environmental Defense Fund (EDF) . EDF is a national,
not-for-profit, public interest environmental organization with over
45,000 members. Through litigation and administrative and Congressional
lobbying, EDF attempts to eliminate unnecessary exposure to toxic
chemicals. Concerning the Resource Conservation and Recovery Act
£DF has testified before Congress, commented on proposed agency
regulations and sued EPA over its failure to promulgate regulations
by the date designated in the Act.
This morning EDF will focus its comments on the Environmental
Protection Agency's (EPA) proposed regulations implementing Section
3002 of RCRA. This section establishes standards for persons
generating hazardous waste.
The current EPA proposal exempts all farmers and retailers from
the regulatory requirements of Section 3002. The proposal further
exempts all generators who produce or dispose of less than 100 kg
(220 Ibs.) of hazardous waste per month. In addition, it indicates
OFFICES IN: EAST SETAUKET. NY (MAIN OFFICE); NEW YORK CITY (PROGRAM SUPPORT OFFICE): WASHINGTON. DC: BERKELEY. CALIFORNIA. DENVER. COLORADO
Printed w? 100% /tocjnferf Ptpw
-------
that EPA is considering exempting certain industries "where the
economic impact is most severe," and raising the small generator
exclusion so that generators producing less than 1000 kg (2200
Ibs.) a month are exempted.
Insofar as these exemptions are based solely on economic or volume
considerations, we believe them to be illegal. Such considerations are
not valid indices of hazard. Moreover, the environmental arguments
purportedly justifying the proposed exemptions are inadequate. EDF
therefore considers the proposed exemptions to be contrary to the
statutory intent and wholly unacceptable.
EPA's contention that RCRA is silent on the extent to which
economic considerations are to be taken into account in implementing
sections 3001 and 3002 of the Act is misleading. While the Act
itself is silent, the legislative history is not. The legislative
history suggests that economic factors are not to be taken into
account in defining a hazardous waste. Once a waste is define,1, as
hazardous, all generators of that waste are to be covered by the
requirements of Section 3002.
The House Committee Report- repeatedly stressed the Committee's
concern with the environmental consequences of improper hazardous
waste disposal. For example, the Report states:
The overriding concern of the Committee, however, is
the effect on the population and the environment of the
disposal of discarded hazardous waste....Unless neutralized
or otherwise properly disposed of, hazardous wastes present
a clear danger to the health and safety of the population
and to the quality of the environment. (Report at 3]
i/ H. Rep. No. 94-1491, 94th Cong., 2d Sess. 3 (1976) [hereinafter
"Report"].
-------
The Report goes on to detail seven pages of illustrative examples
of the damage caused by improper hazardous waste disposal.
The Committee explicitly recognized that the cost of protecting
health and the environment from hazardous waste was substantial,
but concluded nevertheless that it was necessary to pay the price.
The Report states:
Hazardous wastes typically have little, if any, economic
value; are often not susceptible to neutralization; present
serious danger to human life and the environment; and can only
be safely stored, treated or disposed of at considerable cost
to the generator. [Report at 4, emphasis added]
Despite this acknowledgement of the high cost of disposal, the
House Report did not include cost as one of the considerations to
be taken into account in the definition of hazardous waste. The
Report states:
The Committee's intention is that EPA, in the development
of the characteristics of a hazardous waste, take into
consideration the toxicity of the waste, its persistence and
degradability in nature, its potential for accumulation into
tissue, and other related factors, such as flammability,
corrosiveness or other hazardous criteria. [Report at 25]
The Report also indicates that the Committee was particularly
concerned that the recordkeeping and manifest requirements of
Section 3002 apply to all hazardous waste. The Report states:
There are seldom records of the deposit or of the
composition of such hazardous wastes. It is generated, trans-
ported and buried without notice until the evidence of its
presence is seen in persons or the environment. [Report at 11]
To gain the information needed to adequately plan for the
disposal of hazardous waste and to ensure its proper disposal,
it is imperative to know what is being generated, where and
by whom. [Report at 26]
To summarize, EDF believes that the legislative history shows
that Congress clearly intended that cost not play a role in
-------
identifying hazardous waste or in subjecting generators of that
waste to the requirements of Section 3002.
Even if costs could legally be considered in exempting certain
generators from the regulatory requirements of RCRA, EOF contends
that the economic analyses available for RCRA do not provide a
basis for exemption. EPA has no data showing severe economic impacts
of the RCRA requirements on small generators. Nor has EPA explored
the possibility of other forms of financial assistance, such as
small business loans, for the heavily impacted industry segments.
Furthermore, EPA has no information identifying which facilities in
the heavily impacted industry segments face a real prospect of
closure. It makes neither regulatory nor environmental sense to
exempt an entire industry to alleviate a possible hardship on a
small subsegment of that industry.
The sole legal basis for excluding a waste generator from the
requirements of RCRA's Subtitle C is that the waste generated is
not hazardous, not that it is too expensive or too much of a hassle
to regulate. Yet, EPA has failed to demonstrate lack of hazard for
any of the waste generators it seeks to exempt.
EPA claims that if the exempted waste is disposed of in a
Subtitle D approved sanitary landfill (or for pesticides, according
to the label and Federal Insecticide, Fungicide and Rodenticide
Act (FIFRA) regulations), the waste does not pose a substantial or
potential hazard to human health or the environment. EPA can then
conclude that the waste is not hazardous according to the second
half of RCRA's definition of hazardous waste (42 U.S.C. 1004 (5) (B)).
We believe that such a conclusion is un-justified.
-------
The Subtitle D program of RCRA does not have recordkeeping,
labeling, or manifest requirements. Without these requirements,
there is no way to know how much waste was generated or any docu-
mentation of how it was disposed. In short, there is no mechanism
for oversight and enforcement. There is no guarantee that the
waste will actually go to a permitted subtitle D facility. This
is crucial because only a small fraction of municipal landfills
currently meet the subtitle D requirements, and it will be a long
time before the number of approved sites substantially increases.
Without a manifest, the transporter and the municipal fill operator
do not know what wastes they are handling. They do not know what
precautions to take in handling the waste and cannot be adequately
prepared to act in the case of a spill or other emergency.
Without knowing what is in the fill, the operator cannot design
monitoring equipment to give an accurate indication of ground-
water contamination. If water supplies in a region are contami-
nated, the contamination cannot be traced to the landfill because
the landfill is full of unknown chemicals. The owner doesn't
know what proportion of his fill is hazardous and what proportion
is municipal waste. Such knowledge is needed to properly design
and operate the site.
A subtitle D approved sanitary landfill does not provide
adequate environmental -protection from hazardous waste, except in
rare cases. There are no requirements on a section 4004 landfill
for financial responsibility, closure or post closure care, and
personnel training. There are no specific performance standards
for groundwater and air monitoring, surface water runoff collec-
tion, contingency plans, site secu-rity,or leachate prevention.
-------
collection and monitoring. Finally, there is no federal enforcement
to ensure that approved sanitary landfills deserve that approval
and maintain strict operating procedures.
EPA's claim that the exempted wastes are non-hazardous has
other problems. Logic tells us that a hazardous waste generated
by a farmer or retailer is no less hazardous than the same waste
generated by a manufacturer. Yet EPA, without even an attempt at
a scientific justification, would have us believe otherwise. The
FIFRA regulations and pesticide labeling requirements EPA uses in
partial justification of its farmer exemption are completely
inadequate to protect health and the environment. In most cages,
the instructions on pesticide labels are environmentally meaningless.
Typically, they say only "bury in a safe place away from water
supplies." It is patently absurd to expect the individual farmer to
know enough about geology, hydrology or hazardous.waste disposal to
know a "safe place away from water supplies." If safe disposal were
that simple, we wouldn't need RCRA in the first place. The FIFRA
regulations (40 C.F.R. 165) are not much better. They prohibit only
the most egregious forms of disposal: open dumping, open burning,
and direct contamination of food and water supplies. They do not
mandate safe disposal practices.
The proposed exemption of certain heavily impacted industry
segments is on even weaker legal footing. Here, EPA doesn't even
attempt to justify the exemption on environmental grounds —
undoubtedly in recognition of the fact that such a justification
would be impossible. The heavily impacted industry segments,
including segments of the fabric dyeing,, electroplating, and
-------
copper and lead smelting industries, generate exceedingly hazardous
waste. Their wastes can contain an assortment of heavy metals,
including mercury, copper, lead, and cadmium. They can also contain
a number of highly toxic organic chemicals including benzidine-based
dyes and other aromatic araine dyes. Again, a waste is no less
hazardous just because it is generated by a highly impacted industry.
. EPA has failed to demonstrate that exempting generators producing
less than 100 kg per month of hazardous waste from the Subtitle C
program is consistent with RCRA's mandate to protect health and the
environment. Shipping 220 pounds per month of a hazardous waste
without recordkeeping, manifest or transportation requirements
poses serious environmental hazards.
As mentioned previously, in the absence of requirements, a
§4004 approved site operator will have no idea how much hazardous
waste is in that landfill. One can easily envision that dumps in
areas with high concentrations of small generators will be handling
large amounts of hazardous waste. Taken to the extreme, the
regulations even allow the creation of specialized landfills to
cater specifically to the small hazardous waste generator. Since
the regulations .are geared to generator size, such a site could
legally dispose of hundreds of tons of hazardous waste as long as
all of the waste came from generators producing less than 100 kg
per month.
EDF believes that changes in the administrative requirements
currently proposed for small generators and other highly impacted
groups could reduce the burden of complying with the RCRA regulations.
Possible modifications include a lessening of the reporting require-
-------
ments or compliance with these requirements by the transporter or
facility operator. Another possibility might be use of §4004
municipal land fills for disposal of small quantities of certain
selected wastes. Similarly, segments of the §3004 regulations
could be rewritten to allow creation of specialized disposal sites,
geared to particular types of waste. Such sites could provide
satisfactory environmental protection at a lower cost than sites
designed to accept all kinds of hazardous waste. EOF will describe
our thoughts on these potential alternatives in more detail in our
testimony on the §3004 regulations.
These comments express some of our concern about the proposed
S3002 regulations. We will expand on these oral comments in our
written testimony. Thank you.
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MS. FRIEDMAN: Thank you very much, Mr. Dach.
Will you entertain questions from the panel?
2
MR. PLEHN: Just before we begin that, I'd just
like to make one statement. I want to thank you for a very
extensive and thoughtful statement. And you make a point
that our data base on the tixicity of waste streams is
incomplete, and that is something that we've been aware of
since the beginning.
I just wanted to underline the obvious for both you
and the other persons here, that we will be very appreciative
of any data about waste streams that we may have missed, and
really, that's the purpose of this public comment period, more
than for us to present our available information, so we can
make that kind of inclusion in the regulations.
MR. LINDSEY: Just one additional thing along those
lines. One of the points which you addressed was the fact
that you felt that we were unable to back up the small
generator exclusion, the so-called small quantity exclusion,
I guess that is what we'd rather call it, and the farmer
exclusion, on the basis that we hadn't made a case. I'd just
like to point out and ask for your assistance here. We don't
have any damage cases that we've been identify -- I believe
I'm right in saying that -- which relate to either small
quantities of material, below 100 kilograms, or to farmers
who follow the FIFRA regulations and dispose in regulated
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105
landfills — in landfills whifch would meet Subtitle D
categorization. If you have any incidents of damage which
would, I think, support the case, if you will, that these
small quantities and so on can and do cause problems, that
would be helpful to us as we consider these matters further.
MR. DACH: Unfortunately, even in a sizable
organization we don't usually get those in the mail, and we
can't find them ourselves, but I'll be glad to help look for
them, also, I guess, it's our feeling that looking, without
specific damage reports, that unless a distinction can be
made between the wastes generated by those people, unless a
convincing argument can be made that FIFRA regulations on
their face supply adequate protection, therein of itself is
sufficient ground for not exempting those people from the
program. The way the statute is written appears to us to
allow inclusion of those people with the evidence that you
have.
MR. LINDSEY: Well, let's pursue that just a tad
more if we could. If we were to include all those people,
we're talking about counting all the people, for small
quantities and.farmers, we're talking about hundreds of
thousands of additional generators and disposers presumably,
under the system. I guess — do you have any suggestions on
how we might be able to manage the load of paperwork and so
on, or would we exempt them from certain paperwork requirement:;
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106
MR. DACH: We are more than willing to consider
„ exempting .small generators and others from specific paperwork
O
requirements. We don't have a problem there. We haven't
gotten far enough to really identify which requirements can
most easily be gotten rid of, but —
MR. LINDSEY: Well, suggestions along that line
would be helpful.
MR. DACH: We'll have some.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
9
MR. LEHMAN: From the Section 3002, we do make a
special type of paperwork reduction, available to waste oil
generators in terms of an assumption of duties contract. Now
would you consider extending that type of situation to small
quantity generators, is it feasible, an alternative?
MR. DACH: That seems to us at this present time
a feasible alternative from our perspective. We don't have
a clear feeling for whether that's a workable alternative
from the small generator, per se.
MR. LEHMAN: I wanted to ask another question on
your testimony on 3001. On the extraction procedure. You
indicated that you felt that the extraction procedure does
not actively model the effects of mismanagement and should be
revised to simulate harsher conditions. Do you have any
explicit suggestions as to how that could be done?
MR. DACH: My thinking along those lines was
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107
influenced a great deal by the conversations with the State
2 of California who in the use of different extraction and
compaction times and also .different solventsf and attempted to
create a model that would result in more leaching from the
waste sample. And it would be modifications along those lines
that we would propose, but at this time of year we don't have
specific suggestions as to solvents, but in time we do hope
to have those.
MR. LEHMAN: Thank you.
MR. TRASK: Mr. Dach, you mentioned at one point,
among the administrative requirements that you might change
would be to lessen the number of reports per year. I think
that's what you said. Is that right?
MR. DACH: M-hmm.
MR. TRASK: I'd like to have your thoughts on that,
because we're only requiring one report per year.
MR. DACH: Right, except for exceptions, which is
quarterly at the present time.
MR. TRASK: I'm sorry?
MR. DACH: Except for exceptions, manifest exception^,
which are quarterly at the present time.
MR. TRASK: Our proposal is that there be an annual
report which is complemented by quarterly exception reports
so that if the generator does not have clear proof that his
wastes arrived at the designated facility, he would be require^
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108
j to send a quarterly report. Otherwise, he would send in one
2 annual report. If you have further thoughts in that area as
3 to how we could reducing that reporting and yet still keep
4 track of some of these things we would be interested.
Probably DOT didn't want to follow it up but I'll mention for
3
the record that even though some people, it is proposed that
some people would not be subject to the administrative parts
„ of these regulations, they still are subject to certain DOT
a
regulations. One being the DOT shipping papers. Because by
10 DOT picking up hazardous wastes as a hazardous material, then
u automatically all quantities are subject to the DOT shipping
paper requirements so they are not without some kind of
13 record —
u MR. DACH: It's a narrower segment of hazardous wastt
16 and hopefully will be defined under Section 3001.
16 MR. STRAWS: I'd like to clarify one thing that I
17 think you said.
lg Are you saying, or did you say in your statement,
ig that EPA should abandon the EP process for now and just
relate to toxicity of the waste itself until further testing
21 or whether the EP is done?
22 MR.DACH: No. I guess we feel that the contents of
,„ trying to model extraction is a necessary one and that therefore
24 at the present time the, one should change the EPA the_propose<
26 extraction facility uses and again, give consideration to the
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109
kind of concepts thay are. employing in the State of California
which is to have a dual approach, both to have a measurement
of concentration in the extract and also the waste itself.
(Discussion off record.)
MR. FIELDS: When you were discussing the extraction
procedure, you indicated we should expand our list to include
the 129 pollutants, certain pesticides, et cetera, but one
thing in your statement I'm not clear about. You said that
the substances should be added when they are of environmental
concern and when feasible analytical methodology is available.
Are you saying that EPA should expand upon the 14
drinking water elements over time or are you saying immediate!
or what?
MR. DACH: Both. We feel there are a number of
chemicals available now that could be added and we're sure tha
as time goes on more things will be added, more things will
have that capability and can then be added.
MR. FIELDS: So you think EPA should assess all thos
things you listed and determine which should be added to the
drinking water list of elements?
MR. DACH: Yes. Not into the drinking water act
but into the RCRA use of those 14 chemicals. I mean, the
people administering the Clean Water Act, they're pursuing
that same kind of analytical problem on toxics and for
pesticides FDA requires residue analysis, and the development
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110
of those kinds of techniques and also EPA does for registration.
But I'm not suggesting that the Office of Solid Waste have to
3 go out and identify these, but they rely on what has been
4 identified in other areas.
MR. FIELDS: And we should consider a waste
o
hazardous if it contains these things in any concentration?
MR. DACH: Within the limits of the available
technology. And our feeling, and that is consistent with our
arguments, again in the toxics decree, that when you have,
taking into account biostability and bioaccumulation, when you
u have a nonthreshhold, chronic pollutant that only a zero level
only a zero presence in the water can guarantee safety. And
we interpret the Act as supporting that kind of protection.
14 MS. SCHAFFER: Mr. Dach, I have a question. Or
actually a request for information. Do you have any view on
1(, how we can improve the compliance, monitoring and enforcement
17 activities of the Agency of articles under RCRA, we would
18 really appreciate that. Especially methods of getting voluntaj
compliance.
20 MR. STRAWS: Yes, I like to make one last comment
21 on that. The list or the characteristics which we finally
22 promulgated will not be the final list. The Act requires us
to look at the regulations every two years. But we will
probably be looking at the list more often and be coming out
25 and adding or of course tracking, or whatever is the case,
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Ill
the lists, as are necessary.
MR. DACH: It's just our feeling that because that
must be done by rulemaking subject to litigation that each
time you're trying to add something to a list it's a lengthy
process and add what you know and what you can and what should
be added, now.
MR. ROBERTS: You made a number of references to the
statutory mandates and the — what is history, the economic
g impact considerations. Above Mr. — signature on the EPA
10 Notice and above my signature on the DOT notice is reference
to Executive Order 12044. Are you familiar with Executive
J2 Order 12044?
MR. DACH: Is that the ones that calls for the
lo
regulatory impact analysis?
MR. ROBERTS: Economic impact.
16 Are you familiar with it?
17 MR. DACH: Yes.
18
MR. ROBERTS: Are you suggesting we ignore it?
MR. DACH: I'm not suggesting that you ignore it.
I think that one should certainly look at that in terms of
21 making 3004 requirements as cost-effective as possible, in
different kinds of ways. And as I said, that kind of informa-
2g tioncan be used to support changes in administrative require-
24 ments for small generators. But I think that Congress writes
26 the laws and the law clearly said here, we feel that it clear 1;
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112
says that cost is not playing a factor in the definition,
and an Executive Order that runs contrary to that has no
meaning in that regard.
MR. ROBERTS: Then your conclusion is in this case
the Executive Order does not apply?
MR. DACH: The Executive Order requiring analysis
for those factors does apply. However, over that, there's
a Congressional mandate that the result of that analysis not
be factored into a definition of hazardous waste, that applies
MR. FIELDS: I'd like to follow up on ..that. You are
saying that we can — you have no problem with EPA considering
economics in making 3004 decisions but — but you do in 3001
decisions, is that it?
MR. DACH: Yes. I think if you look at the two
sections of the Act and the legislative history accompanying
them, there are are different emphases on the cost factors
involved, in writing'those regulations, and that we can
understand clearly the desire to make the 3004 requirements
as cost-effective as possible. Cost effectiveness does not
come into deciding what should be considered a hazardous che-
mical as much as it does where it should go and how it should
be dealt with.
We would make that distinction between 3001 and 3002
and 3004 in terms of the extent to which economic factors can
be taken into account.
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MS. FRIEDMAN: Thank you very much.
MR. DACH: Thank you.
MS. FRIEDMAN: We'd like to get in three more
speakers before lunch. Because they have to leave shortly
after lunch. Mr. Richard Ahlbeck, will be followed by Sy
Bensky, who will be followed by Paul Emler.
MS. FRIEDMAN: We'd appreciate it if you'd make the
presentation as quickly as possible.
DR. AHLBECK: Yes. Madam, Chairman, panel, and
guests. I am Dr. Richard A. Ahlbeck, Vice President, Science
and Technology, N-VIRO Energy Systems, Incorporated, Toledo,
Ohio.
Our objective in this presentation is to begin to
convince EPA that cement kiln should be perceived as an
environmentally sound waste and not hazardous. N-VIRO has
one immediate major mission. To convince the cement industry
and some key units of the United States Government that
total cement dust utilization has the potential of adding..
maximum income to the cement industry, add additional tax
money for the government, conserve jobs, lower prices to
consumers', by reducing the total environmental waste.
It is our position that cement kiln dust is generall;
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113-1
an environmentally sound material. As more and more cement
2
kiln dust is safely utilized, the disposal of cement kiln
dust,'which I will abbreviate to CKD, will eventually cease
4
and thus any leaching of fugitive, windblown dust from
disposal sites will be reduced.
There is also a possibility of reduced «•- emissions
from cement plants. The net risk to the public from all
potential environmental aspects of CKD will thus be reduced.
I would assume this is precisely the goal the EPA seeks.
Short of closing all the cement plants.
So far, three major cement companies have agreed
12
with our general direction and have signed long-term contracts
Further, one major government department, the Federal Highway
Administration, Department of Transportation, has substantially
supported, and a second major department may soon lend its
support. We hope EPA will be number three.
Our company was conceived at about the time that
18
RCRA 76 became law. Prior to our organization, the parent
19
company, Nicholson Industries, had conducted waste utilization
20
discussions with many cement and utility companies. While
21
developing a slow-setting, low strength cement system based
22
on two major byproduct materials. One, dry cement kiln dust
23
from the cement industry, CKD, and two, dry — from utility
24
power plants, PFA. Mixing the above materials with ailittle
25
water results .in a — system, which may prove to be one of the
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114
lowest cost delivered systems for base .and subbase^stafailizati'
for roads, in the United States. The same basic system may
„ be used also to stabilize — hazardous waste. We believe we
O
are going to satisfy a major goal of RCRA 76, resource
, conservation. Further, we know that the substitution of waste
o
materials for — materials and materials derived from — at
b
the level of millions of tons per year are all in the interest
of conservation.
o
We believe we are contributing to achieving a major
goal of the Department of Energy, energy conservation. In
April of 1977 the President of the United States declared to
theLpubliC-on national^telexisioh^that our energy status,
especially foreign oil dependency, brought on by excessive
consumption, was extremely dangerous. He called on the nation
to wage war and gain control of its energy needs. Several day::
I .was studying.an April 1977 government document entitled
"International Energy Situation, Up to 1975." I quote from
this document:
"In the absence of greatly increased energy
conservation', and let me repeat, greatly increased energy
conservation, projected world demand for oil will approach
production capacity by the early 1980's and substantially
surpass it by 1985. In these circumstances, prices will rise
sharply, to ration available supplies —"
Nothing that has happened today in Mexico or
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5
6 reward as true, innovative Americans.
115
elsewhere would seem to change that. Our company was
progressing merrily along with our clean, fireproof, dust,
happy in theknowledge of the service we would be performing
for our country, feeling patriotic — after substantial
i
financial investment and hard work, we would receive our
Suddenly up rode the big, tough-looking guy with
the bright silver badge. The initials on his badge were EPA
Hazardous Waste Management. "What's happenning?" I said.
"This is what's happenning", he said. "Your v-~ cement kiln
dust has been contained in our hazardous waste interrogation
camp. You have been requested to testify on his behalf.
His sidekick, -- fly-sash, is in there next to him. Both of
them thrown in with a couple of real tough-looking hombres
who have significant carcinogenic characteristics." I replied
"I know who they are, and those boys have already been badly
perceived by the public. The simple fact that CKD has been
thrown into a hazardous waste detention camp is highly
damaging to its byproduct image. CKD will be found guilty
by association. The public certainly will not know that it
is simply a case of guilty until proven innocent. And that
the EPA has published no evidence."
A USDA research report dealing with the — CKD —
was picked up by TV commentators, including Johnny Carson,
Walter Chronkite and Barbara Walters. This USDA study was
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116
stimulated by the observations, of some — who discovered a
special, low-cost cattle-feed mixture which included CKD.
What will the chances be of obtaining funds to do the
substantial lobbying, necessary to commercialize such use,
if CKD carries a major handicap by being labeled hazardous?
The answer is, next to zero. CKD, although innocent, may
never get the chance to grow up to be a free-market byproduct
citizen. It's public reputation will have been irreversibly
damaged.
Our competition, — products, may breathe easier.
But the cost to the American cement industry and the taxpayer
will be significant. Thus I am led to make several strong
recommendations to EPA.
Recommendation Number 1. I strongly recommend that
the focus of EPA on cement kiln dust be transferred from
Subtitle C to subtitle D.
Recommendation Number 2. Please delete CKD from any
further documents which would associate this material with the
word "hazardous". I suggest that you create a new category.
Environmentally soxind, earth-fired wastes or earth — sterilized
wastes.
Recommendation Number 3. The EPA Administration
should bigorously apply subtitle H assistance to cement kiln
dust.
Recommendation Number 4. If reco-mendations 1 and
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2 are rejected, EPA, and especially subtitle C administrators,
2
should distinguish between a material stream that is clearly
designated for disposal and those streams which are quality
controlled and recycled within a cement plant, and those
quality controls — for byproduct use. Cement kiln dust has
carried all three labels, recycled CKD, byproduct CKD and
waste CKD.
I am not inclined that CKD should not be tested for
g
the hazards in terms of its total handling and end use. In
117
any large population of dust you are bound to find a few
problem cases. The EPA published, in May of 1975, EPA-70/27504
a document entitled "Disposal and Utilization of Waste Kiln
Dust from the Cement Industry."
In the forward I quote as follows: "The studies of
this report are to identify the specific areas where the
agency's participation in the development of new technology
could have maximum effect on the cement industry's efforts to
protect our nation?s environment." I quote from page 32 of
the same report: "The size of the market for agricultural
lime and limestone makes potentially a very good route for
disposal of waste klin dust." Today this lime market exceeds
39 million tons per year and is growing. Consequently we
would prefer to be grouped with the following materials:
limestone, lime, potash, super phosphates, trace minerals,
animal feeds, low-risk —
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1
118
Be sure to consider the section entitled "Commercial
Products, page 58991 of the December 18, 1978, Federal Registe::.
One approach the EPA agency has considered is to require that
any waste deemed hazardous not expose human health to a threat
greater than the threat posed by the product it replaces.
We suggest that the Agency move with great caution in
attempting to link certain wastes to so-called — product
markets.
What exactly is the operational definition of such
terms as hazardous, threatens human health, and — products?
The wording on page 58991 suggests a simple, one to one
correspondence, between — and waste material. Let's try to
apply this to a' CKDdeemed hazardous because it's pH may be
slightly greater than 12.
First note that CKD has multiple value from the
point of view of food crop, health, growth and protection.
And below it lists some characteristics. Liming, acid
neutralization or soil pH control. Two, potash values.
Three, sulphur value. Four, trace mineral value. Five,
potential pesticide control. Six, soil and heavy metal
stabilization characteristics. Seven, animal feed
characteristics. CKD — when held in place, are more likely
to participate in market growth of possibly'7 virgin-type
materials. Who is going to come up with a weighting formula
to measure the comparative risk to life and health for
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119
waste versus virgin substitution? I suggest to be rational
you have to go to a total system analysis, to make a judgment
, on whether there has been an overall increase or decrease in
O
the risk to health and life of large populations of humans.
I have found that on total system basis, CKD will compete very
well with many systems of virgin materials. Especially because
b
of its energy savings, which implies less fossil fuel
consumption and less air, water and soil pollution. The
total displacement of asphalt used in road bases is .another
major possibility for the disposal of millions of tons of
CKD and utility fly-ash. This substitution would help save
substantial energy, cut down on oil imports, anxl improve our.
balance of payments and tend to stabilize the dollar.
This substitution has the same order of magnitude
with crude oil savings as the 55-mile-per-hour national speed
15
16
18
limit. CKD's have also helped supply millions of tons of
equivalent lime and limestone to help scrub SO2 from utility
coal fired waste gases. There are potential applications
such as neitralizing coal acids. Keep in mind that there is
a lime shortage today.
21 Brookhaven National Laboratories has made a recent
estimate that 20,000 Americans die every year from air
23 pollution East of the Mississippi. This is partly due to
24 sulphate emissions from burning coal and oil. At least one
cement plant is having difficulty in meeting their sulphate
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120
emissions. And part of the problem has been traced to the
recycling of CKD to the kiln. Thus, total CK diversion to
a CKD utilization program in this particular case would help
solve air pollution difficulties without creating a solid
waste disposal problem.
We now have three cement plants available for
demonstration projects belonging to three major cement
companies. One or all could become the centerpiece of an
EPA project to show how CKD can be substantially diverted to
10 byproducts used with reduced cement plant"environmental risks.
u Our company stands ready to cooperate fully with EPA in
12 state and local governments'in such a venture.
ig Shortly after the President declared the energy
war, EPA's administrator, Douglas M. Cosgrove, on April 26,
15 1977, stated to a House Subcommittee that the EPA viewed
16 RCRA 76 as having three major goals. One, hazardous waste
17 control. Two, acceptable land disposal. Three, resource
lg conservation.
19 I am in major agreement with the statement assuming
rational operational tests and procedures and full system
21 risk analysis. I belief is that cement dust is a friend of
22 our nation. With the support of the U.S. government, the
23 cement industry and it's associates, we can all help the EPA
24 t0 ~
26 Thank you for your attention.
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I am going to read Dr. Baker's report. This is
Dr. Dale Baker, Professor of Soil Chemistry, Department of
Agronomy, University Park, Pennsylvania. Penn State
University.
4
As an agricultural scientist dedicated to the
protection of land and water resources, I note with interest
6
the document appearing aa Part 4, of the December 18, 1978,
Federal Register. The objective of this presentation is to
indicate that the criteria provided under part 250 subpart E
will permit most cement kiln dust to be excluded hazardous
waste.
CKD produced by many cement plants may be used as
soil liming material and with quality control is a valuable
byproduct. Composition data for dust for many locations are
summarized in Table 1 along with suggested parameters for
use in marketing material for application on properties.
When Table 1 is compared with regulations being suggested for
the application of sewage sludge on crop land in Pennsylvania,
my sggested limits for potentially toxic metals are much more
conservative and would prevent CKD from some cement plants but
probably not many from entering the agricultural market.
With respect to identification criteria under
subpart (a) of part 250 entitled "Hazardous Waste Guidelines
and Regulations" CKD is prepared for marketing as a soil
liming material — each characteristic..
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122
A. Ignitable waste. CKD is collected from cement
plant roasters and therefore not ignitable.
B. Corrosive waste. CKD will be marketed as a
dry — material which will be equivalent to calcium oxide or
hydrated lime. The pH of a saturated aqueous case of 12.5
to 13 indicates that like hydrated lime and commercial
fertilizers, CKD can be corrosive to — equipment, if it is
allowed to remain there over a long period of time. I have
not performed the tests outlined under Section 250.13 and I
request the EPA's advice on how the results would be related
to the intended use.
12 C. Reactive waste. CKD is a stable, nonreactive
13 material in water.
D. Toxic wastes. CKD from one plant producing a
15 high cadmium level and CKD from another plant being studied
I6 for agricultural utilization have been tested for the levels
of contaminants using the maximum level of acetic acid,
4 mils of .5 normal acetic acid per gram of CKD for 25 hours,
Ig at a 120 solid to solution ratio. The results are presented
20 in Table 2.
2I From the results presented it is apparent that the
22 pH buffering capacity is far above that required and as a
23 result the solubilities of the toxic elements are much before
Z4 the proposed standards presented under Section 250.13.
Organic compounds, including pesticides and herbicides are
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123
not — because their inclusion does not seem applicable to
2
1
CKD.
3 Given the fact that one, CKD is similar to burned
lime, CAO, which has been used for the liming of acid soils
, for centuries; two, — CKD does not meet the.;oomposition and
O
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
definitions used for fcoxicuwastes; three, — CKD for use of a
liming material has superior handling properties when compared
with hydrated lime or finely ground limestone. The — most
definitely should provide for the exclusion of CKD from any
listing of hazardous waste when this CKD material is —, is
marketed for use on acid soils, in accordance with existing
lime, fertilizer, and soil additive legislation.
That is the end of Dr. Baker's presentation. The
tables are appended here.
Thank you very much.
(Several additional materials on cement kiln dust
follow.)
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Subject: Cement Kiln Dust
Report Filed
by
Dale E. Baker, Ph.D.
Professor of Soil Chemistry
Penn State University
and
Soil Chemistry Consultant
on the
U.S. Environmental Protection Agency's
Proposed Guidelines and Regulations and Proposal
on Identification and Listing for Part IV
(RCRA-76, P.L. 94-584)
February 22, 1979
Research Supported by:
The Pennsylvania State University
Department of Agronomy
University Park, Pennsylvania 16802
and
N-Viro Energy Systems, Inc.
Division of Nicholson Industries
2201 Albion Street
Toledo, Ohio 43606
-------
Subject: Cement Kiln Dust
Statement for Inclusion in the Transcript of
Public Hearings:
USEPA
on Proposed Hazardous Waste Regulations
(RCRA-76, P.L. 94-580)
Section 3001
Department of Commerce, Washington, D.C.
February 22, 1979
Prepared by: Dr. Richard A. Ahlbeck
Vice President, Science & Technology
N-Viro Energy Systems, Inc.
Toledo, Ohio 43606
Telephone: 1-419-241-3275
-------
news release ernest Wittenberg associates, inc
1616 H Street NW
Washington. DC 2D006
FOR: N-Viro Energy Systems, Inc. (202)783-2080
A Division of Nicholson Industries, Inc. Cable RJBRELAS
2201 Albion
Toledo, Ohio 43606
CONTACT: James Wagner For Immediate Release
(202) 783-2080 January 25, 1979
TOLEDO FIRM ANNOUNCES CONTRACTS WITH MAJOR CEMENT MANUFACTURERS
TO RECYCLE AND MARKET CEMENT KILN DUST
TOLEDO, Ohio—Cement kiln dust, the gray, gritty and environmentally
troublesome waste product that piles up nationwide at the rate of 10
million tons a year, will be transformed by a Toledo company into a number
of economically useful energy-saving materials, it was announced here
today.
Projected uses for the recycled dust range from building highways to
cleaning the air and water and improving soils.
N-Viro Energy Systems, Inc. (NESI), a subsidiary of Nicholson Indus-
tries, Inc., of Toledo, announced the signing of 17-year contracts with
three major cement manufacturers to manage and market all their available
cement kiln dust (CKD). The manufacturers are General Portland Cement of
Dallas; Medusa Portland Cement of Cleveland; and Marquette Cement Co. of
Nashville.
NESI has research contracts and grants for technological development
of CKD with Battelle Memorial Institute of Columbus, Ohio, the University
of Toledo, Penn State University, the University of Illinois and others.
The federal government is considering sponsoring demonstration projects
using CKD materials. NESI's objective is to demonstrate the market
-------
feasibility o£ CKD within one year in three major areas: construction,
environmental control and agriculture.
J. Patrick Nicholson, president and chief executive officer of NESI,
said the new irses o£ CKD will help solve the cement industry's expensive
problem of soLia was-te disposal and will provide a return on investment
for environmen-ally required controls. Nicholson said cement kiln dust
offers many opportunities in energy conservation at lower product cost.
In one of the u-ses planned by NESI—highway construction—CKD may
allow a reduction in asphalt use equivalent to over 40 million barrels of
imported oil £ year, with a cost reduction of up to $10 per cubic yard of
paving material-
Nicholson, who is also president of Nicholson Industries, Inc., said
NESI was formed to develop profitable markets for cement kiln dust. He
said NESI is talking with other companies about sharing development of
CKD in marketing, technology and investment capital.
In addition to Nicholson, the founders and management of N-Viro
Energy Systems, Inc. include:
Richard A. Ahlbeck, vice president for science and technology. A
chemical engineer from the University of Michigan, Dr. Ahlbeck has been
an international consultant and corporation executive for many years. At
NESI he is responsible for finding new uses for CKD.
Richard T. Merkel, vice president for marketing and engineering. A
civil engineer from the University of Notre Dame, Merkel has 18 years of
experience in construction management and product development.
David G. Huey, vice president for finance. A CPA, he oversees and
udits the money flow in each multiple contractual relationship. Along
'th Merkel, Huey has seven years of experience in the construction
-------
materials industry. He has transferred from Nicholson Industries, Inc.
NESI expects CKD to achieve an ultimate market penetration of 20
per cent in the following areas:
Road Base—Cement kiln dust and fly ash (a waste product of coal-
burning utilities), when mixed with aggregrate, produce a stable, durable
base for highway construction. This product is lower cost and more plen-
tiful than the cement, asphalt or lime-fly ash normally used for the same
purpose.
Nicholson, who invented and patented this road-base material, N--Viro
Crete, noted that it costs one-third less than asphalt base. The co=;t
of asphalt is rising with other petroleum products. In addition, CKD
is produced without using additional energy while the other road-base
binder materials are energy-intensive.
N-Viro Crete, using CKD and power plant fly ash, which are waste
materials, is a competitive and profitable road base material, Nicholson
said. The U.S. Department of Transportation has indicated it will parti-
cipate in a three-state demonstration project using the material if the
Department of Energy will be the co-sponsor.
Pollution Control—Another new use of CKD, expected to grow consider-
ably, is in pollution control systems. CKD can be used to "scrub" sulfur
from the combustion of coal. It can stabilize power plant and other
industrial waste sludges.
Preliminary evaluation indicates that CKD might be a lower cost,
effective absorbent for sulfur dioxide to be used in conjunction with
limestone or lime currently used in flue gas desulfurization systems aid
fluidized bed combustion systems. CKD has distinct cost and energy advan-
tages and it does not need to be fine ground as limestone does in several
-------
areas. NESI is referring research and development activity in this area
to Battelle Memorial Institute in Columbus, Ohio.
CKD may be used eventually to control water pollution as well. It
can neutralize acid waste such as that which results from coal mining.
Agriculture—CKD can be used in agriculture and gardening as a soil
neutralizer, to lime acidic soils. It also contains potassium sulfate,
which can be blended with other fertilizers to replace imported potash.
CKD agricultural products are expected to compete effectively with
lime, limestone and the sulfate forms of potash. NESI has a research
contract with Battelle to study the pallatization characteristics of
cement kiln dust and is providing financial support to Penn State Univer-
sity, which is studying CKD uses in agriculture.
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1 MS. FRIEDMAN: Thank you very much. Will you
2
take questions from the panel?
3 DR. AHLBECK: Yes.
MR. TRASK: Dr. Ahlbeck, you suggested earlier
under your own paper that thece should be some means of
separating wastes into those that are going into recycling
and those that are going for disposal.
o
Did I understand you correctly on that?
9 DR. AHLBECK: That's exactly what will have to
happen under a utilization program.
MR. TRASK: Okay. What exactly did you have in
12
mind there? Did you have in mind some physical separation and
1 were you thinking of different standards for the different
14 piles of material if you will, or did you have in mind
15 administrative aspects?
16 DR. AHLBECK: Well, we want to be sure that these
17 particular regulations — first of all, we don't think CKD
18 should be in there at all.
19
But if you insist on putting some CKD into these
regulations, then we would prefer that you just focus- on the
21
material that's going to the waste dump.
22 MR. TRASK: Well, I'm sure that you know that
23
CKD would not be a hazardous waste if it does not meet one
24
or more of these characteristics.
25 DR. AHLBECK: I understand that but we're very
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125
perturbed by the fact that we are listed, even though — . .. ;
list, as a hazardous waste. We don't like who we're associa-
ting with, not all of them, but there's a couple in there
4 that we're really upset about.
MR. TRASK: let's assume for the moment that it is.
O
What then would you suggest that we do in this separation
between fchatatfcat .goes for disposal and that that goes for
reuse?
DR. AHLBECK: I don't have the answer right now, but
we're working on it.
MR. TRASK: We'd appreciate any information that
you have on it.
DR. AHLBECK: We will give it to you.
MR. LEHMAN: Mr. Ahlbeck, I just wanted, for the
record, to make a point of clarification here. And follow up
on — the regulations do not list cement kiln dust as a
hazardous waste . Do you understand that?
DR. AHLBECK: I understand that.
MR. LEHMAN: - The fact that a special section for
cement kiln dust is in section 3004 does not imply necessarily
that all cement kiln dusts are hazardous.
DR. AHLBECK: No, but all I'm hearing from people
in the industry who are not really familiar with what is
going on is that you are now a hazardous waste.
Even though it is not legally — I^would prefer if
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you had us out of Subtitle C as I said over in Subtitle B
and called us an environmentally sound waste and then, as
your data develops, you say oh, we made a mistake, we're going
to now move you over into the guilty section. We would like
to be declared innocent right now, because the data that we
have indicates that's where we really belong.
MR. LEHMAN: If we were to remove the special waste
section and 3004, concerning cement kiln dust, then any cement
kiln dust waste that meets the characteristics of section 3001
10 would be a hazardous waste and would' be. subject to all the
n section 3004 —
12 DR. AHLBECK: I agree. But if 99 percent of what you
13 have out there is nonhazardous, then I would suggest that we
., should not at this point in time be declared hazardous and
15 I'd like to see the EPA move as quickly as possible to quit
16 associating the word "hazardous" with cement kiln dust
17 specifically.
18 MR. LEHMAN: Let me make the point one time-again: -'
lg we do not list, cement kiln dust as a hazardous waste.
20 DR. AHLBECK: You don't list it as such but you've
2! got it associated with the word "hazardous". Because you're
22 talking about cement kiln dust under Subtitle C.
23 MR. LEHMAN: Well, then do I take your recommendation
24 that we remove that special waste section from Section 3004?
25 DR. AHLBECK: I don ' t have a comment on that.
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2 MR. STRAWS: You had mentioned earlier that cement
3
4
DR. AHLBECK: That is one possible application, yes.
6
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10
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14
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17
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25
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MR. LEHMAN: Thank you.
kiln dust has been used for stabilization of hazardous wastes,
or you recommended that it it be —
MR. STRAWS: Do you have any data to provide us
which would indicate what cement kiln dust would be as a
stabilizing agent?
DR. AHLBECK: We have some data with respect to one
other waste material. Well, we have two waste materials, we
have done studies on. We've done a lot of work with utility
fly-ash. A great deal of work. when you combine utility
fly-ash with cement kiln dust, it behaves like a slow-setting,
low strength cement,..,so obviously you're getting strength.
Substantial strength. Andyou're also simultaneously reducing
the permeability of the system. We've also looked at it with
relationship to sulpher sludges coming out of utility-
scrubbing operations, and we do get systems there too.
MR. STRAWS: Any data you do have, we would
appreciate, if you could provide some.
DR. AHLBECK: I'd be glad to provide that.
MR. FIELDS: Mr. Ahlbeck, you also, in your
discussion of cement kiln dust being an environmentally sound
material, you presented in Dr. Baker's speech some data regard:
the fact that it would not have any problem with 3001
ng
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128
characteristics.
2 DR. AHLBECK: That's right. That's been studied so
far, that it's going to pass your leaching solubility tests,
EP. But we have a problem with your pH.
MR. FIELDS: Now regarding the other — regarding
waste management. Have you done any groundwater monitoring
around waste disposal sites where cement kiln dust has been
disposed.
DR. AHLBECK: I've spent a lot of time wandering
around cement kiln dust waste piles.
MR. FIELDS: Do you have groundwater monitoring
12 data?
ig DR. AHLBECK: What's that?
MR. FIELDS: Do you have groundwater: data of what
you found?
DR. AHLBECK: We do not, but cement companies have
lo
gro-ndwater data that we understand. We were — recover the
,„ materials out of the dumps, we think possibly, depending upon
lo
costs, that we can recover some of the cement dust out of .the
waste piles, but that's going to be a very difficult job
21 because there's been a great deal of intermixing with other
22 debris around the cement plants.
23
MR. FIELDS: We'd appreciate any data you might have
regarding what is in the groundwater around these sites where
25 cement kiln dust is disposed.
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129
DR. AHLBECK: We ourselves have not got — my focus
2 has been on what's coming out of the plant houses and the
precipitator. Our focus is on taking that material before it
goes anywhere outside of the boundary limits of the cement
plant , before it goes to an in-plant site for disposal. And
5
utilize it. That's our thrust. Now some of the things we're
doing does apply to the problem of what's going on in the
dump.
MR. FRIEDMAN: Thank you very much. Our next speaker
10 will be Sy Bensky
STATEMENT OF SY BENSKY, MANAGER OF REGULATORY
ASSESSMENTS, OCCIDENTAL CHEMICAL COMPANY
12
MR. BENSKY: Good morning. My name is Sy Bensky.
I am the manager of regulatory assessments for Occidental
Chemical Company in Houston, Texas. Occidental's facility in
White Springs, Florida is engaged in the mining of phosphate
ore and the manufacture of phosphate fertilizer products.
Our plant in Lathrop, California is engaged in the manufacture
of ammonia as well as phosphate fertilizer products. Although
the regulations proposed by the EPA on December 18 may have
a far-reaching impact on Occidental and the rest of the
phosphate and fertilizer industry, I am going to limit my
comments today to the subject of manufactured gypsum, which
is the saleable coproduct, along with phosphoric acid,
resulting from the reaction of sulphuric acid and phosphate
rock.
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3
130
Occidental sells hundreds of thousands of tons of
manufactured gypsum per year for agricultural purposes. Our
plant in Lathrop, California as well as the other California
phosphoric acid producers sell all of the bypsum that they
manufacturer for that purpose. Manufactured bypsum is used
5
6 for its unique chemical and physical properties. As a
plant nutrient, manufactured bypsum contains 19 percent
calcium, and 15 percent sulphur in a water-soluble form, and
is used as a plant nutrient in the southeastern United States.
In the western part of the country, manufactured
gypsum is used as a soil ameliorant in the recovery of saline-
type soil. The calcium is used to restore the calcium-sodium
balance in the soil so that the land can be reclaimed and used
for farming. The small amount of phosphoric acid which remains
in the gypsum aids in neutralizing the alkaline or high pH
soil.
Based on the use of manufactured bypsum as- a soil
conditioner and plant food we can only conclude that manufac-
tured gypsum is a saleable product in the same sense as is
phosphoric acid and as such most certainly cannot be
classified as a waste material.
If restrictions are placed on the use of bypsum for
agricultural purposes, a. means will have to be developed to
store this product by such methods as landfilling or stacking
until another viable end use can be developed. The cost of
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131
transporting and storing the gypsum would be substantial and
would be reflected in the cost of other fertilizer materials
, and consequent higher food costs to consumers.
4 Occidental will submit written comments to the
Agency before the March 16 deadline and I would like to thank
the Agency for the opportunity to speak before it today.
MS. FRIEDMAN: Thank you very much. Will you
entertain questions from the panel?
MR. BENSKY: Certainly.
MR. LINDSEY: I think your major point here is that
gypsum, when used as an agricultural byproduct, doesn't
create any problem, at least as far as you are aware and that
the alternative would be to pile it someplace and that that
might cause a problem. Is that correct?
MR. BENSKY: Yes.
MR. LINDSEY: As you know, or maybe you don't
realize, I don't know, but I'll say it anyway, the inclusion
of this particular material as a special waste or in that
special waste category, as I think was pointed out by one of
the speakers earlier, is largely because we don't have a
great deal of information on how the material is handled and
whether or not in that specific case it creates a problem, so
we will be studying these materials and the disposal techniques
which are used and what those alternatives may be, and the^
health effects of those uses over the next vear and a half or
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132
In that regard, do you have any information on
the groundwater soil monitoring or anything like that,
where these materials are used for agricultural soil
amendments which — any data you might have along those lines
would be helpful to us, that would indicate the acceptability
of this kind of use.
MR. BENSKY: We don't have any information of that
nature. It's used at a very small route for fertilizer. You
don't just, you know, dump it indiscriminately. You calcuate
the amount that's needed.
MR. LINDSEY: Pardon?
MR. BENSKY; It's not — as an agricultural product
it's used in very limited amounts, in limited areas, just as
needed. You don't spread it out as a land farm type agent or
anything like that.
MR. LINDSEY: Is it disposed of or used for other
purposes?
MR. BENSKY: To my knowledge, no. It's unsuitable
for use as wallboard.
MR. LINDSEY: Okay. Is it always used as an
agricultural amendment then? It's not thrown away or piled
up or anything —
MR. BENSKY: it is piled where it can't be sold or
it ca-'t be sold in that great a quantity.
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133
MR. LINDSEY: Does that create problems that you're
aware of? Piling —
MR. BENSKY: It is regulated, especially in the
State of Florida. They do have regulations concerning
E leachate monitoring and management, site location, and
o
„ abandonment of the stack.
D
MR. LINDSEY: Are they more stringent than the
regulations we have under 3004?
MR. BENSKY: Offhand I can't comment on that right
now.
MR. LINDSEY: Okay.
MR. TRASK: Mr, Bensky, I can see you're suffering
the same thing I am this morning. I wish you luck.
You indicated that Occidental sells, I think you
said hundreds of thousands of pounds —
MR. BENSKY: Tons.
MR. TRASK: Tons. Okay. Of Gypsum per year from
your Lathrop plant?
MR. BENSKY: Yes.
MR. TRASK: Is there a difference between the gypsum
coming from the West Coast than there is from Florida?
MR. BENSKY: No. In Florida they use the rock
that originates — in California, rather, t-ey use rock that
originates in Florida so the gypsum is essentially identical.
MR. TRASK: You are using —
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134
MR. BENSKY: Florida rock.
2 MR. TRASK: Okay. It's almost identical.
3 MR. STRAWS: I have one question. Regarding the
saleable product, how much of your total gypsum from
Occidental is sold for agricultural purposes?
MR. BENSKY: In California, a-1 of it and in
Florida a small amount. It is not economically feasible to
transport it over long distances, and 350 to 400 miles —
MR. STRAWS: Less than 10 percent, maybe'in Florida?
1Q MR. BENSKY: I'd say less than that.
n MR. STRAWS: Let me clarify something. Are you
12 saying that wastes from some of that is sold — it should not
13 be included but this waste — should be regulated?
14 MR. BENSKY: I'm saying that it's not a waste
material because it is saleable.
MR. STRAWS: It's not a waste material when it's
lb
sold as an agricultural product, but when it's stockpiled?
18
24
MR. BENSKY: As far as the stockpiled material.
19 it's already being regulated, material that is stacked.
20 MR. STRAWS: Regulated by the states?
21 MR. BENSKY: By the states, yes.
22 MR. FIELDS: In California, for example, is this
„„ considered to be a hazardous waste?
MR. BENSKY: Not to my knowledge, no.
25 MR. FIELDS: In Florida, would — what is it
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5
135
considered?
MR. BENSKY: You know, the phosphate fertilizer
industry is very unique, it's a very large industry in
Florida and they have specific regulations governing gypsum
stacks, not so much as a hazardous waste, they address the
bypsum stacks.
And they have regulations concerning the siting and
groundwater monitoring and managing the runoff from the
stacks. If any of you've ever been to Florida or looked at
the operations, they're rather large.
MS. BRIEDMAN: Thank you very much.
Our next speaker and the last speaker before lunch
is Paul Eitiler.
STATEMENT OF PAUL EMLER, JR.,. CHAIRMAN,
POLICY COMMITTEE, UTILITY SOLID WASTE
ACTIVITIES GROUP (USWAG), WASHINGTON, D. C.
15
MR. EMLER: Thank you. My name is Paul Emler, Jr.
And I am employed as Senior Environmental Advisor by the
Allegheny Power Service Corporation.
I am appearing here today as Chairman of the Policy
Committee of the Utility Solid Waste Activities Group and on
behalf of the Allegheny Power System and the Edison Electric
Institute, and USWAG, an informal consortium of over 70 utility
operating companies, to comment on some aspects of the
regulations proposed to implement Section 3004 of RCRA.
In brief, we believe that most utility wastes are
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136
not hasardous. We further believe that no utility waste
should be regulated under Subtitle C until a sound and
reliable waste classification is established which takes into
3
account not only the results of various testing procedures,
but also the known composition of the material and experience
gained over decades of prior disposal activities. At that
6
time it would then be appropriate to implement the "special
waste" regulations.
8
As to the specific "special waste" requirements, we
have a number of concerns. Because of time restraints.
however, I will address only three of these today. First,
we believe that the "special" utility wastes cat3gory should
be broadened to include materials not currently described.
Second, we feel it is unnecessary to impose any siting
restrictions on new sources of special utility wastes. Finally
we believe the groundwater monitoring requirements should not
be implemented until EPA's in-depth study of 16 utility waste
disposal sites is completed.
Over the last two weeks, USWAG representatives have
testified regarding the importance of coal to the electric
utility industry and the impact of RCRA on that industry.
Specifically regarding the 3001 regulations, we described why
USWAG believes that the methodology proposed under 3001 to
determine whether wastes are hazardous is unsound and
unreliable as applied to utility wastes. And last week the
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137
USWAG representative urged that all generators of special
2 wastes be accorded the same regulatory treatment as owner/
,, operators of special waste facilities.
4 I will not cover the same ground except to reaffirm
two of USWAG's basic positions. The first is our belief that
the great bulk of utility wastes is not hazardous. The
second is to endorse the Agency's intention to place high
volume utility wastes in the "special waste" category pending
9 completion of a separate rulemaking. This endorsement,
10 however, is subject to a qualification. We believe that
n utility wastes are low risk. This has been recognized by
12 EPA. That fact, with what appear to be serious deficiencies
13 in the 3001 testing procedures, leads us to conclude that
any regulation of utility wastes under Subtitle C be deferred
15 until appropriate methodologies could be developed to determine
16 the hazard, if any, of utility wastes. After the establishment
17 of such procedures, the "special waste" provisions of
, Subpart D could be more appropriately applied.
lg I will turn now to our specific comments regarding
20 the "special waste" provisions. We believe that the regula-
21 tions as drafted would impose an unnecessary and costly
burden on utilities whose wastes fall within the special
23 waste category. Indeed, our preliminary studies show that
24 the cost to the industry of the special waste requirments
25 alone could exceed $20 billion.
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138
Specifically I would like to address three
2
aspects of the special waste regulations. My first point
3
deals with the types of "special" utility wastes included.
Second, I will discuss the siting requirements for new
sources. Finally, I will comment on the groundwater
monitoring requirements.
Section 250.46-2 contains no definition of special
utility wastes. Rather, certain wastes — flue-gas
9
desulfurization waste, bottom ash waste and fly ash waste —
are specified. We believe these are not appropriately
encompassing for the utility industry and do not reflect
conditions of the industry.
For example, foiler slag is omitted, and it should
be included. Also flue-gas emission control sludges which
result from the operation of flue-gas scuubbers for purp ses
other than desulfurization should be covered. I merely
touch on this matter here. USWAG will make a specific
proposal regarding an appropriate definition of special
utility wastes in its written comments to be supplied by
March 16.
I would like to turn now to the matter of siting.
USWAG believes that it is inappropriate to impose any siting
restrictions on new sources of special utility wastes. To do
so would create an unnecessary regulatory layer on a matter
already subject to numerous federal, state and local requirements.
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139
For example, at the state level, laws have been enacted in over
half of the states which govern the siting of new power plants
Nearly every coastal state in the country now controls
activities in coastal areas; and activities in floodplains
and freshwater wetlands are subject to regulatory control in
many states.
At the federal level, the requirements of NEPA
frequently apply to the siting and operation of new power
plants. Thus, the environmental consequences, as well as the
10 benefits and costs of the proposed action, are scrutinized.
In addition, many states explicitly prohibit the location of
12 solid waste disposal sites in floodplains (often defined as
13 100-year floodplains) unless special precautions are taken.
Also, communities participating in the National Flood
15 Insurance Program administered by the U.S. Department of
16 Housing and Urban Development must adopt zoning requirements
17 restricting location of structures in 100-year floodplains.
18 We have reviewed these state and federal laws to
19 point out that there now exist ample regulatory controls on
20 the location of new power plants and their related facilities
in wetlands, floodplains and similar areas. We submit that th<
22 imposition under RCRA of another layer of regulatory control
23 on power plant siting would create a costly administrative
24 process and yield little or no environmental benefit.
25 Accordingly, we believe it is unnecessary to impose any siting
restrictions on new sources of utility wastes.
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end 3A
Tape 3B
1
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Indeed, it is particularly inappropriate to impose
siting restrictions during the period that the special waste
rulemaking is underway. For one thing, the results of that
proceeding may show that siting restrictions are unnecessary
or should be modified substantially. For another, imposing
siting restrictions while the special waste rulemaking is
underway is inconsistent with the approach proposed for
implementing the "interim status" provisions of 3005(e). Unde:-
that approach, prospective permitees, while awaiting action on
their applications, would not be required to comply with the
siting restrictions. No greater requirements should be im-
posed on special waste facilities in the interim before the
special waste rulemaking.
In the event EPA proceeds to impose siting restric-
tions on new sources while the special waste rulemaking is
underway, USWAG has several fundamental concerns with the
proposed restrictions. First, we are concerned by EPA's
sweeping definition of the term "wetlands", which as defined
includes substantial land areas, indeed almost the entire
states of Florida and Louisiana. Declaring all wetlands oEf-
limits will make it extremely difficult to site disposal
facilities in these and other states. The proposed note, whici
would allow a facility to be located in a wetland if an NPDES
permit is obtained, does not solve the problem. Rather, it
merely forces the facilities to submit to jurisdiction under
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141
the Clean Water Act in order to locate in such areas. USWAG,
in conjunction with other industry groups, has already submittf
comments on the draft policy guidance which underlies the
Agency's proposal. I therefore will not dwell on this point
further except to state our position; we believe that the note
exception should be revised to allow facilities to locate in
wetlands without having to obtain an NPDES permit
In addition, we believe the definition of "wetlands"
9
should recognize the significant differences among the various
10
11
12
13
14
15
16
types of wetlands, such as freshwater bogs, tidal marshes and
mud flats. Affording flexibility to the permit issuer repre-
sents the only practical way that these differences may be
taken into account in reviewing specific siting proposals.
Finally, we have a serious concern that the 500-year
floodplain restriction is overly broad and inappropriate for
new power plants and associated disposal facilities. As to
17 breadth, it is unclear how much land in the country is encom-
passed. Thus, contrary to EPA's suggestion that such informa-
tion is available, the fact is that it is not available for
most of the communities and streams in the country. The
boundaries of 100-year floodplains are more widely available,
but even those maps do not delineate floodplains less than 200
feet wide. Thus, no floodplain information of any kind will
be available for small streams and watersheds, where some dis-
posal facilities are likely located. This lack of information
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will make it extremely difficult to make siting decisions for
2
new power plants and their associated waste disposal facilitie
3 The basis for EPA's 500-year floodplain restriction
4 is the Water Resources Council guideline that for certain
"critical actions" this should be "the minimum flood plain of
concern." A key question in determining whether an action is
"critical" is: "If flooded, would the proposed action create
an added dimension to the disaster as could be the case for
liquefied natural gas terminals and facilities producing and
storing highly volatile, toxic, or water reactive materials?"
EPA has concluded that for hazardous waste facilities, the
answer to this question is clearly "yes".
USWAG submits, however,that for fossil-fueled power
plants and special utility waste facilities, the answer is
"no." Sludge, ash and other uniquely-handled utility wastes
15
clearly do not constitute "highly volatile, toxic, or water
16
reactive materials." Certainly, fossil-fuel power plants
themselves do not rise to the "critical" level of facilities
18
handling "highly toxic" materials. Thus, USWAG does not
believe that the "critical action"/500-year floodplain restric-
tion is appropriate for new power plants and associated
disposal facilities.
I would like to turn now to our comments on the moni •
23
toring requirements contained in the "special wastes" rules.
Overall, the scheme proposed by EPA is an open-ended,
25
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comprehensive monitoring system. It will be expensive and
2
may require modeling of groundwater patterns in order to
comply. It is difficult to understand why EPA would impose
such an elaborate and expensive requirement at this time,
particularly as to utility wastes. First, EPA itself recogniz
that these wastes pose relatively low risks. Second, the
proposal makes no sense when compared to the proposed interim
status requirements. Those would require monitoring only if
the system is already in place. Yet, EPA would require
monitoring at special waste facilities whether or not a system
is in place. The monitoring requirement is therefore far more
stringent for low-risk special wastes than it is in the interi
for non-special, higher-hazard wastes.
Third, given EPA's proposed overly-broad definition
of "discarded material" and the potentially enormous impact of
the proposed regulations' on reuse of fly ash and scrubber
sludge — a matter which USWAG will address in subsequent
testimony — the proposed regulations might require installa-
tion of expensive groundwater monitoring systems every time
these materials are reused as, for instance, road base or fill
material. In short, the regulations might require extensive
ground water monitoring systems along major highways, airport
runways, and bridge embankments.
USWAG believes that such a result is not sensible.
The rationale for the requirement, suggested in Background
-------
144
document 31, is that it is intended as a means to gather data.
If that is the primary basis for this costly and burdensome
requirement, we believe it is without merit. EPA intends to
obtain the information it needs through the Agency's multi-
million dollar study of 16 disposal sites, where groundwater
5
monitoring and analysis will be conducted. It is therefore
6
senseless to require the entire industry to install wells
when the study may conclude that the groundwater monitoring
requirements are unnecessary or should be modified.
My final point touches on permitting. We, of course
do not yet know what the permitting scheme will look like. It
is, therefore, somewhat difficult and abstract to address even
the 3004 regulations. For this reason, we believe that the
comment period on these regulations should remain open through
the comment period of 3005. In any event, we believe that the
permit system not apply to special utility wastes. In the al-
ternativt, if compliance with the special waste rules, as pro-
posed in Background Document 31, is deemed to be the equivalent
of receiving a permit, the 3004 regulations should so state.
We anticipate providing specific recommendations on
this and many other matters in our written comments, to be
submitted by March 16.
Thank you.
(The full text of Mr. Emler's comments follows.)
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Statement of Paul Emler, Jr.
on behalf of
Allegheny Power Service Corporation/
The Utility Solid Waste Activities Group
and
Edison Electric Institute
Public Hearing on Proposed Regulations to
Implement Section 3004 of the Resource
Conservation and Recovery Act of 1976,
U.S. Environmental Protection Agency
February 22, 1979
Washington, D. C.
My name is Paul Emler. I am employed as Senior
Environmental Advisor by the Allegheny Power Service Corporation.
I am appearing today as Chairman of the Policy
Committee of the Utility Solid Waste Activities Group ("USWAG"),
on behalf of USWAG, The Allegheny Power System, and the Edison
Electric Institute to comment on some aspects of the regulations
proposed to implement Section 3004 of RCRA.
In brief, we believe that most utility wastes are not
hazardous. We further believe that no utility waste should
be regulated under Subtitle C until a sound and reliable
waste classification is established which takes into account
not only the results of various testing procedures, but also
the known composition of the material and experience gained
over decades of prior disposal activities. At that time,
it would then be appropriate to implement the "special waste"
regulations.
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As to the specific "special waste" requirements, we
have a number of concerns. Because of time restraints, however,
I will address only three of these today. First, we believe
that the "special" utility wastes category should be broadened
to include materials not currently described. Second, we feel
it is unnecessary to impose any siting restrictions on new
sources of special utility wastes. Finally, we believe that
the groundwater monitoring requirements should not be implemented
until EPA's in-depth study of 16 disposal sites is completed.
Before expanding on these points, I would like to note
that Allegheny Power Service Corporation is a subsidiary of
the Allegheny Power System, Inc. The latter is a public utility
holding company whose wholly-owned operating subsidiaries are
West Penn Power Company, Monongahela Power Company and The Potomac
Edison Company. These operating subsidiaries provide electric
service to over 2,600,000 people in the states of Maryland, Ohio,
Pennsylvania, Virginia and West Virginia. 92 percent of those
companies' generation now on-line is coal-fired. In addition,
APS companies are planning to bring 1260 megawatts of coal-fired
generation on-line in the next year-and-a-half.
For those of you not familiar with USWAG, let me
briefly describe the group. USWAG is an informal consortium
of electric utilities and the Edison Electric Institute.
Currently, over 70 utility operating companies are partic-
ipants in USWAG. These companies own and operate a
-------
substantial percentage of the electric generation capacity
in the United States. EEI is the principal national association
of investor-owned electric light and power companies.
Over the last two weeks, USWAG representatives have
testified regarding the importance of coal to the electric utility
industry, and the impact of RCRA on that industry. Specifically
regarding the 3001 regulations, we described why USWAG believes
that the methodology proposed under Section 3001 to determine
whether wastes are hazardous is unsound and unreliable as applied
to utility wastes. And last week the USWAG representative urged
!/
that all generators of special wastes must be accorded the
same regulatory treatment as owner/operators of special waste
tacilities.
I will not cover the same ground except to reaffirm
two of USWAG1s basic positions. The first is our belief that
the great bulk of utility wastes is not hazardous. The second
is to endorse the Agency's intention to place high volume
utility wastes in the "special waste" category pending completion
y
of a separate rulemaking. This endorsement, however is
subject to a qualification. We believe that utility wastes
are low risk. This has been recognized by EPA. That fact,
combined with what appear to be serious deficiencies in the
I/ I.e., hazardous special wastes.
2/ See proposed S250.46-2(a), 43 Fed. Reg. 59015 (Dec. 18, 1978)
and preamble thereto, id. at 58991-92.
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3001 testing procedures, leads us to conclude that any regulation
of utility wastes under Subtitle C should be deferred until
appropriate methodologies could be developed to determine
the hazard, if any, of utility wastes. After the establishment
of such procedures, the "special waste" provisions of Subpart
I/
D could be more appropriately applied.
I will turn now to our specific comments regarding
the "special waste" provisions. We believe that the regulations
as drafted would impose an unnecessary and costly burden on
utilities whose wastes fall within the special waste category.
Indeed, our preliminary studies show that the cost to the in-
dustry of the special waste requirements could exceed $20
billion.
Specifically, I would like to address three aspects of
the special waste regulations. My first point deals with the
types of "special" utility wastes included. Second, I will
discuss the siting requirements for new sources. Finally, I
will comment on the groundwater monitoring requirements.
Section 250.46-2 contains no definition of special
utility wastes. Rather, certain wastes — flue-gas desulfur-
ization waste, bottom ash waste and fly ash waste — are speci-
fied. We believe these are not appropriately encompassing
3/ We would still urge further modification of those require-
ments as outlined in this statement and as will be proposed
in USWAG's formal written comments.
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for the utility industry and do not reflect conditions of the
industry. For example, boiler slag is omitted, and it should
be included. Also, flue-gas emission control sludges which
result from the operation of flue-gas scrubbers for purposes
other than desulfurization should be covered. I merely
touch on this matter here. USWAG will make a specific proposal
regarding an appropriate definition of special utility wastes
in its written comments to be filed by March 16.
I would like to turn now to the matter of siting.
USWAG believes that it is inappropriate to impose any siting
restrictions on new sources of special utility wastes. To do
so would create an unnecessary regulatory layer on a matter
already subject to numerous federal, state and local requirements.
For example, at the state level, laws have been enacted in over
I/
half the states which govern the siting of new power plants.
Nearly every coastal state in the country now controls activities
in coastal areas; and activities in floodplains and freshwater
wetlands are subject to regulatory control in many states.
I/
At the federal level, the requirements of NEPA fre-
y
quently apply to the siting and operation of new power plants.
^/ See, e.g., Cal. Code Ann. §25500 et seq.; N.Y. Pub. Serv.
Law SS120-128, SSk40-144a; Fla. Pub. Health Law §403.501
et seq.; Md. Nat. Res. Code Ann. §3-301 e_t seq.
S./ National Environmental Policy Act (NEPA), 42 U.S.C. §§4321
et seq.
j>/ E.g., the Clean Water Act subjects EPA to the requirements
of NEPA in issuing NPDES permits to new sources. 33 U.S.C.
-------
Thus, the environmental consequences, as well as the benefits
and costs of the proposed action, are scrutinized. In
addition, many states explicitly prohibit the location of
solid waste disposal sites in floodplains (often defined
as 100-year floodplains) unless special precautions are
taken. Also, communities participating in the National
Flood Insurance Program administered by the U.S. Department
of Housing and Urban Development must adopt zoning require-
ments restricting location of structures in 100-year flood-
plains.
We have reviewed these state and federal laws to point
out that there now exist ample regulatory controls on the
location of new power plants in wetlands, floodplains, and simi-
lar areas. We submit that the imposition under RCRA of another
layer of regulatory control on power plant siting would create
a costly administrative process and yield little or no environ-
mental benefit. Accordingly, we believe that it is unnecessary
to impose any siting restrictions on new sources of utility
wastes.
Indeed, it is particularly inappropriate to impose
siting restrictions during the period that the special waste
rulemaking is underway. For one thing, the results of that pro-
ceeding may show that siting restrictions are unnecessary or
should be modified substantially. For another, imposing siting
restrictions while the special waste rulemaking is underway
-------
is inconsistent with the approach proposed for implementing the
"interim status" provision of Section 3005(e). Under that
approach, prospective permitees, while awaiting action on
their applications, would not be required to comply with the
y
siting requirements. No greater requirements should be
imposed on special waste facilities in the interim before the
special waste rulemaking.
In the event EPA proceeds to impose siting restrictions
on new sources while the special waste rulemaking is underway,
USWAG has several fundamental concerns with the proposed re-
strictions. First, we are concerned by EPA's sweeping definition
of the tern "wetlands", which as defined includes substantial
land areas, indeed almost the entire states of Florida and
Louisiana. Declaring all wetlands off-limits will make it
extremely difficult to site disposal facilities in these and
other states. The proposed note, which would allow a facility
to be located in a wetland if an NPDES permit is obtained,
does not solve the problem. Rather, it merely forces the
facilities to submit to jurisdiction under the Clean Water
Act in order to locate in such areas. USWAG, in conjunction
y
with other industry groups, has already submitted comments
on the draft policy guidance which underlies the Agency's
y Section 250.40(c).
ji/ These groups included EEI, the Utility Water Act Group
and the National Rural Electric Cooperative Association.
-------
proposal. I therefore will not dwell on this point further
except to state our position; we believe that the note exception
should be revised to allow facilities to locate in wetlands
10/
without having to obtain an NPDES permit.
!!/
In addition, we believe the definition of "wetlands"
should recognize the significant differences among the various
types of wetlands, such as freshwater bogs, tidal marshes and
mud flats. Affording flexibility to the permit issuer rep-
resents the only practical way that these differences may
be taken into account in reviewing specific siting proposals.
Finally, we have a serious concern that the 500-year
12/
floodplain restriction is overly broad and inappropriate
for new power plants and associated disposal facilities. As
to breadth, it is unclear how much land in the country is
encompassed. Thus, contrary to EPA's suggestion that such
iV
information is available, the fact is that it is not
available for most of the communities and streams in the country.
9/ Draft Policy Guidance on NPDES Permits for Solid Waste
Disposal Facilities in Waters of the United States (August
23, 1978). See also Background Document-14, p. 24.
10/ It should be noted that where it is necessary to obtain
an NPDES permit, such discharges are expressly exempted
from regulation under RCRA. §1004(27).
U/ Section 250.41 (b) (100).
12_/ Section 250.43-l(d).
13/ Background Document-14, p. 21.
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The boundaries of 100-year floodplains are more widely available/
but even those maps do not delineate floodplains less than 200
14/
feet wide. Thus, no floodplain information of any kind
will be available for small streams, where some disposal facilities
are likely located. This lack of information will make it
extremely difficult to make siting decisions for new power
plants and their associated disposal facilities.
The basis for EPA's 500 year floodplain restriction
is the Water Resource Council guideline that for certain
"critical actions" this should be "the minimum flood plain
iV
of concern." A key question in determining whether an
action is "critical" is: "If flooded, would the proposed action
create an added dimension to the disaster as could be the
case for liquefied natural gas terminals and facilities producing
and storing highly volatile, toxic, or water reactive materials?"
EPA has concluded that for hazardous waste facilities, the
16/
answer to this question is clearly "yes".
USWAG submits, however, that for fossil-fueled power
plants and special utility waste facilities, the answer is
"no." Sludge, ash and other uniquely-handled utility wastes
14/ U.S. Water Resource Council, Floodplain Management
Guidelines for Implementing Executive Order 11988, 43
Fed. Reg. 6030, 6042 (Feb. 10, 1978).
15/ 43 Fed. Reg. 6043.
16/ Background Document-14, p. 21.
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clearly do not constitute "highly volatile/ toxic, or water
reactive materials." Certainly, fossil-fuel power plants
themselves do not rise to the "critical" level of facilities
handling ''highly toxic" materials. Thus, USWAG does not believe
that the "critical action''/500-year floodplain restriction
is appropriate for new power plants and associated disposal
facilities.
I would like to turn now to our comments on the moni-
toring requirements contained in the "special wastes" rules.
Overall, the scheme proposed by EPA is an open-ended, compre-
hensive monitoring system. It will be expensive and may require
modeling of groundwater patterns in order to comply. It is
difficult to understand why EPA would impose
such an elaborate and expensive requirement at this time,
particularly as to utility wastes. First, EPA itself recognizes
that these wastes pose relatively low risks. Second, the proposal
makes no sense when compared to the proposed interim status
requirements. Those would require monitoring only if the
U./
system is already in place. Yet, EPA would require monitoring
at special waste facilities whether or not a system is in
place. The monitoring requirement is therefore far more stringent
tor low-risk special wastes than it is in the interim for
non-special wastes.
IT/ Section 250.40{c)(2)(vii).
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Third, given EPA's proposed overly-broad definition
of "discarded material" and the proposed regulations' resultant
potentially-enormous impact on reuse of fly ash and scrubber
sludge — a matter USWAG will address in subsequent testimony —
the proposed regulation might require installation of expensive
groundwater monitoring systems every time these materials are
reused as, for example, road base or fill material — in short,
along major highways, airport runways, and bridge embankments.
USWAG believes that such a result is not sensible.
The rationale for the requirement, suggested by Background
18/
Document 31, is that it is intended as a means to gather data.
If that is the primary basis for this costly and burdensome
requirement, we believe that it is without merit. EPA intends to
obtain the information it needs through the Agency's multi-
million dollar study of 16 disposal sites, where groundwater
monitoring and analysis will be conducted. It is therefore
senseless to require the entire industry to install wells when
the study may conclude that the groundwater monitoring require-
ments are unnecessary or should be modified.
My final point touches on permitting. We, of course,
do not know yet what the permitting scheme will look like.
It is, therefore, somewhat difficult and abstract to address
even the 3004 regulations. For this reason, we believe that
18/ See Background Document 31, pp. 8, 14.
-------
the comment period on these regulations should remain open
through the comment period on 3005. In any event, we believe
that the permit system should not apply to special utility
wastes. In the alternative, if compliance with the special
waste rules/ as proposed in Background Document 31 (p. 8),
is deemed to be the equivalent of receiving a permit, the
3004 regulations should so state.
We anticipate providing specific recommendations on
this and many other matters in our written comments to be
submitted by March 16.
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145
j MS. FRIEDMAN: Thank you very much. Will you take
2 questions from the panel?
MR. EMLER: Yes, Ma'am.
o
4 MR. LINDSEY: One of the comments you made right at
the outset regarded the economic impact on your industry of
g I believe you said the special waste standards which you felt
could exceed $20 billion.
MR. EMLER: That is correct.
8
MR. LINDSEY: Which is — that would be — it would
9
be most interesting to us to see on what you base that. I
mean, we're talking here about some groundwater monitoring
activities and some fencing and some relatively small scale
activities. Can you give us briefly any way, what —
13
MR. EMLER: He have a number of contractor studies
14
underway. That figure was taken from the preliminary draft
15
which is now undergoing review by both USWAG and the contracto
ID
and it will be provided with our comments on the 16th.
MR. LINDSEY: Could you say ahead of time or give
18
us some idea of what it is within the regulations that racks
up a $20 billion figure?
MR. EMLER: I'm sorry, I haven't had an opportunity
22 to review it yet,myself.
MR. LINDSEY: First of all, as I'm sure you're
LO
aware, I think as a matter of fact you mentioned it, we do not
list utility wastes as hazardous, and thus they would not be
-------
7
146
included under any of these regulations, unless they fail the
2 characteristics —
3 MR. EMLER: We're aware of that.
MR. LINDSEY: Do you have any, or does your organiza-
tion or your member companies have any information on what
percentage of, for example, the ash, would fail this criteria?
Have you done the tests for example under the —
MR. EMLER: We, as an organization, have not run the
tests. I can't speak for independent utility companies as to
whether they have or not. It's my understanding that there
are contractors for the various agencies of the federal
government that are looking at that.
MR. LINDSEY: Now, we've run some. Not a sufficient
number. That's the reason why the material is still special
waste. And I guess our preliminary indications anyway are
that it's a relatively small percentage.
I guess that's all I've got.
MR. STRAWS: In your testimony you suggest that we
expand those wastes which should be considered as special,
utility special waste. Could you expand on this a little bit,
on why should be enforce slag —
MR. EMLER: Essentially those materials are the
same chemically as slag, bottom ash and scrubber sorts. Their
physical characteristics are different only because of the
type of water or pollution control devices being used to
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5
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
147
MR. STRAWS: Do you have the data which may suggest
that these wastes may — characteristics?
MR. EMLER: At the moment we only have some EPA
indications that they may.
MR; STRAWS: These specific wastes —
MR. EMLER: We're talking about expanding on, no.
They are high-volume wastes, though.
MR. TRASK: Mr Emler, you mentioned in your comments
that most of the available maps do not point out the flood-
plains when they are smaller than 200 feet in diameter, and I
think you also said, correct me if I am wrong, that some of
the disposal facilities are likely located along these small
streams. Did I understand you correctly?
MR. EMLER: One of the problems with the floodplain
definition is the Water Resources Council definition of what
constitutes a floodplain.
If you have,a valley that may have an intermittent
stream in it, there is a flood plain associated with that
stream, even though it's intermittent, and under the sweeping
definition, that valley then, you could not locate a hazardous
waste or the hazardous waste facility within that valley.
Even though we do normally locate many waste facilities in
valleys, collect the water, pipe it underneath the facilities
so that there is no impact on the stream itself.
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3
148
MR. TRASK: That what was I was going to get at. If
your industry hadn't measured the impact of some of these
waste disposal-sites on small streams, if you do have some of
those data, I'm sure it would be significant to us and would
, be helpful to us in the rulemaking procedure here.
O
Could you, within your own co-pany and also —
MR. EMLER: We'll try to provide as much data to you
as we can.
MR. TRASK: Thank you.
MR. FIELDS: I have one questions regarding some of
the assumptions that you have used in your cost estimate.
Several times in your presentation you indicated that EPA
was imposing certain requirements on the entire industry.
Are you aware that we're only going to be imposing these
requirements on that portion — in 3001. And your statement
indicated that we would be imposing senseless groundwater
monitoring requirements on the entire industry. I was going
to make the point that the groundwater monitoring requirements
will only be imposed at sites for which we thought hazardous
wastes were being deposited in that site.
MR. EMLER: We're fully aware of that.
MR. FIELDS: It might be a small portion of all
utility wastes. Secondly, there seems to be a misunderstandin
regarding the interim status requirements in terms of
consistency. The 3005 (e) requirements are not going to apply
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149
to new facilities. We're not going to be giving new facilities
that come into business later interim status under 3005 (e),
so we're not being inconsistent regarding that treatment of
your sites, you know, in that regard.
MR. EMLER: All right. We'll make a note of that.
MR. FIELDS: The second thing is, in site selection
criteria, which is one of the areas thatyou addressed, you
commented that you thought the site selection criteria were
inappropriate for new facilities. Well, in your presentation,
you only seem to address two areas. That is, floodplains and
wetlands. There are several other areas in the site selection
criteria, like active fall zone and the 200-feet buffer zone.
MR. EMLER: We'll address all of them in our written
comments.
MR FIELDS: But those areas were not —
MR. EMLER: — the flood plains and the wetlands
issue I think just because the extent of area in the country
that they would apply to are the most —
MR. FIELDS: But you have problems with all the site
selection criteria, is that it?
MR. EMLER: Yes, I do.
MR. STRAWS: Can I follow that for just one second?
Are you suggesting that, while the study is going on, that
EPA exclude utility wastes from regulation or are you saying
that the special wastes category be modified?
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2
150
MR. EMLER: I think we're indicating both. We would
prefer that they be excluded totally from Subtitle C. However
if that is infeasible, the special wastes category should be
3
expanded. And modified. And we will address those specifics
in our comments.
5
MR. STRAWS: Thank you.
6
MS. DARRAH: I would like to clarify one point.
You state that USWAG believes it is inappropriate to propose,
impose siting restrictions on new sources of special utility
wastes and I think it's clear from your statement later that
you realize the regulations apply only to disposal facilities.
MR. EMLER: Only to disposal facilities. That's
correct.
MS. DARRAH: Okay.
MS. FRIEDMAN: Thank you very much/ Mr. Emler.
We're going to break now for lunch. We will reconvene at
1:30, at which time~our first .speaker will be E. Q. Blanchard.
If anyone else has travel plans or —
MS. RAINS: I do. I think I told you earlier.
Gloria Rains.
(Whereupon, at 12:30 p.m. the lunch break was taken,
the hearing to reconvene at 1:30 p.m. that same day, Thursday,
February 22, 1979.)
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151
l AFTERNOON SESSION
1:30 p.m.
MS. FRIEDMAN: Tomorrow's hearing will be held at
the HEM North Building Auditorium, starting at — registration
4
at 8:00, the hearing starts at 8:30.
Our HEW North Building Auditorium is located
6
between 3rd and 4th Streets, in between Independence and C,
in Southwest.
o
There are approximately 10 to 12 speakers who have
indicated that they'd like to make presentations before
4:00 O'clock so I'd like to ask all of you who are scheduled
to speak during that period of time to make your presentations
as concise as possible.
lo
Our first speaker will be Mr. E. Q. Blanchard.
STATEMENT OF ELWOOD P. BLANCHARD, GENERAL
MANAGER OF THE CHEMICALS, DYES AND PIGMENTS
DEPARTMENT, E. I. du PONT de NEMOURS AND
COMPANY, WILMINGTON, DELAWARE
Good afternoon. I am Elwood Blanchard, General
Manager of the Chemicals, Dyes and Pigments Department of
19
E. I. du Pont de Nemours and Company. In my capacity, I have
the responsibility for the manufacturing operations of about
21
one fourth of Du Font's 100 manufacturing plants.
22
I come to you today as a businessman to voice my
21
concerns about the impact of the proposed RCRA sections 3001
24
and 3004. Du Pont fully recognizes the need for the management
25
of hazardous wastes in an environmentally sound manner.
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152
However, we also regoznize and propose that a practical and
reasonable satisfaction of this need must be sought. Based
upon our review of these regulations, we believe that these
proposals will have a substantial impact upon our operations
and are concerned that many of the requirements may impose
unnecessary and/or unreasonable burdens. Today I will
briefly express our major concerns.
First, we believe that the waste classification
system does not sufficiently differentiate between the degrees
10 of hazard.
Second, the facility design standards are unneces-
sarily rigid and will impose unreasonable burdens upon
existing facilities.
14 The coverage of the NPDES-related facilities will
15 impose unreasonable duplicative burdens.
16 Fourth, the interim requirements may give rise to
17 serious inequities.
lg And fifth, the financial requirements are
19
unnecessarily onerous and inflexible.
2fl Concerning the waste classification system issue, it
appears that EPA has put all solid wastes into one of two cate--
22 gories: One, hazardous wastes which must be disposed of in
2g accordance with all of the stringent regulations proposed unde:-
24 Subtitle C of RCRA, or two, wastes not classified as
25
hazardous which may be disposed of in sanitary landfills.
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153
By defining."hazardous waste" to cover such a broad
category of wastes, EPA is requiring needless expenditures
for the disposal of relatively low-hazard wastes and
3
severely straining the ability of permitted hazardous waste
facilities to handle those wastes which will or do pose a
significant, potential hazard.
As currently proposed, the disposal standards apply
equally to an acutely toxic or carcinogenic waste and a
mildly corrosive waste which I understand could include things
such as a cola soft drink which has a pH of about 2.5 or
lime stabilized sludges with a pH of about 12.5. Both of
which fall outside the proposed nonhazardous pH range of 3 to
12.
EPA has recognized the concept of "degree of hazard"
by defining a limited number of "special wastes" categories
and subjecting them to different disposal requirements. We
recommend that this hazard differentiation concept be expanded
to group all wastes by degree of hazard and set storage,
treatment, and disposal standards related to the degree of
hazard.
We believe that this approach will provide
necessary prioritization and will more expeditiously achieve
RCRA's objectives.
Turning to Section 3004 regulations, our first
concern relates to the rigid application of design standards
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4
5
154
for hazardous waste facilities. The specified standards apply
equally to new and existing facilities. The inflexible use of
these standards will arbitrarily cause many existing
environmentally-sound and well-designed facilities to be out
of compliance.
Performance standards have many advantages over
design standards, including encouraging innovation. This
proposed regulation relies heavily on design standards and
provides minimal flexibility to develop and use alternative
technologies. EPA recognizes the value of variances which
are available for a few of the requirements through the use of
a "note" after the respective design standard.
The proposal also includes health and environment
standards but they appear to be only for EPA to use as an
"override mechanism", if the design standards are not
stringent enough in the given situation.
It is recommended that satisfaction of health and
environmental standards be allowed as a basis for establishing
compliance by the facility owner, and that broader flexibility
in establishing functional equivalence to the design standards
be provided. This flexibility is essential to avoid over-
burdening the limited number of suitable facilities.
I would like to describe two examples of where such
a showing of functional equivalency should be permitted and is
vitally necessary.
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155
In addressing these proposed regulations, we found
that a new chemical landfill which we have just installed in
one of our larger plants, may not meet the proposed RCRA
4 standards. This landfill is essential because it disposes of
primary sludge from our wastewater treatment plant. Although
. it is double-lined, it does not meet several of the proposed
b
design requirements.
It cannot be retrofitted and would have to be
abandoned and replaced at a cost of about $3 million. If
we were able to replace this facility, one of the proposed
design requirements is that the underlying soil have a
permeability of 1 times 10 to the minus fourth centimeters
per second. This requirement cannot be met anywhere on this
plant site. Clearly, this jeopardizes the very existence of
this plant.
As a second example, a new Du Pont plant which we
are about to start up has a double-lined, two-acre impoundment
which does not meet EPA's liner thickness and depth to
groundwater requirement. Its replacement cost would be about
$1 million.
We believe these facilities will provide performance
which is functionally equivalent to EPA's design standards
and would meet EPA,'s health and environment standard. The
regulations should at least give us the option to continue the
use of these facilities upon such a showing.
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We also have serious concerns regarding the
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proposed application of these facility standards to ponds,
2
basins, and other surface impoundments which are part of
3
NPDES-permitted facilities. Most of these facilities have
4
recently been completed for compliance with the 1977 Clean
5
Water Act deadline. We recognize EPA concerns regarding
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possible groundwater contamination from such facilities.
7
These facilities were subject to review under the existing
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federal and state NPDES programs and we understand that they
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will be subjected to further control in view of the best
10
management practice provisions added to the Clean Water Act
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in the 1977 amendment.
12
We question the technical justification for blindly
13
imposing standards applicable to hazardous waste facilities
14
in a general way to these unique and specialized "solid waste"
15
facilities, characterized by a continuous, large volume flow
16
of a dilute aqueous stream.
17
Furthermore, these facilities are already subject to
18
regulations which are and will be further tailored to their
19
unique characteristics. We believe that this point is particu--
20
larly significant in view of the Congressional intent, clearly
21
stated in RCRA, that EPA not duplicate in RCRA, regulation
22
areas already covered in the Water Act and other laws which
23
EPA administers. We fail to understand as to why EPA believes
24
these facilities are subject to RCRA.
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We urge that these facilities continue to be
2
regulated, .but only under the Water Act.
3
We have serious concerns regarding possible
4
inequities which are likely to develop in the permitting systei
5
during the interim status period. EPA estimates it may take
6
up to five years to process all of the permit application.
7
Yet, to this day, no procedure has been provided to assure
8
equitable processing. Should processing of applications be
9
randomly handled, serious inequities will arise.
10
For example, if one facility's application was
11
immediately reviewed and an onerous compliance schedule
12
imposed, five years could pass before an application for a
13
similar facility, owned by a competitor, might even be reviewed
14
To minimize such potential inequities, we urge EPA
15
to establish a definite period in which only the interim
16
requirements apply. The period should be sufficient to ensure
17
that essentially all of the permits would be issued. The
18
procedure could be similar to that followed in achieving
19
compliance with the BPT requirements under the Clean Water
20
Act, and would ensure equitable treatment.
21
Our last point of discussion is the financial
22
requirements. Specifically, we are greatly concerned by the
23
trust fund for closure of the facilities and the liability
24
insurance coverage.
25
Regarding closure and post-closure costs, we urge
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that reasonable flexibility be provided bylallowing alternativi
2 to cash deposits in bank trust accounts. Surety bonds or
3 other reasonable financial guarantees should be acceptable.
4 As to the $5 million insurance provisions for sudden
and non-sudden occurrences, we have several concerns. Ficst,
are uncertai- how the $5 million requirement is to be imposed.
7 For example, is it per owner, per plant site, or upon each
disposal facility? Assuming it is on a plant basis, even the
g largest corporations could have trouble meeting the self-
insurance provisions. Secondly, we feel EPA has not developed
n sufficient justification for the $5 million requirement.
12 Thirdly, we are not aware of the availability of insurance to
cover non-sudden occurrences. Fourth, we question whether thes
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requirements validly reflect the degree of flexibility in
financial responsibility assurance which is prescribed by the
,„ last sentence of RCRA section 3004.
16
In closing, I wish to point out that Du Pont has
18
directly, and through several trade associations, presented
its views to the Congress during its deliberations on solid
waste and to the EPA during its RCRA implementation efforts.
2] We wish to compliment EPA on the extent for which public
22 participation was provided and offer our continuing
,„ participation.
We are currently completing a detailed assessment of
our current solid waste practices as compared to your proposal
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We expect to provide these results in our written statement,
along with a more detailed discussion of the issues I have
q
covered here today.
We support the concepts of reasonable operation of
waste disposal facilities and responsible handling of hazardous;
wastes. We will support cost effective regulations to achieve
these objectives. However, we must recommend that EPA apply
efforts under RCRA to achieve a balance of risk commensurate
9
with costs, an that EPA coordinate RCRA to complement, not
overlap, the Clean Air and Water Acts.
I appreciate this opportunity to present my Company'
views, and would be pleased to try to answer any questions you
may have.
MS FRIEDMAN: Thank you very much, Mr. Blanchard.
MR. LEHM&N: Dr. Blanchard, you mentioned at
one point in your presentation that your reading of the Clean
Water Act was that certain towns assoociated with treatment
plants or wastewater treatment discharge were subject to
regulation under the Clean Water Act, if I remember correctly.
Now our reading of that is that they are not. That is, the
groundwater discharge from such towns is not covered by the
Water Act according to our reading of the various statutes.
Would you like to comment on that or if not, perhaps to supply
us —
MR. BLANCHARD: I am not sure I'm fully qualified to
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comment on that but I am sure we will address it in our writte^i
comments when we provide them, sir.
3 MR. LEHMAN: All right. Thank you
4 MS. FRIEDMAN: Thank you very much.
6 MR. BLANCHARD: Thank you.
MS. FRIEDMAN: Before we call our next speaker,
there were a number of people who pre-registered to speak
during this first day of these hearings who have not registers'!
here today and I'd like to find out whether they are here and
10 whether they intend to make their statements.
n After I've read the list of names, if any of these
12 people are here, could they please come up to me either during
,3 the break or while the next speaker is speaking and tell me
14 whether or not you intend to make a statement.
,, Edward A. Kazmarek. Jack Lurcott, Wallis"Kostey,
10
16
22
Dale Parsons, John Slade, Keith Fry, Richard — I'm sorry.
17 Mr. Moffa is here. Scott Allen, Samuel Lane, Stewart Miller,
18 Herbert Wood, Hugh Mullen,
19 Thank you.
20 Our next speaker will be Mr. Carey Stark. We'll
21 take him later.
The next speaker after Mr. Stark is Marchant
23 Wentworth. Is Mr. Wentworth here?
24 Is Gloria Rains here?
25
Thank you, Ms. Rains.
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STATEMENT OF GLORIA C. RAINS, REPRESENTATIVE
FROM MANASOTA-88, ENVIRONMENTAL CONFEDERATION
OF SOUTHWEST FLORIDA, FLORIDA DIVISION OF ISAAC
WALTON LEAGUE OF AMERICA, AND SAVE OUR BAYS
MS. RAINS: I am Gloria C. Rains. I will address
3001. I don't intend to appear before you again. However,
we will be submitting additional written comments.
I am here to represent the Environmental
Confederation of Southwest Florida, of 50 organizations,
including MANASOTA-88, Save our Bays and the Florida Division
of the Isaac Walton League of America, five county coalitions
representing over 20,000 people.
I am here today to express our support for the EPA
hazardous waste guidelines and to urge their early promulga-
tion, with necessary additions as present and future evidence
indicate.
While industry generally protests each proposal that
arises to protect human health and the environment, citing
certain economic doom, the fact is, environmental rules and
regulations have resulted in help to industry, innovative
techniques being developed, and positive economic gains to the
national economy, both in the form of jobs and positive
byproducts of environmental control.
In fact, these proposed guidelines and regulations
will promote conservation of nonrenewable resources by prodidiijig
the impetus to develop methods to safely recycle a percentage
of what is now dumped as waste. However, reuse of unsafe
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materials, as is presently done by the phosphate industry,
as an example, should not be permitted. We think the need
to protect human health and the environment takes precedence
over any theoretical economic burden of management of
hazardous wastes. These purported burdens are rarely computed
to show the true cost to our economy of human illness and
death.
We particularly address ourselves to the issue of
special waste produced from phosphate mining, beneficiation
and processing, and strongly advocate their continued inclusion
as part of these proposed rules.
We consider that development of rules to govern
disposal of phosphate waste is necessary to control a crucial
environmental and-health problem. While the waste products
of phosphate production are listed as having low levels of
radioactivity, we think enough evidence presently exists to
conclude substantial exposure to low-level radioactivity
produces damages at least as great as that experienced from
short doses of high radiation exposure.
Additionally, as all of you are probably aware,
there is a very real question as to whether our present
standards of exposure to radiation are even adequate to
protect thepublic health. We see nothing to be gained by
delaying the promulgation of these proposed rules, but we
see lives lost, pain and illness, and millions of dollars of
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economic and social costs if they are not promulgated.
_Ihe,phosphate companies may contend these hazardous
waste guidelines will impose an unneeded extra level of
control on the industry, that the wastes identified are not
hazardous due to radiation, but we think the following more
than supports the necessity for rules.
As possible indicators of the hazards of living in
houses built with concrete block, largely made of radioactive
phosphate waste, of living on lands filled with radioactive
phosphate wastes, next to roads partially built of radioactive
phosphate wastes,,all the latter areas showing up in Florida
Health and Rehabilitative Services' 1976 flyovers of certain
sections of Florida as hot, and drinking groundwater that
contains high radioactive levels, we know that Florida has
one of the highest rates of lung cancer for people under 55
in the United States.
It does not seem unreasonable to assume, based on
studies by Gothman and others, that these lung cancers are
related to the high levels of radioactivity in our region.
Pointing up the need for rules, we think it should be noted
that existing phosphoric acid plants are capable of producing
up to 4 million, 570,000 pounds or almost 20 percent of the
1975 uranium production, and that this operation, combined
with mining, other processing, and redistribution of byproducts
to phosphate ore, create concentrations and redistribution of
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radioactive substances, and release of radioactive gases in
particular, in close proximity to human population.
Along with radon gas and its starters, implicated
as a prime radioactive hazard associated with mining and
processing, radioactive particulate alba activity, proven: in
recent studies when found in the lungs to give ruse to
cancer, is also a hazard associated with mining and processing
wastes that cannot be denied.
The effects of wet-processed phosphoric acid plants
located on areas that are underlain by limestone, are
hazardous. Acetic chips in water can react with limestone,
resulting in the development and enlargement of cracks, etc.,
permitting the movement of contaminated water into the
groundwater. An EPA study has documented the spread of
radioactivity through well water systems in Polk County,
when a sink-hole opened up in 1975 beneath a waste gypsum
pile dumping its contents into the underground aquifer.
Samples of seepage from inactive gypsum piles
show that they yield and continue to yield significant
quantities of radium to surface s-reams and groundwater for
years after the pile is abandoned. You can find this
information in"Phosphate Rock and — ", radiochemical pollution
rather from phosphate rock and milling, page 29-30. Because
of the solubility of the gypsum, this problem appears to be
analogous to but more critical than the problem of stabilizati
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of uranium mine fillings.
In regard to the Occidental testimony that you heard
this morning, quantities of radioactivity entering the
environment through gypsum waste contain approximately 80
percent of the product Radiuw-222 that will enter the environ-
ment as a potential polluter.
As an example, a relative amount of gypsum contains
460 curies of radium compared to 77 for normal superphosphate
fertilizer. We consider for one, the spreading of this
hazardous radioactive material on crops most unwise. Radio-
active soil on reclaimed phosphate mining land has been
proven a serious problem. The open pits left behind by the
phosphate strip-mining process commonly are filled with the
soil, waste sands and — left,when the ore is extracted.
Radioactivity blended with the — and redistributed within the
pit by mining frequently escape from the site as radon gas,
becoming concentrated at unacceptably high levels within
structures built on the site.
Studies of livestock and crops grown on reclaimed
phosphate mine lands show up radioactive contaminants from the
land. Dr. Carlton Fraser(ph) of the Florida Health and
Rehabilitative Services warned hunters against eating more
than moderate amounts of wild game because of high levels of
radioactivity found in the animals. The latter in areas of
reclaimed land. A Florida Health and Rehabilitative Service
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official has also, based on observation, reco-mended that
a determination should be made of the correlation, if any,
between high ambient radiation and flouride levels^in areas of
high incidence of cancer. We are glad to note you are
considering the impact of flouride by including required
flouride analysis under 250.43.
Finally, we think it is important to remember the
quantity or uranium oxide mixed with phosphate rock exceeds
the quantity extracted by the domestic uranium industry.
In mining,radioactive substances such as uranium, radium 226
and radon 222, are redistributed and concentrated. Uranium
concentrations ^as high as 15Q parts .per million have been
recorded.
When thinking of rules governing wastes and their
needs, we think it is important to remember an average of
3,250 pounds of sand tailing and 2,110 pounds of waste clay
are left behind as a result of producing one ton of marketable
phosphate.
Tailings and clay byproducts retain 12 percent of
the total radioactivity associated with phosphate. Primarily,
radium 226 and radon 222. While ,48 percent remains with the
slimes, hardly an insignificant amount.
The long-term effect of these proposed rules
regarding phosphate on our economy would seem to be slight.
Mining does not appear to have played a significant role in
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the growth of our region since 1960. Tax revenues realized
in the industry are small when compared to the cost of the
dangers the-industry creates.
This industry has a well-known history of environ-
mental abuse. They have fought every effort to afford
protection of the public's health and preservation of the
environment.
We feel are lives are threatened and shortened by
their present handling of phosphate waste, while their
mining continues to rapidly deplete another of our country's
nonrenewable resources.
We believe preservation of public health takes
precedence over any reasons you have heard or will hear not to
promulgate theserrules and that siffucient evidence exists
to prove their necessity. Further, the American people, in
poll after poll, have shown their willingness to pay whatever
it takes to clean up the environment in order to adequately
protect their health.
I might add that we vigorously oppose the categorizi;
of hazardous wastes ijnto more deadly, deadly and less deadly
categories. Cumulative low-level exposures to carcinogens and
toxic materials is just as deadly or more so as one lethal,
heavy exposure.
Thank you.
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Tape 4
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MR. LINDSEY: Yes. I guess you're the first person
we've heard from who felt that phosphate waste should be
Included in the system. It seems that we heard from a number
who indicated that they didn't think it should be. Some of
the numbers and the data, and so forth, which you've been
discussing here, would be of interest to us.
As you may be aware, probably you are aware, as
a result of the placing of phosphate rock mounting in — of
processing waste into this category of specialities, we
will be conducting, over the next year and a half, a rather
indepth study of this particular waste to decide what should
be done with it.
And in that regard, sources of information which
you've mentioned here might be of a great deal of use to us
and to the contractor whom we're going to employ to make con-
tacts .
MS. RAINS: Good. I --
MR. LINDSEY: if you would include in your written
testimony the contacts which we can use to discuss further
that kind of information, it will be helpful.
MS. RAINS: I certainly will.
MS. FRIEDMAN: Thank you very much.
The next speaker will be Charles Johnson.
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STATEMENT OF MR. CHARLES JOHNSON, TECHNICAL
DIRECTOR OF THE NATIONAL SOLID WASTE MANAGEMENT
ASSOCIATION, WASHINGTON, D.C.
MR. JOHNSON: Good afternoon. I think I will take
advantage of your offer to testify in all three sections that
I planned to. And in exchange, I will delete certain things
which I will cover in my written submission to you. As such,
it will be a little longer than, perhaps, I had planned on
just for this one session but shorter than the total of the
three.
Good afternoon. My name is Charles Johnson. I am
technical director of the National Solid Waste Management Asso-
ciation, the trade association that represents the firms providing
the service of waste management to the people of the United
States.
A number of our member firms offer a specialized
service of chemical waste management to American industry
and thereby are interested in the regulations you have pro-
posed. NSWMA, as you know, has been a consistent supporter
of regulation of chemical waste management practices.
There is no way that our members can provide environ-
mentally sound waste disposal and, at the same time, compete
economically with those who would dispose of waste without
regard to health and the environment. The effect of regula-
tion is essential to ensure the availability of facilities
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170
i for the proper management of hazardous waste.
2 The section of the regulations under discussion
3 today — this was written before the snowstorm — identifica-
4 tion of listing of hazardous waste is the cornerstone of the
5 entire program. We have a number of concerns about this sec-
tion which I will briefly review today.
First. Under the scope of definition of hazardous
waste in paragraph 250.10D, certain materials are excluded froii
9 the definition because of the interpretation of their not beinc
10 discarded materials. Specifically, the two examples in the
introduction refer to solvent reclaiming facilities and empty
12 drums delivered for reconditioning.
13 The choice of these examples is fortuitous in re-
14 vealing the fallacy of these excludants. Recently revealed
15 examples of improper hazardous waste management have shown some
16 operators claiming to be solvent reclaimers who have, in
n fact, been hazardous waste disposal operators.
is Typically, such an operation solicits waste material:
19 containing potentially recoverable solvents in the hope that
20 significant revenue can be obtained by recovering the material"
The fees charged for waste disposal are nominal. When it is
22 discovered that the solvents cannot be economically recovered,
23 the operator left a large inventory of waste materials for
24 which he has insufficient funds for disposal.
25 Your other example, the drum reconditioner, is equally
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171
fallacious. The operator of the now infamous valley of the
drums represented himself as a drum reconditioner. But, in
fact, his inventory of drums was a hazardous waste disposal
facility.
There are other or similar examples among .EPA'8
catalog of problem facilities. We object to the exclusion
of such operations from the regulatory process. An exclusion
from any type of hazardous waste recovery operation is a
loophole in the regulations inviting abuse.
He are very anxious to see the individual states
assume the responsibility for administration of the hazardous
waste management program. The question of equivalence of
Federal and state regulations, then, becomes paramount. On
the other hand, we continue to encounter state hazardous waste
regulations that are far more stringent than the proposed EPA
regulations.
We believe these are, in reality, de facto importa-
tion bans. And, in some cases, attempts to force exportation
of hazardous waste from the state of generation. We will urge
EPA to continue to be diligent about denying authorization
to state programs containing unnecessarily stringent provision*
Turning next to the specifics of the proposed regula-
tion, I want to raise a philosophical question. In prescribing
the characteristics which define a hazardous waste, EPA
has, in the case of toxicity, used not only the characteristics
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i of the waste but a scenario regarding the management to con-
2 struct the rationale for the protocol.
3 Hastes are assumedly disposed of in the acidic en-
4 vironment of an open dump containing decaying organic material
5 or to be mattressed in the hazardous waste system described
6 in Sections 3002, 3 and 4. These two disposal methods repre-
7 sent extremes in .cost and complexity.
8 Many wastes can be disposed of in facilities far lest
9 costly than those conforming completely to Section 3004 of
10 the regulations provided they are kept from the acidic environ-
11 ment. In a related issue, EPA has steadfastly refused to
12 consider designating waste by degree of hazard.
13 According to the proposals, waste is either hazardous
14 or it is not. A waste classification system can be designed
is recognizing the degree of hazard. And even with a minimum of
16 two hazard categories, a much more reasonable, defensible and
17 less inflationary set of regulations could be devised.
is At least three states, California, Texas and Illinois
19 have hazardous waste management regulations that recognize
20 the varying degrees of hazardousness. We believe that EPA
21 erred in choosing not to prepare regulations recognizing the
22 degree of hazard.
23 With a single hazard classification, all hazardous
24 waste, most recently estimated to be generated at a rate in
25 excess of 55 million tons per year, must be managed in
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facilities conforming to the regulations described in
Section 3004.
The facilities in existence today will be over-
whelmed by these quantities of waste. And with the escalating
difficulty in obtaining new facilities, the entire program
could falter before it even starts. We disagree strongly
with Section 250.10D which provides a blanket exclusion for
generators of less than 100 kilograms per month from the
Hazardous Haste Regulatory Program.
While such an exclusion might be justified in a great
many instances, the disposal of any quantity of certain ma-
terials cannot go unregulated. Substances such as dioxyn or
C56 are lethal in quantities many orders of magnitude less
than 100 kilograms.
We cannot agree with the blanket exclusion of ma-
terials such as these from waste management control. We note
that there is no comparable exclusion for small quantities
of PCB waste in the Regulatory Program provided under TOSCA.
Furthermore, we note that substances far more dangerous than
PCBs have been involved in incidents of improper waste manage-
ment in the past.
On the other hand, less hazardous waste might be
excluded at higher generation rates if, indeed, there were
a hazard classification system which would allow for exclusion
of different quantities.
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i The economic impact of the Hazardous Waste Managemen
2 Program would be much less if the requirements for waste man-
3 agement facilities could be made consistent with the degree of
4 hazardous waste to be placed in those facilities rather than
5 requiring the most complex and costly facilities for waste
6 with any degree of hazard.
7 We recommend that EPA reconsider the idea of placing
waste in only two categories: hazardous and nonhazardous.
We realize that the selection of an identification method for
toxic waste presented EPA with a real delimma. But we believe
that the solution arrived at will satisfy no one.
12 According to the introduction, "The identification
13 ' tests are well developed, inexpensive and recognized by the
scientific community.1' In fact, the extraction procedure is
15 brand new. It has not been subjected to Intel-laboratory test-
ing, it is not well developed nor is it well recognized.
The equipment to carry out the test is not widely
is available nor has it been perfected. One of our members
19 found that the structural integrity compaction tester broke
20 on its first use. And that the recommended extractor is
21 subject to malfunction because of jamming.
we are disappointed that EPA did not incorporate
23 the ASTM extraction procedures, which are far from perfect, whdtch
24 at least has a history of experience and a recognized credi-
bility.
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The entire philosophy of the toxic identification
procedure seems to violate EPA's intent as stated in the
introduction to "encourage the chemical or physical fixing
of waste so that its contituents are not available to be leachet
out."
The structural integrity procedure is designed to
destroy the physical integrity. And the extraction procedure
is designed to destory the chemical integrity of fixed or
stabilized waste. While we agree in concept with an extrac-
tion procedure to determine toxicity of solid or semi-solid
waste, we cannot agree with the specific test described.
On the other hand, when it comes to analysis of the
extract, the substances which are found to be present would
cause a waste to be designated as hazardous and are limited
to those very few substances found in the National Interim
Primary Drinking Water Standards.
This would exclude hundreds of toxic chemicals,
many of which are far more hazardous than those listed in the
drinking water standards. We believe that EPA should reconsider
this and present a more complete list of toxic substances
commonly found in waste.
In presenting lists of wastes and sources of wastes
to be considered as hazardous, EPA has given the appearance
that it has backed away from complete reliance on inspection
techniques, including the untried toxics procedure. In fact.
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i this is not the case.
2 Each of the listed wastes is rebuttably presumed
3 to be hazardous. But the rebuttal process will require appli-
4 cation of the inspection procedure. Thus, despite the list-
5 ings, the inspection procedures are the final authority. There
6 is no escape from the untested toxic identification method.
7 Finally, let me — finally, at this part of the
8 comment — let me make a point that should be obvious to all.
9 These regulations, by themselves, will do nothing to bring
10 about the management of hazardous waste. There must be
11 facilities with sufficient capacity to accept the wastes which
12 are determined to be hazardous.
13 The most serious problem we face today is obtaining
14 new facilities. There is nothing in the regulatory package
15 that directly addresses this problem. He urge EPA to take
i6 seriously the problem of siting, and we are prepared to work
17 with the Agency and other branches of Government to develop
i8 the needed hazardous waste management capacity.
19 Madam Chairman, I can either go on with Section 3002
20 or stop and answer any questions on that point here at your
21 pleasure.
22 MS. FRIEDMAN: Go ahead.
23 MR. JOHNSON: Okay. Until the voice gives out.
24 The regulations applicable to the generators of
25 hazardous waste are the least complex of the four proposals.
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They are, however, important because they put into effect the
mandate of RCRA that generators retain their responsibility to
assure that the wastes,they generate are properly managed.
Assurance that this principle is put into practice
is of vital importance to the operators of storage, treatment,
and disposal facilities. Our comments refer to some details
which, in our view, are weaknesses in the establishment of
generator responsibilities.
The generators manifest reporting the recordkeeping
requirements are outlined in Section 250.20. The reporting
requirements include annual reports of total activity and
quantity reports of exceptions — I'm sorry; and quarterly
reports of exceptions wherein an initiated manifest has not
been returned to the generator.
The applicability of the manifest or reporting re-
quirements depends upon the relative location of the generator
and waste management facility,off-site versus on-site, in-state
versus out-of-state, et cetera. And the relative ownership of
the generator and waste management facility, captive versus
service.
When one prepares a matrix of these regulations, one
finds an obvious omission. A generator who sends its waste
to an off-site in-state captive facility is exempt from all
reporting requirements (they are required to use the manifest,
however) .
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i Operators of captive waste management facilities
2 should, as a minimum, file the same reports as required of
3 on-site disposers. He have several comments about the mani-
4 fest section, 250.22. We believe that EPA should mandate
s a national uniform basic manifest form for the states to adopt
6 as a condition of equivalence of Federal and state programs.
7 Hazardous waste management is an interstate matter.
8 And a plethora of manifest forms will do nothing but interfere
9 with the movement of waste throughout the country. The basic
10 manifest form can be that published in the proposed regula-
n tions.
12 Any state might require supplemental information
13 on a separate form. He object to EPA allowing generators
14 to designate more than one permitted waste storage, treatment
15 and disposal facility on the manifest (250.22 (a) (5) ). This
16 implies that the transporter can participate in the decision-
n making process. And this conflicts with the basic principle
18 that the generator and the disposer are to be held primarily
19 responsible .
20 A generator should specify a single STDF. And if,
21 for any reason, the facility cannot accept the waste, the
22 generator then, and only then, should designate an alternate.
23 He are not satisfied with the identification code as described
24 in Section 250.24!.
25 in addition to the generator code, there should be
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a waste stream code to enable generators, transporters and
STDF operators to reference an analysis of any waste. The
waste code should appear on the labels in the manifest.
A waste code is necessary because many generators
have more than one waste stream with similar hazard charac-
teristics. A verbal description is an inadequate reference to
identify a waste. Section 250.28 deals with the matter of
waste oil.
He agree that it is important to include waste oil
in the Hazardous Waste Regulatory Program. And we also agree
that it would be impractical to include all commercial sources
under the generator's regulations. Our concern about Section
250.28 involves the language, not the intent.
Nowhere does the proposal refer to the types and
sources of waste oil. With the language of 250.28, the largest
industrial generators of waste oil, as well as the corner
gasoline station, could avail themselves of the assumption
of duties option.
We ask that EPA limit the applicability of Section
250.28 to the commercial generators for whom it was intended.
The exemptions for generators of 100 kilograms per month or
less is unacceptable, as I previously testified. EPA could
have avoided this problem had they chosen to classify waste
by degree of hazard.
Given that they do not, this is what we face. Many
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hazardous wastes, dioxyns and PCBs, for example, are hazardous
in quantities in orders of magnitude less than 100 kilograms.
The exemption thus violates EPA's mandate under record to
protect health and the environment.
Furthermore, Section 250.29(a)(1) requires the
exempted generators to dispose of their waste in solid waste
disposal facilities approved under a state plan as meeting Uie
requirements of Section 4004 RCRA. There are no requirements
for packaging, labeling and reporting, or even notification,
of the owners or operators of the disposal facility that they
are receiving such waste.
Is EPA willing to accept the responsibility if dis-
posal of the exempted material results in damage to the public
I refer to exempted material placed in an approved sanitary
landfill. As an example of what can happen with uncontrolled
quantities — small quantities of hazardous wastes, the resoun
recovery in Milwaukee suffered an explosion in December that
will keep it out of action — out of service — for several
months.
Only good fortune prevented injuries or fatalities.
The cause of the explosion was residual gasoline in a dis-
carded automobile gas tank. That is an example for Mr. Lindse;
of a small moderately hazardous waste causing a serious sit-
uation .
And incidentally, I might add parenthetically, most.
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shredder facilities shredding ordinary municipal refuse are
subject to explosions. A shredder in New Castle County,
Delaware, is reported to have had 40 such explosions. Most
of those explosions, when they can be traced, have been found
to be caused by disposal of small quantities of waste that
6 you would call hazardous along with municipal waste, a practic
7 which your regulation specifically, not only endorsed, but
required.
9 We urge that EPA remove the 100 kilogram per month
10 exemption, at least for the most hazardous materials. Further
11 more, we ask that the regulations include a requirement that
12 a generator notify the waste management facility operator
13 when any hazardous wastes are to be disposed of.
14 Section 250.43F, subpart (d) — subpart (d), that is;
15 it must be subpart (c) , I'm sorry — requires all owners
16 and operators of hazardous waste storage, treatment or dis-
17 posal facilities to obtain a detailed chemical and physical
18 analysis of each waste handled at the facility.
19 There should be a comparable section, subpart (b) —
20 that was subpart (d), by the way. There should be a comparabl
section to subpart (b) requiring generators to provide this
22 analysis. We will comment later that the analysis should
23 identify all the characteristics of the wastes which must be
24 known if the owner and operator is to comply with subpart (d),
25 not just for hazardous characteristics.
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The generator should also be required to supply the
2 repeated analysis as necessary according to Section 250.43G
3 subpart (d). A section comparable to this should be included
in subpart (b) also.
5 I will move to the comments on Section 3004. The
6 section of the proposed regulations that we're discussing,
7 Section 3004, is of the greatest direct importance to our
members. Our written comments will cover many details which
time will not allow including in our verbal testimony today.
10 Instead, I will concentrate on one area of particu-
11 lar concern to our membership. The subsection of the proposal
12 of greatest concern to our members is 250.43-9, Financial
13 Requirements. Within that subsection, the most troublesome
!4 item is paragraph B, Financial Responsibility.
is EPA has made many constructive changes since the
16 original drafts of this section were circulated for review.
17 Most importantly, EPA has acknowledged that they cannot pro-
18 pose workable regulations for post-closure financial respon-
19 sibility for hazardous waste disposal facilities.
20 NWSMA came to the same conclusion in its proposed
21 legislation to create a hazardous waste liability fund with
22 contributions from all RCRA permanent facilities. The sketch
23 of EPA's proposed solution contained the background document,
24 BD22, pages 41 to 43.
25 It is similar. And assuming that it turns out to
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183
be as it sounds, we would support legislation embodying the
stated principles. EPA has proposed regulations requiring
specific levels of financial responsibility for site operators
4 during the life of a site.
5 The proposals, we believe, are unworkable and would
6 cause considerable upheaval within the existing hazardous
waste management industry. First. In prescribing the amounts
of financial responsibility, EPA ignored the mandate of
Congress contained in Section 3004 of RCRA, "No private enti-
10 ties shall be precluded by reason of criteria established
11 (regarding.financial responsibility) from the ownership or
12 operation of facilities providing hazardous waste treatment,
13 storage and disposal services where such entity can provide
H assurances of financial responsibility and continuity of
15 operation consistent with a degree and duration of risks
16 associated with the treatment, storage or disposal of speci-
17 fied hazardous waste."
18 The levels of financial responsibility prescribed
19 in the proposed regulations do not take this into account.
20 In fact, they discriminate against the smaller private waste
21 management operators.
22 we note that smaller owners/operators, at the
23 discretion of the regional administrator, may be exempted from
24 the full compliance with closure and post-closure financial
25 responsibility requirements. But this exemption only applies
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l during the interim period.
2 The proposal includes financial responsibility for
3 non-sudden as well as sudden occurrences. This can be es-
tablished by liability insurance, self insurance, or any
specified other evidence or a combination of these. Question
Is liability insurance available for non-sudden events?
In BD22, in the introduction, EPA is unclear. In
one place, it is said to be available. In another place, it
is said not to be available. And yet, in another place, EPA
10 is said to "be very optimistic that it will be available."
11 Here are the facts.
12 The only liability insurance covering non-sudden
13 events is so-called Environmental Impairment Insurance. This
14 is available only from overseas insurers and only a handful
is of policies have yet been written. To our knowledge, one
16 hazardous waste management facility operator has this coverage
17 Because actuarial data do not exist, Environmental
18 Impairment Insurance is written on the basis of an engineer-
19 ing study of the applicant's operations. How much protection
20 is really offered by Environmental Impairment Insurance? No
21 one knows .
22 In the absence of claims, there has been no test
23 to establish what it will and will not cover. The policy is
24 renewable annually and it can be cancelled either with 30
25 or 90 days notice. Also, it is a claims made policy which
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means that only claims filed while the policy is in effect
will be considered for coverage.
3 Will insurance for non-sudden events become avail-
4 able in the future? Our insurance advisors believe that be-
cause of the potential of the political and emotional vola-
tility of the hazardous waste management issue, plus the
possibility of the test cases now being filed, will hold
facility operators to be strictly liable and domestic insurers
aren't likely to enter this market.
10 Will the overseas insurer continue to offer Environ-
11 mental Impairment Insurance? A sudden increase in the number
12 of applicants is certain to cause the carrier to reevaluate
13 his total exposure and he may not elect to write new policies.
14 At the very least, we are told that the premiums will increase
15 substantially.
16 Will the coverage continue to be offered after the
17 first significant claim? Most likely it would not. We con-
18 tend, therefore, that EPA cannot assume that liability insur-
19 ance can provide financial responsibility for non-sudden event
20 Well, what about self-insurance? That is what most operators
21 now rely upon for non-sudden events.
22 EPA's proposal would allow self-insurance only to
23 be extended 10 percent of assets. What other Federal financia
24 responsibility regulations take such a conservative approach?
25 Owners of oil tankers and facilities are allowed to use their
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full equity to establish their financial responsibility re-
quirements for oil spills.
Only the two or three largest companies in our
industry would be able to meet their complete obligation with
self insurance. Again, a discrimination against smaller com-
panies. We urge EPA to do either of the following: one, permi|t
the financial responsibility requirement to be satisfied by
self insurance using 100 percent of assets; or, reserve the
financial responsibility requirement for non-sudden events
10 until a satisfactory means to demonstrate it can be made
11 available.
12 Turning to the paragraphs of Section 250.43-9 cov-
13 ering Continuity of Operations, we completely agree with the
H concept of site specific trust funds for closure and post-
15 closure monitoring and maintenance. A 20-year monitoring
16 period after closure should be adequate to establish the
integrity of the site.
18 Contributions to the post-closure fund should be
19 made throughout the site life as EPA has proposed. As for
20 the closure fund itself, we disagree with the proposal to
21 require the deposit of the full closure monies before opera-
22 tion.
23 A better proposal would be to require sufficient
24 funds to be on deposit to properly close the site at anytime
25 during its life. This would require some up-front money, but
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it would also require a periodic reappraisal of closure costs
2 and possibly additional contributions to the closure funds.
3 EPA's proposal does not cover the possibility that
the cost of closure might change during the operation of a
site. We ask if EPA is soliciting an opinion from the
6 Internal Revenue Service as to whether, in view of the pos-
7 sible refund of these closure and post-closure costs, the
contributions of the trust funds would be pre-tax or after-tax
9 Our members feel very strongly that these must be
10 pre-tax dollars. And were this not to be the case, they would
11 oppose the refund concept.
12 Finally on this subject, we note in DD22, and else-
13 where in the background documents, a statement to the effect
that "Closure and post-closure activities should provide for
15 an orderly, safe return of closed site lands to other uses."
16 We disagree with this as a universal objective.
17 Many hazardous waste facilities must be permanently
18 secured and should not be considered for any future use.
19 The Love Canal situation should be adequate evidence for
20 this.
21 With that, I will close, and leave the rest of the
22 testimony for the — our written comments. And I will be
23 happy to answer any questions.
24 MS. FRIEDMAN: Thank you very much.
25 MR. TRASK: You indicated in your comments some
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lb&
1 concern about where the generators' responsibility would end
2 or, I think you said we should retain responsibility for the
3 waste. And I'm wondering how far could that go? Where would
4 it end and how do you know when it ended? Would you comment
5 on that please?
6 MR. JOHNSON: I don't recall the specific point in
7 the testimony where that came up, but I will comment on it
8 extemporaneously. I think the generators' responsibility is
9 not greatly determined by EPA or by us or by anybody but state
10 courts when it comes to some actual litigation that determines
11 the end point of his responsibility.
12 I don't think that's a subject that any of us can
13 even speculate on today.
14 MR. TRASK: Well, that being the case, then, how
i5 about our proposal for the assumption of duties contract
16 concerning waste oil.
17 And that might well be extended to other wastes.
18 MR. JOHNSON: Are you asking me to comment whether
19 1 would assume that is a —
20 MR. TRASK: Well, do you think that that is a work-
21 able proposition?
22 MR. JOHNSON: Mechanically, I think it's workable.
23 I wouldn't want to comment on whether it's legally going to
24 transfer the responsibility. I don't have any ouiji board
25 to describe that one.
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MR. TRASK: Okay. In another area, you discussed
this idea of separating wastes into groups according to their
degree of hazard. Do you have some data or information that
you could use to base such a grouping on?
MR. JOHNSON: I suggest as a starting point that
you should start with a system that's in use in California.
It is a system which is working. It is a system which defines
waste as hazardous or extremely hazardous. And our facility
9 approval is tied to those classifications.
10 MR. TRASK: Then, of course, you go to a system
11 with three groups. That would be nonhazardous, hazardous
12 and extra hazardous, or whatever?
13 MR. JOHNSON: I view that as a much better situation
14 than has been proposed. Yes.
15 MR. TRASK: Thank you.
16 MR. FIELDS: I have a question regarding the last
17 comment which you didn't go into any detail about, and that
18 was the comment that you recommended some lands be permanently
19 kept away from the public that have been used as hazardous
20 waste disposal — are you also advocating for certain sites
21 that there be monitoring forever? I mean on certain sites?
22 You know, we have 20 years post-closure monitoring
23 and maintenance requirements in our regs. You didn't go
24 into detail about that.
25 MR. JOHNSON: I haven't advocated that. It's a good
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question, however. If a site is to be permanently kept from
other use, should it be monitored permanently? That is a
question which I believe that 20 years is going to be adequate
to show whether there's any like things — on the site.
5 But I recognize there is a question there.
6 MR. TRASK: One further question. You mentioned
commercial — could you explain what you meant by that?
MR. JOHNSON: Well, I meant nonindustrial. If you
would like to classify them by SIC code, that would be fair
10 enough. But I understand, from reading the background documen
11 that the purpose of that exclusion is to avoid the monumental
12 task that would be involved in each small generator of waste
13 oil and each corner gas station. We figure it would be speak-
ing were it to be considered a generator.
15 They would be in the commercial category
16 MR. TRASK: Thank you.
17 MS. FRIEDMAN: Thank you very much.
18 Our next speaker will be Carey Stark
19 STATEMENT OF MR. CAREY STARK, MISSISSIPPI
20 CHEMICAL CORPORATION, WAUCHULA, FLORIDA
21 Good afternoon. I'm Carey Stark with the Mississippi
22 Chemical Corporation. The Mississippi Chemical Corporation
23 is a farmer-owned fertilizer manufacturing cooperative supply-
24 ing the fertilizer needs of a quarter million Southeastern
25 farmers from Florida to Texas. You all have been seeing them
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all week I imagine. MCC operates fertilizer manufacturing
facilities at Yazoo City, Mississippi; Pascagoula, Mississippi
Donaldsonville, Louisiana; we have a potash mine in Carlsbad,
New Mexico; and we are seeking the permits to mine a 15,000-
acre tract in central Florida for phosphate rock.
6 My comments today will touch on five specific areas:
7 the definitions in the regulations, and I will be addressing
both 3001 and 3004 regulations; phosphate mining and processin
products, reuse of materials, radiation and NPDES.
10 With reference to the definitions, we have found in
11 our examination that these are circular and ambiguous. These
12 hold great problems for us as plant operators since determina-
13 tions will have to be made at the plant level of what substanc
14 will be treated as waste, solid waste, hazardous waste, and
15 so forth.
16 We believe this will also present a problem for the
regulators in trying to define these terms and to help our
18 operating people in obtaining the proper permits and control-
19 ling the substances in a proper manner. I would like to make
20 just one example of the definition that makes any storage
21 of a hazardous waste for over 90 days tantamount to disposal
22 and the permitting that's involved in that.
23 There are several areas in any operating plant where
24 waste, solid waste and some that could possibly have hazardous
25 properties under your definitions accumulate in the life of
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the processing plant and are not removed on a 90-day schedule.
One example is cooling tower basins where several
compounds are used for algae removal and water treatment that
would be hazardous. So these are usually dredged out on an
annual basis. And therefore, these cooling tower basins would
have to be treated as hazardous waste disposal sites when,
in fact, they are part of the processing plant.
Turning to the phosphate mining and processing
by-products, the materials that are the subject of the regula-
tions, the phosphatic clays, the sand tailings, the overburden,
these are not waste materials. These are used for reclamation
of the mine site and there is no need for regulation of these
materials, even the special waste category regulations go
far beyond the need for regulation of these materials.
The biggest problem that we see is the stigma that
will be attached to areas where these phosphatic by-products
are stored. For example, our mine site is 15,000 acres, and
we hope to reclaim this to at least its useful purpose as it
is now. And we are required to do this by state law.
The value of this land would be $1,000 per acre as
improved pasture which, on 15,000 acres, would give us a net
worth of $15 million for this land. The stigma of the hazardous
waste and a lot of the permitting and 3004 regulations that
would have to be applied to it would remove this land from
use and would deny to us this $15 million that we could realiz E
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in using the land as improved pasture.
The by-product, gypsum, that is produced from
phosphoric acid production, is also a useful product. You've
heard how it's used as a soil conditioner. It contains
calcium and sulphur which could be reclaimed if this product
6 is not labeled as hazardous.
7 I don't believe anyone would touch it for reprocess-
ing if it were labeled as hazardous.
On the question of reuse, these regulations are,
10 in fact, the denial of reuse of many resources in our economy
11 The regulatory burden would be crippling to some users and
12 many reprocessors. All of these materials are used on a very
13 marginal economic basis.
14 And because of this, the regulations would just
15 deny the reuse of these materials. The prohibition against
16 any higher environmental impact than that that is caused by
the virgin material than a reused product replaces is entirely
18 too strict.
19 This must be analyzed on a case by case basis with
20 a cost benefit analysis used to determine if the increase in
21 exposure or the increase in environmental costs are worth
22 the benefit to society of reusing the resource.
23 In the area of radiation, the criteria are simply
24 too restrictive. We are not in the type of situation that
25 Food and Drug finds itself where any impact has to be viewed
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as unnecessary. Anything that they find that causes any
kind of problem in any laboratory animal, they have to re-
strict from the public.
Radiation is a common natural occurrence. We are'
exposed to it everyday from the building materials around us,
air, food, a lot of different things.
The NPDES system requires the removal of certain
materials from waste water. To do this, in practice, we
use holding ponds, ditches, clarifiers. And many of these
hold materials and waste streams that contain materials that
might be labeled as hazardous or, at least, as solid waste.
12 These would require permitting as a hazardous waste
13 area. This is repugnant and it would also cause a massive
bureaucracy to be built up to handle the paperwork involving
15 permitting all these different sites.
16 In summary, the phosphate-related materials should
17 not be regulated. They are not waste, they are not hazardous
18 and they are used beneficially in our society. The entire
19 regulatory scheme in the regulations as proposed is too
20 inflexible.
21 There is no allowance for rational Consideration of
22 actual hazard-established management technique and cost
23 benefit analyses.
24 Thank you.
25 MR. LEHMAN: Mr. Stark, your statement, as I
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understand it, is that among other things gypsum should not
be regulated as hazardous waste as used officially, or words
3 to that effect.
4 MR. STARK: Yes, sir.
5 MR. LEHMAN: And yet we had a previous speaker this
morning — well, furthermore, you said that we apply a stigma
upon it as hazardous waste;it's going to damage the ability
to recycle and reuse it.
9 MR. STARK: Yes, sir.
10 MR. LEHMAN: We had a previous speaker who said
H that at the present time, when there is no hazardous, non-
12 hazardous stigma attached to it, less than 10 percent of the
13 gypsum on his plant floor is currently reused. Would you
14 care to comment on the — there appears to be a dichotomy
15 there.
16 MR. STARK: The material is marginal economically.
It's only been in the very recent past that there's been
18 enough economics associated with reprocessing it into other
19 products rather than the agricultural related products
20 such as wallboard, plaster, reclamation of the sulphur for
21 use in sulphuric acid plants; that it could be used for these
22 things.
23 We have talked with some gypsum users about market-
24 ing our gypsum through them as wallboard, as plaster. Like
25 I said, up until recently with the increased cost of energy.
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•it was cheaper for them to bring in virgin gypsum from
California and the western states and process it into gypsum
board rather than use the phospho-gypsum, as we call it, that
was readily at hand because of the processes that they had
to go through to make the phospho-gypsum useful for wallboard.
Now, I don't believe any of those processors would
be willing to take a chance on using the phospho-gypsum for
this type of purpose. The problems are related to technology
and economics, not any inherent problems with the material.
10 MR. LEHMAN: I think, as I recall, the other gentle-
11 man who spoke for us indicated that gypsum was not suitable
12 for wallboard. Could you comment on that? Again, there seems
13 to be an inconsistency in our testimony today.
14 MR. STARK: Gypsum has been used for wallboard in
15 Japan and in Europe; phospho-gypsum
16 MR. STRAUS: And you indicated that radiation is
17 all around us in the food and the water, and that the amount
18 that we may be subjected to by the phosphates is nothing that
19 significant. Do you have any information or do you have any
20 indication of what level of radiation should be a fail-safe
21 point or a point where we should start to worry?
22 MR. STARK: I'm not an expert in the radiation field
23 There will be testimony presented on that point.
24 MS. FRIEDMAN: Thank you very much, Mr. Stark.
25 Is Marchant Wentworth here?
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STATEMENT OF MARCHANT WENTWORTH, LEGISLATIVE
REPRESENTATIVE, ENVIRONMENTAL ACTION, INC.
MR. WENTWORTH: Good afternoon. My name is Marchant
Wentworth and I'm legislative representative for Environmental
Action. I would like to thank the Office of Solid Waste for
the opportunity to comment on the proposed regulations for
both identification and listing of hazardous waste and the
3002 generator regulations.
We will try to combine and summarize some of these
in our testimony.
Some of these points had been made in our summarized
those that have been made, so we can proceed. Section 3001
does determine, in our view, the effectiveness and strength
of Subtitle C regulations. And if you narrow the scope of
this section, this, of course, narrows the scope of the Act,
itself.
Unfortunately, in our view, the Environmental
Protection Agency, in the guise of reducing an administrative
burden, has artificially narrowed the scope of the Act, and
in our view, seriously compromised the intent of the law.
Environmental Action perceives two major issues in defining
these regulations.
First, what criteria will be used to determine what
waste will be hazardous. And second, how a substance can
be added or deleted from the list. We believe that the Office
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of Solid Waste has seriously erred in not including the criterjia
of radioactivity, infectioness, phytotoxicity and unusual
genetic activity in its definition of hazardous waste.
The Agency claims that insufficient data exists on
testing protocols for these criteria to enable them to be vised
to place substances on the list of hazardous substances.
Ironically, EPA did see fit to use these criteria to remove
substances from the hazardous waste list.
Environmental Action urges EPA to include these
10 criteria. Environmental Action strongly believes that post-
11 poning action on these additional criteria as is proposed is
12 unacceptable. We believe that adequate information exists
13 now, and that the risk for not including these criteria or
14 postponing action on them is substantial.
15 Because adding waste to the list is bureaucratically
16 complicated, we feel that it is vital that as many wastes as
17 possible be put on the list at the beginning. EPA has pro-
18 posed a procedure for deleting wastes from the list that
19 placed the burden on the generator to prove that a waste is
20 not hazardous.
21 We support this position. Because it is more logics
22 to place as many wastes as possible on the list rather than
23 prematurely restricting the list as EPA is proposing in these
24 regulations.
25 Turning to the problem of regulating sewage sludge,.
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Environmental Action feels that transferring that duty to the
Clean Water Act may present serious bureaucratic conflicts
of interest. In our view, Agency personnel involved in the
Water Program have been less than eager to adequately regu-
late sludge.
For this and other reasons, we believe that this
bureaucratic shift might not ensure that public health and
environment would be protected. We recommend the regulation
of sewage sludge remain within the Office of Solid Waste and
10 not as proposed under these regulations.
11 We concur with EPA that the development of. a set
12 of complex sampling protocols is neither useful or realistic.
13 And in taking the approach of identifying waste matrices,
14 EPA has taken the most logical and encompassing approach to
15 the problem of regulating hazardous waste.
However, it is important to emphasize that this
!7 approach assumes that all possible waste matrices are identi-
18 fied by EPA. We have indications that there are major gaps
19 in the waste process list as is presently promulgated. Again
20 a procedure for adding waste matrices to the list becomes
21 very important and should be detailed by EPA.
22 In addressing the specific criteria for identifica-
23 tion of hazardous waste, we are, again, in general agreement
24 with the definitions and processes it proposed. And we would
25 suggest that the additional test of percent of acidity or
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i alkalinity would have no real purpose unless the waste is
2 destined for recycling or reprocessing.
3 We agree with EPA's determination that both leachate
4 and runoff pose a large threat to the public health environ-
5 ment. In our view, however, we would not rely on the inclu-
6 sive use of the extraction procedure to determine whether a
7 particular waste is toxic.
8 We recognize that the connection between levels
9 of contaminant in the extraction procedure — extract — and
10 the threats to public health and environment are particularly
11 difficult to ascertain directly. However, in our view, the
12 tenfold dilution factor and the reliance on the national,
13 interim primary treatment — primary Drinking Water Standards •
14 do not appear to be substantiated.
15 Environmental Action believes that the proposed.
16 dilution factor may not provide the adequate margin of safety
17 for public health. The reliance on the interim primary treat-
18 ment water standards seems to assume the lower levels of con-
19 taminants below the Drinking Water Standards are acceptable
20 are intolerable. We disagree.
21 Because of the long-term nature of the pollution
22 and the impossibility of correcting the contamination, we
23 recommend much lower dilution factors for ground water sit-
24 uations. In our view, using a dilution factor is, in effect,
25 using the aguefer and the attenuation of the soil as a
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treatment technique.
In the view of the lack of firm information on the
behavior of both aquefers and soils, we submit that the use
of this pollution factor is a highly risky business. At the
very minimum, we suggest that EPA not have a pollution factor
and that the Drinking Hater Standards, themselves, be used as
criteria to determine whether the extraction procedure extract:
these hazards.
In a discussion of the scope and applicability of
10 the State Hazardous waste Plan, we encourage EPA to reject
11 any state plan that fails to include waste as defined as
12 hazardous by this regulation.
13 We would recommend that EPA go further and require
H rejection of any state program, instead of merely stating
15 that it may provide the basis for rejection as in the present
16 draft. Environmental Action does not agree with the Agency's
17 proposed small generator exclusion of 100 kilograms per month.
18 We strongly urge that EPA drop this exclusion from
19 the proposed regulations. We've heard a number of people
20 testify on this. I won't labor through all the points. We
21 believe, however, that EPA has proposed this exclusion for
22 two reasons.
23 One, to relieve the Agency's administrative burden,
24 and also to relieve the burden of compliance on small busi-
25 nesses. However, we think that both suppositions are not
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necessarily correct. While it might be true that this exclu-
sion may reduce some of the paperwork in the system, we feel
that there are other less harmful ways to reduce the adminis-
trative burden of these regulations including reducing the
complex reporting forms, manifests and annual reports, and
transferring much of the day to day implementation to the state
programs.
We fail to see that the Agency has exhausted all
other approaches before taking what would be, in our view,
drastic action of limiting the scope of the Act through this
exclusion. Furthermore, we fail to see that this exclusion
will release small businesses from the burden of complying
with the Act.
Information gained under the Toxic Substance Control
Act indicates that there is little correlation between the
size of business and the amount of toxic chemicals produced.
Large businesses may, in fact, produce small quantities of
chemicals while small businesses may produce in large quantities.
We suspect that a similar situation may exist with
the hazardous waste production, and do not think exclusion is
the most effective way to relieve the burden of compliance
on small generators.
Another problem with the -exclusion is that it would
lead to large amounts of hazardous waste at local Subtitle D
facilities to handle these toxic chemicals. Indeed, a fairly
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small amount of hazardous waste at such facilities may dras-
tically alter the character of both the leachate and the
treatment process.
Two points need to be made about the Subtitle C
facilities. First of all, in view of what we consider to be
large loopholes in the interim program, we think that it would
be a long time before Subtitle C facilities would, in fact,
be full-fledged permit facilities. There will be a long gap
there.
EPA, itself, has mentioned five years. Coupled with
the fact that there will be long compliance schedule situation:
we think that this would add on to the time required and would
make regulation of Subtitle D facilities very difficult. This
would increase the possibility of hazard from many facilities -
from many hazardous wastes coming into Subtitle D facilities.
We urge that EPA more rigorously use public partici-
pation in the decisions made by both the administrator, the
regional administrator and the permit writers under these
regulations. For example, in the proposed regulations, there
is provision for hearings, if a party is grieved by the decisic
of the administrator, to disapprove a demonstration that a
waste is not hazardous.
However, there is no provision that a hearing be helc
to put a waste on the list. We recommend that public partici-
pation be an integral part of this whole process.
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That concludes our comments on Section 3001. Turnint
to 3002, there are a number of issues. And I will just high-
light some of these. The problems that appear to us in re-
viewing the generator compliance in Parts D and E of Part 250
is not whether these will exempt the on-site temporary waste
storage containers.
The real issue is how to determine when the actual
storage of hazardous waste begins. This is a major problem.
In our view, it will be difficult, if not impossible, for EPA
or any other implementing agency to tell exactly when the
storage of a particular waste.has started.
Proposed exemption from Subparts D and E only make
a complex subject more baffling. The exemptions are very broad
and would affect release 'of waste storage from the huge bulk
of facility standards and facility permits. It is not incon-
ceivable that by rotating tanks and stocks, the on-site "tem-
porary storage" could easily become permanent storage without
any of the encumbrances of facility standards and permits.
EPA should act strongly to define the whole storage
question and determine exactly when it does start to begin.
Concerning the manifest system, we feel that the system would
work somewhat better if the facility permit holder is required
to return the manifest to the generator immediately rather
than within the 30 days as detailed in the proposed draft.
This would accelerate the paperwork and bring any
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problems to light quickly. We also concur with EPA's deter-
mination that a variety of hazardous waste could be combined
on a single form. And that bills of lading and shipping paper:
could be used in lieu of manifests if the information sup-
plied to the transporter and the disposer is adequate to perform
the duties involved.
We also support EPA in requiring the generator to
supply the name and address of the foreign treatment,storage
and disposal facility. Presently, of course, little is known
about the travels of hazardous waste beyond the confines of
the United States.
Well, this provision is just a beginning. Environmental
Action feels that this requirement can supply useful informa-
tion about the designation of hazardous waste sites on foreign
soil. Environmental Action hopes that the hazardous waste
manifest format described in 250.22, that DOT only preempts
existing formats that would duplicate present reporting re-
quirements .
Concerning the reporting requirements. Environmental
Action feels that without adequate checks and balances, the
reporting system and the manifest system, itself, could become
a system of paperwork with no connection to real life. In
Option Four outlined in the notes, EPA has attempted to correct
this shortcoming by requiring the generator, in effect of
nonreceipt of the manifest, to do something about it.
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Environmental Action would support this option,
not only because it states exactly what the responsibilities
of the generators are and when they must be fulfilled, it
keeps — in keeping with our belief that paperwork should be
speeded up, we would recommend the generator take action within
10 days rather than 30 days.
And that 30 days after the date of submission, "his
report for exception should be forwarded to EPA — to the
regional administrator.
Concerning contingency plans, the present regula-
tions provide that generators who store hazardous waste for
less than 90 days are not required to file contingency plans.
Environmental Action objects to this and takes the position
that all generators should develop contingency plans.
In view of the difficulty that EPA and others may
have in determining when a waste has been stored for less than
90 days, we feel that not to have contingency plans would fail
to provide adequate protection to public health. We feel that
these plans would not pose a burden on generators. And probably
many of them already have such plans in operation now.
In our view, one of the key provisions of Section 30(;
is the one that allows the generator to request that certain
information about his waste be kept confidential. In our
view, we feel that to honor such requests would seriously
impair the working of the entire generator regulations and
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807
the Act, in general.
In order to provide effective management of hazardoui
waste, it is vital for all sectors of the management team,
the generator, the workers, the transporters, the disposers
and the public to know both the generic and chemical names
of the substances being managed.
In our view, this is vital to any effective management
of the Act.
This concludes our remarks on 3001 and 3002. And
I would be glad to answer any questions at this time.
MR. TRASK: Mr. Wentworth a question to clarify
what you meant when you were talking about the manifests and
you were talking about the formats. And you said something
about — EPA to —
MR. WENTWORTH: There was a provision in the regula-
tions, it was just our concern to EPA that DOT not rehash old
ground that's already been worked on and reinvent the wheel.
Basically, we would like to go through the whole — not go
through the whole manifest system again. We would like to
simplify that process as much as possible.
Does that help you?
MR. ROBERTS: Could you illustrate yotlE point?
MR. WENTWORTH: Sure. We would not like to have the
same forms used twice, both DOT and EPA forms. Okay? We would
like'to streamline the whole process of DOT regulating the
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hazardous waste situation.
MR. ROBERTS: I will quote you from 43FR22632. That
the DOT notice, mainly the proposed amendment to Section
172.205 (b). It says, "The hazardous waste manifest, required
by 40CFR250.22, containing all the information required by thin
subpart may be used as a shipping paper."
MR. WENTWORTH: Right.
MR. ROBERTS: He didn't feel that — because EPA
has —
MR. WENTWORTH: That's my point exactly.
MR. ROBERTS: — generator ID numbers and carrier
numbers, and things like that.
MR. WENTWORTH: We're saying the sane thing. Yes.
Not to reinvent the wheel but to use that shipping paper.
MR. ROBERTS: Well, then you're endorsing the
proposal, right?
MR. WENTWORTH: Yes. That's correct.
MR. ROBERTS: Thank you.
MR. FIELDS: Mr. Wentworth, one quick question.
I wasn't clear on your 90-day exemption. Are you advocating
no exemption or what, exactly, is your alternative to the
current approach EPA is providing 90-day storage of waste on
site?
MR. WENTWORTH: What I was referring to in that
case was the use of the — two points: one was that defining
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when storage starts- It^s obviously very important when that
90-day period starts because as you are aware, the regulations
pertaining to that 90-day period are, in our view, quite
different than the regulations pertaining to after that 90-day
period
We would like to tighten up the definition of when
that 90-day period starts to prohibit what would be, in our
view, generators taking advantage of the law and just shift
infinitely storing substances. Our other point was to insure
that the contingency plans were applicable to this 90-day
period.
12 MR. FIELDS: Okay. Thank you.
13 MR. WENTWORTH: Thank you
14 MS. FRIEDMAN: Thank you
15 Our next speaker will be John Faber.
16 STATEMENT OF JOHN H. FABER, EXECUTIVE VICE
17 PRESIDENT AND EXECUTIVE DIRECTOR, NATIONAL
18 ASH ASSOCIATION
19 MR. PABER: My remarks will be addressed to mainly
20 3001. I did not plan to attend tomorrow, but if it need be
21 and if the panel desires, I could be.
22 Ladies and gentlemen, my name is John Faber. I am
23 Executive Vice President-Executive Director of the National
24 Ash Association, a. trade association in Washington, B.C., the
25 support of which is 80+ percent of the coal burning utility
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industry.
And the remainder being marketing companies, ASE
firms, construction companies, coal companies, equipment
manufacturing, et cetera, from all over the world.
I will address my remarks to coal by-product ash
utilization • that- the USWAG group of E.E.I has covered col-
lection and storage. From a marketing standpoint, the word
"disposal" does not exist. You market out of storage. The
technology of ash utilization was developed over 2000 years
1° ago in Rome.
The volcanic ashes used by the Romans called
12 "Pozzolans" were similar to the modern-day coal ash in vir-
13 tually all their chemical and physical properties; thus, coal
14 ash today is referred to as "Pozzolans." Large tonnages of
15 coal cinders have been used in this country for over 50 years
16 in roads and building blocks.
17 With the development of pulverized fuel-fired
18 boilers during World War II, large quantities of high-class
19 "Pozzolans" became available.
20 In the past 35 to 40 years, the commercial and
21 governmental sectors of the construction industry have
22 effected ash utilization to approximately 25 percent of the
23 production or 17 to 18 million tons in 1978.
24 I am enclosing a graph which will show the growth
26 over the past 15 years of this utilization. Also shown ,
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on this graph will be projected utilization based on the
following facts:
Federal Highway and other governmental agencies
acceptance of ash products. Worldwide growth and experience
of ash products. Improved production and quality control.
Greater geographic distribution of supply. The magnitude
of research and development and the promotional efforts of
the National Ash Association in cooperation with Federal
Highway and these other supportive agencies.
10 By 1985 to 1990,we could be using 50 percent of thes
11 products if they are competitively priced and not restrained
12 with unwarranted environmental regulations.
13 In order to keep this testimony brief, I am attach-
14 ing a paper which iwill present at the Fifth International
15 Ash Utilization Symposium which is being held in Atlanta
16 starting Sunday. This symposium (copies of the program I wil]
17 leave for the panel) will include 69 papers on ash utilizatior
18 from all over the world.
19 And I would like to insert here that this will be
20 the fifth. We have these every three years. We summarize
21 and update the latest technology in ash utilization. And I
22 would admonish the panel, if at all possible, to have some
23 responsive person at that meeting to gather this information.
24 We will cover environmental radiation as well as
25 commercial and technical utilization.
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I am also attaching a number of other articles
for consideration of EPA in their deliberations on the class-
ification of coal ash products. During 1978, major ash
utilization programs, technology and marketing, were held in
Paris; London; Phoenix, Arizona; Morgantown, West Virginia;
Atlanta, Georgia; and others.
The ASTM and ACI are among several code and speci-
fication organizations who have developed ash as a construc-
tion material of value. I strongly urge EPA to develop
rational and realistic views with regard to ash. From the
reaction that my office has had and observed since the
Federal Register was published December 18th, 1978, of the ash
industry and other comments from the ash industry all over the
world, we will lose 20 percent or more of our markets and
growth in the next few years• Even though a special category
has been shown, these losses will remain until the issue
is finalized.
The untimely and unproven report from Davis,
California, on the mutagenicity of fly ash has had very dra-
matic effects on ash utilization, again, all over the world.
Some countries have banned ash utilization entirely,
based on this report. Austria being one.
In conclusion,! would sum up my remarks to state
that the ash producing industry and ash marketing industry
can continue a substantial growth pattern in recycling ash intb
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our construction industry if they are given an opportunity to
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do so.
If they are placed in a no-win situation with such
things as hazardous waste labels, cancer labels, high costs
caused by monitoring tests and other chemical analyses, they
will deemphasize ash utilization and let disposal costs con-
sume the financial burden which could amount to several
billion dollars per year in 1985.
I would like to make available to EPA and the panel
any data that my office may have that they would desire.
The only statistical data collected, composed and evaluated
in the United States is done in my office by myself. And I
would make that available to you along with the several hundreja
technical papers that have been presented to the symposium
during this year.
The final draft of this statement — I will leave
the one I'm presenting today with you — but the final draft
of it will be presented before March 16th, which I feel I
should get Federal Highway's sanction for some statements
that I have in there relating to them.
I thank you for this opportunity to address this
hearing and will answer any questions that the panel may have.
MS. FRIEDMAN: Thank you very much.
MR. STRAUS: You said you had some statistical data.
Do you know if any of your member companies have run any
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tests to determine whether these wastes, or these products —
I won't call them wastes yet — these products or wastes
would flunk the characteristics because, as you know, utility
wastes are not listed as hazardous wastes.'
MR. FABER: There are — leachate data is available
in the industry. I'm not trying to evade that. We do have
some data and other research people do have it. We are a
marketing group and we have-left that to the OSWAG group. And
I've made that available but would make any leachate data
10 we have available to you.
11 In regards to not being a hazardous waste, we have
12 problems with that because people are not spending money for
13 capital investment because "of the hazardous waste category
14 which may or may not be there.
15 MR. STRAUS: Is your problem the special waste
16 category in the 3004 regulations?
17 MR. FABER: Well, my problem is, for instance, I
18 have a company in Arizona that, in October, was prepared to
19 spend about a million dollars to build a facility which would
20 allow them to market another hundred thousand tons per year
21 of ash.
22 Now. They are doubtful that they should spend that
23 million dollars because they don't know that they're not
24 going to be a hazardous waste, see. Now, if I can, say,
25 publish in my newsletter that ash is not a hazardous waste
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and will not be so, well, then, I can wipe out a lot of this
lost market that we are experiencing.
MR. FIELDS: To follow up on Matt1s question. Are
you saying that the concern is because of the publication of
our regulations on —
MR. FABER: Just by association. For instance, we've
had one ash taken off the market which was a very good ash
from a positive standpoint to be used in concrete because
the radiation was higher than drinking water standards. And
the insurance company would not bond the marketing company.
It's just the unknown that's got everybody dis-
turbed .
MS. FRIEDMAN: Thank you very much.
We're going to take a short 10-minute break. And
our first speaker after the break will be Charles Malloy.
(Recess)
STATEMENT OF B. CHARLES MALLOY, CHAIRMAN,
SUBCOMMITTEE D19.12, AMERICAN SOCIETY FOR
TESTING MATERIALS
MR. MALLOY: My name is Chuck Malloy. I am chairmar
of ASTM D19.12 Subcommittee on Solid Waste. The Planning
Task Group of D19.12 wrote to Douglas Costle on December 1st,
1978, outlining the position of our group. The December 1
letter has been reviewed by the D19.12 Subcommittee and the
positions stated therein reaffirmed in our winter meeting
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21*.
January 29th, 1979.
I will go to our letter which will be our formal
comment to the RCRA Program
"Dear Mr. Costle: The Planning Task Group of ASTM
Subcommittee D19.12 on Pollution Potential of the Leaching
From Solid Wastes, strongly objects to the unscientific ap-
proach that the EPA has been following in -'the "development of
a procedure to be used as a screening test for classification
of waste materials under Section 3001 of P.L. 94-580.
10 "Subcommittee Dl9.12's principal concern is the
development of consensus standard test methods to evaluate the
12 leaching characteristics of solid waste materials. Because
of the intense interest in this technical area, due primarily
U to growing environmental concern and to the EPA's need to
15 implement the Resources Conservation and Recovery Act
16 (P.L. 94-580) , the Subcommittee has grown rapidly to its
17 present stature of 299 members and is now one of the largest
18 single subcommittees in all of ASTM.
19 "Care has been exercised to follow ASTM's strict
20 rules of due process, which includes maintaining interests on
21 the subcommittee. Many industries are represented, as are
22 state and Federal environmental agencies, testing laboratories
23 and universities.
24 "The EPA has 24 members on Committee D-19, and many
25 other Federal agencies are also active.
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"Years of experience have been encompassed by the
Subcommittee through the knowledge of the many experts that
have become members of the group. No other highly qualified
forum for technical exchange of this type on leaching from
5 solid wastes is known to exist.
6 "Proposed methods for determining the leaching po-
7 tential of solid wastes were developed by Subcommittee D19.12.
After testing by a number of laboratories, using the method
on a wide variety of waste materials (extensive data were made
1° available at the subcommittee meeting in January 1978), the
11 methods were balloted and published in May 1978 as the
12 'Proposed Methods for Leaching of Waste Materials.1
13 "The Subcommittee is presently concluding a round-
14 robin program in which 24 laboratories are participating in
15 evaluating the precision of the ASTM methods.
lg "The careful, technically competent manner in which
17 the ASTM procedure has been developed stands in contradis-
18 tinction to the EPA's activity in this area.
19 "Initially, the EPA entered into a contract with
20 Professor Hamm and others at the University of Wisconsin
21 specifically to develop such a classification procedure-
22 One of Professor Hamm's conclusions, based on draft reports
obtained by ASTM members, recognized that two types of dis-
24 posal must be considered.
25 He indicated that, since all wastes will obviously
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not go into municipal landfills, a single test approach based
on disposal of industrial wastes in municipal landfills is
not suitable for classifying wastes.
"EPA's predilection to municipal landfills, in-
cluding co-disposal of industrial wastes, resulted in the
rejection of Professor Hainm's conclusion and the proposal by
EPA that all wastes be tested in a synthetic acid environ-
ment using what EPA representatives termed 'synthetic garbage
juice' as the extraction fluid.
"This was EPA's first procedure. It was discussed
11 in public meetings in June 1976 in Chicago. At the meetings,
12 EPA indicated that limited testing of the procedure had been
13 completed and data would be available shortly. (These data
have never been published.)
15 "Many problems exist with the EPA approach. For
16 example, the use of a synthetic acid environment posed sxg-
17 nificant testing problems associated with preserving the
18 extraction fluid, with analyzing the complex solutions that
19 result, and, with testing the extract for toxicity.
20 "ASTM D19.12 members told EPA immediately that this
21 extract was not technically suitable for the type of
22 toxicity tests which EPA contemplated. Professor Hamm
23 also indicated that the H of the leaching solution should
24 be controlled by the nature or makeup of the waste rather
25 than be artificially controlled at some predetermined level
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of H by the use of synthetic acids.
"When comments on the draft procedure were supplied,
EPA's response was limited in technical content and generally
reflected a closed-door attitude. When EPA ran toxicity tests
after first issuing the draft procedure, they discovered
that ASTM was correct and thus began what has become a cir-
cuitous path of editorial revision.
"In each case, revisions have been made to the draft
procedure with little or no datalogical support.
10 "In early 1978, EPA representatives met, while attenc-
11 ing the ASTM meeting, with representatives from the Illinois
12 EPA, resulting in a new draft procedure that was literally
13 a "cut and paste" version of the Illinois procedure used for
14 metal finishing wastes.
15 "The EPA adapted the Illinois procedure to its own
16 requirements and changed the leaching liquor from a hydro-
17 chloric to an acetic acid solution. The procedure was in-
18 eluded in draft regulations prior to any laboratory testing.
19 "The current EPA procedure incorporates further mod-
20 ifications. The novel apparatus is utilized (rather than
21 existing, standard apparatus), and we understand that the
22 new equipment is not even available from the sole manufacture!
23 listed by EPA.
24 "As before, the new draft was released before these
25 changes had been tested on any waste materials.
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"The scientific approach to test method develop-
ment requires that-tests be developed initially in consort
with data and that changes be evaluated by test programs
designed to measure the effect or impact of the changes on
the results of the test.
"The best procedures also involve gaining input
from diverse areas of interest, as is done in ASTM. In con-
trast, EPA has continued unilaterally to embrace a series of
draft procedures which have no appreciable data base. EPA
10 currently has no data on the procedure to show expected re-
11 suits on wastes with varying physical, chemical and biological
12 properties, and has no analysis of how such results would com-
13 pare with those obtained using the previous test procedure
or with actual leaching from the solid waste materials under
15 field conditions.
16 "Of primary concern in this situation is the fact tha
17 many, wastes may be declared hazardous even though there is
little or no danger from the wastes when disposed in their
19 present manner.
20 "The EPA has stated that they prefer to make such
21 errors of overclassification as opposed to "missing" any
22 hazardous wastes. However, this obviously results in totally
23 needless expense for the administration and disposal of these
24 wastes.
25 "Siting problems associated with EPA requirements
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for disposal, and citizen unrest may/ in fact, force the
closing of industrial facilities when no environmental hazard
exists.
"The issues of undue economic impact and citizen
unrest are too significant to allow that we condone such an
arbitrary approach by government. The probability of over-
classifying wastes is not an acceptable risk, when rational
alternatives can be developed.
"The EPA finds itself in what appears to be an
awkward position, we think, due to its insistence that a
single test procedure be used to determine the degree of
hazard of all waste materials.
"As discussed above, the EPA's original contractor
concluded that this is not sound. To continue to rely on this
approach, and to modify its procedure based on technically anc
datalogically unsupported responses rather than dealing with
the fundamental issue, puts the EPA in a position where im-
plementation and enforcement of the Act will be difficult,
at best, and where significant avoidable economic damage is
likely to result.
"We recommend that the logical basis for the single-
test approach to the implementation of P.L. 94-580 be re-
evaluated and that the ASTM ''Proposed Methods for Leaching of
Waste Materials - Method A...'"copy attached to the original
letter, "...be used as the most rational interim test procedm
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for classification of waste materials until such time as a
more rigorous, scientifically-sound approach can be developed
by the EPA
"The water-based extraction procedure provides an
active leaching environment which most nearly approximates the
anticipated field conditions to which the majority of wastes
will be subjected.
"The test procedure has resulted from an extensive,
methodical development process, and it is the only test
10 which has been applied to a wide variety of waste materials;.
11 "Subcommittee D19.12 continues to urge EPA par-
12 ticipation in the further development of technically-sound
13 ASTM consensus standard test procedures suitable for EPA's
use in classifying waste materials under Section 3001 of
15 p.L. 94-580.
16 "In recognition that the use of any single test
17 procedure brings about many difficulties in the classifica-
18 tion of waste materials, Subcommittee D19.12 currently in-
19 eludes a task group which has been set up to integrate the
20 considerations related to both the extraction procedure and
21 the biological activity testing
22 "This function is significant in view of the
23 complex interrelationships that exist, and because EPA has
24 indicated their intent to include advance notice of proposed
25 rulemaking for the biological activity testing in the
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1 Federal Register shortly.
2 "Scientists on the D19.12 task group have already
noted severe testing problems that are associated with the
use of acid extraction fluids, aaain suggesting that a water
extraction procedure offers the most promise."
I alluded to the work that Dr. Hamm did at the
University of Wisconsin who was the EPA's original con-
tractor. Unfortunately, Dr. Hamm is suffering under budget
constraints and was not able to attend any of — will not
be able to attend any of the hearings.
He has submitted a formal document for comment to
12 EPA dated January 24th, 1979. I think that the confusion in
13 the comments concerning the activities of Dr. Hamm working
H on this test procedure for EPA, I think that the public, as
15 a whole, and the technical community, specifically, should be
16 aware of what he feels about the testing procedures and which
17 route to take.
18 If I may be able to read Dr. Hamm's letter.
19 MS. DARRAH: Can you tell me about how long it
20 is?
21 MR. MALLOY: It's about three pages.
22 MS. DARRAH: Well, I haven't eliminated anybody
23 so far so go ahead. If you could summarize it, it would be
24 even better.
25 MR. MALLOY: Okay. I think he rather pinpoints
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things here which I think that are problem areas. Okay?
This is to Dr. Lehman.
"This letter is prompted by the recent publication
in the Federal Register of the proposed hazardous waste regu-
lations and criteria and also because of the concern that I
have experienced as a project director for a major project
from EPA dealing with the development of a standardized
leaching test for industrial waste.
9 "I am sure you are aware of this project which has
10 now been completed. Three final reports have been submitted
ll to EPA to the project officers. These reports deal with the
12 development of a leaching test and the comparative testing
13 of development leaching test plus tests developed by the
State of Minnesota, one developed by ICUS and the proposed
ASTM.
16 "The project officers for this work were Don Seney,
17 EPA Cincinnati; Mike Dugruchio, EPA, New Jersey; Alan Corsen -
18 his primary contacts were in your office in Washington.
19 "The work we did constituted approximately $200,000
20 worth of effort. And when one considers that much of this
21 work was done by students at a relatively low rate of funding,
22 the number of man-years and the expertise involved is of
23 such a magnitude that the project is even more significant
24 than its dollar figure would suggest.
25 "Our work in developing a test which was approximately
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half completed when people within the EPA took handwritten
versions of our test, made comments and decision^ on it and de
3 cided to go with the very test which is, in my opinion, com-
4 pletely unfounded.
5 "At the time, I did not object even though I was
6 getting numerous feedback comments from concerned professionals
7 in the field as to what was happening. I felt that our job
8 at the University of Wisconsin was to do the best job we
could technically, and not to worry about the results.
"We did complete our work, changing the proposed
11 test periodically in order to accommodate a wide variety of
12 wastes and to make our test as useful as possible. The con-
13 ceptual basis of our test and the initial evaluations of it
were in close cooperation with the steering committee set up
to monitor our projects because of its critical- importance
16 to EPA.
"All comments and interactions for this committee
18 were positive, helpful and aided us in putting together our
19 test. As project director, I was particularly pleased with
20 the spirit of cooperation which developed between project
21 personnel and EPA for this committee.
22 "Fortunately, by the time our test was finalized,
23 its use in ,a variety of wastes begun. The spirit'of, coop-
24 eration dissipated to the point that the only evidence we
25 received of EPA's use and interpretation of our test was
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through ASTM consultants and-industrial sources outside EPA.
"The only direct negative comment regarding our
test from EPA arose from a misunderstanding of the test which
zeroed in on the use of synthetic leachate which we were to
develop as part of our contract with EPA.
"Misinformed people assumed that our test incor-
porated use of this leachate as a leachate media exclusively,
which is not the case. We emphasize use of distilled water
as the standard media to be supplemented by acetic media,
10 the synthetic leachate or other media as appropriate on a
11 case by case basis.
12 "We utilized our test in a variety of different in-
13 dustrial ways ranging from liquids to solids, each of which
14 would leach different kinds of materials. The test performed
15 satisfactorily and was feasible to use in all wastes that were
16 to be tested.
17 "In my opinion, and in the opinion of others who
18 worked on our project, the test represents the most defensible
19 leaching test we can think of which would allow laboratory
20 procedure to relate strongly to what could happen in actual
21 landfill situations.
22 "In spite of the initial confrontations with ASTM
23 and some of the industrial people involved with the ASTM
24 committee, our test has received general recognition as being
25 a. good test. And the only difference between it and the test
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that ASTM has most recently proposed is really a matter of
details and not of our actual concept.
"The ASTM people with whom I have talked with over
the last year,once they understood properly what our test
really is, have been happy with it. The only exceptions re-
late to some of the details of the test that some people would
like to change to make it more suitable for their particular
waste.
9 "I have a great concern that the test that EPA is
10 now proposing has little basis in fact, will be difficult to
11 interpret, and will be very difficult to relate what might
12 happen in a landfill situation. In my opinion and in the
13 opinion of our project investigators, the EPA test is going
14 to create difficulties because it will classify as hazardous
15 many wastes which are not really of concern.
16 "This will cause unnecessary problems, greatly
17 increasing costs to industry-producing such waste and making
18 it difficult for regulators to determine test results and
19 to act appropriately. The test is very aggressive. And I'm
20 sure that many soils of the U.S. would not pass this test
21 adequately without being classified as hazardous.
22 "in my rather interesting role — I'm not working
23 for EPA or a regulatory agency nor industry — 1 get many
24 comments from all different sides of the question. I am sure
25 that the EPA test will be .meeting many obstacles if not
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at a hearing level, certainly in the courts if it were adopted
"As an add-on portion of our project, we were asked
by EPA to compare ourtestswith the Minnesota test which is
very similar to the one being proposed at this time by EPA.
5 "A final report on this comparison .is available,
6 It was sent to Mr. Grunfall with copies to the above-mentionec
people within the Washington EPA office. This comparison
indicated that the Minnesota test, which is also a leachate
test, has some undesirable features which resulted in unusual
results.
"These results did not correlate well with the
12 results of either our test or the ASTM test which are more
13 defensible when related to actual landfill conditions. Our
project concluded by saying, based solely on data developed
15 within the project, that the Minnesota test was worse, by
16 far, of the three tests that were evaluated.
17 "By implication, this would also apply to the
18 test that the EPA is now proposing.
19 "In summary, I am very concerned about the test
20 that the EPA is proposing and the way the EPA unilaterally
21 developed it. This will ultimately serve to assure waste
22 of tax dollars, or $200,000 at a minimum, and an enaction in
23 a much needed area because of the poor test that has been
24 selected by EPA without proper input from professionals in
26 the filed, including myself.
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"Apparently, people have already aligned themselves
for a confrontation with EPA on one side, and industry and
myself and an investigator specifically sought and hired
on a major EPA-funded project to develop such a test on the
other side.
" It is an unfortunate situation which can only resul|t
in wasted time, effort and resources. I could go on and offer
specific technical problems regarding the EPA test, but this
9 has been done in detail in our project which was referred
10 to previously.
11 "If additional documentation or interpretation would
!2 be useful, I will do what I can. Please do not think that I
13 support our test solely because it's ours. Pride in our work
14 has nothing to do with it. The simple fact is that this test
15 represents the effort of the best professionals we could
16 assemble or contact with the specific objective of developing
17 the best, most defensible leaching test possible for routine
18 use on all industrial solid and semi-solid waste.
19 "Judging from our experience, the results of the
20 proposed EPA test completely misses its objective. I will
21 not be able to appear at the hearing because I have limited
22 travel funds. But I do want this letter to be presented as
23 evidence at the hearing.
24 "And I want you to be aware of our situation and
our concerns." Signed Bob Hamm.
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MS. DARRAH: Will you take questions, please?
MR. MALLOY: Oh boy.
MR. STRAUS: Mr. Malloy, I guess one of the major
differences between the ASTM procedure and EPA's procedure
is the leaching medium through that ASTM procedure. They
use distilled water and EPA uses acetic acid solution. Would
you believe that distilled water would represent real world
conditions of what you find out in a landfill?
MR. MALLOY: Well, depending upon the landfill, you
were talking about a garbage disposal site which is basice.lly
an acid environment, I would say you would find acetic condi-
tions. But when you're talking about other areas of disposal,
I think there is more water in the environment to what there
is acid.
MR. STRAUS: Could you expound on what type of
landfills you're talking about?
MR. MALLOY: I'm talking about a landfill that you
wouldn't co-mingle your material with other materials that are
noncompatible.
MR. LEHMAN: May I ask how you would guarantee that
you could not co-mingle waste unless you handle the waste unde:
some sort of regulatory —
MR. MALLOY: Well, first of all, you've had your
classification test. You intend to go on to your advance
notice of biological testing. We know, from the tests we have
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run on biological activity testa, that an acid test will not
work. You will get post-positives and negatives.
And in all likelihood, you will have something
throughout the system. So you have a water which is a very
active extractant to be used in this regard. You can take
an extract that is used in the metal industry or lining
industry to extract anything you want to extract.
Now, we're talking about an extract test here which
has absolutely nothing to do with reality whatsoever.
MR. LINDSEY: To follow up on that, the purpose of
the extraction procedure is to act as a screening mechanism
and it's designed so that it will get waste into the system
that is into the control process which, if improperly disposed
and in this case in what we consider to be the most common
inadequate process which is an open dumping co-mingling, if
you will — thus the acid leaching.
In other words, what we're trying to do here is to
simulate the most common improper disposal and then get those
wastes into the system. The question as to whether or not
monodisposal of waste which, in a case by case basis, may
or may not be adequate if it's not co-mingled, it's taken
up under Section 3004.
And if the wastes are disposed of in a monofill-and
there's no leaching possible, then granting of a permit will
be a little problem. But the point is, it seems to me we
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have to get materials into the system which might, if improperly
disposed in a common improper disposal system which is open
dumping co-mingling with wastes, if we don't get them into
the system, we will never know what happens to them.
MR. MALLOY: Then why call them hazardous? Or why
not call all materials hazardous and put them in the system?
MR. LINDSEY: Because not everything that's disposed
of in the massive medium in a municipal landfill creates a
problem. Only about 15 percent, we feel, will fail these
tests.
MR. MALLOY: And I think if you use your test, you're
going to find higher volumes than that.
MR. LINDSEY: The results we've got so far indicate
that somewhere around 15 percent —
MR. MALLOY: Row many wastes have you tested?
MR. LINDSEY: I'm not sure I know.
MR. MALLOY: Three, that I know of.
MR. LINDSEY: Oh, no. I think there's been more than
that.
MR. LEHMAN: You indicated that there was a problem
for the extraction procedure. And I want to hone in on this
because it seems to be the problem; a misconception by a
number of people. If you will notice, on page 58961*of the
Federal Register there is a design drawing of that apparatus
which is very simple, very easy to make.
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i Anybody who could supply that to a shop anywhere
2 in the United States could make that particular piece of
3 equipment. It's very, very simple. Now, are you saying that
4 this test apparatus is truly not available?
5 MR. MALLOY: You are saying in the proposed regs,
if I read it correctly, that this apparatus is available;
this is available equipment that you can buy off-the-shelf.
Now I talked to your sole-source manufacturer in. Alexandria,
Virginia,, yesterday.
He told me he had a three-month backlog for both
pieces of equipment. He further told me — I said, well,
12 don't you have anything on the shelf? He said, it would take
13 $4,000 to put something on the shelf and I don't know whether
14 this is going to fall through in three months.
MR. LEHMAN: But the point is, Mr. Malloy, that one
16 does not have to go to that particular source. There is ample
17 material here for anyone, anywhere to make — this apparatus
is very simply and very cheaply.
19 MR. MALLOY: Have you made any yourself?
20 MR. LEHMAN: I personally have —
MR. MALLOY; I talked to our labs in Berkeley,
22 California. And they're having a little difficulty with it.
23 MR. LEHMAN: Well, that's —
24 MR. MALLOY: Your own supplier is having difficulty
25 with it. He is — he visited with EPA to make some modificati
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in the store, itself, yesterday. So —
MS. DARRAH: Do you think that prior to the —
MR. MALLOY: Well, I think you could just about ask
anybody who is trying to test this the problems they've had
in getting this equipment. In one case, the contractor was --
somebody indicated — fell apart. You have one that I know
of where the motor burned out.
So you have impeller problems, design problems to
begin with.
MS. DARRAH: Well, if you go —
MS. MALLOY: This is the problem. Jack. And also,
I think it's very unfair that EPA requires us to make comments
formal comments on .something that we don't have the apparatus
to test on. So we can't make any decision as to what this
new EP means.
You haven't even begun or even modified your contract
with your contractor to do the precision on this. I think
that's unforgiveable as far as this Agency is concerned.
MS. DARRAH: Okay. We will discuss your comments
for the record. Thank you.
Elizabeth Tennant.
STATEMENT OF ELIZABETH TENNANT, ENVIRONMENTAL
ACTION FOUNDATION, WASHINGTON, D.C.
MS. TENNANT: Good afternoon. My name is Elizabeth
Tennant and I am Project Coordinator for the Solid Waste Project
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of Environmental Action Foundation (EAF). EAF would like to
thank EPA for this opportunity to comment on the proposed
regulations for hazardous waste management and to commend all
of you for your endurance.
Today, I will comment on Sections 3001, 3002 and
3003. We will open with some general remarks before turning
to specific comments on Section 3001.
EAG recognizes the mammoth nature of the task con-
fronting EPA in bringing hazardous wastes under cradle to
grave control, and we appreciate the enormous effort that has
obviously gone into drafting these proposed regulations.
However, we believe that as currently constructed,
these standards are too weak and that they are totally inade-
quate to meet the Congressionally-mandated task of protecting
the environment and human health.
As we will discuss in greater detail druing these
hearings, we believe that all sections of this proposed regula-
tory program require substantial strengthening if the complete
and adequate control of hazardous wastes is to be achieved.
Without such improvement, the public will continue
to be threatened by improper hazardous waste management and
the environment will continue to be degraded and polluted as
we fashion future Love Canals.
A more immediate problem stemming from failure to
strengthen these regulations centers around facility siting.
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We believe that only with strong regulations guaranteeing the
2 best possible siting/ management, health and safety standards
3 will the facility siting problem be eased.
We can all acknowledge that there are severe problem:
in siting hazardous waste disposal facilities due to public
opposition. Public concern about living near facilities
handling these potent wastes is certainly understandable,
especially given current poor siting and management practices
and the lack of stringent environmental and health standards
10 such facilities must meet.
n On the other hand, EAF, along with other environ-
12 mental groups, acknowledges that these wastes must be disposec
13 of somewhere, and supports their recovery, treatment and dis-
14 posal in the best attainable, environmentally sound location
15 in a region.
16 it appears to us that waste management experts are
17 deluding themselves in thinking that a weak regulatory program
will receive broader support and enforcement than a strong
19
20 While the people living right next door to a propose
21 site are not ever likely to support it, we believe that given
22 the assurance of strong hazardous waste regulations, our local
23 constituents would support such facilities. Although we cannot
guarantee the full support of environmentalists even with
strong regulations, we can guarantee 100 percent opposition
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i without them — and the ability to site facilities is integral
2 to the success of this program.
3 We will now briefly examine Section 3001. As EPA
4 is well aware, this section truly is the cornerstone of the
5 regulatory program, for it defines the universe of wastes that
are considered hazardous and thus subject to regulatory contro
As such, it lays out the groundwork for the entire hazardous
waste management program.
EAF finds EPA's definition and listing of hazardous
10 wastes to be extremely weak and overly narrow. As presently
11 constructed, these regulations will not include a large portio:
12 of substances considered hazardous in the past. For example,
is as documented in the Environmental Impact Statement, approxi-
14 mately 65 percent of the potentially hazardous wastes gen-
15 erated by the Chemical and Allied Products industries will
16 not be brought under control in the Subtitle C program.
Additionally, characteristics previously attributed
18 to hazardous wastes — such as radioactivity and infectivity -
19 have been dropped, so that only if such wastes appear on the
20 list will they be considered hazardous. We can find no con-
vincing legal or technical substantiation for the limited
22 approach.
23 our major criticisms are twofold.
24 First, the list of processing wastes defined as
25 hazardous is too limited. Not only is this list based on
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incomplete data, as EPA itself admits, but a close examination
indicates that there are significant omissions within docu-
mented categories.
For example, the 1976 EPA study of the textile in-
dustry labeled discarded dye and chemical containers as a
major source of potentially hazardous waste from that industry,
yet nowhere are they covered on the process list. Similar
holes appear in other categories.
To remedy this problem, we urge EPA to expand its
list of hazardous processing wastes to be as comprehensive as
possible.
EAF's second major criticism of Section 3001 is that
the toxicity section is too weak on two counts. To begin with,
the procedure for measuring toxicity of a waste is based
solely on the National Interim Primary Drinking Water Standard!
Only 14 substances fall under these standards, leaving out a
multitude of other potentially toxic chemicals, including some
that EPA, itself, has identified as priority pollutants.
Secondly, by eliminating the toxicity testing for
substances that are phytotoxic, mutagenic, teratogenic and
bioaccumulative, EPA limits the inclusion of these wastes
under Subtitle C to those specifically named on the hazardous
waste list.
It is EAF's contention that this flies in the face
of RCRA which requires EPA to develop the criteria "taking
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i into account toxicity persistence, and degradability in
2 nature, potential for accumulation in tissue, and other re-
3 lated factors ..."
4 To eliminate these deficiencies in the toxics sec-
5 tion , we -urge EPA- to :
6 1 . Broaden the basis of the toxicity testing to
7 include the Water Quality Criteria.
8 2. Broaden the list of specific chemicals to in-
9 elude chemicals for which analytical methods and data are
10 available , including the priority pollutants in Appendix 5 ,
11 pesticides and chronically hazardous substances now under regu
12 lation by other Federal programs and agencies (including the
is Consumer Product Safety Commission, OSHA and EPA's own Office
u of Toxic Substances) .
15 3. Reinstall the hazardous waste criteria to include
16 radioactivity, unnatural genetic activity, bioaccumulation
17 and toxicity to aquatic organisms and terrestrial plants.
18 Finally, before closing, we would like to urge EPA
19 to better control waste solvents destined for- recycling. EAF
20 wholeheartedly applauds the development of hazardous waste
21 reclamation operations and hopes that they will burgeon in the
22 coming years.
23 At the same time, we believe that the total exemp-
24 tion of such wastes from the Subtitle C program will result
25 in substantial continued threat to public health and the
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environment.
First, this exemption provides a potential loophole
for unscrupulous generators who could always claim their waste
was being recycled, when in fact they are evading the system.
Secondly, since recycling facilities are not required to meet
3004 standards, there is no guarantee they will be properly
run.
We are particularly concerned about the potential
for damage from waste solvents since they are widespread and
potent. We would remind you that the Silresm disposal disastei
in Lowell, Massachusetts, was the unfortunate result of a
misguided solvent recycling operation.
At Silresm, more than 15,000 55-gallon drums were
stockpiled in an unfenced urban lot when the owner went
bankrupt.
We urge EPA to close this loophole by placing gen-
erators of waste solvents under the same system as the waste
oil generators, and by requiring solvent reclaiming operations
to be permitted under Section 3004.
To help ease the administrative and financial bur-
dens, perhaps such recycling operations could be exempted from
some of the 3004 requirements, while adhering to the basic
siting, storage and security standards.
We bleieve that only by bringing these recycled wastejs
under the manifest system and Section 3004 can public health
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and the environment be adequately protected.
I will now go on to Section 3002.
While we support the general approach of these
standards, we do not believe they are strong enough to meet
the Congressionally-mandated task of protecting the environ-
ment and human health.
In particular, we are strongly opposed to the exemp-
tion of generators of up to 100 kilograms of waste per month
from compliance with the regulatory requirements. Our objec-
tion rests on both legal and environmental grounds.
The exclusion of generators on the basis of volume
and economics is not supported either by RCRA or the legal
history of the Act. Furthermore, this approach violates the
clear intent of RCRA to track hazardous wastes from the point
of generation to disposal.
Although the cumulative waste produced by these
small generators is relatively small, their exclusion could
result in significant local environmental damage in several
ways.
First, not all wastes are less hazardous in less
volume. For example, as little as three ounces of dioxin is
enough to kill more than a million people, according to some
scientists. Between two and eleven pounds of dioxin was
released in the town of Servaso, Italy, when a chemical plant
exploded, killing thousands of animals, injuring hundreds of
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people with severe skin lesions, and forcing evacuation of the
area.
Clearly any amount of waste dioxin would pose sig-
nificant health and environmental problems.
A second aspect of the environmental threat from
exempted small generators lies in geographical reality.
Generators are often clustered in the same locale, with the
result that one municipal landfill would very likely receive
numerous small deposits of hazardous wastes — with the po-
tential for substantial damage.
The proposal to raise the exclusion ceiling to 1,000
kilograms (more than a ton) per month is completely unacceptabl
EPA has estimated that this will exclude only 5 percent of all
hazardous wastes from regulation. However, according to EPA's
own calculations, this amounts to some 4.6 billion pounds each
year.
Disposing of this amount of hazardous waste without
environmental safeguards poses a severe threat to public health
and the environment. In addition, as the Office of Solid Waste
has pointed out, 25 percent of all damage claims in the EPA
files involved less than 1,000 kilogram per month amounts
of hazardous wastes.
EAF is sympathetic to the initial administrative
burden imposed on small generators by including them in the
regulatory system, and we are equally appreciative of the
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enforcement problems this poses for EPA. However, we still
contend that to adequately protect human health and the
environment, the 100 kilogram ceiling must be dropped.
In recognition of the enforcement problems facing
EPA, EAF would urge EPA to drop the small generator exclusion
with the clear understanding that:
1. due to limited resources, enforcement efforts
would be focused first on large-volume generators, and
2. enforcement efforts for small generators would
be focused first on the most hazardous wastes.
Although EPA has expressed the view that the ranking
of wastes according to degree of hazard is very difficult,
we believe that a rough ranking according to potency is pos-
sible.
Several states categorize their wastes into the
"hazardous" and "very hazardous" classes; for the purpose of
implementing the small generator effort, we encourage EPA to
do the same. (In making this recommendation, we are not
advocating that these wastes should be subject to differing
degrees of control. But rather, we are simply proposing a
realistic enforcement approach.)
Another weakness in Section 3002 as presently con-
structed centers around the lack of requirements for generator:
who store their wastes on-site for less than 90 days. EAF
contends that to safeguard public health and the environment,
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generators storing their wastes on-site for less than 90 days
should be subject to storage requirements regarding containers,
security, and contingency plans.
We believe that the potential for damage from
hazardous wastes exists as long as the waste does. Although
the likelihood of a damage incident grows with long-term
storage, the arbitrary line that has been drawn at 90 days
does not eliminate the threat of damage during storage.
While it clearly is not reasonable to impose the
same standards on generators for short-term storage as for
long-term storage, EAF contends that minimal security and con-
tingency standards must be established to protect public healtt
and the environment.
Specifically, in addition to supporting the current
proposal that these wastes be stored in DOT specification
containers, EAF recommends that generators be required to:
1. meet the security standards outlined in
Section 3004 to assure that unintentional or unauthorized entrj
into the storage area is prevented; and
2. develop a contingency plan similar to the one
outlined in Section 3004. While such a contingency plan need
not be as elaborate as for a large, ongoing storage operation
EAF believes that wherever hazardous substances are handled
on a regular basis, the generator and the emergency response
personnel should be prepared to handle an emergency if one
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should occur.
(In passing, I would note that fighting fires or
handling spills of hazardous materials involves a very dif-
ferent approach than does fighting a normal structural fire.
By being prepared in advance for an incident, it can be
handled more quickly and with less danger to the responding
firemen.)
Our final point today concerns the manifest system
which we believe should contain more specific information about
the chemical composition of the waste. As outlined in this
section, the information required on the manifest is good.
However, it does not provide enough specific information
about the chemical composition of the waste being handled.
EAF contends that the manifest is the most appro-
priate method of meeting RCRA's requirement of "furnishing of
information on the general chemical composition of...hazardous
wastes to persons transporting, treating, storing, or dis-
posing of such wastes..." Currently, Section 3002 does not
require this information.
We believe that such information is very important
to have on the manifest, for in addition to providing a means
of tracking wastes through the disposal cycle, the manifest
provides the information needed to handle the waste should
accident occur.
In responding to a hazardous waste spills or fire, 11
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is imperative that the firemen and other emergency response
personnel have quick access to information giving specific
details about the nature of the material they are dealing
with.
At the very least,a listing of the main chemical
components of the waste is a must to ensure a proper emer-
gency response.
We are convinced that transportation is probably the
most vulnerable point in the hazardous waste disposal cycle,
for the danger of an accident always hovers, and it is during
this phase that both unintentional and deliberate mismanage-
ment of wastes frequently occurs.
As a 'result, we believe that strong regulations for
hazardous waste transporters are critical to the effective
and safe management of these wastes.
We have examined the proposed Section 3003 regula-
tions to see whether they adequately achieve RCRA's goals of:
1. tracking wastes to make sure they get to a
permitted disposal facility; and
2. assuring that public health and the environment
are safeguarded during waste transportation.
Because of the close degree of coordination necessar;,
between EPA and DOT, we have also examined the DOT proposal
in light of the RCRA requirements, although we recognize that
RCRA does not require DOT to adjust the HMTA regulations.
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In our assessment, although each has its strong
points, neither the DOT nor the EPA proposal is strong enough
to provide the necessary protection.
This afternoon, we will address problems we per-
ceive with the placarding and vehicle marking requirements.
EAF believes the proposed EPA requirement for markin
motor vehicles transporting hazardous wastes is too weak.
The marking of hazardous waste transportation vehicles is
important for identifying the transporter, and may prove im-
portant in the event of a transportation emergency.
It is very surprising to us that EPA would limit thi
vehicle marking only to vehicles which are placarded or are
carrying more than 1,000 pounds of hazardous waste, especially
given the limitations of the placarding system and DOT's
apparent recommendation that such an exemption not be given.
Excluding waste transporters carrying less than 1,00
pounds from the marking requirement could result in significan
volumes of wastes being transported through the streets with
virtually no outward sign to warn either the public or fire-
fighters .
Benzene, for example, is a proven leukogen and in
liquid form, it is flammable. Under the current EPA proposal,
it is entirely conceivable that up to 999 pounds of waste
benzene could be transported with virtually no vehicle marking
Should an accident occur, emergency response personnel would
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have no information about the substance before them, and
probably, little information about the transporter.
This lack of knowledge could easily result in a
substantial health hazard to the local populace and the fire-
fighters themselves through slower and/or improper responses.
Clearly, the same is true of many other potent wastes.
Additionally, we would point out that under the cur-
rent Subtitle C Program, generators of more than 100 kilograms
(or 220 pounds) of waste per month would be included in the
system. The difference between 220 pounds and 1,000 pounds is
substantial.
We believe it is arbitrary and contrary to the intent
of RCRA to classify a waste as hazardous, and then not subject
it to the full control of the Subtitle C Program. We urge
EPA to close this gap by applying the vehicle marking require-
ment to all hazardous wastes in transport.
Our second major criticism centers around the DOT
placarding system adopted by EPA for waste management. EAF
finds the current placarding system to be incomplete and in-
adequate to safeguard public health in the event of a hazardous
materials transportation emergency.
Given the danger of accidents while in transit, it
is critical that vehicles carrying hazardous wastes are clearlj
and distinctly marked — both so that the public is aware of
what they contain and, even more importantly, so that emergencj
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response personnel have ready access to information about the
substance in question.
As presently constructed, the DOT placarding system
has some severe limitations that include the following:
1. Lack of coverage of multiple hazards. With a
very few exceptions, vehicles are not placarded for more than
one of the several hazardous properties the cargo may possess.
For example, a waste that is toxic, ignitible and corrosive
probably would be placarded for only one of these properties.
2. Failure to cover transporters carrying less than
1,000 pounds. With the exception of a few highly poisonous
and explosive hazard classes, up to 1,000 pounds of hazardous
materials may be transported without any warning placard.
This includes organic peroxides which the National Fire
Protection Association claims have the greatest destructive
potential of any hazardous substance they deal with.
3. Lack of hazard-specific placards for most
materials. Even when placarding is required, most materials
can be placarded with only a "dangerous" placard if the trans-
porter so desires. This means no clue is given as to the
specific hazard or hazards of the material.
4. Incomplete coverage of hazardous substances.
The DOT system has no placard for chronically hazardous ma-
terials that may be carcinogenic, mutagenic, and/or bioaccu-
mulative.
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In each case, lack of specific information hampers
the emergency response personnel, for their ability to act
immediately and effectively at minimum risk to themselves and
the nearby populace depends on having exact knowledge about
the substance before them. The same clearly holds true for
hazardous waste incidents.
In order to adequately protect human health and the
environment as required by RCRA, the Section 3003 regulations
must be substantially strengthened with regard to placarding.
Specifically, EPA should expand the placarding system for
hazardous wastes to:
1. require the posting of placards for each
hazardous characteristic the waste meets;
2. require hazard-specific placards for all mani-
fested wastes; and
3. recommend to DOT the development of a placard
for chronically hazardous materials.
It is insufficient for EPA to fail to strengthen
Section 3003 on the grounds that this would be inconsistent
with the DOT program. We recognize that the DOT and EPA
programs must be consistent, and ideally, that they should be
identical.
However, we contend that EPA is obligated to develop
a program that protects public health and the environment,
and we contend that only by fashioning more stringent
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regulations is this possible.
We applaud the efforts of DOT and EPA to work togeth
in developing these regulations, and hope for the sake of
simplicity that it will be possible to issue a joint regula-
tion that incorporates the strongest points in each proposal.
Beyond that, we would encourage DOT to substantially
strengthen their regulations as suggested above so that both
programs can be identical and adequate to safeguard public
health. However, we recognize that RCRA places the respon-
sibility to provide this protection with EPA.
We contend that as long as the basic elements of
the DOT and EPA programs are consistent — such as the use of
common placards, labels, and shipping documents — that there
is nothing to prevent the EPA program from being stronger if
DOT will not change.
Consistency does not mean that both programs must
be identically inadequate. As the Federal guardians of the
environment and public health, it is incumbent upon EPA to
live up to the promised protection of the law.
Thank you for your attention. At a later date, we
will submit written comments for the record.
MS. DARRAH: Thank you. Will you answer questions
for us?
MS. TENNANT: Sure.
MR. ROBERTS: I don't know where to begin. You're
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the first comraenter in all our hearings to really, you might
say, let go with a blast on the existing DOT regulation and
what DOT has proposed and the relationship of EPA.
And very frankly, up to now, I was starting to get
bored. I think that what I have to ask you in terms of the
context of your comments are some questions as to your aware-
ness of what the intent of the — system is. And I think the
way I would like to start out is, would you be aware of the
9 fact that one of the largest transporters of hazardous ma-
10 terials in the United States is the United Parcel Service?
n MS. TENNANT: I was not aware of that fact.
12 MR. ROBERTS: The United Parcel Service does ap-
13 proximately $1.5 million worth of hazardous material transpor-
14 tation each and every week of the year in terms of gross reve-
15 nue. To think that a rather substantially large carrier —
16 and I only bring this out — the problem — for years in terms
17 of placarding.
18 And I want to be sure you' re aware of that in the
context of your comments that, obviously, we put the pockets
20 on everything, like Coca Cola trucks and all public utility
21 trucks in the United States, that transport compressed gases.
22 It's been our view if — a true meaning of a hazardous alertinc
23 system which we think that a placarding system will be.
24 My second question would be the — are you aware of
26 the details of the DOT shipping paper requirements, say, for
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motor vehicles?
MS. TENNANT: Not specifically.
MR. ROBERTS: Well, if you're going to make later
comments, maybe you would want to address them because if you
read Section 177817 of the DOT regulations, and I assume
you're aware of them because you did characterize them rather
well, that you make yourself aware of the provisions about
what must be in the driver's possession and what he must do
with those papers in the event of an incident or an accident,
and where they must be in the vehicle with the driver that
it was in his immediate region in the cab.
It even goes so far as to say when he's restrained
with this,DOT requires seat belts. I think you should be
aware of that because this is a consideration in here. And I
was curious as to whether you had considered that in terras of
giving the papers to the emergency response people.
Now, the logical point coming from that is that you
say, well, the man is going to be incapacitated in an accident.
Well, we've done a lot of checking on that. And that just
happens extremely rarely in transportation accidents involving
motor vehicles. We were able to determine that checking severe 1
years worth of records.
So we have placed great reliance upon the shipping
document system as tied together with the manifest system.
Coming back to your comment in terms of waste, and I realize
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i you — comments of waste. Are you putting greater emphasis
2 on the hazards presented by wastes in commerce which would
3 be a relatively low percentage against the estimated — as
much as four billion tons of hazardous materials transported?
MS. TENNANT: No. I'm not —
MR. ROBERTS: Do you place your emphasis
higher — your criticism across the board for all hazardous
material transportation?
9 MS. TENNANT: Well, I guess it's across the board.
10 But since these hearings are addressing hazardous wastes and
11 RCRA is specifically focused on hazardous wastes, that was
12 what I was pinpointing here.
13 MR. ROBERTS: Are you familiar with the notification
14 requirements proposed in terms of any discharges intentional
is or accidental during transportation as to what the notifica-
16 tion procedures require to be on the part of the transporter?
17 MS. TENNANT: I'm familiar with the general require-
18 ments, yes.
19 MR. TRASK: Ms. Tennant, on the 90-day storage pro-
20 vision that we have in the regulations, you indicated the
21 worse minimum requirements — and I'm not sure I got all
22 those down — but are you aware that as it's written down,
23 that 90-day storage is subject to the 3004 Standards?
MS. TENNANT: It is subject?
MR. TRASK: It is. And the only thing that is lacking
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there is that a permit is not required. But if I got down
what you suggested correctly, then that would be a relaxation
of the standards for the 90-day storage exclusion, if you
will; the exclusion on the permanent permit.
MS. TENNANT: Then I was under a misapprehension
on that. I would not advocate a relaxation.
MR. TRASK: You would prefer to see all of these
3004 storage standards comply with that 90-day period?
MS. TENNANT: Well, that would be preferable.
MR. TRASK: Okay. Thank you.
MR. ROBERTS: I just have one more.
Did I understand your comments, some statement about
the lack of a required new rule about identification in the
vehicle as to who the operator was? I made a note to that
effect. I wasn't sure that that's what you said.
MS. TENNANT: I was referring to the vehicle marking
requirements.
MR. ROBERTS: You're not talking about the identifi-
cation of the operator?
MS. TENNANT: No.
MR. ROBERTS: Okay. Because that is part of the
proposal.
MS. FRIEDMAN: Thank you for your comments.
The next speaker is Mr. Hugh Williams.
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1 STATEMENT OF HUGH WILLIAMS, SHERWIN-WILLIAMS,
2 MISSION MANAGER, WASTE MANAGEMENT TASK FORCE
3 NATIONAL PAINT AND COATING ASSOCIATION
4 MR. WILLIAMS: Madam Chairperson and members of the
5 panel. I am Hugh Williams, Director of Environmental Services
6 for the Sherwin-Williams Company and the Mission Manager of
7 the Water Quality/Waste Management Task Force at the National
Paint and Coatings Association.
9 Today, I represent that association which is a
10 voluntary, nonprofit industry association composed of more
11 than 900 companies which manufacture consumer paint products
12 and industrial coatings and the raw materials used in these
13 products.
The NPCA membership collectively produces about 90
percent of the total dollar volume of United States consumer
16 paints and industrial coatings. The task force is composed of
17 approximately 18 representatives of association members and tw<
staff employees with the objective:
19 1. To work with Governmental authorities at all
20 levels and with our member firms in endeavoring to protect
and improve our environment in a reasonable manner with
22 reference to water and land quality in our environment.
23 2. To educate our members regarding requirements
and methods to meet all water and waste disposal standards.
25 The NPCA and its membership agree with the fundamental
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257
objectives of the Resource Conservation and Recovery Act of
1976. We recognize that the handling and disposal of hazardous
wastes should be accomplished in a manner which protects publi
health and safety and preserves the environment.
It is our chief concern that when the EPA promul-
gates final regulations for RCRA, it does so with real world
constraints in mind. In other words, the regulations should
reflect differences among industries, recognize the varying
degrees of potential harm among wastes, and be designed to be
both workable and economically justifiable.
The paint industry perceives many specific technical
and procedural problems associated with the proposed rules and
regulations. Along with other concerned industries, we intend
to submit detailed comments addressing those problems on or
before March 16, 1979.
Today, though, I will limit my remarks to a few poli<
points which concern the framework of EPA's program and one
provision that specifically affects the paint industry.
It seems obvious that to achieve the goals of RCRA,
there must soon exist a network of convenient and cost-effecti'
hazardous waste treatment and disposal facilities throughout
the United States. EPA's own estimates tell us that 50-60
additional sites for commercial use will be needed when RCRA
is implemented.
The facility problem is so great that four EPA
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regions lack sufficient capacity to handle the wastes already
2 being generated.
3 Ohio, a state where 103 of the coatings industry
companies operate, represents a good example of the severity
of the facility crunch. In that state, nearly 90 percent of
hazardous waste is being disposed of out-of-state rather titan
in permitted sites within the state.
Only three disposal sites in Ohio have even a
possibility of 'qualifying under RCRA — and one has a remain-
10 ing capacity of less than nine months for storage.
11 As a recent GAO study points out, community objection
to having its area become a so-called "dumping ground" for othe:
13 people's waste, or even their own waste, is a major obstacle
14 to siting the necessary number of waste disposal facilities.
15 Public opposition is expected to increase as the new require-
16 ments for public participation in the permit process are im-
17 plemented.
18 In fact, in California where our industry has 196
19 plants, California state officials report that if RCRA requires
20 public hearings in the permitting of existing sites, the adverse
21 attention may close eight of the state's ten existing facilitici
22 Aside from public prejudice, the situation is
23 worsened by some states which have passed legislation more
24 stringent than RCRA, or have enacted procedures which render
25 the permitting of facilities more cumbersome. For example.
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Connecticut, which has ten paint plants, has passed a law
allowing local governments to prohibit, through zoning, land
usage for hazardous waste disposal.
This provides the local body with essentially un-
fettered veto power over the location of a site. Federal law
needs to encourage area responsibility for providing for
disposal of the waste materials created in that area.
The NPCA believes that EPA has an obligation to ex-
amine thoroughly avenues which can expedite the locating of
the so-called "grave" segment of its "cradle to grave" ap-
proach to solid waste disposal. We endorse the GAO's view
that a more active Federal and state role is required if facilj
ties are to be available to handle the quantities of wastes
generated.
This may necessitate the siting of facilities on
public land or the leasing by a state of sites to private
operators. Controlling hazardous waste is clearly in the
national interest; to serve that interest, preemption of local
government approval authority may be warranted.
In addition to assisting directly in the siting of
new approved facilities, we recommend that EPA adopt a system
to classify hazardous waste according to the degree of its
potential harm. A systematic approach is more manageable
(not to mention realistic) than the proposed broad and overly-
inclusive listing of hazardous waste by standard industrial
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class!fication.
By virtue of its special handling procedures for a
group of "special wastes" which pose only a low-potential
hazard, EPA has already recognized the advantage of classifi-
cation. But this is only a starting point. We propose that
all waste should be classified as to its potential hazard to
the environment and public health.
Certain wastes, like pesticides and explosives which
are known to present a severe and imminent danger to the
environment and public health if improperly disposed, would
be classified as "high hazardous." Waste that could possibly
pose a danger to the environment or public health, if disposed
of indiscriminantly, would be classified as "hazardous."
Waste for which data proves the potential hazards
are relatively low would be rated as "marginally hazardous."
By classifying hazardous waste, EPA could phase regulatory
coverage to encompass the most hazardous waste first. The
advantages of utilizing this type of a regulatory system are
many and include the following:
1. Assure that the most hazardous waste will be
disposed of in only approved facilities.
2. Make maximum use of limited number of approved
facilities.
3. Allow for additional time in which new sites can
be developed and old sites upgraded.
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261
4. Allow for additional time to develop data on
the marginally hazardous wastes and develop more realistic
alternatives for disposing of this type of waste.
I would like to now comment upon a -provision which
singles out the paint and coatings industry as a culprit, per
se, where hazardous waste is concerned. Section 250.14 deems
all paint wastes (such as used rags, slops, latex sludge,
spent solvent, et cetera) as hazardous unless it can be demon-
strated that they are neither toxic nor ignitable nor contain
organic substances.
NPCA strongly believes that presuming all paint
wastes as hazardous waste represents an unfair and overly
broad categorization.
We admit that certain types of our wastes are
hazardous. Spent solvent, for example, may be flammable or
combustible. But other examples of wastes listed in 250.14 arc
not necessarily hazardous. A substantial percentage of our
rags are laundered and reused.
While the tern "slops" is used as an example of paint
waste, we are unsure, really, as to the meaning of that word
as it relates to our industry.
An independent certified lab found that with the
exception of slightly elevated mercury levels in a few samples,
emulsion paint waste water treatment sludges from seven man-
ufacturing locations fell below EPA's maximum extract levels
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for heavy metals.
The burden and expense of testing annually all our
wastes, even those we know are not hazardous, is enormous.
EPA's arbitrary and over-inclusive listing removes the incen-
tive to separate regular solid waste from hazardous materials
and may result in waste being shipped to hazardous land sites
unnecessarily.
This can add to an already overcrowded situation
and lead to shorten needlessly the life of the hazardous waste
disposal facility and inflate the cost which inflates the
price of the product we must then charge our customers.
EPA is asking the paint industry to carry the burden
of proving that its waste is not toxic organic without pro-
viding an established procedure to follow. In the preamble
to the regulations, you state "Today, EPA proposes to rely
only on consideration of the first four characteristics becausi:
those are the only ones for which the Agency confidently be-
lieves test protocols are available."
Yet, in Section 250.15, EPA spells out that these
untried and unproven protocols are the ones to be used by a
generator to prove that his waste is not mutagenic, carcinogen:
teratogenic, bioaccumulative or toxic organic.
We recommend that all listings based solely on the
characteristics of mutagenicity, bioaccumulation and toxic
organic substance be delayed pending further review.
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Our final general comment concerns the exemption
under the Act for any company which generates less than 100
kilograms per month. EPA has asked industry to indicate whether
it feels this exemption should be raised to 1,000 kilograms
per month.
NPCA believes it should be raised to 1,000 kilograms
per month in order to remove the onerous burden on small paint
manufacturers and coatings applicators. Even small paint con-
tractors < generate more than 100 kilograms per month. And
their cost of compliance will certainly be passed on to the
consumer.
Further, the 1,000 kilograms per month level would
provide an incentive to industry to reduce waste, whereas thert
is little or no real possibility of reducing to below the
100 kilograms per month level.
To summarize:
NPCA strongly recommends that, initially,
EPA provide for the 50 to 60 additional
cost-effective hazardous waste disposal
sites.
Turn the public prejudice to public re-
sponsibility for locating sites remembering
that household waste also contains many of
the same hazardous wastes that industrial
wastes contain.
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Classify hazardous waste according to the
degree of its. potential harm and prioritize
management of the waste accordingly.
Relieve the burden and expense of testing
and, when necessary, specify proven test
protocols.
NPCA supports this suggested exception of 1,000
kilograms per month.
I wish to thank EPA for this opportunity co comment
on these important proposed regulations.
MS. DARRAH: Thank you. Hill you answer questions
if there are any?
MR. WILLIAMS: Yes. I will attempt to.
MS. DARRAH: Okay.
MR. LEHMAN: I — copy of that on new facilities —
I just want to call your attention to the fact — EPA legisla-
tive to do that nor the funds to do that. So if you think
you should do that, I think you should address those remarks
to the legislature.
MR. WILLIAMS: Surely.
MR. LEHMAN: The question is that in your remarks
on 3001, you indicated your feelings that there should be a
classification by degree of hazard, or hazardous waste. And
further, that coverage should be phased'-in-over..time.starting
with this high hazardous waste first.
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. Now, can you give us some comment about what you
2 mean by phased in over time? Well, one was at three months
3 and the other one three months later and the other one was —
4 in other words, what kind of time scale did you have in mind?
5 MR. WILLIAMS: As the disposal sites became avail-
6 able for the materials, realizing that the existing sites
7 are limited in number right now, you want to take care of
8 the hazardous — most hazardous materials and not overcrowd
9 those.
10 If our industry were to say all of our waste is
11 hazardous, this, all of a sudden, puts a big load on hazardou
12 waste disposal sites. And so, in order to give that longer
13 life and to permit time for the establishment of proper dis-
14 posal sites, phased-in operation, I would think, would be
15 in order.
16 MR. LEHMAN: Well, just to follow up on that, are
17 you familiar with Section 3005 in the RCRA which provides
18 for RCRA's staff — after regulations go into effect — I
19 believe, if you read that carefully, you will see that
20 Congress anticipated this transition period.
21 MR. WILLIAMS: Yeg.
22 MR. LEHMAN: And that is the mechanism that is in
23 the law for that hazard rather than the — situation. But
24 you might want to review that in light of your statement.
25 MR. WILLIAMS: Well, here again, we're getting back
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1 to the real world. And we're trying to operate in several
2 different states at the present time and we find that disposal
3 sites are very difficult to find these days for anyone whose
4 attempting to properly dispose of hazardous waste.
5 MR. LEHMAN: One last question. I believe you men-
6 tioned that your association has conducted some testing with
7 respect to hazardous level of their waste from your industry.
8 MR. WILLIAMS: Yes.
9 MR. LEHMAN: We would certainly appreciate your
10 stating any data you may have on the degree of hazardous —
11 the levels of hazardous waste in your industry.
12 MR. WILLIAMS: Yes. We intend to include this
13 with our remarks.
14 MR. LEHMAN: Thank you.
15 MR. WILLIAMS: Thank you.
16 MR. STRAUS: May I have just a word?
17 Mr. Williams, I have just one additional question.
18 You had indicated that EPA should classify waste as being
19 hazardous. And probably not today, but in your detailed
20 comments that you submit, if you can give us any thoughts
21 you have on how you feel this classification system should
22 go.
23 And the second question I have is, when you talked
24 about classification of hazardous waste, you want that car-
25 ried to have different treatment, storage and disposal
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standards or was the purpose of classification just for the
phased implementation until the facilities got on-line?
MR. WILLIAMS: Well, I was primarily considering
until the facilities got on line because I appreciate there
are different methods of disposal.
MR. STRAUS: Okay. Thank you.
MR. TRASK: Mr. Williams, in regard to the data tha
you told us — will you also check to see if you have the dat.
on the quantities of waste generated by the various segments
10 of the paint industry which is something we have been searchii
11 for?
12 We would appreciate very much having any data that
13 you might have there.
14 MR. WILLIAMS: Very well. We have some sketchy
15 data, I don't know how comprehensive it is —
18 MR. TRASK: Oh. I assumed that you did because
17 from your comments, you indicated that no contractor would
have less than a hundred kilograms a month. That led me to
19 believe that you have been accumulating some data. And we
20 would like to have that.
21 MR. WILLIAMS: Thank you.
22 MR. TRASK: Thank you.
23 MS. DARRAH: Thank you very much.
24 Okay. I'm going to call Robert Rhodes next. If
25 there is anyone else who is trying to make a flight out today,
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let the registration desk know and have them notify me.
Otherwise, please don't try and change the order. I think
we're fairly well set.
STATEMENT OF ROBERT RHODES, ASSOCIATE GENERAL
COUNCIL FOR THE FLORIDA PHOSPHATE COUNCIL, INC.
MR. RHODES: Good afternoon. My name is Robert
Rhodes and I'm appearing today as associate general counsel
for the Florida Phosphate Council, Inc. and its member com-
panies. I will join the litany of previous speakers to
inform you that we're going to develop and submit extensive
written comments prior to the end of the comment period.
And today's presentation will be hopefully quite
brief and will simply outline the skeletal facts of some
of the — for want of a better term — legal arguments that
the Council will make. And then I will introduce Dr. Keith
Schiager who will present to you some of the concerns of
the Council in the area of radiological controls that are
inherent in the listing of certain phospate-related materials
The Florida Phosphate Council represents eighteen
mining and phosphate processing plants in Florida. These
plants produce phosphate fertilizers, elemental phosphorous aijid
other phosphate-related products. EPA has elected to list
certain of the materials developed during these processes
as hazardous under Section 3001 and has included them within
the category of special waste in certain special waste standards
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l under Section 3004.
2 The list of phosphate materials include phosphate
overbuden and clays developed during the mining process,
gypsum developed during the production of phosphoric acid,
which is a basis for phosphate fertilizers, and co-product
slag which is developed during the production of elemental
phosphorus.
The phosphate-related materials are listed according
to the best information we have because of their purportedly
10 hazardous radioactive content. EPA has not formally proposed
11 a hazardous waste characteristic for radioactivity. I should
12 say parenthetically that the purpose of these comments and
13 for the ones that we will submit later, we have essentially
14 assumed that EPA has a de facto standard for solid waste
15 radioactivity of five picocuries per gram.
16 That was the number that was in draft regulations
17 that we have seen for the last six months prior to the pro-
18 posal going formal. It's the number that's in the delisting
19 section and it's a number that's in your advanced notice
20 for proposed rulemaking.
21 So we axe-assuming that is a shadow or de facto
22 standard in our comments and using that as the basis for
23 further analysis.
24 EPA1s concern with'radioactivity levels in the
25 phosphate-related materials arises from the belief that person's
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l living in houses constructed on reclaimed lands or constructe
2 using certain phosphate-related materials may be subjected
3 to slightly elevated radiation levels.
4 First, our legal points. And then I will turn it
5 over to Dr. Schiager. It's our judgment that EPA has no
6 current statutory authority under the RCRA to regulate mining
7 wastes. The language of the statue and the legislative his-
8 tory make it clear that a study of this particular problem
9 area must be completed and additional legislative action must
10 be taken before regulatory controls can be implemented.
11 It is also clear that mining materials, in the
12 context of the phosphate industry, are used for land reclama-
13 tion. They are temporarily removed from the area and re-
14 turned to reclaim the land for valuable uses. They are not
15 discarded, they are not wastes. And therefore, they are
16 not subject to controls under the RCRA.
17 Vast regions of Central Florida have been and will
18 be reclaimed for valuable uses with phosphate overburden
19 and clays. A portion of the gypsum sold in Florida and all
2Q of the gypsum sold and all of the slag sold in Florida is
21 sold for reuse.
22 It is not disposed of; it's not discarded. These
23 materials are not wastes. And once again, they are not regu-
24 lated under the RCRA. The Agency's attempt to redefine the
25 concept of discarded materials goes far beyond any authority
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granted under the RCRA.
Finally, EPA has ignored the basic two-step struc-
ture of Section 3001 by listing materials based upon their
radioactivity prior to establishing any formal proposed radio-
activity characteristics. The Council believes that any
problems that may exist with elevated radiation levels in
homes built on reclaimed land can be solved rather simply
through the use of appropriate construction techniques.
9 This isamanageable problem, it's localized, it's
10 one that would best be handled through state and local zoning
ll for land use planning requirements. The Agency's attempt to
12 solve this with a nationwide regulation and involves a broad-
brunch declaration of vast areas of Central Florida as hazardot
14 waste is, in our judgment, illegal, ill-advised and uneconom-
15 ical.
16 The Florida Phosphate Council has retained the
17 services of Dr. Keith Schiager to evaluate some of the radio-
is logical issues that are involved in the listing of phosphate-
19 related materials. Dr. Schiager's expert credentials are
20 outlined in the materials that I've given to you and I won't
21 detail them.
22 He is a Certified Health Physicist with interests
23 primarily in the areas of environmental radiation, protection
24 and impact analysis. He currently holds faculy appointments
25 at the University of Pittsburgh and at Colorado State
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University.
He has performed contract research for and has actec
as a consultant to the Environmental Protection Agency on
radioactive waste controls and on measurement of airborne
radar and decay products. He developed the instrumentation
used by EPA to measure indoor radar and decay product con-
centrations in the Florida studies.
He has published more than 40 technical journals,
papers and research projects, some of which are referenced
in the background documents of the proposed regulations.
Following Dr. Schiager's comments, both he and I will be
happy to respond to the extent of our ability to any question
you might have.
STATEMENT OF DR. KEITH J. SCHIAGER, TECHNICAL
CONSULTANT TO THE FLORIDA PHOSPHATE COUNCIL
DR. SCHIAGER: I am Keith Schiager. And as
Mr. Rhodes said, I'm here on behalf of the Florida Phosphate
Council.
The EPA proposes to classify as hazardous, and to
regulate as special wastes, selected materials containing low
concentrations of radium. The proposed regulations are based
on two presumptions, both of which I believe are incorrect:
1. that an excessive health risk from long-term,
low-level radiation exposure will occur in the absence of
regulatory action, and
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2. that the risk would be significantly and economi-
cally reduced by regulatory action.
Neither of these presumptions is adequately analyzec
or justified in the supporting documents.
One of the pathways for human exposure from radium-
bearing materials is by direct, external gamma irradiation.
The range of such exposures found in structures built on
Florida phosphate lands, whether unmined or reclaimed, is
within the normal range of such exposures found in my home
10 state of Colorado.
11 Consequently, I find it incredible that regulatory
12 controls, and possibly remedial action, would even be
13 considered for such a situation on the basis of excessive
health risks.
15 A more complex pathway for human exposure is by inha
16 lation of airborne radon and its decay products. The risk of
17 lung, cancer imposed by inhalation of radon decay products is
18 reasonably well known as a result of extensive epidemiological
19 studies o£ uranium miners.
20 This risk has been quite accurately summarized and
21 extrapolated to general population exposures by the EPA.
22 However, the risk estimate has not been applied properly to
23 the calculation of potential benefits of exposure reduction,
24 nor is it adequately correlated with the proposed standard.
25 The EPA has considered a radium concentraion of
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5 picocuries per gram of material as a threshold for classi-
fying and regulating materials as hazardous. This limit is
based on an asserted correlation between radium concentration
in soil and radon progeny concentrations inside 22 structures
on reclaimed Florida phosphate land.
There are several glaring deficiencies in this
proposed limit:
(1) The asserted correlation was based on radium
in soil, not on concentrations in any specific materials des-
10 ignated as special wastes. There is no evidence that any of
11 the materials generated during the mining or processing of
12 phosphate ores present any significant environmental or
13 public health hazard so long as they remain confined on iri-
U dustrial property. (Since all radiation exposure entails
15 some "risk," my use of the word "significant" refers to ex-
16 posures that exceed the normal variability of natural
17 radiation sources.)
18 (2) The 22 structures used jn the evaluation appeal
19 to be predominantly on land reclaimed under obsolete mining
20 methods and have little relevance to current practices. They
21 also have no relevance to situations in other industries or
22 other parts of the country.
23 (3) The EPA analysis indicates that there is no
24 statistical difference between exposures over reclaimed land
25 and undisturbed phosphate land. This finding leads to the
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conclusion that the radiation exposures are essentially inde-
pendent of the materials classified as special wastes.
(4) The relationship between soil radium and
indoor radon progeny concentration exhibits a very low cor-
relation coefficient. This is not surprising since there are
many variables that affect the relationship. Among these are
the physical characteristics of the radium-bearing matrix,
the depth-distribution of the radium, the compaction and mois-
ture content of the soil, the construction and ventilation
characteristics of the structure, and the uncertainties in
the measurement data.
(5) There are several potentially beneficial uses
of by-product materials containing some radium which would
not increase health risks . Examples would be slag used in
road beds or gypsum used as a soil conditioner. Such bene-
ficial uses should not be curtailed arbitrarily without
specific evaluation.
Although the lung cancer risk from radon progeny in-
halation was thoroughly documented by the EPA, the costs and
assumed benefits of the proposed regulations and available
control options have been addressed incompletely and inad-
equately.
The only quantitative cost-benefit analysis in
support of this action is .contained in an EPA document
number 520/4-78011. For both existing and future structures,
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the analysis of economic impact was limited to direct costs of
construction alternatives.
The costs of evaluation, inspection and enforcement,
as well as the probable devaluation of phosphate land and
possible inflated value of nearby unaffected land were gen-
erally acknowledged but not included in the cost-benefit
calculations.
Likewise, there has been no analysis of the addi-
tional costs to the agricultural industry and to consumers
10 that these regulations would impose.
A major deficiency in the cost-benefit evaluation is
12 the repeated use of the average background in unmineralized
13 areas to represent normal background radiation levels. Natura]
14 background radiation exhibits a distribution of levels which
15 should be described by distribution statistics or ranges, in
16 addition to the average.
17 Surveys conducted in Canada and Europe indicate th<
18 as many as 5 percent of all houses exhibit normal radon
19 progeny concentrations exceeding 0.02 working levels. Based
20 on observed distributions of normal concentrations, approxi-
21 mately 1 percent of all residences would exceed 0.03 working
22 levels.
23 Consequently, it can safely be assumed that a
24 million or more people in the Unitred States live in normal
25 radon progeny concentrations which exceed the level for which
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the EPA proposes regulatory or remedial action.
The fact that exposures over unmined phosphate land
are statistically the same as those over reclaimed land
emphasizes the improper comparisons used by the EPA in the
cost-benefit analysis.
Other deficiencies in the proposed regulations are
the lack of definitions of "discrete" and "diffuse" sources,
the inadequate list in Appendix VIII of acceptable analytical
methods for radium concentrations, and the lack of explana-
10 tion as to how a detrimental stipulation in a land deed
11 (250.46-3) will be removed if adequate provisions are made
12 to limit radiation exposures. These deficiencies will be
13 addressed in written comments.
14 In conclusion, it appears to me that the EPA has
15 responded in a hasty and simplistic manner in response to an
16 unreasonable congressional mandate. I can sympathize with my
n friends in the EPA for having to deal with such a complex
18 subject from such an inadequate data base.
19 However, I do not agree with the basic approach they
20 have proposed. Waste materials should be classified and con-
21 trolled as hazardous only if they are likely to be disposed
22 of in ways that significantly increase the normal distribu-
23 tion of health risks.
24 I would suggest that radium-bearing waste materials
25 should be considered hazardous only if after disposal the
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l reclaimed area produces an exposure potential exceeding the
2 range of normal exposures encountered throughout the country.
3 Thank you for the opportunity to speak to this
4 issue.
5 MS. DARRAH: Thank you. Questions?
6 MR. STRAUS: I have one for, I guess, Mr. Rhodes.
7 He indicated in his testimony that elevated radiation levels
8 in homes built on reclaimed lands can generally be solved
9 rather simply through the use of appropriate construction
10 techniques. v
11 I guess my question is that if there is no regul
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controls either through the state agency in Florida or through
local land use controls through regulatory county-level gov-
ernments to implement requirements for construction tech-
niques.
So, this issue is going to be resolved. And it's
our judgment that this ought to be resolved at the level where
the problem exists. And it can't — as I say, we look at it
kind of like the tail wagging the dog. It's, perhaps, a small
perhaps significant problem for a small number of homes.
10 But in responding to that particular problem, there'
11 been a declaration of hundreds of thousands of acres in the
12 State of Florida as hazardous waste disposal sites which seems
13 to us to be rather overaction.
14 MR. TRASK: A question for Dr. Schiager.
15 YOU indicated in your paper that there's no evidence
16 of any material generated during the mining process of phos-
17 phate ores presented any significant environmental — on
18 the property where it generated on.
19 DR. SCHIAGER: That's correct.
20 MR. TRASK: Is the opposite true, then? Are there
21 substantial problems if the wastes are removed from the prop-
22 erty?
23 DR. SCHIAGER: There are with some types of wastes;
24 some of the materials that contain higher levels of radium
25 and used in certain wastes can generate health or environmental
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problems. That'$ true.
MR. TRASK: Would that, then, lead us to a conclu-
sion that the wastes are allowed to stay on the property and
nothing —
DR. SCHIAGER: No. I didn't say all of them always
lead to health problems or none of them never lead to health
problems. I don't think you could make that kind of generali-
zation.
9 MR, TRASK: What you're really suggesting, I think,
10 is a change in the level of hazardous. Is that right?
11 DR. SCHIAGER: I have strong reservations about
12 using a single number whether it was 5 picocuries per gram
13 or 50 as criterion to establish something as being hazardous
when we are talking about a distribution of radiation levels
15 as compared with a distribution of natural background.
16 And I think that it's overly-simplistic to try to
17 characterize the risk in terms of one member. I think that
18 the conditions of use and the distribution of potential ex-
19 posures is what must be looked at.
20 MR. FIELDS: Dr. Schiager, your approach seems to
21 me to be to look at each individual site to determine whether
22 a material is a hazardous waste based on disposition of the
23 waste at that site. Is that correct? Are you saying look
24 at each site and then —
25 DR. SCHIAGER: Well, I think there might be an
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t intermediate approach. To lump all of the materials containing
2 radium into the same bag and say they are all hazardous be-
cause they contain 5 picocuries per gram of radiation seems
4 to be oversimplifying to the point where it is absolutely
5 meaningless.
On the other hand, I can see the problem from a
regulatory point of view, a control point of view with having
a different criterion for every site. Now, I think there are
9 some subdivisions within this broad range that would be
10 meaningful.
ll There is overburden which, to me, is absolutely
12 ridiculous to list overbuden for most uranium mines or
13 phosphate mines because it's the dirt that was there to begin
l* with. It's the upper 10 or 20 feet of soil above the ore.
It is natural soil.
Whether or not it has more or less than 5 picocuries
of radium per gram, it is what is there, has been there longer
than the human race and what difference does it make. And
to move it or put it back should not make it a hazardous
20 waste.
21 And that's one kind of a general categorization
22 that I think would make sense.
23 MS. DARRAH: Thank you both for your comments.
24 We have one more person, and he's trying to get out
25 on a flight so I will call him next. Richard Sobel, MCA.
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1 STATEMENT OF RICHARD SOBEL ON BEHALF OF
2 THE MANUFACTURING CHEMISTS ASSOCIATION
3 MR. SOBEL: Thank you for moving me up on the
4 schedule.
5 I am Richard Sobel, Director of Environmental
6 Services for the Specialty Chemical Division of Allied Chemi-
7 cal Corporation. I am appearing today on behalf of the
e Manufacturing Chemists Association (MCA). MCA is a nonprofit
9 trade association consisting of 191 member companies in the
10 United States representing more than 90 percent of the do-
ll mestic production capacity of basic industrial chemicals.
12 You will hear from other MCA representatives to-
13 morrow on the impact of these proposed rules under Sections
14 3001 and 3004.
15 The purpose of my comments today is to highlight
16 MCA's principal concerns with respect to the proposed RCRA
17 Section 3002 regulations. These comments will, of course, be
18 substantially amplified in MCA's written comments to EPA.
19 First, as to the degree of hazard and 100-kilogram
20 exclusion, EPA has proposed to establish uniform reporting,
21 transport, treatment, storage and disposal standards for all
22 "hazardous wastes." The proposed regulation would not con-
23 sider the degree of hazard posed by each waste and would not
24 establish standards keyed to the degree of hazard.
25 MCA firmly believes that the statute, the legislative
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history and sound administration all require that EPA consider
2 the degree of hazard and propose substantive standards re-
3 lated to each hazard category.
4 RCRA Section 3004 provides that no person shall be
denied a treatment, storage or disposal permit because of
inadequate financial responsibility if he assures EPA that
his financial responsibility is consistent with the degree and
duration of hazard.
This section thus requires consideration of degree
10 and duration of hazard in setting the treatment, storage and
11 disposal standards.
12 In testimony before the Senate Panel on Materials
13 Policy, the Deputy Assistant Administrator for Solid Waste
14 Management Programs stated that "We would establish these
15 standards (under the EPA-proposed Hazardous Waste Control Bill])
16 one at a time on one chemical at a time or one waste stream
17 at a time based on tests as to what is an acceptable or un-
18 acceptable level."
19 From this statement, it is clear that EPA told
20 Congress it would focus on the degree of hazard of each waste.
21 In addition, although reference to categories or
22 classes of hazard in setting RCRA standards will increase the
23 regulation-preparation workload somewhat, it will provide a
24 control system keyed to degree of hazard and thus help avoid
25 the anticipated "shortfall" of facilities available for the
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more hazardous wastes.
Moreover, a classification system based on degree
of hazard has proven to be workable in California and Texas,
and we believe that the hazard classification concept will
work under RCRA. MCA's written comments will discuss a pos-
sible classification system.
We realize that development of a workable classifies
tion system will require attention, and we stand ready to work
with EPA in its development.
10 Once established, such a system will allow reporting
ll treatment, storage and disposal standards to be keyed to the
12 degree of hazard of a particular waste. The proposed Section
13 3002 100 kilograms per month exclusion is one such standard
which should be adjusted accordingly.
15 The monthly exemption quantity should be higher for
16 the less hazardous wastes and, perhaps, should be even lower
17 than the proposed 100 kilograms for extremely hazardous wastes
lg Second, the 90-day storage exclusion. MCA supports
19 the proposed regulation that generators who store hazardous
20 wastes on-site for a relatively short period pending shipment
21 should not be subject to the requirements of Subpart D.
22 However, we believe that four further adjustments ar
23 necessary: First, the 90-day limitation is too short and
24 • should be expanded to allow sufficient time for shipment. In
25 many cases, it may require more than 90 days to accumulate a
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full shipment load.
Second, storage should not be required to be in
DOT containers, so long as the material is stored in environ-
mentally-sound containers.
Third, the temporary storage exclusion should apply
for storage pending transport for off-site or on-site disposal
or treatment.
A fourth keypoint on coverage of resource recovery
facility, RCRA Section 1004 defines "resource recovery" to
mean "the recovery of material or energy from solid waste."
One of the policies underlying RCRA is to encourage resource
recovery.
In the Background Document for Section 3002, EPA's
Office of Solid Waste Management Programs evaluated several
options with respect to the handling of solid waste sent to a
resource recovery facility.
The Background Document concluded that "hazardous
waste sent to resource recovery facilities is not covered by
the definition of "hazardous waste1, and would not be subject
to any Subtitle C regulations..." The reason for this con-
clusion was that material sent to a resource recovery facility
to recover materials or heat is not, by definition, "discarded
material."
Accordingly, the Background Document reported that
the option of excluding such resource recovery facilities
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from the 3002 regulations "has received the greatest support
and was presented in the proposed regulation."
Despite this conclusion, the proposed 3002 regula-
tions do not exclude hazardous waste generators who send
their wastes to resource recovery facilities. Additionally,
the proposed 3004 facility standards do not expressly exclude
such facilities.
MCA supports the intended exclusion and the rea-
soning contained in the Background Document. There is no
10 statutory basis for including resource recovery facilities
n under the Subtitle C programs.
12 Thank you for your attention to my comments today.
13 The proposed RCRA regulations are quite broad in scope and
14 complex. Accordingly, it is very important that EPA devote
particular time and attention to the written comments to be
submitted by MCA and others.
17 MS. DARRAH: Thank you. Will you answer some cfues-
18 tions for us?
19 MR. SOBEL: I will try.
20 MR. LINDSEY: Mr. Sobel, your last few remarks
21 leave me a little bit puzzled. You said that the regulations
22 under 3002 and 3004 do not, in some fashion, get the waste
23 going to resource recovery facilities and the resource re-
24 covery facilities themselves out from the regulatory burden.
25 And yet, you said that — and I guess my point is,
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that I'm not quite sure what it is within the regulations
that gives you the impression that they are not out from under
the regulatory burden. Maybe there is some specific wording,
or something, that gives you some problems.
5 And if there is, if you could identify for us
6 what that wording is —
7 MR. SOBEL: If there is, we will try to do that
in our written comments.
9 MR. LINDSEY: Because the intent that you mentioned
10 from the background document, that is the intent, the waste
11 going to a resource recovery facility would not be covered,
12 for example, by the manifest, and so forth. That's the intent
13 And the regulations, we thought, did that.
14 MR. SOBEL: Well, perhaps, what about the question
15 of oil which is defined —
16 MR. LINDSEY: Oh. You're speaking to waste oil.
17 MR. SOBEL: Well, that's one aspect of it.
is MR. LINDSEY: Oh. Well, waste oil is treated dif-
19 ferently. That's right. That particular exemption would not
20 cover waste oil primarily because waste oil which is burned
21 or disposed in a manner that —
22 MR. SOBEL: Perhaps it would be' helpful to be
23 explicit about it so there is no confusion. You're talking
24 about the classification of the waste and I'm talking about
25 the exclusion of the generator and of the facility. Now, mayb
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one leads to the other naturally.
MR. LEHMAN: Mr. Sobel, you mentioned —
THE REPORTER: I can't hear you. Will you please
use your mike.
MR. LEHMAN: — in your remarks that you believe
EPA should adjust the monthly exemption level based on the
degree of hazard that was established in Section 3001, that
some — that the 100 kilogram — exemption level ought to
be raised in some cases and lowered in other cases.
Now, are you prepared — can we anticipate in the
information that you will supply us in a written form that you
will give us some suggestions as to which wastes ought to be
above that 100 and which below and how much?
MR. SOBEL: Jack, I don't think it will be that
specific. What we're saying is we need a classification systen,
and we will suggest some types/ not by name of chemical/ but
by nature of potential hazard or toxicity that we think
ought to be in the highest, the middle and the lowest cate-
gory.
In essence, you now have three categories of waste.
You have the Subtitle D, you've got the special waste and
you've got other hazardous wastes. That's three. So there's
some recognization of that categorization as required. I
think what we're saying is that the hazardous waste category
should be broken up a little finer.
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2RS
l And perhaps it's the California system or perhaps
2 it's something that's developed for this purpose. But we
think something is needed because it keys into a number of
the other requirements.
5 MR. STRAUS: Mr. Sobel, you had indicated that
6 you felt that the 90-day storage exclusion may not be long
7 enough. And I was just wondering if you had any thoughts as
to what time period you thought may be long enough which would
9 allow the generator to save up these wastes to —
10 MR. SOBEL: I think some of our earlier comments
ll on the draft were on the order of the year as being a reasonable
12 time to accumulate a full truckload for certain batch pro-
is cesses that may, perhaps, run once every three months or
once every six months, or something like that.
15 MR. TRASK: Would that be a flat across the board
16 period of time that you — regardless of what hazard is
17 involved?
18 MR. SOBEL: That's the way we had submitted the
19 comments, Harry. But I haven't thought of it any beyond that
20 except that 90 days is too short in many real situations in
21 our plants.
22 MR. TRASK: And to follow that on, then, you also
23 suggested that we are not required — containers really
24 require —
25 MR. SOBEL: Environmentally sound containers,
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whatever they may be.
MR. TRASK: Does that mean one that doesn't leak?
Well, I guess it did.
MR. SOBEL: Well, it depends on how long it has to
last. Some nitric acid, I think, has to be shipped in stain-
6 less steel according to the dealers whereas polyethelene may
7 be perfectly adequate for certain limited storage times or
conditions.
9 So you get to the point where the container is
10 worth much more than the waste.
11 MR. TRASK: Yes. Thank you.
12 MS . DARRAH: Thank you very much.
13 Let me tell you what we plan on doing about the
evening hearing. We are planning on breaking now for an
is hour and a half for dinner. I have nine people left who want
16 to speak today. Now, some of these people may be planning
17 on speaking on more than Section 3001.
18 If you could limit your presentation this evening
19 to 3001 and try to limit it to 10 minutes, and we will try
20 and limit our questions. We would like to hold the evening
21 session just from 7:00 to 9:00. If you do — we did indicate
22 earlier that you can speak on more than 3001 today because of
23 the delays in the beginning of the hearing.
24 We will not keep you from doing that tonight. If
25 any of you do that, the people who are last on the list should
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be advised from tine to time that you will be moved to to-
morrow morning.
But we do have two hours. And if the people could
you know, try and limit themselves and summarize, we ought
to be able to get through those 3001 comments.
Okay. I will read the last names on the list.
I will also leave the list up here in case you want to look
at it.
(Whereupon, at 5:45 p.m., the hearing was recessed
to reconvene at 7:00 p.m., this same day.)
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EVENING SESSION
7:09 p.m._
STATEMENT OF HUGH MULLEN, DIRECTOR, GOVERNMENT
RELATIONS, I.U. CONVERSION SYSTEMS, INC.,
HORSHAM, PENNSYLVANIA
MR. MULLEN: I am Hugh Mullen, of I. U. Conversion
Systems. And I would like to start off by commending the
panel for their patience and persistence in sticking with this
for so long.
We will be presenting written statements on both
3001 and 3004, but we'd like to address a couple of general
principles in both sections in our statements tonight.
Two fundamental decisions have resulted in the
proposal of what we consider to be inequitable regulations.
They were the exclusion by Congress of domestic or municipal
wastes and the classification by EPA of all wastes as either
hazardous or non-hazardous. These two decisions have greatly
complicated the development of the regulations.
The congressional decision, which was made in spite
of the hazardous nature of municipal landfill leachate,
has caused EPA to be overly concerned with preventing comming-
ling of municipal waste and materials which would otherwise
be non-hazardous. This concern over preventing commingling
of a waste that could release extremely low concentrations of
heavy metals into an already hazardous leachate is entirely
inconsistent with the provision in the regulations which allow;
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an indefinite number of generators to deposit 220 pounds per
month of .highly toxic wastes into the same landfill. We
recognize that EPA cannot undo the congressional decision, but
it should not be used as the fundamental precept for the
disposal of all hazardous materials.
Failure to recognize degrees of hazard results in
having to treat a waste that is slightly hazardous in the
same costly manner as an extremely toxic material. The
excessive economic burden placed on borderline wastes appears
unjustifiable and unnecessarily compounds the already enormous
problem of hazardous waste disposal. Although the Agency clair
to provide a mechanism to compensate for such inequities, by
allowing alternative procedures which will provide equivalent
protection, the regulations fail to define how equivalency can
be demonstrated. Indeed, the Agency virtually excludes the
principle of equivalency by stating that the procedures des-
cribed in the regulations are the only ones it knows to provide
the desired protection.
The Agency has chosen to adopt regulations based on
specified procedures rather than on performance standards such
as emission limitations. While the reasons for this decision
are understandable, there is a basic injustice in imposing a
procedure and then holding those who comply with it liable, if
the procedure proves to be inadequate. Further, the impositioi
of a perpetual, unquantifiable liability is something that no
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company can live with. And I will address that further in my
comments on 3004.
We have a basic objection to the imposition of a
newly created, untried and untested extraction procedure.
While it may very well ultimately prove to be as accurate and
precise as any other such procedure, that condition is by no
means assured. The introduction of the procedure at a point
where there is insufficient time to fully evaluate it, prior
to the end of the comment period, is unfair. Even the EPA's
own evaluation will not be completed by that time. The com-
ment period on the EP should be extended so as to allow proper
evaluation and comment by industry. This is particularly true
in light of the unavailability of the apparatus.
I will pass over the comments on stabilization, othe
than to say that we concur with the position taken by Dr.
Johnson that it is illogical to use an EP that reverses
stabilization procedures.
The EPA has offered two rationales or worst case
scenarios in support of the EP. The first is that an uncon-
trolled waste could be placed in a municipal landfill where it
could be fragmented with an impact force of 1000 psi and con-
tact organic acids. If the landfill leachate, which is hazar-
dous, is properly controlled, the inclusion of such low
toxicity wastes presents no problem.
The second worst case scenario envisions a
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non-hazardous waste being excavated from a separate landfill
and used as borrow material to reclaim a strip mine. There the
waste would be compacted with an impact force of 1000 psi and
contact acid mine drainage, thereby releasing heavy metal
concentrations in excess of 10 times drinking water standards .
We submit that the proper way to control such a situation is
through reclamation regulations which dictate what materials
can be used when mine drainage exists. It is illogical and
impractical to impose costly controls on the total volume of
a waste when only a small percentage of it might be reused as
depicted in the worst case scenario.
Work done by ASTM D19.12 Subcommittee demonstrates a
high degree of inaccuracy in the results of extraction proce-
dures, both the ASTM method and the TEP. The inaccuracies sten
from sample gathering, sample preservation, technician variati
and the extraction procedures. Insufficient work has been don
to quantify these variables but there is no reason to believe
that the EP will not be subject to the same vicissitudes.
Since both accuracy and precision can vary by several orders
of magnitude and the ASTM procedure utilizing reagent water
has shown higher concentrations of some toxic metals than the
TEP, the choice of eluant does not appear to be a major
variable. At a minimum, a great deal more work is required to
establish the EP as an acceptable procedure .
A more important consideration is whether the EP or
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any extraction procedure can be accurate enough to measure to
one tenth of a part per million which would render a waste
hazardous, necessitating costly disposal procedures. Although
we do not pretend to be qualified to determine what is
injurious to health, we do question the wisdom of burdening
vast amounts of wastes with extremely high disposal costs on
the basis of a procedure of questionable accuracy.
And we have several recommendations to make.
First, we recommend that the comment period on the
EP be extended to June 1.
We recommend that since the variations due to eluant
appear to be minor in comparison to other variables, reagent
water be used in the EP. The leachate can then be used for
the biological testing without interference from acetic acid.
We recommend that all wastes be tested in the form
that they do or will exist in the field and not altered to
satisfy the conditions of some worst case scenario.
We recommend that two classes of hazardous wastes
be established — low toxicity and high toxicity. Some cut-
off such as 100 times drinking water standards could be
established and the low toxicity wastes could be treated in a
different and less costly manner than the high toxicity waste
Under such conditions the accuracy of the EP would not be as
critical.
We recommend that the regulations address the point
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at which a wsate is tested for toxicity and that consideration
be given to stabilized materials which require curing. Just
as concrete will not support a structure until it is cured,
stabilized wastes do not attain their ultimate environmental
properties until they are finally cured.
And with your indulgence, I'd like to make a few
remarks about 3004. Again, we will submit detailed comments.
But we feel compelled to address what we consider the paramoun
issue in this section — liability. At the hearing in New Yorl
the representatives from both New York and New Jersey expresset.
need for a perpetual monitoring and maintenance for closed
sites.
We reserve comment on the necessity for such
monitoring, but we strongly object to the injustice of
burdening the dispower with such a liability. Although the
proposed regulations hold in reserve post closure financial
responsibility, there is no provision to ever relieve the
dispower of such liability. Insurance coverage for post-
closure non-sudden occurrences is dubious at best and is
cancellable without recourse. No company can exist with an
indefinite, unquantifiable liability. Under such conditions,
a company could not comply with SEC regulations and could
not sell stock.
The regulations as written require the disposer to
monitor and maintain the site for 20 years. That automatically
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implies liability for any escape of contaminants. To impose
such a liability on an owner who has constructed an operated
a facilityiin.-acoordance with EPA regulations is inequitable.
Further, it casts doubts on the Agency's confidence in its own
regulations and procedures. In our opinion the only equitable
answer is a federal fund which would assume all liability afte
proper closure and certifications. We suggest that a fund
structured as follows be given consideration.
The fund should be initiated by a federal appropria-
tion. It should be maintained by a charge or tax on the
treatment and disposal of hazardous wastes similar to a sales
tax. Since most disposal sites have a substantial life and
initially the fund would only apply to permitted sites after
closure, a substantial sum should be accumulated before any
expenditure is necessary. If the regulations are followed, fe
if any expenditures will be needed. In time, the fund could
grow to such a size that it could also be used for corrective
action for abandoned sites> ,
A maximum claim of $2 million for each occu-rence
should be established with mechanism for allotments for
disasters such as Love Canal. Few, if any incidents — few,
if any such incidents should occur if the disposers adhere to
the regulations.
The charge should be a percentage of the treatment/
disposal costs. A charge per unit weight or volume is unfair
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because of the varying degrees of hazards. If a disposer is
qualified, he will know how to treat a waste and will charge
more for the difficult wastes. Such wastes will therefore beai
their fair share of the fund. Alternatively, two or three
classes or categories of waste could be established and a fee
per unit weight assigned to each class. Establishing a fee on
a wet weight basis could stimulate additional pretreatment.
The fund should be maintained by the federal govern-
ment. Payments by the fund should be made at the request of
those state agencies that have accepted primacy under the
regulations, and with the approval of the Regional Office. The
funds should not be diverted for any other purpose.
Additionally, we suggest that ownership, we suggest
state ownership of closed sites. If all sites were operated on
the basis that the land would be deeded to the state after
closure, the owner could include the cost of the property in
his operating costs. The state would be more circumspect about
closure and there would be no question of ownership after
closure. We recognize EPA does not have the authority to
impose ownership upon the states, but it may well be that the
states would react favorably to such a procedure and the
federal government could provide some monetary incentive. At
the tearing in New York, both New York and New Jersey expressed
the need for termination of operator's liability and state
involvement.
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For further assurance, the disposer could — that
the disposer has complied with the regulations, his liability
could be extended for a limited time after closure, not to
exceed five years.
Thank you, and I'll try to answer any questions you
might have.
(The full text of Mr. Mullen's comments on 3001
3CC
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STATEMENT
BY
IU CONVERSION SYSTEMS, INC.
AT
EPA PUBLIC HEARING
FEBRUARY 20, 1979
Two fundamental decisions resulted in the proposal of
what we consider to be inequitable regulations. They were
the exclusion by congress of domestic or municipal wastes
and the classification by EPA of all wastes as either
hazardous or non-hazardous. These two decisions have
greatly complicated the development of the regulations.
The congressional decision, which was made in spite
of the hazardous nature of municipal landfill'leachate,
has caused EPA to be overly concerned with preventing comming-
ling of municipal waste and materials which would otherwise
be non-hazardous. The Extraction Procedure is designed
for this specific purpose. This concern over preventing
a waste that could release extremely low concentrations
of heavy metals into an already hazardous leachate is entire-
ly inconsistent with the provision in the regulations which
allows an indefinite number of generators to deposit 220 Ibs.
per month of highly toxic wastes into the same landfill.
We recognize that the EPA cannot undo the congressional
decision but it should not be used as the fundamental pre-
cept for the disposal of all hazardous wastes.
-------
Failure to recognize degrees of hazard results in
having to treat a waste that is slightly hazardous in the
same costly manner as an extremely toxic material. The
excessive economic burden placed on borderline wastes ap-
pears unjustifiable and unnecessarily compounds the already
enormous problem of hazardous waste disposal. Although
the Agency claims to provide a mechanism to compensate for
such inequities, by allowing alternative procedures that
will provide equivalent protection, the regulations fail
to define how equivalency can be demonstrated. Indeed,
the Agency virtually excludes the principle of equivalency
by stating that the procedures described in the regulations
are the only means it knows to provide the desired protection.
Type of Regulation
The Agency has chosen to adopt regulations based on
specified procedures rather than on performance standards
such as emission limitations. While the reasons for this
decision are understandable, there is a basic injustice in
imposing a procedure and then holding those who comply with
it liable, if the procedure proves to be inadequate.
Further the imposition of a perpetual, unquantifiable
liability is something that no company can live with.
We will address this subject further in our comments on
Section 3004.
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EXTRACTION PROCEDURE
Timing
We have a basic objection to the imposition of a newly
created, untried and untested extraction procedure. While
it may very well ultimately prove to be as accurate and
precise as any other such procedure, that condition is by
no means assured. The introduction of the procedure at a
point when there is insufficient time to fully evaluate it,
prior to the end of the comment period, is unfair. Even the
EPA's own evaluation will not be completed by that time.
The comment period on the EP should be extended so as to
allow proper evaluation and comment by industry. This is
particularly true in light of the unavailability of the
apparatus.
Stabilization
The preamble to the regulations states that the EP
"is designed to encourage the chemical or physical "fixing"
of waste so that its constituents are no longer available
to be leached ..." Yet the EP actually reverses certain
stabilization procedures. A principal mechanism of physi-
cal stabilization is the formation of a solid mass of low
permeability. A chemical process, for reducing solubility,
is the increase of pH through the addition of lime or other
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base to form hydroxides of certain constituents. The EP
through the use of the structural integrity tester plus the
leaching with acid tends to reverse both mechanism. The
approach is illogical and contrary to the avowed purpose
proclaimed in the preamble.
Rationales
The EPA has offered two rationales or worst case
scenarios in support of the EP. The first is that an un-
controlled waste could be placed in a municipal landfill
where it could be fragmented by an impact force of 1000 psi
and contact organic acids. If the landfill leachate, which
is hazardous, is properly controlled the inclusion of such
low toxicity wastes would not present a problem.
The second worst case scenario envisions a non-hazard-
ous waste being excavated from a separate landfill and used
as borrow material to reclaim a strip mine. There the waste
would be compacted with an impact of 1000 psi and contact
acid mine drainage, thereby releasing heavy metal concen-
trations in excess of 10 times DWS. We submit that the
proper way to control such a situation is through mine
reclamation regulations which dictate what materials can
be used where mine drainage exists. It is illogical and
impractical to impose costly controls on the total volume
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of a waste when only a very small percentage of it might
be reused as depicted in the imaginative worst case scenario.
Accuracy
Work done by the ASTM D19.12 Subcommittee demonstrates
a high degree of inaccuracy in the results of extraction
procedures, both the ASTM method and the TEP. The inaccuracies
stem from sample gathering, sample preservation, technician
variation and the extraction procedures. Insufficient work
has been done to quantify these variables but there is no
reason to believe that the EP will not be subject to vicis-
situdes. Since both accuracy and precision can vary by
several orders of magnitude and the ASTM procedure utilizing
reagent water has shown higher concentrations of some toxic
metals than the TEP, the choice of eluant does not appear to
be a major variable. At a minimum, a great deal more work
is required to establish the EP as an acceptable procedure.
A more important consideration is whether the EP or
any extraction procedure can be accurate enough to measure
to one tenth of a part per million which could render a
waste hazardous, necessitating costly disposal procedures.
Although we do not pretend to be qualified to determine
what is injurious to health, we do question the wisdom of
burdening vast amounts of wastes with extremely high disposal
costs on the basis of a procedure of questionable accuracy.
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Recommendations
We recommend that
1. The comment period on the EP be extended to June 1.
2. Since the variations due to the choice of eluant
appear to be minor in comparison to other variables,
reagent water be used in the EP. The leachate
could then be used in the biological testing with-
out interference from the acetic acid.
3. All wastes be tested in the form that they do or
will exist in the field and not altered to satisfy
the conditions of some worst case scenario.
4. Two classes of hazardous wastes be established —'•
low toxicity and high toxicity. Some cut-off such
as 100 x DWS could be established and the low
toxicity wastes could be treated in a different
and less costly manner than the high toxicity
wastes. Under such conditions the accuracy of
the EP would not be as critical.
5. The regulations address the point at which a waste
is tested for toxicity and that consideration be
given to stabilized materials that require curing.
Just as concrete will not support a structure until
it is cured, stabilized wastes do not attain their
ultimate environmental properties until they are
finally cured.
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STATEMENT
BY
IU CONVERSION SYSTEMS, INC.
AT
EPA PUBLIC HEARING
FEBRUARY 22, 1979
We will submit detailed written comments on Section
3004 but we feel compelled to address what we consider the
paramount issue of this section — liability. At the hearing
in New York the representatives from both New York and New
Jersey expressed need for perpetual monitoring and main-
tenance of closed sites. We reserve comment on the necessity
for such monitoring, but we strongly object to the injustice
of burdening the disposer with such a liability. Although
the proposed regulations hold in reserve post closure finan-
cial responsibility, there is no provision to ever relieve
the disposer of such liability. Insurance coverage for
post closure non-sudden occurences is dubious at best and if
ever available is cancellable without recourse. No company
can exist with an indefinite, unquantifiable liability.
Under such conditions a company could not comply with SEC
regulations and would be unable to sell stock.
The regulations as written require the disposer to
monitor and maintain a closed site for 20 years. That auto-
matically implies liability for any escape of contaminants.
To impose such a liability on an owner who has constructed
and operated a facility in accordance with EPA regulations
-------
is inequitable. Further, it casts doubt on the Agency's
confidence in its own regulations and procedures. In our
opinion the only equitable answer is a federal fund which
would assume all liability after proper closure and certifi-
cations. We suggest that a fund structured as follows be
given consideration.
a. The fund should be initiated by a federal
appropriation. It should be maintained by a
charge or tax on the treatment and disposal of
hazardous wastes similar to a sales tax. Since
most disposal sites have a substantial life and
ZLef^J.uHr'M
initially/only apply to permitted sites after
closure, a substantial sum should be accumulated
before any expenditure is necessary. If the
regulations are followed, few if any expendi-
tures will be needed. In time, the fund may
grow to such a size that it can also be used
for corrective action at abandoned sites.
b. A maximum claim of $2 million for each occurence
should be established with mechanism for special
alloments for disastrous incidents such as Lcve
Canal. Few, if any such incidents should
occur if disposers adhere to the regulations.
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c. The charge should be a percentage of treatment/
disposal costs. A charge per unit weight or
volume is unfair because of the varying degrees
of hazards. If disposer is qualified, he will
know how to treat a waste and will charge more
for difficult wastes. Such wastes will therefore
bear their share of the fund. Alternatively, two
or three classes or categories of waste could be
established and a fee per unit weight assigned to
each class. Establishing the fee on a wet weight
basis could stimulate additional pretreatment. v\
d. The fund should be maintained by the federal
government. Payments by the fund should be
made at the request of those state agencies that
have accepted primacy under the regulation, and
with the approval of the EPA Regional Office.
The funds should not be diverted for any other
use.
e. Additionally, we suggest state ownership of closed
sites. If all sites were operated on the basis
that the land would be deeded to the state after
closure, the owner could include the cost of the
-------
property in his operating costs. The state would
be more circumspect about closure and there would
be no question about the ownership after closure.
We recognize that the EPA does not have the
authority to impose ownership on the states, but it
may well be that the states would react favorably
to such a procedure and the federal government
could provide some monetary incentive to encourage
the takeover. Both New York and New Jersey
expressed the need for the termination of the
operator's liability and state involvement at the
hearing in New York.
f. For further assurance that the disposer has com-
plied with regulations, his liability could be
extended for a limited time after closure, not
to exceed five years.
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MR. LEHMAN: Well/ Mr. Mullen, your testimony on
3001 regulations, proposed regulations, you made the statement
that work done by the ASTM D19.12 Subcommittee demonstrates
a high degree of inaccuracy in results of extraction procedure
both the ASTM method and the extractionprocedure. Now, we
have heard from a number of individuals today that they
consider the ASTM method to be much superior to the extraction
procedure.
MR. MULLEN: So do I.
MR. LEHMAN: Well, I mean, your statement seems to
say that neither of them is very good. So I'm wondering —
MR. MULLEN: What I'm trying to pointcout .is that
you are trying to time a hundred-yard dash with an hour
glass. The — an extraction procedure_is not precise enough,
not accurate enough, to measure to the 1 tenth of a part in
a million that you require, where that could throw a waste
from the nonhazardous into a hazardous category. The limit
on cadmium I think is .1 parts per million. Thatis 10 times
drinking water standards on cadmium. The variation of just
the sampling, whether you take the sample from the top of the
pile, the bottom of the pile, the north of the pile, the
south of the pile, can be — giveyou vastly different
results, and overall you're not going to have that accuracy.
MR. LEHMAN: Could I follow up on that, then?
Another statement I believe you implied was that two classes
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301
1 of waste should be established, a low and a high toxicity, and
2 you suggest a cutoff such as 100 times the drinking wafcer
3 standard, with low toxicity waste treated in a different and
less costly manner.
Now the cutoff at the moment is,.for;all hazardous
wastes, is ten times the drinking water standard.
MR. MULLEN: Right.
MR. LEHMAN: You're suggesting then that a factor of
9 ten should be — an additional factor of ten, to make it
10 100 times drinking water standard. Is that what you're
11 saying?
12 MR. MULLEN: Understand that the wastes that are
13 between 10 and 100 times drinking water standards are still
14 toxic. They're still controlled.
15 MR. LEHMAN: Yes.
16 MR. MULLEN: But they are not controlled in the same
17 costly manner as the ones that are really — whether it's
18 100 times drinking water standards or 50 times drinking water
19 standards, or 1,000 times, I'm not prepared to say. It's
20 just a for instance.
21 MR. LEHMAN: Okay. For instance. But what I was
22 driving at was I was trying to get your opinion as to what,
23 where that level had to be in terms of parts per million, in
24 order for an extraction procedure to be a valuable tool for —
25 MR. MULLEN: I think you're going to have to do a
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lot more work with the abstraction procedure, whatever test
procedure you want to use. You don't have enough data to set
that point right now. Nobody does. While we have the equip-
ment and while we are in the process of running tests, we
have only had the apparatus for about two weeks. On the ASTM
procedure — it was originally an IUCS procedure and we have
worked with it for six or seven years. We have a wealth of
data on that procedure, but we have no comparison. And you
have no comparison either. And before you can make such a
decision, you have to run the program and determine how
accurate the EP's going to be.
MR. LEHMAN: Okay. Thank you.
MR. MULLEN: Yes, sir?
MR. FIELDS: One of your general comments up front
was regarding 3004. You said that we should have — we should
develop procedures for demonstrating equivalency. We've
written the standards,.as you know, and we have notes in there
which we've triei by provide flexibility by allowing people
to come forward and demonstrate an alternative procedure that
would allow compliance with the regulations. Could you
amplify or give us some ideas as to how we could incorporate
procedures for demonstrating equivalency into the regulations?
MR. MULLEN: Some things that should be done are,
some definition of to whom you demonstrate. Is it to Section
3004, is it to ten different EPA regional offices, is it the
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50 states? Some demonstrations could be very costly. Is a
bench scale, is just calculation sufficient, do you have to go
out in the field and put in a placement and wait 20 years to
see whether the leachate goes through or doesn't go through?
There is no guidance-. What will you accept? There has to be
some guidance.
MR. FIELDS: Okay. It would help us when you send
your comments in if you would indicate the kind of questions
you have like that.
MR. MULLEN: Yes. We'll detail it in our written
comments, but I just wanted to make the point. Yes?
MR. LEHMAN: I have one other question, Mr. Mullen.
You made a suggestion that state ownership of closed sites be,
well, you suggested states own sites that are closed. And
this would then relieve the owner of including the cost of
long-term maintenance.
Now did you intend that to mean state ownership of
all sites or do you make a distinction between what we call
in our regulations off-site facilities versus on-site facili-
ties? In other words, there are —
MR. MULLEN: Well, that's — I haven't given that
any thought. But what I am suggesting is that if perpetual
monitoring and maintenance is required, the only entity that
can really provide that is the state. There is no assurance
that my company or General Motors for that matter will be here
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50 or 100 years from now and you're imposing perpetual — i£,tlifc
suggestions that were made by New York and New Jersey are
followed, who's going to do that?
So, if it is required, well, then transfer the
property to them and let them do it. They would have it,
they'd take over the fund which was accumulated during opera-
tion, and they'd have the money to do it.
MR. STRAUS: Yes, let me just follow up Jack's
first comment. Since you indicated in your comments that
both the ASTM procedure and EPA's procedure, at least in your
opinion, are I guess in their infancy, is it your opinion that
we should go out with no EP procedure at the beginning or
do you feel we should go with the ASTM procedure even though
it's — we don't have any good validity data on it or what?
I'm not clear on what you're really proposing.
MR. MULLEN: First of all, I feel that the ASTM
procedure is much further developed than the EP. There's no
question about that. The inaccuracies that were1 developed- in the
Round Robin Test Program were due in part to the way some of tte
samples were gathered and some of the samples were handled.
That can be corrected. The inaccuracies can be narrow, but
a lot of work has to be done to qualify what caused those
inaccuracies. And there is more work being done by ASTM.
They will have those answers. I don't know how soon. But
they're working to get them. Your procedure, you haven't even
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started to do that yet. You are that far behind-.- I don't
think there's any magic in the amount of eluent you.-use, the
volume of eluent you use, the kind of stirring you use, the
kind of shaking you use. All those things can be extrapolated
one from the other.
But there is an awful lot of inaccuracy in just
getting a sample.
MR. STRAUS: Okay. But again, is it your opinion
that we should go with the ASTM procedure or we should go with
no EP procedure?
I understand what you just said but you still —
I'd still like to hear what your opinion is.
MR. MULLEN: My opinion is that the best procedure
you have right now is the ASTM procedure and unless you can
prove, unless you can do enough work to demonstrate that the
EP is as good or better before you promulgate the reg .lations,
you have no recourse but to go with ASTM.
MR. STRAUS: What you're saying is that we should
go with some type of extraction procedure, even though it may
not be fully perfected.
MR. MULLEN: Yes. But you have to give yourself
some latitude in what you're going to measure because you can
never measure with what we have now to the accuracy that
you're requiring. So you have to change something.
MR. ROBERTS: Mr. Mullen, you recommended that we
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306
establish two classes of hazardous waste and we would treat
the one most hazardless in a different and less costly manner.
What did you have in mind? Were you talking about the physica
treatment of the waste here or are you talking about the
administrative handling of it? Could you expand on that a
little?
MR. MULLEH: "Well, I'm talking about the physical,
the actual disposal on the type of land that was required,
the type of barrier that's required, some of the Cal-fornia —
some wastes that,for instance, the fly-ash, that could fail
the EP or the ASTM procedure by one or two tenths of a part
per million or some level, would be, under the present
regulations, proposed regulations, would be classified hazar-
dous and would have to go into a landfill with the liner as
described in procedures 1 and 2. Thus a costly — when you
get 100 acres of landfill, that's a very costly procedure.
But fly-ash by itself can be compacted to a low permeability,
very stable material. Simple addition of lime can set that
fly-ash up like cement. That's a very inexpensive method of
treating that particular type of waste. You do not have to
put those expensive liners on it.
MR. ROBERTS: But then we would — it would still
remain subject to the same administrative requirements as the
highly hazardous waste.
MR. MULLEN: Well, I think some of those are
I
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ridiculous, too, since you require —
MR. ROBERTS: Well, you didn't testify on those.
MR. MULLEN: I know, but I can't do everything. I
don't want to keep you here all night. I'll have this in a
written statement.
MS. FRIEDMAN: Thank you very much.
Our next speaker is Janet Weller. Again, if you
have a copy of your statement, we'd appreciate it if you'd
give it to the court reporter. She is having some difficulty
in hearing people.
MS. WELLER: She already has one.
MS. FRIEDMAN: Good.
STATEMENT OF JANET WELLER, SYNTHETIC ORGANIC
CHEMICAL MANUFACTURERS ASSOCIATION (SOCMA)
MS. WELLER: I'm Janet Weller. I represent the
Synthetic Organic Chemical Manufacturers Association.
The Synthetic Organic Chemical Manufacturers
Association, which is known as "SOCMA", would liKe to comment
on all sections of the currently proposed regulations. The
organic chemical industry is a major generator of hazardous
waste and, as such, will be significantly affected by the
regulation of hazardous waste management. SOCMA recognizes
the need to regulate the management of hazardous waste but
seriously questions whether EPA has adequately considered the'
economic impact of the currently proposed regulatory
scheme.
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EPA has initially estimated that the annual cost to
industry of compliance with the proposed hazardous waste
regulations will be $1 billion. The economic burden of com-
pliance will fall most heavily on companies that generate smal
amounts of hazardous waste. EPA has indicated that the unit
cost of compliance for small companies that generate 100
kilograms per month may be 100 times greater than the unit
cost for companies that generate 1,000 kilograms per month.
For small organic chemical manufacturers, those with
less than $50 million in annual sales, compliance with the
proposed regulations may be a financial impossibility. The
amount of capital required for compliance with the proposed
regulations would have a serious impact on the finances of eve
the largest organic chemical companies. SOCMA doubts that EPA
has fully considered the economic impact of the proposed
regulations and, therefore, asks EPA to re-evaluate the rela-
tive costs and benefits of its current regulatory approach.
In SOCMA's opinion, there are six basic problems
with the proposed hazardous waste regulations:
1. The definition of hazardous waste is overly
broad and fails to take account of varying degrees of hazard;
2. The exemption from compliance with these regula-
tions for those who generate less than 100 kilograms per month
is totally inadequate;
3. The recordkeeping and reporting requirements
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imposed on generators and owners and operators of treatment,
storage and disposal facilities are unnecessarily complicated
and burdensome;
4. Certain of the interim standards for treatment,
storage and disposal facilities are too burdensome and inflexible;
5. The facility standards to be incorporated into
permits are so rigorous that few, if any, existing industrial
facilities will be able to comply; and
6. The 90-day on-site storage exemption for
generators is unduly restrictive.
The definition of hazardous waste: EPA has proposed
an exceptionally broad definition of hazardous waste that will
include many innocuous wastes simply because they may contain
trace amounts of some allegedly toxic chemical. The definitior
also includes complex and costly tests which must be performed
to identify whether certain wastes are hazardous. For small
organic chemical manufacturers, with diverse production mixes
and hence diverse wastes, these test procedures would have to
be performed frequently.
Since small organic chemical manufacturers cannot
cope with either the cost or the complexity of these identifi-
cation procedures, they will be forced to declare any suspect
waste to be hazardous. EPA's broad definition of hazardous
waste thus will result in unnecessary utilization of hazardous
waste treatment, storage and disposal facilities and exacerbate'
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the current scarcity of such facilities. As demand drives up the
price of treatment and disposal, small organic chemical manufa
tucers who lack the financial resources needed to obtain access
to permitted facilities will not be able to use acceptable
commercial facilities to dispose of their waste.
On-site treatment, storage and disposal of hazardous
waste will be prohibitively expensive for most small organic
chemical companies. Despite the superior technical knowledge
and standard operating procedures that minimize the danger of
environmental release, organic chemical plants that treat,
store or dispose of hazardous waste are subject to the same
stringent requirements as commercial facilities that are designed
exclusively to handle hazardous wastes. Given the economic an<
technological realities of the situation, it is clear that EPA
should narrow its definition of hazardous waste to cover only
the highly toxic wastes which have potential to cause serious
harm to health or the environment.
The small generator exemption: EPA may feel that it
has sufficiently eased the economic burden on small generators
of hazardous waste through the proposal of an exemption for
those who generate less than 100 kilograms per month of
hazardous waste. SOCMA does not believe that this exemption
will be of much use to many small organic chemical companies.
Nor would raising the exemption to 1,000 kilograms per month
provide sufficient "relief. 1,000 kilograms can be approximated
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to one drum of metallic sludge, hence many organic chemical
companies would not even be affected by the expansion of this
exemption. The exemption probably should be varied in relatior
to the degree of hazard present in various types of waste.
The proposed regulations also condition the grant of
this exemption upon the waste being disposed of in a solid waste
facility that has been permitted or certified by the state ats
being in compliance with EPA's sanitary landfill criteria. The
scarcity of such facilities may force "exempted" generators to
use hazardous waste facilities to dispose of their waste.
Recordkeeping and reporting requirements: In its
efforts to track the path of hazardous waste from generation tc
disposal, EPA has proposed regulations that will burden small
companies with detailed and repetitive recordkeeping and report -
ing requirements. A preliminary analysis of the proposed
regulations by EPA indicates that for small generators of
hazardous waste the administrative cost of compliance with thes]e
regulations will exceed the cost of hazardous waste disposal.
SOCMA seriously questions the need for many of the
proposed administrative requirements. For example, EPA has pre-
posed that all generators submit detailed annual reports of
hazardous waste shipments to the appropriate Regional Administra-
tor. These reports seem to serve no precautionary function ant
will merely duplicate the information that generators are re-
quired to keep for three years on manifests or comparable
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documents. SOCMA suggests ..that EPA reconsider the administra-
tive burden created by the proposed reporting and recordkeepint
requirements and eliminate those requirements that are either
redundant or nonessential.
The interim standards: In order to ease the
implementation of the hazardous waste program, EPA has proposer
an interim status period during which only portions of the
treatment, storage and disposal facility regulations will
apply. These interim standards are, however, not sufficiently
flexible. For example, one interim standard would require all
treatment, storage and disposal facilities to construct a six-
foot fence to enclose the facility. The fact that natural
barriers at a particular facility may obviate the need for sucli
a fence apparently will not be considered by EPA until the timi *
of permit issuance by which time everybody will have had an
opportunity to erece such a fence.
The interim standards require treatment, storage and
disposal facilities to comply with the financial responsibility
requirements for closure and post-closure care. Again, EPA
should be more flexible and should not simply mandate the
establishment of trust funds for closure and post-closure care
Few companies have sufficient capital to comply with this
regulation, and even fewer companies can afford to sacrifice
the present use of this capital.
Potential insolvency should not be the only grounds
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for relief from this provision. Guarantees of financial
responsibility can be made through a variety of methods, and
EPA should adopt financial responsibility requirements that
can be adapted to a variety of economic circumstances.
Application of the regulations to existing
industrial facilities: EPA has proposed that existing as
well as new facilities comply with all of the proposed
regulations. Compliance with the. ^siting requirements will be
particularly difficult for existing organic chemical facilities
For instance, the proposed regulations prohibit the
location of treatment, storage and disposal facilities in
"500-year floodplains." Since many organic chemical manu-
facturers are located along rivers, they would have to close
down or relocate. The proposed siting requirements are so
inflexible in so many aspects that they will have a serious
disruptive effect on many organic chemical plants.
The application of the proposed regulations to facili
ties built to comply with EPA's NPDES regulations will also h
a detrimental effect on existing industrial facilities. Many
organic chemical manufacturers have invested large sums of
money to comply with the NPDES provisions of the Federal
Water Pollution Control Act.
The proposed regulations now require the alteration
of these NPDES facilities to comply with the hazardous waste
regulations. Because of these and other problems which we wilJ
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address in our written comments, SOCMA believes that EPA
should alter the proposed regulations to obtain maximum
utilization of existing equipment and facilities which already
afford a reasonable if not fail-safe level of protection.
The on-site storage exemption: EPA has proposed
that storage of hazardous waste on the site of generation for
a period of less than 90 days be exempted from the general
hazardous waste storage requirements. In establishing the
90-day limitation, EPA has not considered the realities of
organic chemical manufacturing.
For many small organic chemical manufacturers, 90
days is too short a period in which to accumulate an amounts
of hazardous waste that are economic for shipment and disposal
Shipment of these smaller quantieies would further decrease
the ability of small manufacturers to compete for the limited
hazardous waste treatment, storage and disposal capacity.
In conclusion, SOCMA is concerned whether the
organic chemical industry, particularly its smaller members,
can possibly comply with the currently proposed hazardous
waste regulations. The overly stringet regulation of existing
organic chemical facilities, in conjunction wiht the
inflexible design and operating standards, will seriously
disrupt the economic growth of the industry, and may threaten
the economic viability of small manufacturers. The proposed
regulations must be modified to take into account what
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improvements in hazardous waste management are economically
and technically feasible.
Thank you.
MS. FRIEDMAN: Will you take questions from the
panel?
MS. WELLER: Yes.
MR. STRAUS: You indicate in your statement that
the definition includes complex and costly costs for
identifying whether wastes are hazardous, and one of the
reasons why the characteristics were limited to four is that
we felt that they're only tests of a relatively simple nature
and relatively cheap for these characteristics,and I'd like
to get the thoughts either tonight or in your detailed
comments as to what aspects of these testing procedures are
complex and expensive.
MS. WELLER: I believe that would be specifically
the toxicity test and also the tests in the advanced notice
of proposed rulemaking.
MR. STRAUS: When you say the toxicity, are you
talking about the extraction procedure?
MS. WELLER: Ves.
MR. STRAUS: Okay. The other thing that I'd like
to get from SOCMA is you, like many other people, talked about
degree of hazard, coming up with some classification scheme,
and I would like to just get some thought from SOCMA as to
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what they feel would be a good classification scheme of a
lowly toxic or hazardous waste and highly toxic waste, either
tonight or in your detailed comments.
MS. WELLER: We plan to address that in comments.
MR. STRAUS: Thank you.
MR. FIELDS: One question. One of your statements
was that proposed siting requirements were so inflexible in
so many aspects they would have a serious disruptive effect on
many organic chemical plants. Are you referring there to the
stnadards themselves or does that statement include the notes
as well as the standards?
MS. WELLER: Well, for example, for the 500-year
floodplain there is an equivalency note, but I don't think
that any —
MR. FIELDS: Well, all the standards have-notes.
MS. WELLER: Yes. But I don't think that those
notes really provide much flexibility.
MR. FIELDS: So you're saying that the notes don't
provide any flexibility for your plants that is sufficient for
you.
MS. WELLER: No.
MR. FIELDS: If you could give us some more detailed
comment in your written statements, when you submit it later,
it would be appreciated, as to what, you know, what problems
you have with the variances from the standards themselves.
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MR. ROBERTS: You commented that SOCMA wanted to
suggest we reconsider the reporting, recordkeeping require-
ments since they were complex and I think you used the word!
burdensome, and we would eliminate those that were redundant
and nonessential.
Could you illustrate that with an example as to
what you're talking about? We thought they were fairly
simple and noncomplex, frankly.
MS. WELLER: Well, I think particularly the annual
reporting requirement does not seem to be necessary to some
members. The requirement of submitting cumulative annual
reports to a regional administrator.
MR. ROBERTS: The annual reports were not necessary?
Is there some reason — that's about the least reporting
that we could have. And I wonder what their thinking — do
you know what their thinking was behind that?
MS. WELLER: I don't know specifically. I'll find
out. But I believe they question what use will be made of
these reports you know, when they're not immediately following
a shipment and they are just going to a regional administrator
and they question whether those reports will actually be
reviewed and made use of.
MR. ROBERTS: I think our friend from enforcement
would agree that they are going to be useful. Okay, would
you address that in your written comments, so that we could ha\
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your feel for that?
MS. WELLER: Yes.
MR. ROBERTS: One other thought. You are concerned
about the 90-day storage exemption as being too stringent,
the period ought to be extended. Do you have a feel for how loi^g
and why exactly?
MS. WELLER: I'm not in a position to answer that
but I can see that we will.
MR. ROBERTS: Okay. Thank you.
MS. FRIEDMAN: I believe you stated that SOCMA felt
that EPA had not properly evaluated the economic impact of
this proposed regulations and that it should do a cost
benefit analysis of its regulations. We've heard testimony
today that at least an opinion of one witness, RCRA does not
allow us to consider economic impact under 3001 and allows to
consider at best the cost effectiveness of various design
criteria meeting performance standards under 3004.
Do you believe that RCRA either authorizes us or
requires us to consider economic impact and where in the
statute would you premise that, the basis for your
conclusion?
MS. WELLER: Without the statute in front of me,
I wouldn't want to comment on that. I could speak about it
later.
MS. FRIEDMAN: Could you address that in your
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MS. WELLER: Yes.
MS. FRIEDMAN: Thank you. Our next speaker will
be David Hensel.
STATEMENT OF DAVID HENSEL, THE JERVOL MINE
COMPANY, PITTSBURGH, PENNSYLVANIA
MR. HENSEL: My name is David Hensel and I
represent the Jervol Mine Company of Pittsburgh, Pennsylvania
and also part of my comments will deal with an aseociated
company, of the Jervol. Corporation.
It's been a very long day and we're all very tired
so my comments will be very brief. First of all, in regards
to — all of my comments will deal with Section 3001.
First off, the proposed hazardous waste guidelines and regula-
tions in the December 18 issue of the Federal Register
include the following statement: "The statutory definition
of hazardoud waste as found in Section 1004(5) requires
EPA to make a judgment as to the hazard posed by waste when
improperly treated, stored, transported, or disposed of or
otherwise managed." I stress the word "improperly" here.
For wastes containing toxic constituents, this hazard is
dependent on two factors. The intrinsic hazard of the
constituent of the waste and the release mechanism of the
constituents to the environment under conditions of, again
stressed, improper management.
Leachate formation and runoff are the pathways most
often responsible for contamination of the environment from a
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hazardous waste. To assess the hazard posed by these routes
of contamination, EPA has developed the procedure known as the
EP to measure the tendency o£ the constituents of a waste to
migrate out and become available to contaminate the environ-
ment under poor management conditions.
The extraction procedure that is included in the
proposed rulemaking has been designed to model improper
management by simulating the leaching action of rain or
groundwater that somehow finds itself in an acetic
environment present in landfills, open dumps or in regards to
acid mine drainage.
Toxicity tests should involve the generate of
leachate from a particular waste in the laboratory in a
manner consistent with those natural processes which occur in
its segregated landfill. The waste, should be leached in the
physical form in which it is likely to be disposed. The
surface area of the material as well as its permeability should
not be modified as specified in the current extraction
procedure.
As an example, a sparely soluble salt in a basic
solution may be completely dissolved in an acetic environment
as required in an elicit extraction procedure. Again,
leachate assessment should be evaluated not only on the basis
of the component elements but also on the rate at which these
elements are released into the environment.
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The proposed extraction test procedure defeats the
steps taken by a number of utilities who use various processes
to chemically stabilize full gas and sulphurization sludges.
Tests run by EPA and EPA-sponsored programs have concluded
that permeabilities of stabilized sludge have been reduced by
one or more orders of magnitude, in leachate constituent
concentrations, to be half of that experienced in untreated
sludges.
The stabilization procedure will be negated by the
proposed nonrepresentative and unscientific method for deter-
mining the toxic nature of leachate from stabilized FGD
sludges as currently proposed.
Another section of the proposed regulations which
requires clarification in our opinion is that portion identi-
fying contaminants and what the proposed maximum extract
level concentrations will be. A simple note contained below
the listed levels qualifies the above table which is the
ten times the drinking water standard with the following
statement: "These standards are subject to be revised,
extracts — what was specified above will be changed to
reflect revisions of these standards."
Right now it's very important to us in industry
where this stabilization process is used, to receive and know
what these potential revisions will be. Which direction is
the allowable concentrations heading in? In a sense, we
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have also worked very closely with the ASTM and we also are
proponents of the ASTM proposed leachate test. We have been
a participating lab in a collaborative laboratory testing
plan and we at this time concurrently agree with the ASTM
position.
The rest of my brief comments again regards
Section 3001 and this is in regards to an associated company
of Jervol Company named the Southern Industries Corporation
of Mobile, Alabama and this is in regards to the reuse of
phosphorus furnace slag. We believe that phosphorus furnace
slag is not a waste and therefore should not be considered
under RCRA and phosphorus furnace slag is not hazardous as
stated per the low-risk radioactivity level. Some comments
and summary on this point are, EPA has no authority under
RCRA to regulate this slag which is sold as a product since
it is not then a solid waste, EPA has no authority to list
this slag as hazardous because of radioactivity without first
establishing appropriate radioactivity hazardous waste
characteristics and the classification of slag as a hazardous
waste would eliminate the slag from — markets, creating
first off the loss .of 78 jobs, the loss of S6 million in
assets, the loss of $6 million in annual gross sales, the
loss of revenues to outside contractors and industrial vendors
the loss of jobs, and revenue to small private trucking firms,
and the increased inflationary cost of finding substitute
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construction aggregates and the increased inflationary cost to
elemental phosphorus producers which now will be jeopardized
and their operation, when they have to dispose of this
currently, product that's sold as a by-product. We also in
this matter concur with the presentation made earlier in the
day by the Florida Phosphate Council.
And also I also stand by the right to submit in
detail our final position papers draft by the 16th of March,
and essentially thatconcludes my remarks.
MS. FRIEDMAN: Would you respond to questions from
the panel?
MR. HENSEL: Yes, I will.
MR. STRAUS: I'm not sure whether you can answer
this, but do you know what the slag from the — I guess from
the furnace, is used for? What is its byproducts and what is
its use? When.it's sold?
MR. HENSEL: Some of the byproduct uses are — just
to answer your question — which again will be answered in
detail in written comments, but the slag that we deal with
is not used in concrete block-making per se. Let me see
here. I believe that I have that information here. Okay.
Some of the uses of this slag, just to give you an idea of the
tannages involved, railroad ballast, 237,000 tons. Road
aggregate, 790,000 tons. Sewage treatment and here this is
used as a filtering aid for sewage treatment, 154,000 tons.
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And miscellaneous uses bring the total up to about 1.3 million
tons.
MR. STRAUS: Thank you.
MR. HELSEL: So we're talking about 1.3 million
tons of substitute aggregate that the people would have to
find in the southern portion of the country.
Any other questions?
MS. FRIEDMAN: Thank you very much. Our next
speaker will be Jim Greco.
Is Mr. Greco here?
Is Mike Kerran here?
Is there anyone else who's present now who would
like to make a statement?
In that event, we'll adjourn this hearing until
8:30 tomorrow morning in the HEW North-Building Auditorium..
(Whereupon, at 8:43 p.m. the hearing was recessed,
to reconvene the following day, February 23, 1979, at 8:30
a.m.)
405
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1
2
3 REPORTER'S CERTIFICATE
4 DOCKET NUMBER:
CASE TITLE: Proposed Regulations Implementing Sections 3001 -
3004 of the Resource Conservaiton & Recovery Act.
6 HEARING DATE: February 22, 1979
7 LOCATION: Washington, D. C.
g I hereby certify that the proceedings and evidence herein
are contained fully and accurately in the notes taken by me
at the hearing in the above case before the
12 ENVIRONMENTAL PROTECTION AGENCY
and that this is a true and correct transcript of the same.
Date: March 2, 1979
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17 Official Reporter
Acme Reporting Company
1411 K Street N.W,
Washington, D.C. 20005
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STATEMENT OF
HONORABLE ALBERT GORE, JR.
BEFORE THE
ENVIRONMENTAL PROTECTION AGENCY
FEBRUARY 22, 1979
I am pleased to be here today to comment on the Environmental
Protection Agency's proposed hazardous waste regulations. These
regulations, once promulgated into law, will have an enormous impact
on how Americans choose to treat, transport, store, and dispose of
hazardous wastes—wastes that pose a threat to our lives and to our
environment.
In commenting on the proposed regulations today, I would first
like to raise a cautionary note. Congress has begun to carefully
scrutinize the Environmental Protection Agency's performance in
implementing the Resource Conservation and Recovery Act. In doing
so, the need for new legislation in this area has become apparent.
We must establish another mechanism to deal with the abandoned sites
problem, for example. I vigorously support new legislation and I
have been actively working on the development of such legislation.
But, it is useless for Congress to consider passing new legislation
if it will be administered as poorly as our investigations have
revealed the current RCRA legislation has been handled.
The regulations which are the subject of today's hearings
were due in April of 1978. We are only now, almost a year later,
reviewing drafts of these regulations. And, I believe that these
drafts, as I will shortly point out, are deficient.
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Honorable Albert Gore, Jr.
February 22, 1979
Beyond the timing and the content of the proposed regulations, EPA
has been dragging its feet in other areas. Virtually nothing has been
one to identify hazardous waste disposal sites across the country.
Approximately ten states do have efforts underway, but the remaining
40 states have no activity at all. And, EPA has apparently been unable.to
find resources to conduct such an inventory. I belive the highest
immediate priority must be given to locating the many current waste
disposal sites, both active and abandoned, which are posing imminent
health hazards to Americans. It is only by understanding the true
magnitude of the problem that EPA can plan for the most effective use
of its resources. It is only by knowing where dangerous sites exist,
that the public can be warned and protected. At the moment EPA is
simply reacting to crises as they emerge.
However, our purpose this morning is to focus on the belated drafts
of regulations pursuant to current legislation. These regulations are
significant and I have a number of comments. I will fist attempt to
identify guiding principles I believe EPA should use in completing
these regulations.
First, I have found that some people fear we must choose between
a program that can be implemented without excessive inflationary effects
and a program that vigorously protects the public's health and our
environment. I do not believe that this is true. I am convinced that
in this instance there is no conflict between our public health and.our
economic health. A program that does not deal forcefully and effectively
with this problem today will only mean much larger costs--in both
economic and health terms--in the future. We are all painfully aware of
the extreme costs—running in the hundreds of millions of dollars — of
cleaning up after the improper disposal of hazardous wastes. And so I
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Honorable Albert Gore, Jr.
February 22, 1979
would urge you to adopt rules that are strong enough to protect the
public's health and the environment and not to take half-steps that
only defer these costs to future generations.
Secondly, we need comprehensive regulations and the personnel to
administer them. I recognize that your agency and your counterparts
in the states are forced to deal with very real limitations on
personnel and funding. The General Accounting Office has recently
documented this fact. However, in my judgement, the magnitude of
this problem requires that you develop regulations that will ensure
that there are no more Love Canals, no more Valley of the Drums,
no more leaking cancerous cesspools of toxic wastes. If these
regulations require more money and more staff, then you must come
to Congress--and to the public—and tell us. I can assure you of
my support for such requests and I believe my colleagues in Congress
will definitely respond to the need for stronger action in this area.
Now, with your indulgence, let me provide you with a few specific
examples of my concerns about the proposed regulations. The 3001
regulation includes identification of eight characteristics of
hazardous waste. If a waste is -not already labeled as hazardous
through the listing procedure, a generator must test the waste to
determine if it contains hazardous features. However, the current
regulations only require testing for four of the eight identified
characteristics" (ignitability, corrosovity, reactivity, toxicity).
Apparently, you have chosen to rely only on these four characteristics
(ignoring radioactivity, infectiousness, phytotoxicity, and
teratogenicity and mutagenicity) because they are "the only ones for
which the Agency confidently believes test protocols are available."
You s-i.-jgest that you may include tests for these other characteristics
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Honorable Albert Gore, Jr.
February 22, 1979
at a later point.
I take issue with this position. Even though there may be no
simple, well-accepted tests that identify all wastes which are
oncogenic, mutagenic, teratogenic, or bioaccumulative, there are
procedures to test for these characteristics. There are currently
very valuable tests which yield useful information regarding such
characteristics, some of which you employ for screening under the
Toxic Substances Control Act. Perhaps you have chosen not to include
these useful procedures within the proposed RCRA regulations because
of the costs of such tests. However, I would suggest that such
tests be included as part of the regulations now and that you publish
an Advance Notice of Proposed Rulemaking to improve upon such tests
as our technology in the area improves. In short, I am uncomfortable
with postponing the promulgation of a comprehensive set of rules to
test for hazardous wastes not included in your listing procedure.
I am further discomforted when I realize that wastes included as
hazardous under the listing procedure may be exempted from the program
if they are proven not to be ignitable, corrosive, reactive, or
toxic (using your extraction procedure). Such exemptions might be
granted, under your proposal, to wastes which pose the sorts of
danger which Congress sought to bring under control.
As a second example of my concerns, let me mention your proposed
decision to exclude sewage sludge from publicly owned treatment works
from coverage under this regulation and instead allow it to be
regulated under Section 405 of the Clean Water Act. Sewage sludge
contains a variety of extremely hazardous substances. It is absolutely
essential that the public be protected from the improper disposal of
sewage sludge just as they should be protected from any other wastes.
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Honorable Albert Gore, Jr.
February 22, 1979
I understand that you are including sewage sludge under Section 405
to avoid duplicative permitting; yet, I wish to raise the issue to
stress the importance of making sure that hazardous sewage sludge is
treated like all other hazardous waste.
In making final revisions to the regulations, I urge you to
resist any effort to reduce 'the number of waste generators covered
by the regulations. I believe it would be a mistake, for example,
to raise the monthly waste level criteria for inclusion in the program
above your proposed 100 kilograms. In fact, you may want to consider
reducing that level; many small generators produce highly toxic or
otherwise hazardous wastes. I doubt that the per unit cost of the
hazardous waste program will really significantly affect these
small generators. Along the same lines, I urge you not to consider
postponing the inclusion of any industries under the regulations.
Those industries that may be most heavily affected by the regulations
(electroplaters or wool dye manufacturers, for example) are also
the generators of some of the most dangerous wastes. I don't believe
that we can afford to wait much longer to regulate how their wastes
are disposed.
The procedures that waste generators are to follow to determine
whether their wastes are hazardous and to determine whether such
wastes have been disposed of in the proper manner and in the safest
locations must be clear and comprehensible. Public officials as well
as the general public must be able to determine whether proper actions
are being taken. There must be ample opportunity for outside
monitoring of the cradle-to-grave handling of hazardous waste. As
I understand it, you have proposed that the generators of waste take
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Honorable Albert Gore, Jr.
February 22, 1979
primary responsibility for monitoring the manifest system which would
detect problems in the cradle-to-grave tracking system. Annual
reports on the manifests would be made to EPA regional administrators.
I would encourage you to consider requiring such reporting at more1
frequent intervals. I also wonder what kind of access the public
will have to the information compiled by the generator and submitted
to EPA; I would encourage you to make such information readily
available to those who would like to scrutinize it.
With respect to the siting problem, my concern is that the very
best criteria be used in selecting locations for the disposal of
hazardous waste and that these critieria be clearly stated. It is my
own view that you should offer criteria to the states to help them in
making environmentally proper decisions about siting, particularly
when confronted with the inevitable political pressures different
communities will bring to bear on the decision-making process.
There will undoubtedly be a lapse in time between the promulgation
of these regulations at the federal level and their implementation at
the state level. During this period, I believe you should still attempt
to enforce the general intent of the RCRA legislation through the use
of your imminent hazard authority. I urge you to take strong action
under this authority, as you have begun to do, so that any delays in
getting these regulations promulgated do not pose any undue burden on
communities now facing hazardous waste disposal problems.
In closing, let me say that I recognize the great responsibility
Congress has placed on you. You would do us all a great disservice
to promulgate anything short of a strong and comprehensive set of
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Honorable Albert Gore. Jr.
February 22, 1979
hazardous waste regulations. These regulations must be promulgated
rapidly and enforced effectively so that the costs of this problem--
in dollars and cents and in human lives—will be reduced. Both
Congress and the public expect that you will take strong steps to
protect the public health and the environment.
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STATEMENT OF E. P. BLANCHARD ON BEHALF OF
E. I. DU PONT DE NEMOURS AND COMPANY CONCERNING
EPA'S PROPOSED §3001 AND §3004 RCRA REGULATIONS
(FEBRUARY 22. 1979)
GOOD AFTERNOON. I AM ElWOOD BLANCHARD, GENERAL MANAGER
OF THE CHEMICALS, DYES & PIGMENTS DEPARTMENT OF
E. I. DU PONT DE NEMOURS AND COMPANY. IN MY CAPACITY, I HAVE
RESPONSIBILITY FOR THE MANUFACTURING OPERATIONS OF ABOUT ONE-FOURTH
OF Du FONT'S 100 MANUFACTURING PLANTS.
I COME TO YOU TODAY AS A BUSINESSMAN TO VOICE MY CONCERNS
ABOUT THE IMPACT OF THE PROPOSED RCRA §§3001 AND 3004 REGULATIONS,
Du PONT FULLY RECOGNIZES THE NEED FOR THE MANAGEMENT OF HAZARDOUS
WASTES IN AN ENVIRONMENTALLY SOUND MANNER. HOWEVER, WE ALSO
RECOGNIZE AND PROPOSE THAT A PRACTICAL AND REASONABLE SATISFACTION
OF THIS NEED MUST BE SOUGHT. BASED UPON OUR REVIEW OF THESE
REGULATIONS, WE BELIEVE THAT THESE PROPOSALS WILL HAVE A SUBSTANTIAL
IMPACT UPON OUR OPERATIONS AND ARE CONCERNED THAT MANY OF THE
REQUIREMENTS MAY IMPOSE UNNECESSARY AND/OR UNREASONABLE BURDENS.
TODAY I WILL BRIEFLY EXPRESS SEVERAL OF OUR MAJOR CONCERNS; NAMELY,
WE BELIEVE THAT:
(1) THE WASTE CLASSIFICATION SYSTEM DOES NOT SUFFICIENTLY
DIFFERENTIATE THE DEGREES OF HAZARD;
(2) THE FACILITY DESIGN STANDARDS ARE UNNECESSARILY RIGID
AND WILL IMPOSE UNREASONABLE BURDENS UPON EXISTING
FACILITIES;
(3) THE COVERAGE OF THE NPDES-RELATED FACILITIES WILL
IMPOSE UNREASONABLE DUPLICATIVE BURDENS;
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W THE INTERIM REQUIREMENTS MAY GIVE RISE TO SERIOUS
INEQUITIES; AND
(5) THE FINANCIAL REQUIREMENTS ARE UNNECESSARILY ONEROUS
AND INFLEXIBLE.
WASTE CLASSIFICATION SYSTEM.
CONCERNING THE WASTE CLASSIFICATION SYSTEM ISSUE, IT
APPEARS THAT EPA HAS PUT ALL SOLID WASTES IN ONE OF TWO CATEGORIES:
(1) HAZARDOUS WASTES WHICH MUST BE DISPOSED OF IN ACCORDANCE WITH
ALL OF THE STRINGENT REGULATIONS PROPOSED UNDER SUBTITLE C OF RCRA
OR (2) WASTES NOT CLASSIFIED AS HAZARDOUS WHICH MAY BE DISPOSED OF
IN SANITARY LANDFILLS, BY DEFINING "HAZARDOUS WASTE" TO COVER
SUCH A BROAD CATEGORY OF WASTES, EPA IS REQUIRING NEEDLESS
EXPENDITURES FOR THE DISPOSAL OF RELATIVELY LOW-HAZARD WASTES AND
SEVERELY STRAINING THE ABILITY OF PERMiilED HAZARDOUS WASTE
FACILITIES TO HANDLE THOSE WASTES WHICH WILL OR DO POSE A SIGNIFICANT,
POTENTIAL HAZARD, As CURRENTLY PROPOSED, THE DISPOSAL STANDARDS
APPLY EQUALLY TO AN ACUTELY TOXIC OR CARCINOGENIC WASTE AND A MILDLY
CORROSIVE WASTE WHICH I UNDERSTAND WOULD INCLUDE SUCH THINGS AS
COLA SOFT DRINKS WHICH HAVE A Pll AROUND 2,5 AND LIME STABILIZED
SLUDGES WITH A PH OF ABOUT 12.5, As YOU KNOW, THE PROPOSED
NONHAZARDOUS PH RANGE IS 3 TO 12.
EPA HAS RECOGNIZED THE CONCEPT OF "DEGREE OF HAZARD" BY
DEFINING A LIMITED NUMBER OF "SPECIAL WASTES" CATEGORIES AND
SUBJECTING THEM TO DIFFERENT DISPOSAL REQUIREMENTS, WE RECOMMEND
THAT THIS HAZARD DIFFERENTIATION CONCEPT BE EXPANDED TO GROUP ALL
WASTES BY DEGREE OF HAZARD AND SET STORAGE, TREATMENT, AND DISPOSAL
STANDARDS RELATED TO THE DEGREE OF HAZARD,
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HE BELIEVE THAT THIS APPROACH WILL PROVIDE NECESSARY PRIORITIZATION
AND WILL MORE EXPEDIT10USLY ACHIEVE RCRA'S OBJECTIVES.
FACILITY DESIGN STANDARDS
TURNING TO THE §300'! REGULATIONS/ OUR FIRST CONCERN
RELATES TO THE RIGID APPLICATION OF DESIGN STANDARDS FOR HAZARDOUS
WASTE FACILITIES. THE SPECIFIED STANDARDS APPLY EQUALLY TO NEW
AND EXISTING FACILITIES. THE INFLEXIBLE USE OF THESE STANDARDS
WILL ARBITRARILY CAUSE MANY EXISTING ENVIRONMENTALLY-SOUND AND
WELL-DESIGNED FACILITIES TO BE OUT OF COMPLIANCE.
PERFORMANCE STANDARDS OFFER MANY ADVANTAGES/ INCLUDING
ENCOURAGING INNOVATION/ OVER DESIGN STANDARDS. THIS PROPOSED
REGULATION RELIES HEAVILY ON THE LATTER/ AND PROVIDES MINIMAL
FLEXIBILITY TO DEVELOP AND USE ALTERNATIVE TECHNOLOGIES. EPA
RECOGNIZES THE VALUE OF VARIANCES WHICH ARE AVAILABLE FOR A FEW
OF THE REQUIREMENTS THROUGH THE USE OF A "NOTE" AFTER THE
RESPECTIVE DESIGN STANDARD,
THE PROPOSAL ALSO INCLUDES HEALTH AND ENVIRONMENT
STANDARDS/ BUT THEY APPEAR TO BE ONLY FOR EPA TO USE AS AN
"OVERRIDE MECHANISM"/ IF THE DESIGN STANDARDS ARE NOT STRINGENT
ENOUGH IN A GIVEN SITUATION,
IT IS RECOMMENDED THAT SATISFACTION OF HEALTH AND
ENVIRONMENTAL STANDARDS BE ALLOWED AS A BASIS FOR ESTABLISHING
COMPLIANCE BY THE FACILITY OWNER/ AND THAT BROADER FLEXIBILITY IN
ESTABLISHING FUNCTIONAL EQUIVALENCE TO THE DESIGN STANDARDS BE
PROVIDED. THIS FLEXIBILITY IS ESSENTIAL TO AVOID OVERBURDENING
THE LIMITED NUMBER OF SUITABLE FACILITIES.
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I WOULD LIKE TO DESCRIBE TWO EXAMPLES OF WHERE SUCH A
SHOWING OF FUNCTIONAL EQUIVALENCY SHOULD BE PERMITTED AND IS
VITALLY NECESSARY.
IN ASSESSING THESE PROPOSED REGULATIONS, WE FOUND THAT A
NEW CHEMICAL LANDFILL WHICH WE HAVE JUST INSTALLED IN ONE OF OUR
PLANTS MAY NOT MEET THE PROPOSED RCRA STANDARDS. THIS LANDFILL
IS ESSENTIAL BECAUSE IT DISPOSES OF PRIMARY SLUDGE FROM OUR
WASTEWATER TREATMENT PLANT. ALTHOUGH IT IS DOUBLE-LINED, IT DOES
NOT MEET SEVERAL OF THE PROPOSED DESIGN REQUIREMENTS, IT CANNOT
BE RETROFITTED AND WOULD HAVE TO BE ABANDONED AND REPLACED AT A
COST OF $3 MILLION. FURTHER, IN REPLACEMENT, ONE OF THE PROPOSED
DESIGN REQUIREMENTS WHICH WE WOULD HAVE TO MEET IS THAT THE UNDER-
LYING SOIL HAVE A PERMEABILITY OF 1 X 10"^ CM/SEC. THIS REQUIREMENT
CANNOT BE MET ANYWHERE ON THIS PLANT SITE, THIS JEOPARDIZES THE
VERY EXISTENCE OF OUR PLANT,
As A SECOND EXAMPLE, A NEW Du PONT PLANT WHICH WE ARE
ABOUT TO START UP HAS A DOUBLE-LINED, TWO-ACRE IMPOUNDMENT WHICH
DOES NOT MEET EPA'S LINER THICKNESS AND DEPTH TO GROUNDWATER
REQUIREMENT. ITS REPLACEMENT WOULD COST ABOUT $1 MILLION.
WE BELIEVE THESE FACILITIES WILL PROVIDE PERFORMANCE
WHICH IS FUNCTIONALLY EQUIVALENT TO EPA's DESIGN STANDARDS AND/OR
WOULD MEET EPA's HEALTH AND ENVIRONMENT STANDARD. THE REGULATIONS
SHOULD AT LEAST GIVE US THE OPTION TO CONTINUE TO USE THESE
FACILITIES UPON SUCH A SHOWING,
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NPDES-RELATED FACILITIES
WE ALSO HAVE SERIOUS CONCERNS REGARDING THE PROPOSED
APPLICATION OF THESE FACILITY STANDARDS TO PONDS/ BASINS, AND
OTHER SURFACE IMPOUNDMENTS WHICH ARE PART OF NPDES-PERMITTED
FACILITIES. MOST OF THESE FACILITIES HAVE RECENTLY BEEN COMPLETED
FOR COMPLIANCE WITH THE 1977 CLEAN WATER ACT DEADLINE, WE
RECOGNIZE EPA CONCERNS REGARDING POSSIBLE GROUNDWATER CONTAMINATION
FROM SUCH FACILITIES. THESE FACILITIES WERE SUBJECT TO REVIEW
UNDER THE EXISTING FEDERAL AND STATE NPDES PROGRAMS AND WE
UNDERSTAND THAT THEY WILL FE SUBJECTED TO FURTHER CONTROL IN VIEW
OF THE BEST MANAGEMENT PRACTICE PROVISIONS ADDED TO THE CLEAN
WATER ACT IN THE 1977 AMENDMENT.
WE QUESTION THE TECHNICAL JUSTIFICATION FOR BLINDLY
IMPOSING STANDARDS APPLICABLE TO HAZARDOUS WASTE FACILITIES
GENERALLY TO THESE UNIQUE AND SPECIALIZED "SOLID WASTE" FACILITIES,
CHARACTERIZED BY A CONTINUOUS, LARGE VOLUME FLOW OF A DILUTE
AQUEOUS STREAM.
FURTHERMORE, THESE FACILITIES ARE ALREADY SUBJECT TO
REGULATIONS WHICH ARE AND WILL BE FURTHER TAILORED TO THEIR UNIQUE
CHARACTERISTICS. WE BELIEVE THAT THIS POINT IS PARTICULARLY
SIGNIFICANT IN VIEW OF THE CONGRESSIONAL INTENT, CLEARLY STATED IN
RCRA, THAT EPA NOT DUPLICATE IN RCRA, REGULATION AREAS ALREADY
COVERED IN THE WATER ACT AND OTHER LAWS WHICH EPA ADMINISTERS.
THE LOGIC ESCAPES US AS TO WHY EPA BELIEVES SUCH FACILITIES ARE
SUBJECT TO RCRA.
WE URGE THAT THESE FACILITIES CONTINUE TO BE REGULATED
ONLY UNDER THE WATER ACT,
419
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INTERIM STATUS
WE HAVE SERIOUS CONCERNS REGARDING POSSIBLE INEQUITIES
WHICH ARE LIKELY TO DEVELOP IN THE PERMITTING SYSTEM DURING THE
INTERIM STATUS PERIOD, EPA ESTIMATES IT MAY TAKE UP TO FIVE (5)
YEARS TO PROCESS ALL OF THE PERMIT APPLICATIONS, YET/ TO THIS
DATE, NO PROCEDURE HAS BEEN PROVIDED BY EPA TO ASSURE EQUITABLE
PROCESSING. SHOULD PROCESSING OF APPLICATIONS BE RANDOMLY HANDLED,
SERIOUS INEQUITIES WILL ARISE. FOR EXAMPLE, IF ONE FACILITY'S
.APPLICATION WAS IMMEDIATELY REVIEWED AND AN ONEROUS COMPLIANCE
SCHEDULE IMPOSED, FIVE (5) YEARS COULD PASS BEFORE AN APPLICATION
FOR A SIMILAR FACILITY, OWNED BY A COMPETITOR, MIGHT EVEN BE
REVIEWED. To MINIMIZE SUCH POTENTIAL INEQUITIES, WE URGE EPA TO
ESTABLISH A DEFINITE PERIOD IN WHICH ONLY THE INTERIM REQUIREMENTS
APPLY. THE PERIOD SHOULD BE SUFFICIENT TO INSURE THAT ESSENTIALLY
ALL OF THE PERMITS WOULD BE ISSUED. THE PROCEDURE COULD BE
SIMILAR TO THAT FOLLOWED IN ACHIEVING COMPLIANCE WITH THE BPT
REQUIREMENTS UNDER THE CLEAN I'/ATER ACT, AND WOULD INSURE EQUITABLE
TREATMENT.
FINANCIAL REQUIREMENTS
OUR LAST POINT OF DISCUSSION IS THE FINANCIAL REQUIREMENTS,
SPECIFICALLY, WE ARE GREATLY CONCERNED BY THE TRUST FUND FOR
CLOSURE OF THE FACILITIES AND THE LIABILITY INSURANCE COVERAGE,
REGARDING CLOSURE AND POST-CLOSURE COSTS, WE URGE THAT
REASONABLE FLEXIBILITY SHOULD BE PROVIDED BY ALLOWING ALTERNATIVES
TO CASH DEPOSITS IN BANK TRUST ACCOUNTS, SURETY BOND OR OTHER
REASONABLE FINANCIAL GUARANTEES SHOULD BE ACCEPTABLE.
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As TO THE $5 MILLION INSURANCE PROVISIONS FOR SUDDEN
AND NON-SUDDEN OCCURRENCES, WE HAVE SEVERAL CONCERNS. FlRST, WE
ARE UNCERTAIN HOW THE $5 MILLION REQUIREMENT IS TO BE IMPOSED
(E.G., PER OWNER, PER PLANT SITE, OR UPON EACH DISPOSAL FACILITY).
ASSUMING IT is ON A PLANT BASIS, EVEN THE LARGEST CORPORATIONS
COULD HAVE TROUBLE MEETING THE SELF-INSURANCE PROVISIONS.
SECONDLY, WE FEEL EPA HAS NOT DEVELOPED SUFFICIENT JUSTIFICATION
FOR THE $5 MILLION REQUIREMENT. THIRDLY, WE ARE NOT AWARE OF THE
AVAILABILITY OF INSURANCE TO COVER NON-SUDDEN OCCURRENCES.
FOURTH, WE QUESTION WHETHER THESE REQUIREMENTS VALIDLY REFLECT
THE DEGREE OF FLEXIBILITY IN FINANCIAL RESPONSIBILITY ASSURANCE
WHICH IS PRESCRIBED BY THE LAST SENTENCE OF RCRA §3004.
IN CLOSING, I WISH TO POINT OUT THAT Du PoNT HAS
DIRECTLY, AND THROUGH SEVERAL TRADE ASSOCIATIONS, PRESENTED ITS
VIEWS To THE CONGRESS DURING ITS DELIBERATIONS ON SOLID WASTE AND
TO THE EPA DURING ITS RCRA IMPLEMENTATION EFFORTS. V/E WISH TO
COMPLIMENT EPA ON THE EXTENT OF PUBLIC PARTICIPATION WHICH WAS
PROVIDED FOR AND OFFER OUR CONTINUING PARTICIPATION.
WE ARE CURRENTLY COMPLETING A DETAILED ASSESSMENT OF OUR
CURRENT SOLID WASTE PRACTICES AS COMPARED TO YOUR PROPOSAL. WE
EXPECT TO PROVIDE THESE RESULTS IN OUR WRITTEN STATEMENT, ALONG
WITH A MORE DETAILED DISCUSSION OF THE ISSUES I COVERED HERE TODAY.
WE SUPPORT THE CONCEPTS OF RESPONSIBLE OPERATION OF
WASTE DISPOSAL FACILITIES AND RESPONSIBLE HANDLING OF HAZARDOUS
WASTES. WE WILL SUPPORT COST EFFECTIVE REGULATIONS TO ACHIEVE
THESE OBJECTIVES. HOWEVER, WE MUST RECOMMEND THAT EPA APPLY
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EFFORTS UNDER RCRA TO ACHIEVE A BALANCE OF RISK WITH COMMENSURATE
COSTS, AND THAT EPA COORDINATE RCRA TO COMPLIMENT, NOT OVERLAP,
THE CLEAN AIR AND WATER ACTS,
I APPRECIATE THIS OPPORTUNITY TO PRESENT MY COMPANY'S
VIEWS AND WOULD BE PLEASED TO TRY TO ANSWER ANY QUESTIONS YOU MAY
HAVE.
2/20/79
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Oral Comments
RCRA Public Hearing, Washington, D.C.
February 20-22, 1979
By: Carey _ Stark
Mississippi Chemical Corporation
Mississippi Chemical Corporation appreciates this opportunity to
participate in the rule making process and respectfully submits
the following comments. Detailed written comments on various spe-
cific areas of the regulation will be submitted prior to the close
of the comment period.
Mississippi Chemical Corporation is a fertilizer manufacturing
cooperative supplying the fertilizer needs of a quarter million
Southeastern farmers from Florida to Texas."MCC operates fertilizer
manufacturing facilities at Yazoo City, Mississippi; Pascagoula,
Mississippi; Donaldsonville, Louisana; a potash mine in Carlsbad,
New Mexico; and is seeking permits to mine phosphate rock in Hardee
County, Florida. Our comments today will concern five areas: the
definitions of the regulations, phosphate mining and processing
by-products, reuse of materials, radiation, and the relationship
of these regulations to NPDES.
DEFINITIONS
The definitions proposed in the regulations published in the Fede-
ral Register of December 18, 1978 are ambiguous and somewhat circu-
lar in logic. These definitions lead to great uncertainty as to
what is and is not a waste; what is and is not hazardous; and what
is and is not disposed. All the definitions presented in this pub-
lication must be made clear so that we in industry may know what
our obligations are to control waste and hazardous waste.
One definition I would like to specifically address is that which
defines any waste held for ninety days or more as being defined
as disposed. This is a particularly arbitrary definition since in
industry many holding ponds, treatment areas, cooling tower basins
and the like contain material which is removed from manufacturing
process streams or waste water treatment systems. These holding
areas may not, because of processing considerations or physical
size require removal of the waste material on a ninety day schedule.
For instance cooling tower basins are normally dredqed of accumu-
lated matter on a yearly schedule. Thus the definition of disposal
should be made flexible to allow consideration on a case by case
basis.
PHOSPHATE MINING AND PROCESSING BY-PRODUCTS
We contend that phosphate mining and processing by-products are
not waste, but if these by-products must be regulated by EPA, then
we believe they should only be regulated in the special waste
category. Because of the large volume, low historical hazard level,
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paucity of data and localization, the special waste category is
appropriate. However,even the regulations proposed for special wastes
go much too far beyond the regulatory level required for these
by-products. The intent of the law is to conserve and recover re-
sources, and the resources in phosphate materials can be conserved
and reused as materials for reclamation of mined areas and as soil
conditioner or as a source of calcium or sulphur. The end result of
the regulations as presently proposed would be to deny the use of
these resources in any beneficial way.
However, in the sense of the act and its legislative history, over-
burden, tailings and clay should not be regulated under these regu-
lations. These materials are returned to the mine site for the
process of reclamation and reclamation is not disposal.
This disposal must be carried out by laws regulating phosphate
mining. The land must be returned to a useful condition, but these
regulations deny the use of this land after reclamation or so becloud
the title to the mining land that use of the land is denied in a
practical sense.
DENIAL OF REUSE OF MATERIALS
The Resource Conservation and Recovery Act by its very title, by
its wording, and by its legislative history is meant to encourage
the reuse and conservation of resources. The effect of the regula-
tions under discussion today will be to deny the reuse of some
substances in a very arbitrary manner. In some instances the regu-
lations will not of themselves deny reuse but the reuse of some
substances which will be regulated is presently so marginal econo-
mically or technically that the regulations imposed will in fact
deny reuse of these substances.
Beneficial reuse should not be regulated or prohibited arbitrarily
or based on a set of definitions drawn up at one particular time
in history from a scanty data base. Reuse and conservation of re-
sources should be encouraged and any questionable reuses should be
evaluated on the basis of benefits versus cost.
RADIATION
The criteria for radiation hazard has been set entirely too low.
No data have been presented to conclusively show that this level
or regulation is necessary or beneficial to assure human health
and welfare.
This situation is not comparable to the Dulaney ammendment situa-
tion in the Food and Drug Act where "any" incidence of harm must
be regulated. Radiation exposure is a natural occurance in larger
doses than those being regulated under these regulations from cosmic
rays, air, granite, food, etc. Radiation exposure is a common occur-
ance in man related activities; such as watching television, fly-
ing in airplanes, living in mountainous areas, etc.
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There are only very scanty data about radiation exposure at the
level proposed in these regulations and there is no indication that
these regulations are necessary to protect human health and welfare
especially from phosphate related materials. Detailed studies of
the effects of the radiation from phosphate related by-products
are already under way and regulation of these by-products should
logically be delayed until the results of the studies are available.
A careful study is needed as to the hazard to health and welfare
from the level of radiation proposed to be regulated by these re-
gulations compared to natural and other unavoidable man related
exposures.
RELATION TO NPDES
Waste water treatment as required under Section 402 of the Clean
Water Act requires the removal from waste water discharges of ma-
terials some of which qualify as solid waste some of which qualify
as hazardous waste. Such systems to remove these materials should
not be regulated by these proposed regulations. The Section 402
permitting regulations fully control waste water discharges and
the treatment systems necessary to comply with the regulations.
ADOPTION
Mississippi Chemical Corporation adopts by reference the comments
submitted by the Fertilizer Institute and the Florida Phosphate
Council.
SUMMARY
Our main thrust in these comments has been to show you that phos-
phate related materials that is tailings, overburden, clays, and
gypsum should not be regulated because they are not waste, they are
not hazardous, and they are used beneficially.
Secondly, the entire regulatory scheme is too inflexible and re-
moves from the regulation process the rational consideration of
actual hazard, established management technique, and cost/benefit
analysis.
Respectfully submitted.
^
Carey Stark, P.E.
Mississippi Chemical Corporation
P.O. Box 1517
Wauchula, Florida 33873
CS/ne
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IVAA
NATIONAL ASH ASSOCIATION, INC.
John H Faber SUITE 35°. W H. STREET, N W
Executive Vice President Executive Director WASHINGTON, D.C. 20006
(202) 659-2303
To: E.l-.A. Panel Hearing
"'ashington, li.C.
February 20, 1979
From: John H. Faber
Executive Vice President-E/.ecutive director
rational Ash Association
Subject: Coal Combustion Dy-Product Ashes is Jr.;; 2ci=ite To
The HCIH Act
Ladies and rentleaisn, My na:re is iTchn H. Faber. I an
Executive Vice Fresident-Sxocutive Jirector of the- rational
Ash Association, a trade association in ",'ashin; ton, D.C. The
support of this association is GO-"-?; '.ne 003^ burnir_0 71ec. "ea.
Co';:p3rn Co \hicli produce coal ajh. The rc.'ainu-r o_" vhc support
is cor.pCo-jd OL vur.'.etiu;, coupanicb, A ,,- Z j?ir_a ,co.'.ctruction
cori'dnicG, equipi.icnt .aanuf^cturin,,, 3~~c., fro- =.11 ovjr tho
•,,orld.
I Miiil address wj rOicarks to Coi virtu^j.ly
all their ch^riica! and pli^'sical propjrtiec; !;h'.-, ojal ash tod-y
is relorrcV to ^;s po^zo^ns. Larj;s tona^cs ji ou-L cinders hcvj
been ucja in fi; unitea States for over JC yc'or, 1,1 roads and
building blocko. '"ith tho dcvclop:r.er.t of Tuivcr^zed l~i< ^1 Tirtd
lloiltrs during Yorl." Var II, larce quar.tici-.-s j-" po. j,oj,3;ia ueca.ie
available.
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In the past 35-^0 years the cO'.nercia.! and jj;ov8rn.iental
sectors of the construction industry have effected ash utilization
to approximately ?-~f/.> 01 production or l?-1c Million tons in 1S7S.
I have enclosed a gr&^>h snowing tnis groi.'th ov<--r the past 15
years C~iLura 1). Also bhov
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the ash industry all over the v/orld will loss 205. or pore of its
narkcts and growth in the next few years, even though a special
category has been shovm until the issue is finalize!.The ^untl'acly
and unprovan report froi Davis California on the :rata^enacy of
Fly Ash has had very dramatic effects on ash utilisation a'il ov.--r
:ho vorld. CO-IE.- countries have banned ash utilisation entirely,
Austria bsinj one.
In conclusion, I v/ould sun up .iiy raaar.-ts to state that the ash
producing industry a.id ash uarketinj- industry can continue a
substantial growth pattern in recycling ash into our construction
industry if they are given an opportunity to do so. If they are
placed in a no-v:in situation with such things as hazardous v/aste
and cancer labels, and high costs caused by unwarranted monitoring
tests, they will deesiphasl2,e ash utilization and let disposal
costs consume the financial burden, .rhich could ar.iount to several
billion dollars by 1935.
Thank you for this opportunity to address this hearing and
1 v.ill snail uy comments following our raseting ir. Atlanta.
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I1'
'' \_A ASTM. 1916 Race SI, Philadelphia, PA 19103 (215) 299-5-'
^, ' ,.-, February 16, 1979
Mr. Douglas Costle, Administrator
U.S. Environmental Protection Agency
401 M Street, S.W.
Vashington, DC 20460
SUBJECT: Criteria, Identification, and Listing of Hazardous V.'este
Dear Mr. Costle:
On December 2, 1978 Mr. H. J. Streniba, Deputy Managing D
of ASTM, forwarded, a letter from Messrs. Mallcy and Webster (Decer.ter 1,
1978) on behalf of the D19.12 Task Planning Group addressing the
Environmental Protection Agency plans to publish a screening test for
classification of waste materials under Section 3001 of P.L. 94-580.
This position of the D19.12 Task Planning Group was approved
by Subconiiiittee D19.12 on Pollution Potential of the Leaching fron
Solid Wastes at their January 30, 1979 meeting.
In this respect, we would like to call your attention to the
fact that the technical postion of the Task Planning Group lias now been
reviewed and approved by the subconirittee . Please be advised that this
represents the views of the SubcoKtciittee and does not reflect an ASTM
position in respect to the proposed regulation.
Very truly yours,
G. O. Atkinson
Director
Standards Development Division
GQA/ac
Enclosures: D19.12 Position Papers pf Decer.ter 1, 1278
and February 1C, 1979.
Proposed Method for Leacliing of Waste Materials
Standards lor Materials Pr.djcts Systems & Services
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COMMITTEE D-19
ON WATER
ASTM, 1916 Race SI, Philadelphia, PA 19103 (215i 299-5400
77001(713 663 2138)
Standard] Advttor RUSSELL LANE. Illmoii Stoll
StoffMoraao, E « SUUIVAN (JI5-299 55K)
February 16, 1979
Mr. Douglas Costle, Administrator
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
Dear Mr. Costle:
The purpose of this letter is to advise you concerning ASH?
Subcommittee D19.12's position with respect to the proposed extraction
procedure published December 18, 1978 as a part of the FCRA Section
3001 criteria for classifying hazardous waste naterials.
The Planning Task Group of D19.12 wrote to you on December 1, 197S
(copy attached), outlining the position of that group. The December 1
letter has been reviewed by the entire D19.12 Subcormuttee and the position
stated therein reaffirmed at our winter nieeting January 29, 1979.
It is the Subcommittee' s opinion that the use of an acid extraction
procedure in the Section 3001 series of tests poses significant problems:
probably the most significant of these problems is the potential classifi-
cation of wastes as liazardous when they do not present an actual hazard
under segregated disposal methods. The hazard of individual wastes such
as these should not be r.ieasured in the context of acid extracts from other
waste materials,
The Subcommittee views the use of an acid extraction procedure to
be non-representative of disposal methods for industrial wastes, and
technically inadequate. In this regard, the procedure that is being
proposed by EPA has not been subjected to any precision testing or similar
inter-laboratory standardization. The use of the acid extract nay also
cause errors of either over-or under-classifying wastes with respect to
biological activity.
Slandards for Materials Proa^ts Systems &
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Specifically, it is the Subconjiuttee's reccimendation that the
acid test not be used for determing toxicity. We offer as an alternate
that Method A of ASTM's "Proposed Methods for Leaching of VJaste Materials
(copy attached) be used as the extraction procedure under Section 3001.
We further recognize that the co-disposal of municipal refuse and
industrial wastes may represent an undesirable disposal alternative.
We suggest that appropriate changes in the regulations be made to cover
this concern.
,7 L'•••••-^ ';>•>. ••><--_
B. Charles Malloy '
Chairman of ASTM
SubconTcdttee Dl°.12
Enclosure:
December 1 letter
ASM Method
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COMMITTEE D-19
ON WATER
ASTM, 1916 Race St, Philadelphia. PA 19103 (21 5) 299-5*00
Futl V'ci Choitmon F T WEISS. Sfn'l O'l Co . Shel
Second Vrc* Chairman B A MALO, U S 0«pl o' '
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Siondo'di Adr.io' RUSSEll LANE, llt.nait S
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balloted and published in May 1978 as t"c "Proposed Methods for Lc-nching of
Waste Materials". The Subcommittee is rescntly concluding a round robin
program in which 24 laboratories aro r ticipating in evaluating the precision
of the ASTM methods.
The careful , technically competent manner in which the ASTM procedure
has been developed stands in contradistinction to the EPA's activity in this
area.
Initially, the EPA entered into a contract with Professor Hamm and others,
at the University of Wisconsin, specifically to develop such a classification
procedure. One of Prof. Hamm1s conclusions, based on draft reports obtained
by ASTM members, recognized that two types of disposal must be considered.
He indiacted that, since all wastes will obviously not go into municipal land-
fills, a single test approach based on disposal of industrial wastes in
municipal landfills is not suitable for classifying wastes.
EPA's predelection to municipal landfills, including co-disposol ol in-
dustrial wastes, resulted in the rejection of Prof. Hamm's conclusion and the
proposal b^ EPA that all wastes be tested in a synthetic acio environment.
using what EPA representatives termed "synthetic garbage juice" a = the ey -
traction fluid. This was EPA's first procedure. It was discussed in public
meetings in June, 1976 in Chicago. At the meetings, EPA indicated that
limited testing of the procedure had been completed and data would be avail-
able shortly (these data have never been published).
Many problems exist with the EPA approach. For example, the use of a
synthetic acid environment posed significant testing problems associated uith
preserving the extraction fluid, with analv/ing the complex solutions that
result, and with testing the extract for toxicity. ASTM 019.12 ncmbers told
EPA immedia tely that this extrnct was not technically suitable fcr the t \ pe
of toxicity tests which EPA contemplated. Prof. Hamm also indicated that
the p of the leaching solution should be controlled by the nature or make-
up of the waste, rather than be artificially contiolled at some pre-determined
level of pN by the use of synthetic acids.
When commen ts on the draft procedure were supplied, EPA's response -JPS
limited in technical content and generally reflected a closed-door attitude
When EPA ran toxicitv tests, after first issuing the draft procedure. t;ie\
discovered that ASTM vas correct, and thus began what ha? become a circuitous
path of editorial revision's. In each case, revisionc have been made to tHe
draft procedure with little or no datalogical support.
In early 1978, EPA representatives met, u!n 1e attending the ASTM Tea ting,
with representatives from the Illinois EPA, resulting in a ne-J draft procedure
tliat was literally a "cut and paste" version of the Illinois procedure user1
for metal finishing wastes. The EPA adapted the Illinois procedure to its
own requirements and changed the 1 oach.ing liquor fro-^ n 'P, t'rnchlnric t^ an
acetic acid solution. The procedure Xv'as included in draft regulations pricr
to any laboratory testing.
The current EPA procedure incorporates further modifications The no"e 1
apparatus is utilized (rather than existing, standard apparatus), one1 ' e
understand chat the new equipment is not even available from the scle "snu -
facturer listed by EPA. As before, the new draft was released before tncse
changes had been tested on any waste materials!
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The scientific approach to tes'. method development require? that tests
be developed initially in consort wi'h lata and that changes be- evaluated
by test programs designed to measuri I ••: effect or impact of the changes on
the results of the test. The best pjocedures also involve gaining input from
diverse areas of interest, as is doi in ASTM. In contrast, EPA has continued
unilaterally to embrace a series of Iraft procedures which have no appreciable
data base. EPA currently has no data on the procedurcto show expected results
on wastes with varying physical, chemical, and biological properties, and has
no analysis of how such results would compare with those obtained using the
previous test procedure, or with actual leaching from the solid waste materials
under field conditions.
Of primary concern in this situation is the (act that man\ was res may be
declared hazardous even though there is little or no dnngcr from the waste*
when disposed in their present manner. The CPA has stated that they prefer
to make s»j :h errors of over classification, as opposed to "missing" any
hazardous wastes. However, this obviously results in totally needless expense
for the idministration and disposal of these wastes. Siting problems associated
with EPA requirements for disposal, and citizen unrosc may, in fact, force
the closing of industrial facilities when no environmental hazard e^istf. The
issues o- undue economic impact and citizen unrest are too significant tc o 11 ow
that we condone such an arbitrary approach by government. The probability of
overclassifying wastes is not an acceptable risk, when ration.nl alternatives
can be developed.
The EPA finds itself in what appears to be an aukward position, ' e think,
due to fts insistence that 3 single test procedure be used to determine the
degree of hazard of all waste materials. Ac discussed above, the EPA's
original contractor concluded that this is not sound. To continue to rely on
tins approach, and to modify it5 procedure based on technics 11v and do t3 1 nc -
ically unsupported responses rather than dealing with tbc fundamental issue.
puts the EPA in a position where implementation and enforcement of the set
will be difficult at best, and where significant avoidable economic damage
is likely to result.
We recommend that the logical basis for the single-test approach tc
the Implementation of P.]_. 94-580 be re-evaluated, and that the AST.',I 'Tiuposctf
Methods for Leaching of Waste Materials-Method A" (copy attachedj'be used a's
thf most rational interim test procedure for classification of waste materials
until such time as a more rigorous , scientifically sound approach can be
oeveloped by the EPA. The water based extraction procedure provides an acti1 e
leaching env ironment which most nearly approximates the anticipated field
conditions to which the majority of wastes will be subjected. The test pro-
cedure has resulted from an extensive, methodical dcvclopment process, and
it is the only test which has been applied to a wide variety of raste na tcr .«i 1 s .
Subcommittee D19.12 continues to urj;e EPA participation in IMC firmer
development of technically sound ASTll concensus standard lest pieced' res
suitable for EPA's use in classifying waste na ter is Is under Section 3r'01 of
P.L. 94-580.
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In recognition that the use of ; < - single test procedure brings ohouL
many difficulties in the classlficati i of waste materials, Subcommittee
D19.12 currently includes a task grtM 'hich as been set up to integrate the
considerations related to both the e1 ' raction procedure and the biological
activity te-sting. This function is significant in view of the complex inter -
relationships that exist, and because EPA lias indicated their intent to include
advance notice of proposed rulemaking for the biological activity testing in
the Federal Register shortly. Scientists on the D\9.\2 task group have already
noted the severe testing problems that are associated with the use of acid
extraction fluids , again suggesting ttiat a water extraction procedure offers
the mos t promise .
Sincere ly ,
B. Charles Malloy, Chairman
ASTM Subcommittee D19.12
William C- Webster, Secretary
ASTM Subcommittee D19.12
cc: Tliomas Jorling
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COMMENTS ON SECTION 3001
OF THE RESOURCE CONSERVATION AND RE-
COVERY ACT
2
Presented February 2^, 1979
by Elizabeth M. Tennant
Environmental Action Foundation
Solid Waste Project
724 Dupont Circle Bldg.
Washington/ D.C. 20036
202/659-9682
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I..Introduction
Good morning. My name is Elizabeth Tennant, and I am Pro-
ject Coordinator for the Solid Waste Project of the Environ-
mental Action Foundation (EAF). EAF would like to thank EPA
for this opportunity to comment upon the proposed regulations
for hazardous waste management.
II. Opening Comments
We will open with some general remarks before turning to
specific comments on Section 3001.
BAG recognizes the mammoth nature of the task confronting
EPA in bringing hazardous wastes under cradle to grave control,
and we appreciate the enormous effort that has obviously gone
into drafting these proposed regulations.
However, we believe that as currently constructed these
standards are too weak, and that they are totally inadequate
to meet the Congressionally-mandated task of protecting the en-
vironment and human health. As we will discuss in greater de-
tail during these hearings, we believe that all sections of '
this proposed regulatory program require substantial strengthen-
ing if the complete and adequate control of hazardous wastes is
to be achieved. Without such improvement, the public will con-
tinue to be threatened by improper hazardous waste management,
and the environment will continue to be degraded ^nd^polluted
as we fashion future Love Canals.
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A more immediate problem stemming from failure to strengthen
these regulations centers around facility siting. We believe
that only with strong regulations guaranteeing the best possible
siting, management, health and safety standards will the facil-
ity siting problem be eased.
We can all acknowledge that there are severe problems in
siting hazardous waste disposal facilities due to public op-
position. Public concern about living near facilities handling
these potent wastes is certainly understandable, especially given
current poor siting and management practices and the lack!of
stringent environmental and health standards such facilities
must meet.
On the other hand, EAF, along with other environmental groups,
acknowledges that these wastes must be disposed of somewhere, and
«
supports their recovery, treatment, and disposal in the best at-
tainable, environmentally sound location in a region.
It appears to us that waste management experts are deluding
themselves in thinking that a weak regulatory program will receive
broader support and enforcement than a strong one. While the
people living right next to a proposed site are not ever likely
to support it, we believe that given the assurance of strong
hazardous waste regulations, our local constituents would support
such facilities. Although we cannot guarantee the full support
of environmentalists even with strong regulations, we can guarantee
100 percent opposition without them — and the ability to site
facilities is integral to the success of this program.
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III. Section 3001
He will now briefly examine Section 3001. As EPA is well
aware, this section truly is the cornerstone of the regulatory
program, for it defines the universe of wastes that are con-
sidered hazardous and thus subject to regulatory control. As
such, it lays out the groundwork for the entire hazardous
waste management program.
EAF finds EPA's definition and listing of hazardous wastes
to be extremely weak and overly narrow. As presently constructed,
these regulations will not include a large portion of substances
considered hazardous in the past. For example, as documented in
the Environmental Impact Statement, approximately 65 percent of
the potentially hazardous wastes generated by the Chemical
and Allied Products industries will not be brought under control
in the Subtitle C program. Additionally, characteristics previously
attributed to hazardous wastes —such as radioactivity and infect-
ivity — have been dropped, so that only if such wastes appear on
the list will they be considered hazardous. We can find no con-
vincing legal or technical substantiation for this limited approach.
Our major criticisms are two fold.
First, the list of processing wastes defined as hazardous
is too limited. Not only is this list based on incomplete data,
as EPA itself admits, but a close examination indicates that
there are significant omissions within documented categories.
For example, the 1976 EPA study of the textile industry
labeled discarded dye and chemical containers as a major source
of potentially hazardous waste from that industry, yet nowhere
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are they covered on the process list. Similar holes appear in
other categories.
To remedy this problem, we urge EPA to expand its list of
hazardous processing wastes to be as comprehensive as possible.
EAF's second major criticism of Section 3001 is that the
toxicity section is weak on two counts. To begin with, the pro-
cedure for measuring toxicity of a waste is based solely on the
National Interim Primary Drinking Water Standards. Only 14 sub-
stances fall under these standards, leaving out a multitude of
other potentially toxic chemicals, including some that EPA itself
has identified as priority pollutants.
Secondly, by eliminating the toxicity testing for substances
that are phytotoxic, mutagenic, teratogenic and bioaccumulative,
EPA limits the inclusion of these wastes under Subtitle C to
those specifically named on the hazardous waste list. It is
EAF's contention that this flies in the face of RCRA which re-
quires EPA to develop the criteria "taking into account toxicity
persistence, and degradability in nature, potential for accumu-
lation in tissue, and other related factors...."
To eliminate these deficiencies in the toxics section. We
urge EPA:
1. Broaden the basis of the toxicity testing to include the
Water Quality Criteria.
2. Broaden the list of specific chemicals to include chemicals
for which analytical methods and data are availablw^^-including the
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priority pollutants in Appendix 5, pesticides arid chronically
hazardous substances now under regulation by other federal pro-
grans and agencies (including the Consumer Product Safety Corar
mission, OSHA and EPA's own Office of Toxic Substances).
3. Reinstall the hazardous waste criteria to include radio-
activity, unnatural genetic activity, bioaccumulation and toxicity
to aquatic organisms and terrestial plants.
Finally, before closing we would like to urge EPA to better
control waste solvents destined for recycling. EAF wholehearted-
ly applauds the development of hazardous waste reclamation op-
erations, and hopes that they will burgeon in the coming years.
At the same time, we believe that the total exemption of such
wastes from the Subtitle C program will result in substantial
continued threat to public health and the environment.
First, this exemption provides a potential loophole for
unscrupulous generators who could always claim their waste
was being recycled, when in fact they are evading the system.
Secondly, since recycling facilities are not required to meet
3004 standards, there is no guarantee they will be run properly.
We are particularly concerned about the potential for damage
from waste solvents, since they are widespread and potent. We
would remind you that the Silresm disposal disaster in Lowell,
Massachusetts was the unfortunate result of a misguided solvent
recycling operation. At Silresm more than 15,000 55-gallon drums
were stockpiled in an unfenced urban lot when the owner went
bankrupt.
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We urge EPA to close this loophole by placing generators
of waste solvents under the same system as the waste oil gener-
ators/ and by requiring solvent reclaiming operations to be
permitted under Section 3004. To help ease the administrative
and financial burdens, perhaps such recycling operations could
be exempted from some of the 3004 requirements, while adhering
to the basic siting, storage and security standards.
We believe that only by bringing these recycled wastes under
the manifest system and Section 3004 can public health and the
environment be adequately protected.
Thank you for your attention. At a later date we will sub-
mit additional comments for the record.
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COMMENTS ON SECTION 3002
OF THE RESOURCE CONSERVATION AND
RECOVERY ACT
Presented February 22, 1979
by
Elizabeth M. Tennant
Environmental Action Foundation
Solid Waste Project
724 Dupont Circle Building
Washington, D.C. 20036
202/659-9682
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I. Introduction
Good morning. My name is Elizabeth Tennant, and I am Project Co-
ordinator for the Solid Waste project of Environmental Action Foundation
(EM1) . EBP would like to thank EPA for this opportunity to comment on the
proposed standards for hazardous waste generators drafted under Section
3002 of RCRA.
II. Section 3002
While we support the general approach of these standards, we do not
believe they are strong enough to meet the Congressionally-mandated task
of protecting the environment and human health. In particular, we are
strongly opposed to the exemption of generators of up to 100 kilograms
of waste per month from compliance with the regulatory requirements.
Our objection rests on both legal and environmental grounds.
The exclusion of generators on the basis of volume and economics
is not supported either by RCRA or the legal history of the Act. Further-
more, this approach violates the clear intent of RCRA to track hazardous
wastes from the point of generation to disposal.
Although the cumulative waste produced by these small generators is
relatively small, their exclusion could result in significant local
environmental damage in several ways.
First, not all wastes are less hazardous in less volume. For example,
as little as three ounces of dioxin is enough to kill more than a million
people, according to some scientists. Between two and eleven pounds of
dioxin was released in the town of Servaso, Italy when a chemical plant
exploded, killing thousands of animals, injuring hundreds of people
with severe skin lesions, and forcing evacuation of the area. Clearly
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any_ amount of waste dioxin would pose significant health and environmental
problems.
A second aspect of the environmental threat from exempted small
generators lies in geographical reality. Generators are often clustered
in the same locale, with the result that one municipal landfill would
Very likely receive numerous small deposits of hazardous wastes with
the potential for substantial damage.
The proposal to raise the exclusion ceiling to 1,000 kilograms (more
than a ton) per month Is completely unacceptable. EPA has estimated that
this will exclude only 5 percent of all hazardous wastes from regulation.
However, according to EPA's own calculations, this amounts to some 4.6
billion pounds each year. Disposing of this amount of hazardous waste
without environmental safeguards poses a severe threat to public health
and the environment. In addition, as the Office of Solid Waste has
pointed out, 25 percent of all damage claims in the EPA files involved
less than 1,000 kilogram per month amounts of hazardous wastes.
EAF is sympathetic to the initial administrative burden imposed
on small generators by including them in the regulatory system, and we
are equally appreciative of the enforcement problems this poses for EPA.
However, we still contend that to adequately protect human health and
the environment, the 100 kilogram ceiling must be dropped.
In recognition of the enforcement problems facing EPA, EAF would
urge EPA to drop the small generator exclusion with the clear under-
standing that:
1. due to limited resources, enforcement efforts would be focused
first on large-volume generators, and
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2. enforcement efforts for small generators would be focused first
on the most hazardous wastes.
Although EPA has expressed the view that the ranking of wastes ac-
cording to degree of hazard is very difficult, we believe that a rough
ranking according to potency is possible. Several states categorize
their wastes into the "hazardous" and "very hazardous" classes; for
the purpose of implementing the small generator effort we encourage
EPA to do the same. (In making this recommendation we are not advocating
that these wastes should be subject to differing degrees of control in
management and disposal. We simply are proposing a realistic enforcement
approach.)
Another weakness in Section 3002 as presently constructed centers
around the lack of requirements for generators who store their wastes
on-site for less than 90 days. EAP contends that to safeguard public
health and the environment, generators storing their wastes on-site
for less than 90 days should be subject to storage requirements regarding
containers/ security, and contingency plans.
We believe that the potential for damage from hazardous wastes exists
as long as the waste does. Although the liklihood of a damage incident
grows with long-term storage, the arbitrary line that has been drawn at
90 days does not eliminate the threat of damage during storage. While
it clearly is not reasonable to impose the same standards on generators
for short-term storage as for long-term storage, EAP contends that minimal
security and contingency standards must be established to protect public
health and the environment.
Specifically, in addition to supporting the current proposal that
these wastes be stored in DOT specification containers, EAF recommends
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that generators be required to:
1. meet the security standards outlined in Section 3004 to assure that
unintentional or unauthorized entry into the storage area is prevented; and
2. develop a contingency plan similar to the one outlined in Section
3004. While such a contingency plan need not be as elaborate as for a large,
on-going storage operation, EM1 believes that wherever hazardous substances
are handled on a regular basis, the generator and the emergency response
personnel should be prepared to handle an emergency if one occurs.
(In passing, I would note that fighting fires or handling spills of
hazardous materials involves a very different approach than does fighting
a normal structural fire. By being prepared in advance for an incident
it can be handled more quickly and with less danger to the responding
firement.)
Our final point today concerns the manifest system which we believe
should contain more specific information about the chemical conposition
of the waste. As outlined in this Section, the information required on
the manifest is good. However, it does not provide enough specific in-
formation about the chemical composition of the waste being handled.
EAP contends that the manifest is the most appropriate method of
meeting RCRA's requirement of "furnishing of information on the general
chemical composition of ...hazardous wastes to persons transporting,
treating, storing, or disposing of such wastes..." currently Section
3002 does not require this information anywhere.
We believe that such information is very important to have on the
manifest, for in addition to providing a means of tracking wastes
through the disposal cycle, the manifest provides the information needed
about the waste to handle any accident that may occur. In responding to
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a hazardous waste spill or fire it is imperative that the firemen and other
emergency response personnel have quick access to information giving specific
details about the nature of the material they are dealing with. At the
very least, a listing of the main chemical components of the waste is a
must to ensure a proper emergency response.
That concludes my comments for this morning. Thank you. We will submit
more detailed comments for the record at a later date.
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COMMENTS ON SECTION 3003
OF THE RESOURCE CONSERVATION AND
RECOVERY ACT
Presented February 22, 1979
by
Elizabeth M. Tennant
Environmental Action Foundation
Solid Waste Project
724 Dupont Circle Building
Washington, D.C. 20036
202/659-9682
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I. Introduction
Good Afternoon. My name is Elizabeth Tennant and I am Project Coordinator
for the Solid Waste Project of Environmental Action Foundation (EAF). EAF
would like to thank EPA and DOT for this opportunity to comment on the pro-
posed standards for hazardous waste transporters drafted by both Agencies.
II. General Comments
We are convinced that transportation is probably the most vulnerable
point in the hazardous waste disposal cycle, for the danger of an accident
always hovers/ and it is during this phase that both unintentional and de-
liberate mismanagement of wastes frequently occurs. As a result, we believe
that strong regulations for hazardous waste transporters are critical to
the effective and safe management of these wastes.
We have examined the proposed 3003 regulations to see whether they
adequately achieve RCRA's goals of:
1. tracking wastes to make sure they get to a permitted disposal facility,
and
2. assuring that public health and the environment are safeguarded during
waste transportation
Because of the close degree of coordination necessary between EPA and DOT,
we have also examined the DOT proposal in light of the RCRA requirements,
although we recognize that KCRA does not require DOT to adjust the HMTA
regulations.
In our assessment, although each has its strong points, neither the DOT
nor the EPA proposal is strong enough to provide the necessary protection.
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III. 3003 Comments
This afternoon we will address problems we perceive with the placarding
and vehicle marking requirements.
EAF believes the proposed EPA requirement for marking motor vehicles
vehicles transporting hazardous wasjtes isjtop w^ak. The marking of hazardous
waste transportation vehicles is important for identifying the transporter,
and may prove important in the event of a transportation emergency, it is
very surprising to us that EPA would limit this vehicle marking only to
vehicles which are placarded or are carrying more than 1,000 pounds of
hazardous waste, especially given the limitations of the placarding system
and DOT'S recommendation that such an exemption not be given.
Excluding waste transporters carrying less than 1,000 pounds from the
marking requirement could result in significant volumes of wastes being
transported through the streets with virtually no outward sign to warn either
the public or firefighters. Benzene, for example, is a proven leukogen
and in liquid form it is flammable. Under the current EPA proposal it is
entirely conceivable that up to 999 pounds of waste benzene could be trans-
ported with virtually no vehicle marking. Should an accident occur, emergency
response personnel would have no information about the substance before
them, and probably little information about the transporter. This lack of
knowledge could easily result in a substantial health hazard to the local
populace and the firefighters themselves through slower and/or improper
responses. Clearly the same is true of many other potent wastes.
Additionally, we would point out that the current Subtitle C program
would apply to generators of more than 100 kilograms (or 220 pounds) of
waste per month. The difference between 220 pounds and 1,000 pounds is
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substantial. We believe it is arbitrary and contrary to the intent of
RCRA to classify a waste as hazardous, and then not subject it to the full
control of the Subtitle c program. We urge EPA to close this gap by apply-
ing the vehicle marking requirement to all hazardous wastes in transport.
Our second major criticism centers around the DOT placarding system
adopted by EPA for waste management. EAF finds the current placarding
system to be incomplete and inadequate to safeguard_ public!__he_alth in the
event of a hazardous materials transportation emergency.
Given the danger of accidents while in transit, it is critical that
vehicles carrying hazardous wastes are clearly and distinctly marked
both so that the public is aware of what they contain and, even more im-
portantly, so that emergency response personnel have ready access to in-
formation about the substance in question.
As presently constructed, the DOT placarding system has some severe
limitations that include the following:
1. Lack of coverage of multiple hazards. With a very few exceptions,
vehicles are not placarded for more than one of the several hazardous
properties the cargo may posess. For example, a waste that is toxic, ignitible
and corrosive probably would be placarded for only one of these properties.
2. Failure to cover transporters carrying less than 1,000 pounds. With
the exception of a few highly poisonous and explosive hazard classes, up to
1,000 pounds of hazardous materials may be transported without any warning
placard. This include organic peroxides which the National Fire Protection
Association claims have the greatest destructive potential of any hazardous
substance they deal with.
3. La ck o f _h_a_z a rd -specific p la car ds f o r most ma ter i a 1 s. Even when placard-
ing is required, most materials can be placarded with only a "dangerous"
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placard if the transporter so desires. This means no clue is given as to
the specific hazard or hazards of the material; and finally
4, Incomplete coyer age_ of hazardous substances. The DOT system has no
placard for chronically hazardous materials that may be carcinogenic, muta-
genic, and/or bioaccumulative.
In each case, lack of specific information hampers the emergency response
personnel, for their ability to act immediately and effectively at minimum
risk to themselves and the nearby populace depends on having exact knowledge
about the substance before them. The same clearly holds true for hazardous
waste incidents.
In order to adequately protect human health and the environment as
required by RCRA, th_e_ Section 3003 ^regulations must be substantially
strengthened with regard to placarding. Specifically, EPA should expand
the placarding system for hazardous wastes to:
1. require the posting of placards for each hazardous characteristic
the waste meets;
2. require hazard-specific placards for all manifested wastes; and
3. recommend to DOT the development of a placard for chronically hazardous
materials.
It is insufficient fg_r_ EPA to__fai_l_ to strengthen^Section3003 on the
grounds that this would be inconsistent with the DOT program. We recognize
that the DOT and EPA programs must be consistent, and ideally that they
should be identical. However, we contend that EPA is obligated to develop
a program that protects public health and the environment, and we contend
that only by fashioning more stringent regulations is this possible.
We applaud the efforts of DOT and EPA to work together in developing
these regulations, and hope for the sake of simplicity that it will be
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possible to issue a joint regulation that incorporates the strongest points
in each proposal. Beyond that, we would encourage DOT to substantially
strengthen their regulations as suggested above so that both programs can
be identical and adequate to safeguard public health. However, we recognize
that RCRA places the responsibility to provide this protection with EPA.
We contend that as long as the basic elements of the DOT and EPA pro-
grams are consistent—such as the use of common placards, labels, and
shipping documentS"that there is nothing to prevent the EPA program from
being stronger if DOT will not change. Consistency does not mean that both
programs must b_e_ identically inadequate. As the federal guardians of the
environment and public health, it is incumbent upon EPA to live up to the
promised protection of the law.
Thank you for your attention. At a later date we will submit additional
comments for the record.
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NATIONAL PAINT AND COATINGS ASSOCIATION COMMENTS
PROPOSED RCRA REGULATIONS
SECTIONS 3001, 3002 AND 3004
National Paint and Coatings Association
1500 Rhode Island Avenue, N.W.
Washington, D.C. 20005
202/462-6272
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ORAL TESTIMONY BEFORE EPA
FEBRUARY 22, 1979
MR. ADMINISTRATOR:
I AH HIGH WILLIAflS, DIRECTOR OF ENVIRONfBITAL SERVICES, FOR THE SHEFWIH-WILLIAMS
CCPPANY AND THE MISSION MANAGER OF THE HATER QUALITY/WASTE HWGBENT TASK FORCE
AT THE NATIONAL PAINT AND COATINGS ASSOCIATION.
TODAY, I REPRESENT THAT ASSOCIATION WHICH IS A VOLUNTARY, NON-PROFIT INDUSTRY
ASSOCIATION OOPPOSED OF TORE THAN 900 COfPANIES '/IHFCH fWUFACTUE CCNSU'ER PAINT
PRODUCTS AND INDUSTRIAL COATINGS AND THE RAW MATERIALS USED IN THESE PRODUCTS.
THE f'lPCA MEfBERSHIP COLLECTIVELY PRODUCES ABOUT 9055 OF THE TOTAL DOLLAR VOLUTE OF
IHITED STATES CONSLT-ER PAINTS ATJD INDUSTRIAL COATINGS. THE TASK FORE IS OTPOSED
OF APPROXIMATELY 18 REPRESENTATIVES OF ASSOCIATION fE-BERS AfJD 1X0 STAFF BPLOYES
WITH THE OBJECTIVE:
(1) TO WORK WITH GOVERNMENTAL AUTHORITIES AT ALL LEVELS AND WITH OUR f-BBER
FIRMS, IN ENDEAVORING TO PROTECT AND IWRM OUR ENVHOI-ENT IN A REA-
SONABLE IWIER WITH REFERENCE TO WATER AND LAND QUALITY IN OUR ENVIRCN-
roir.
(2) TO EDUCATE OUR ICTERS REGARDING EQUIRHB1TS AND f'ETHODS TO f-tET ALL
WATER AND WASTE DISPOSAL STANDARDS.
THE NPCA Afffl ITS fETBERSHIP AGRE WITH THE F1IOTENTAL OBJECTIVES OF THE RESOURCE
CONSERVATION AND RECOVERY ACT OF 1976. WE RECOGNIZE THAT THE HANDLING Afffl DISPOSAL
OF HAZARDOUS WASTES SHOULD BE ACCCTPLISHED IN A WINER WHICH PROTECTS PUBLIC HEALTH
AND SAFETY, AND PRESERVES THE ENVIROflENT.
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IT IS OUR CHIEF CONCERN THAT WHEN THE EPA PROMULGATES FINAL REGULATIONS FOR RCRA, IT
DOES SO WITH REAL WORLD CONSTRAINS If) HIND. IN OTHER WORDS, THE PECULATIONS SHOULD
REFLECT DIFFERENCES ATONG INDUSTRIES, RECOGNIZE THE VARYING EEGREES OF POTENTIAL
i WONG WASTES, AND BE DESIGNED TO BE BOTH WORKABLE AND EOJIOMICALLY JUSTIFIABLE.
THE PAINT INDUSTRY PERCEIVES [
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AS A RECENT GAD STUDY POINTS OUT, OMJHITY OBJECTION TO HAVING ITS AEA BEOJE A
SO-CALLED "DUPING GROUND" FOR OTHER PEOPLE'S WASTE OR EVEM TKIR OWN WASTE IS A
MAJOR OBSTACLE TO SITING THE NECESSARY fUBER OF WASTE DISPOSAL FACILITIES, PIBLIC
OPPOSITION IS DIRECTED TO INCREASE AS THE f£W REQUIREJeiTS FOR PLBUC PARTICIPATION
III THE PERMIT PROCESS ARE IfPLHENTED. IN FACT, IN CALIFORNIA WERE THE INDUSTRY
HAS ONE HUNDRED AND NINETY-SIX PLANTS, CALIFORNIA STATE OFFICIALS REPORT THAT IF
RCRA EQUIES PIBLIC HEARINGS IN THE PERMITTING OF EXISTING SITES, THE AMRSE
ATTENTION MAY CLOSE EIGHT OF THE STATE'S TEN EXISTING FACILITIES.2
ASIDE FROM PUBLIC PEJUDIE, THE SITUATION IS WORSEfED BY SCf€ STATES MICH HAVE
PASSED LEGISLATION MORE STRINGENT THAN RCRA, OR HAVE ENACTED PROCEDUES WHICH ENDEK
THE PERMITTING OF FACILITIES MJRE CLTBERSCfE. FOR EXAW, CONNECTICUT, WHICH HAS
TEN PAINT PLANTS, HAS PASSED A LAW ALLOWING LOCAL GGVEWENTS TO PROHIBIT, THROUGH
ZONING, LAND LSAGE FOR HAZARDOUS WASTE DISPOSAL. THIS PROVIDES THE LDCAL BODY WITH
ESSENTIALLY LJIFETTEED VETO POWER OVER THE LOCATION OF A SITE. FEDERAL LAW NEEDS TO
ENCOURAGE AREA RESPONSIBILITY FOR PROVIDING FOR DISPOSAL OF THE WASTE fWERIALS
CREATED IN THAT AREA.
THE NPCA BELIEVES THAT EPA HAS AN OBLIGATION TO EXAMINE THOROUGHLY AVENUES WHICH CAN
EXPEDITE THE LOCATING OF THE SO-CALLED "GRAVE" SEGf-BJT OF ITS "CRADLE TO GRAVE"
APPROACH TO SOLID WASTE DISPOSAL. WE ENDORSE THE GAG'S VIEW THAT A IDE ACTIVE
FEDERAL AID STATE ROLE IS REQUIED IF FACILITIES AE TO BE AVAILABLE TO HANDLE THE
QUANTITIES OF WASTES GENERATED. THIS MAY NECESSITATE THE SITING OF FACILITIES ON
PUBLIC LAND OR THE LEASING BY A STATE OF SITES TO PRIVATE OPERATORS, OWTROLING
HAZARDOUS WASTE IS CLEARLY IN THE NATIONAL INTEEST; TO SERVE THAT INTEREST, PRE-
EMPTION OF LOCAL GOVEfWBIT APPROVAL AUTHORITY HAY BE WARRANTED,
2GAO FtBUCATION CED-79-13
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Ill ADDITION TO ASSISTING DIRECTLY IN THE SITING OF 1€N APPROVED FACILITIES, WE
RECOfTEND THAT EPA ADOPT A SYSTB'1 TO CLASSIFY HAZARDOUS WASTE ACCORDING TO THE
DEGREE OF ITS POTENTIAL HARM. A SYSTEMATIC APPROACH IS TORE MANAGEABLE (tlOT TO
fENTICN REALISTIC) THAN THE PROPOSED BROAD AND OVERLY-INCLUSIVE LISTING OF
HAZARDOUS WASTE BY STANDARD INDUSTRIAL CLASSIFICATION,
BY VIRTUE OF ITS SPECIAL HANDLING PROCEDURES FOR A GROUP OF "SPECIAL WASTES"
WHICH POSE ONLY A LOW-POTENTIAL HAZARD, EPA HAS ALREADY RECOGNIZED THE ADVANTAGE
OF CLASSIFICATION, BUT THIS IS ONLY A STARTING POINT, WE PROPOSE THAT ALL WASTE
SHOULD BE CLASSIFIED AS TO ITS POTENTIAL HAZARD TO THE ENVIRCNIBIT AND PUBLIC
HEALTH, CERTAIN WASTES, UKE PESTICIDES AND EXPLOSIVES, WHICH ARE KNOWN TO PRESBfT
A SEVERE AND IWINENT DANGER TO THE ENVIRCflBfT AND PUBLIC HEALTH IF IMPROKRLY
DISPOSED, WOULD BE CLASSIFIED "HIGH HAZARDOUS", WASTE THAT COULD POSSIBLY POSE
A DANER TO THE ENVIRDTOENT OR PUBLIC HEALTH, IF DISPOSED OF INEESCRIHINMLY, WOULD
BE CLASSIFIED AS "HAZARDOUS". WASTE FOR WHICH DATA PROVES THE POTENTIAL HAZARDS AFE
RELATIVELY LCW, WOULD BE RATED AS "MARGINALLY HAZARDOUS", BY CLASSIFYING HAZARDOUS
WASTE, EPA COULD PHASE REGULATORY COVERAGE TO ENCOMPASS THE TOT HAZARDOUS WASTE
FIRST. THE ADVANTAGES OF UTILIZING THIS TYPE OF A REGULATORY STSTEM ARE MANY AND
INCLUTE THE FOLLOWING;
1. ASSURE THAT THE HOST HAZARDOUS WASTE WILL BE DISPOSED OF IN
ONLY APPROVED FACILITIES:
2, (WE MftXIMUl USE OF LIMITED NU-BER OF APPROVED FACILITIES;
3, ALLOW FOR ADDITIONAL THE IN WHICH NEW SITES CA.N BE EEVELOPED
AND OLD SITES UPGRAEEDj
4. ALLCW FOR ADDITiaiAL TIFE TO DEVELOP-DATA ON THE MARGINALLY
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4. (CONTINUED)
HAZARDOUS WASTES AND DEVELOP (TORE REALISTIC ALTERNATIVES FOR
DISPOSING THIS TYPE OF I'MSTE,
I WOULD LIKE TO NOW OFENT UPON A PROVISION WHICH SINGLES GUT THE PAINT AND
COATINGS INDUSTRY AS A CULPRIT, EER SL WHERE HAZARDOUS WASTE IS CONCERNED. SECTION
250.14 DEEMS ALL PAINT WASTES (SUCH AS USED RAGS, SLOPS, LATEX SLUDGE, SPENT SOLVENT,
ETC.) AS HAZARDOUS UNLESS IT CAN BE IMSTRATED THAT THEY ARE NEITHER TOXIC NOR
IGNITABLE, NOR CONTAIN TOXIC ORGANIC SUBSTANCES. NPCA STRCflGLY BELIEVES THAT
PRESIDING ALL PAINT WASTES AS HAZARDOUS REPESENTS AN UNFAIR AND OVERLY BROAD CATE-
GORIZATION,
WE ADMIT THAT CERTAIN TYPES OF OUR WASTES ARE HAZARDOUS. SPENT SOLVENT, FOR EWPLE,
MY BE FUWBLE OR COfBUSTIBLE, BUT OTHER EXWLES OF TOTES LISTED IN 250.14 AFE
NOT NECESSARILY HAZARDOUS, A SUBSTANTIAL PERCENTAGE OF OUR RAGS ARE LAUNDERED AND
REUSED. WHILE THE TERM "SLOPS" IS USED AS AN EXAfPLE OF PAINT WASTE, WE ARE UNSURE
AS TO THE LEANING OF THAT WORD AS IT RELATES TO OUR INDUSTRY,
AN INDEPENDENT CERTIFIED LAB FOUND THAT WITH THE EXCEPTION OF SLIGHTLY ELEVATED
VEXM LEVELS IN A FEW SATLES, EMULSION PAINT WASTE WATER TREATMENT SLUDGES FROM
SEVEN MANUFACTURING LOCATIONS Ell BELOW EPA'S WXIMLM EXTRACT LEVELS FOR HEAVY
METALS,3
THE BURDEN AID EXPENSE OF TESTING AWUALLY ALL OUR WASTES, EVEN THOSE 1C KNOW ARE
NOT HAZARDOUS IS ENORMOUS. EPA'S ARBITRARY AND OVER INCLUSIVE LISTING REMOVES THE
INCENTIVE TO SEPARATE EGULAR SOLID WASTE FROM HAZARDOUS MATERIALS AND MAY FESULT
TRACE ELEBIS INC., PARK RIDE, ILLINOIS. TO BE INCLUDED
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IN WASTE BEING SHIPPED TO HAZARDOUS LAND SITES UNNECESSARILY. THIS CAN ADD TO AN
ALREADY OVERCROWDED SITUATION AND LEAD TO SHORTEN NEEDLESSLY THE LIFE OF THE
HAZARDOUS WASTE DISPOSAL FACILITY, INFLATE THE COST WHICH INFLATES THE PRICE OF
PRODUCT WE MET THEN CHARE OUR OETOFERS,
EPA IS ASKING THE PAINT INDUSTRY TO CARRY THE BURDEN OF PROVING THAT ITS WASTE IS
NOT TOXIC ORGANIC WITHOUT PROVIDING AN ESTABLISHED PROCEDURE TO FOLLCW. IN THE
PREWBLE TO THE PECULATIONS YOU STATE, "TODAY EPA PROPOSES TO RELY ONLY ON CCNSIEERA-
TICN OF THE FIRST FOUR CHARACTERISTIC BECAUSE THOSE ARE THE ONLY ONES FOR WHICH THE
AGENCY CONFIDENTLY BELIEVES TEST PROTOCOLS ARE AVAIUELE". YET, IN SECTION 250.15,
EPA SPELLS OUT THAT THESE UNTRIED AND LNPROVEN PROTOCOLS ARE THE ONES TO &E USED BY
A GBIERATOR TO PROVE THAT HIS WASTE IS NflL HUTAGENIC, CARCINOGENIC, TERATOGBIIC, BIO-
ACCUDLATIVE OR TOXIC ORGANIC.
VE FEOWEND THAT ALL LISTINGS BASED SOLELY ON THE CHARACTERISTIC OF HJTAGENICITY,
BIOACOrilATICN, AND TOXIC ORGANIC SUBSTANCE BE DELAYED PENDING FURTHER FEVIEW,
OUR FINAL GENERAL COWENT CONCERfIS THE EXFPT1CN UNDER THE ACT FOR ANY OTPANY WHICH
GOIERATES LESS THAN 100 KG/TO. EPA HAS ASKED INDUSTRY TO INDICATE WETHER IT FEELS
THIS EXEMPTION SHOULD BE RAISED TO 1000 KG/HO, NPCA BELIEVES IT SHOULD BE RAISED
TO 1000 KG/TO, IN ORDER TO REMOVE THE ONEROUS BURDEN ON SflALL PAINT fWUFACIUFERS
AND COATINGS APPLICATORS, EVEN SHALL PAINT CONTRACTORS GENERATE (DRE THAN 100 KG/TO.,
A'lD THEIR COST OF COMPLIANCE WILL CERTAINLY BE PASSED TO THE COMER.
FURIHER, THE 1000 KG/TO, LEVEL WOULD PROVIDE AN INCENTIVE TO INDUSTRY TO REDUCE WASTE,
WEPEAS THERE IS LITTLE OR NO REAL POSSIBILITY OF REDUCING TO BELCVJ THE 100 KG/TO.
LEVEL,
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TO SUWARIZE:
NPCA STROfJGLY REOMNDS THAT, INITIALLY EPA PROVIEE FOR THE 50 TO 60 ADDITIONAL
COST EFFECTIVE HAZARDOUS WASTE DISPOSAL SITES.
TURN THE PUBLIC PREJUDICE TO PUBLIC RESPONSIBILITY FOR LOCATING SITES PETOBERING
THAT HOUSEHOLD WASTE ALSO CONTAINS WIY OF THE Sff€ HAZARDOUS WASTES THAT INDUSTRIAL
WASTES CONTAIN.
CLASSIFY HAZARDOUS WASTE ACCORDING TO THE DEGREE OF ITS POTENTIAL HARM AMD PRIORITIZE
WNAGBBIT OF THE WASTE ACCORDINGLY,
RELIEVE THE BURDEN AND EXPENSE OF TESTING AND WHEN NECESSARY SPECIFY PROVEN TEST
PROTOCOLS.
NPCA SUPPORTS THIS SUGGESTED EXCEPTION OF 1000 KG/TO,
I WISH TO THANK EPA FOR THIS OPPORTUNITY TO OWENF ON THESE INWANT PROPOSED
REGULATIONS.
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SPKSSAPID L HOLLAND (>e92-iB?i
BE BENTLI
WIL.UAM F Bevis
ROBCRT N BUTLER
HUM'C F COL.CMAN*
F ALAN CuMMiNas"
«*EOQRY R HI»I
?EDEAN
JAMES v LAD
_ . JOHN R L-AWSON, JR
BERNARD A BARTON.JR PAUL E LOGAN
THOMAS H BAYLESS WIU.IAM H MeBRiDE.jR
CHAMLCS E BCNTLCT ANTHONY J McNiCHOLAs.JJI
"' r "- - C PARKHILLMAYS.JR
HOWELLW MELTON, JR.
STEVEN D MCRRYDAY
RULOND MUNNS
ROBERT P MURRA*
JACK S NEWSOME
JOHN R PURCELL
JOHN RADEY
CHARLES W DOOSON ROBERT C RASMUS SEN
BRIAN C ELLIS JAMES M.P.ECD
ROBERT R FEAGIN HC ROBERT L RHODES.JR
DENNIS R FEROUSON
JOHN GERMANY
ROBERT B GLENN JR
WMIREN M GOODRICH
WARREN t HALL.JR
RICHARD A HAMRTON
PAUL D. HARDY
WILLIAM O E HENRY
MA.LKA ISAAK
MICHAEL L, JAMIESON
JOHN ARTHUR JONES
D BLIRKE Ki6LEH,m
HENRY M KiTTLCsON
P O KNIGHT.JR
- ARD F ¥
RONALD J ftusso
QCRALD V SARBO
HARRY M SAWTCR.JR
RQOEO W SIMS
CHESTERFIELD SMITH
RICHARD B STEPHENS, J<
W DANIEL STEPHENS
gDw
B
RIAN K.UEHNER
HtNRY TO LA NO
COWARD W VootuHI
CHARLES C WHITAKER,
TCOD N WILLIAMS
C STEVEN YEWRID
LAW OFFICES
& KNIGHT
P O Box 1068
345 SOUTH CENTRAL AVENUE
P a Box l«69
*O6 THIRTEENTH STREET WEST
P O Box 24*1
2O7E West FIRST STREET
LEPHONE (813) 533-MBi
P 0 DRAWER B W
92 LAKE WIRE DRIVE
LAKELAND, FLORIDA saooi
TELEPHONE (613) 662-1161
P O Box 1288
EXCHANGE NATIONAL BANK BLO
TAHPA FLORIDA 33901
TELEPHONE (813) 223-1621
TELEPHONE (813) 7*6-710? TELEPHONE (813) 332-5OI2
P O Box 3O76 P 0 DRAWER 8IG
HOO TAMIAMI TRAIL BARNCTT BANK BLOO
SAHASOTA, FLORIDA 31 STB TALLAHASSEE, Ft OR IOA 32302
TELEPHONE (8)3) 365-332) TELEPHONE (SO*) 22*-7OOO
CABLE ADDRESS
HND KNIQHT
February 22, 1979
SUMMARY COMMENTS
BY THE
FLORIDA PHOSPHATE COUNCIL, INC.
ON
HAZARDOUS WASTE GUIDELINES AND REGULATIONS
PROPOSED PURSUANT
TO THE
RESOURCE CONSERVATION AND RECOVERY ACT
SECTIONS 3001 & 3004
The Florida Phosphate Council, Inc. (Council)
represents eighteen mining and chemical processing companies
operating in Florida to produce phosphate rock, phosphate
fertilizers, elemental phosphorus, and other phosphate-
related products. In early March, the Council will be
submitting extensive written comments on the proposed
Environmental Protection Agency (EPA) hazardous waste guide-
lines and regulations. Proposed 40 C.F.R., Part 250, Subparts
A £, D; 43 Fed. Reg. 58,954-58,968, 58,994-59,022 (December 18,
1978). The following is a brief summary of the Council's
position.
EPA has elected to "list" certain phosphate-
related materials as "hazardous" under the authority of
Section 3001 of the Resource Conservation and Recovery Act
of 1976 (RCRA). These listed materials will be subject to
certain "Special Waste Standards" proposed pursuant to
Section 3004, RCRA. The listed phosphate-related materials
include: (1) overburden and clays developed during mining
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and beneficiation of phosphate ore, (2) byproduct gypsum
resulting from the production of phosphoric acid (a fertilizer
material), and (3) co-product slag developed during the
production of elemental phosphorus.
The phosphate-related materials are listed because
of their purportedly hazardous radioactive content. EPA has
not, however, formally proposed a hazardous waste character-
istic for radioactivity. EPA's concern with radioactivity
levels in the phosphate-related materials arises from the
belief that persons living in houses that are constructed on
reclaimed phosphate mining lands or that are built with some
of the listed materials may be subjected to slightly elevated
radiation levels.
EPA has no current authority under the RCRA to
regulate mining wastes. The language of the statute and the
legislative history make it clear that a study of this area
must be completed and additional legislative action must be
taken before regulatory controls may be implemented. It is
also clear that mining materials used for land reclamation
are not "discarded." Such materials are not wastes subject
to RCRA controls. Vast regions of central Florida have been
and will be reclaimed for valuable land uses with phosphate
overburden and clays.
A portion of the gypsum produced in Florida and
all of the slag produced in Florida is sold for reuse.
These materials are not wastes. They may not be regulated
under RCRA. EPA's attempt to redefine the concept of dis-
carded material goes far beyond any authority granted under
RCRA.
Finally, EPA has ignored the basic structure of
Section 3001 by listing the phosphate-related materials as
hazardous because of radioactivity without first establish-
ing a nationwide hazardous waste characteristic for radio-
activity.
Any problems that may exist with elevated radiation
levels in homes built on reclaimed land can generally be
solved rather simply through the use of appropriate construc-
tion techniqmes. This is a manageable and localized situation
that is best handled through the use of state and local land
use planning and zoning requirements. EPA's attempt to "solve"
the problem by a broad brush declaration of large land areas
of Florida as hazardous waste is illegal, ill advised, and
uneconomical.
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MEMBER COMPANIES
OF THE
FLORIDA PHOSPHATE COUNCIL, INC.
Agrico Chemical Company
Borden, Inc., Chemical Division/Smith-Douglass
Brewster Phosphates (American Cyanamid/Kerr-McGee)
Conserv, Department of Phillip Brothers Division
of Engelhard Minerals & Chemicals Corporation
Electro-Phos Corporation
Farmland Industries, Inc.
Freeport Chemical Company
Gardinier, Inc.
W. R. Grace 5, Company, Agricultural Chemicals
International Minerals & Chemical Corporation
Mississippi Chemical Corporation
Mobil Chemical Company
Occidental Chemical Company
Royster Company
Stauffer Chemical Company
Swift Agricultural Chemicals Corporation
T/A Minerals Corporation
USE Agri-Chemicals (a Division of United States
Steel Corporation)
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SUMMARY COMMENTS
FOR THE
FLORIDA PHOSPHATE COUNCIL, INC.
FOR
PUBLIC HEARING
PROPOSED HAZARDOUS WASTE REGULATIONS
RESOURCE CONSERVATION AND RECOVERY ACT
WASHINGTON, D.C.
FEBRUARY 20, 1979
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PROPOSED EPA HAZARDOUS WASTE REGULATIONS, 40CFR250
COMMENTS FOR VERBAL PRESENTATION
IN WASHINGTON, FEBRUARY 22, 1979
Dr. Keith J. Schiager
The EPA proposes to classify as hazardous, and to
regulate as special wastes, selected materials containing
low concentrations of radium. The proposed regulations
are based on two presumptions, both of which I believe are
incorrect:
(1) that an excessive health risk from long-term,
low-level radiation exposure will occur in the
absence of regulatory action, and
(2) that the risk would be significantly and economically
reduced by regulatory action.
Neither of these presumptions is adequately analyzed or
justified in the supporting documents.
One of the pathways for human exposure from radium-
bearing materials is by direct, external gamma irradiation.
The range of such exposures found in structures built on
Florida phosphate lands, whether unmined or reclaimed, is
within the normal range of such exposures found in my home
state of Colorado. Consequently, I find it incredible that
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regulatory controls, and possibly remedial action, would
even be considered for such a situation on the basis of
excessive health risks.
A more complex pathway for human exposure is by
inhalation of airborne radon and its decay products. The
risk of lung cancer imposed by inhalation of radon decay
products is reasonably well known as a result of extensive
epidemiological studies of uranium miners. This risk has
been quite accurately summarized and extrapolated to general
population exposures by the EPA. However, the risk estimate
has not been applied properly to the calculation of potential
benefits of exposure reduction, nor is it adequately correlated
with the proposed standard.
The EPA has considered a radium concentration of 5
picocuries per gram of material as a threshold for classifying
and regulating materials as hazardous. This limit is based
on an asserted correlation between radium concentration in
soil and radon progeny concentrations inside 22 structures
on reclaimed Florida phosphate land. There are several
glaring deficiencies in this proposed limit:
(1) The asserted correlation was based on radium in
soil, not on concentrations in any specific materials
designated as special wastes. There is no evidence
that any of the materials generated during the
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mining or processing of phosphate ores present
any significant environmental or public health
hazard so long as they remain confined on
industrial property. (Since all radiation exposure
entails some "risk", my use of the word "significant"
refers to exposures that exceed the normal variability
of natural radiation sources.)
(2) The 22 structures used in the evaluation appear
to be predominantly on land reclaimed under obsolete
mining methods and have little relevance to current
practices. They also have no relevance to situations
in other industries or other parts of the country.
(3) The EPA analysis indicates that there is no statistical
difference between exposures over reclaimed land
and undisturbed phosphate land. This finding leads
to the conclusion that the radiation exposures
are essentially independent of the materials classified
as special wastes.
(4) The relationship between soil radium and indoor
radon progeny concentration exhibits a very low
correlation coefficient. This is not surprising since
there are many variables that affect the relationship.
Among these are the physical characteristics of the
radium-bearing matrix, the depth-distribution of
the radium, the compaction and moisture content of
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the soil, the construction and ventilation
characteristics of the structure, and the un-
certainties in the measurement data.
(5) There are several potentially beneficial uses of by-
product materials containing some radium which would
not increase health risks. Examples would be slag
used in road beds or gypsum used as a soil conditioner.
Such beneficial uses should not be curtailed arbitrarily
without specific evaluation.
Although the lung cancer risk from radon progeny inhalation
was thoroughly documented by the EPA, the costs and assumed
benefits of the proposed regulations and available control
options have been addressed incompletely and inadequately.
The only quantitative cost-benefit analysis in support of
this action is contained in EPA 520/4-78011. For both
existing and future structures, the analysis of economic
impact was limited to direct costs of construction alternatives.
The costs of evaluation, inspection and enforcement, as well
as the probable devaluation of phosphate land and possible
inflated value of nearby unaffected land were generally
acknowledged but not included in the cost-benefit calculations.
Likewise, there has been no analysis of the additional costs
to the agricultural industry and to consumers that these
regulations would impose.
A major deficiency in the cost-benefit evaluation is
the repeated use of the average background in unmineralized
areas to represent normal background radiation levels.
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Natural background radiation exhibits a distribution of
levels which should be described by distribution statistics
or ranges, in addition to the average. Surveys conducted
in Canada and Europe indicate that as many as 5% of all
houses exhibit normal radon progeny concentrations exceeding
0.02 WL. Based on observed distributions of normal
concentrations, approximately 1% of all residences would
exceed 0.03 WL. Consequently, it can safely be assumed that
a million or more people in the U.S. live in normal radon
progeny concentrations which exceed the level for which the
EPA proposes regulatory or remedial action. The fact that
exposures over unmined phosphate land are statistically
the same as those over reclaimed land emphasizes the improper
comparisons used by the EPA in the cost-benefit analysis.
Other deficiencies in the proposed regulations are the
lack of definitions of "discrete" and "diffuse" sources, the
inadequate list in Appendix VIII of acceptable analytical
methods for radium concentrations, and the lack of explanation
as to how a detrimental stipulation in a land deed (250.46-3)
will be removed if adequate provisions are made to limit
radiation exposures. These deficiencies will be addressed
in written comments.
In conclusion, it appears to me that the EPA has responded
in a hasty and simplistic manner in response to an unreasonable
congressional mandate. I can sympathize with my friends in
the EPA for having to deal with such a complex subject from
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such an inadequate data base. However, I do not agree
with the basic approach they have proposed. Waste materials
should be classified and controlled as hazardous only if
they are likely to be disposed of in ways that significantly
increase the normal distribution of health risks. I would
suggest that radium-bearing waste materials should be
considered hazardous only if after disposal the reclaimed
area produces an exposure potential exceeding the range of
normal exposures encountered throughout the country.
Thank you for the opportunity to speak to this issue.
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Dr. Keith J. Schiager
Technical Consultant
to
The Florida Phosphate Council
Dr. Keith J. Schiager is a member of the American
Association for the Advancement of Science; American
Association of Physicists in Medicine; American Industrial
Hygiene Association; American Nuclear Society, and serves
on the Board of Directors of the Health Physics Society.
Dr. Schiager received a BS in Physics from Colorado
State University; an M.P.H. in Radiological Health from
the University of Michigan and a Ph.D. in Environmental
Health from the University of Michigan. He became a Certified
Health Physicist in 1964, by action of the American Board
of Health Physics.
His professional affiliations have included the Argonne
National Laboratory, Los Alamos Scientific Laboratory, the
University of Pittsburgh and Colorado State University. At
Colorado State, Dr. Schiager held the positions of Director
o* Radiation Health Specialists Training Program; Director
of Environmental Health Services; Radiation Control Officer,
and Associate Professor of Radiation Biology. In addition
to maintaining an adjunct professorship of Health Physics
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at the University of Pittsburgh and serving as a faculity
affiliate at Colorado State University, Dr. Schiager is the
president of ALARA, Inc., a radiation protection consulting
firm.
Dr. Keith Schiager has been a consultant to the EPA
on high level radioactive waste disposal and was involved
in the Grand Junction study on Radon Progeny Evaluation
and Control. He developed and constructed the instruments
for measuring radon progeny working levels used in EPA's
Florida studies. Dr. Schiager is the author of more than
40 journal publications and research reports, several of
which are referenced in the RCRA background documents used
by the Environmental Protection Agency.
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STATEMENT OF RICHARD SOBEL ON BEHALF OF THE
MANUFACTURING CHEMISTS ASSOCIATION CONCERNING EPA'8
PROPOSED REGULATIONS UNDER RCRA § 3002 -- FEBRUARY 22, 1979
I ana Richard Sobel, Director of Environmental Services for the
Specialty Chemical Division of Allied Chemical Corporation. I am appearing
today on behalf of the Manufacturing Chemists Association (MCA). MCA
is a nonprofit trade association consisting of 191 member companies in
the United States representing more than 90% of the domestic production
capacity of basic industrial chemicals. You have heard from another witness
on behalf of MCA with respect to the impact of these proposed regulations
under Section 3001, and you will be hearing from another MCA reapresenta-
tive with respect to Section 3004.
The purpose of my comments today is to highlight MCA's principal
concerns with respect to the proposed RCRA Section 3002 regulations. These
comments will, of course, be substantially amplified in MCA's written
comments to EPA.
A. Degree of Hazard and 100 kg Exclusion
EPA has proposed to establish uniform reporting, transport,
treatment, storage and disposal standards for all "hazardous wastes".
The proposed regulation would not consider the degree of hazard posed by
each waste and would not establish standards keyed to the degree of haard. MCA firmly
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believes that the statute, the legislative history and sound
administration all require that EPA consider the degree of
hazard and propose substantive standards related to each
hazard category.
RCRA § 3004 provides that no person shall be denied
a treatment, storage or disposal permit because of inadequate
financial responsibility if he assures EPA that his financial
responsibility is consistent with the degree and duration of
hazard. This Section thus requires consideration of degree
and duration of hazard in setting the treatment, storage and
disposal standards.
In testimony before the Senate Panel on Materials
Policy, the Deputy Assistant Administrator for Solid Waste
Management Programs stated that "We. would establish these
standards [under the EPA-proposed Hazardous Waste Control
bill] one at a time on one chemical at a time or one waste
stream at a time based on tests as to what is an acceptable
or unacceptable level." Hearings (Part 1) at 87. From this
statement, it is clear that EPA told Congress it would focus
on the degree of hazard of each waste.
In addition, although reference to categories or
classes of hazard in setting RCRA standards will increase the
regulation-preparation workload somewhat, it will provide a
control system keyed to degree of hazard and thus help avoid
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the anticipated "thoitfall" of facilities available ior the
more hazardous waster,. Moreover, a classification system based
on degree of hazard has proven to be workable in California and
Texas, and we believe that the hazard classification concept
will work under RCRA. MCA's written comments will discuss a
possible classification system. We realize that development
of a workable classification system will require attention,
and we stand ready to work with EPA in its development.
Once established, such a system will allow reporting,
treatment, storage and disposal standards to be keyed to the
degree of hazard of a particular waste. The proposed § 3002
100 kg/month exclusion is one such standard which should be
adjusted accordingly. The monthly exemption quantity should
be higher for the less hazardous wastes and, perhaps, should
be even lower than the proposed 100 kg for extremely hazardous
wastes.
B. The 90 Day Storage Exclusion
MCA supports the proposed regulation that genera-
tors who store hazardous wastes on-site for a relatively short
period pending shipment should not be subject to the require-
ments of Subpart D. However, we believe that four further
adjustments are necessary: First, the 90 day limitation is
too short and should be expanded to allow sufficient time for
shipment. In many cases, it may require more than 90 days to
accumulate a full shipment load. Second, storage should not
be required to be in DOT containers, so long as the material
is stored in environmentally sound containers. Third, the
temporary storage exclusion should apply for storage ponding
transport for off-site or on-r.ito d.ir/posal or treatment.
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C. Co\vi\-i"o ol ri-onnu' l.'fc.ivt-i-y Kiel lily
RCRA S 1004(22) defines "resource recovery" to
mean "the recovery of material or energy from solid waste."
One of the policies underlying RCRA is to encourage resource
recovery. In the Background Document for § 3002 (BD-8;
December 15, 1978), EPA's Office of Solid Waste Management
Programs, evaluated several options with respect to the handling
of solid waste sent to a resource recovery facility. The
Background Document concluded that "hazardous waste sent to
resource recovery facilities is not covered by the definition
of 'hazardous waste', and would not be subject to any Subtitle
C regulations ..." The reason for this conclusion was that
material sent to a resource recovery facility to recover
materials or heat is not by definition "discarded material."
Accordingly, the Background Document reported that the option
of excluding such resource recovery facilities from the § 3002
regulations "has received the greatest support and was presented
in tho proposed regulation." Despite this conclusion, the
proposed § 3002 regulations; do not exclude hazardous waste
generators who send their wastes to resource recovery facilities.
Additionally, the proposed § 3004 facility standards do not
expressly exclude such facilities. MCA supports the intondod
exclusion and the reasoning contained in the Background Document.
There in no statutory basis for including resource recovery
facilities under the Subtitle C program.
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Thank you for your attention to my comments today.
The proposed RCRA regulations are quite broad in scope and
complex. Accordingly, it is very important that EPA devote
particular time and attention to the written comments to be
submitted by MCA and others.
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socma
STATEMENT OF THE SYNTHETIC
ORGANIC CHEMICAL MANUFACTURERS ASSOCIATION
for
Hearings on the Proposed Regulations
for the Resource Conservation and Recovery
Act of 1976
The Synthetic Organic Chemical Manufacturers Association,
which is known as "SOCMA", would like to comment on all sections
of the currently proposed hazardous waste regulations. The organic
chemical industry is a major generator of hazardous waste and, as
such, will be significantly affected by the regulation of hazard-
ous waste management. SOCMA recognizes the need to regulate the
management of hazardous waste but seriously questions whether EPA
has adequately considered the economic impact of the currently
proposed regulatory scheme.
EPA has initially estimated that the annual cost to industry
of compliance with the proposed hazardous waste regulations will
be one billion dollars. The economic burden of compliance will
fall most heavily on companies that generate small amounts of
hazardous waste. EPA has indicated that the unit cost of compli-
ance for small companies that generate 100 kg/month may be one
hundred times greater than the unit cost for companies that
generate 1000 kg/month.
For small organic chemical manufacturers, those with less
than $50 million in annual sales, compliance with the proposed
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regulations may be a financial impossibility. The amount of
capital required for compliance with the proposed regulations
would have a serious impact on the finances of even the largest
organic chemical companies. SOCMA doubts that EPA has fully
considered the economic impact of the proposed regulations and,
therefore, asks EPA to re-evaluate the relative costs and bene-
fits of its current regulatory approach.
In SOCMA's opinion, there are six basic problems with
the proposed hazardous waste regulations:
(1) The definition of hazardous waste is overly broad
and fails to take account of varying degrees of hazard;
(2) The exemption from compliance with these regulations
for those who generate less than 100 kilograms per months is
totally inadequate;
(3) The recordkeeping and reporting requirements imposed
on generators and owners and operators of treatment, storage
and disposal facilities are unnecessarily complicated and
burdensome;
(4) Certain of the interim standards for treatment, storage
and disposal facilities are too burdensome and inflexible;
(5) The facility standards to be incorporated into permits
are so rigorous that few, if any, existing industrial facilities
will be able to comply; and
(6) The 90 day on-site storage exemption for generators
is unduly restrictive.
1. The definition of hazardous waste
EPA has proposed an exceptionally broad definition of
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hazardous waste that will include many innocuous wastes simply
because they may contain trace amounts of some allegedly toxic
chemical. The definition also includes complex and costly tests
which must be performed to identify whether certain wastes are
hazardous. For small organic chemical manufacturers, with diverse
production mixes and hence diverse wastes, these test procedures
would have to be performed frequently.
Since small organic chemical manufacturers cannot cope
with either the cost or the complexity of these identification
procedures, they will be forced to declare any suspect waste to
be hazardous. EPA's broad definition of hazardous waste thus will
result in unnecessary utilization of hazardous waste treatment,
storage and disposal facilities and exacerbate the current
scarcity of such facilities. As demand drives up the price
of treatment and disposal, small organic chemical manufacturers
who lack the financial resources needed to obtain access to
permitted facilities will thus not be able to use acceptable
commercial facilities to dispose of their waste.
On-site treatment, storage and disposal of hazardous waste
will be prohibitively expensive for most sirall organic chemical
companies. Despite the superior technical knowledge and standard
operating procedures that minimize the danger of environmental
release, organic chemical plants that treat, store or dispose of
hazardous waste are subject to the same stringent requirements
as commercial facilities that are designed exclusively to handle
hazardous wastes. Given the economic and technological realities
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of the situation, it is clear that EPA must narrow its definition
of hazardous waste to cover only the highly toxic wastes which
have the real potential to cause serious harm to health or the
environment.
2. The small generator exemption
EPA may feel that it has sufficiently eased the
economic burden on small generators of hazardous waste through
the proposal of an exemption for those who generate less than
100 kilograms per month of hazardous waste. SOCMA does not
believe that this exemption will be of much use to many small
organic chemical companies. Nor would raising the exemption
to 1000 kilograms per month provide much relief. One thousand
kilograms is approximately one drum of metallic sludge, hence
many organic chemical companies would not even be affected by
the expansion of this exemption. The exemption should be varied
in relation to the degree of hazard present in various types of
waste.
The proposed regulations also condition the grant of this
exemption upon the waste being disposed of in a solid waste
facility that has been permitted or certified by the state as
being in compliance with EPA's sanitary landfill criteria. The
scarcity of such facilities may force "exempted" generators to
use hazardous waste facilities to dispose of their waste.
3. Recordkeeping and reporting requirements
In its efforts to track the path of hazardous waste
from generation to disposal, EPA has proposed regulations that
will burden small companies with detailed and repetitive re-
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cordkeeping and reporting requirements. A preliminary analysis
of the proposed regulations by EPA indicates that for small genera-
tors of hazardous waste the cost of compliance with these
regulations will exceed the cost of hazardous waste disposal.
SOCMA seriously questions the need for many of the proposed
administrative requirements. For example, EPA has proposed that
all generators submit detailed annual reports of hazardous waste
shipments to the appropriate Regional Administrator. These
reports serve no precautionary function and will merely duplicate
the information that generators are required to keep for three
years on manifests or comparable documents. SOCKA suggests that
EPA reconsider the administrative burden created by the proposed
reporting and recordkeeping requirements and eliminate those
requirements that are either redundant or not essential.
4. The interim standards for treatment, storage and disposal
facilities (TSDFs)
In order to ease the implementation of the hazardous
waste program, EPA has proposed an interim status period during
which only portions of the TSDF regulations will apply. These
interim standards are, however, not sufficiently flexible. For
example, one interim standard would require all TSDFs to construct
a six-foot fence to enclose the facilities. The fact that natural
barriers at a particular facility may obviate the need for such
a fence apparently will not be considered by EPA until the time
of permit issuance by which time everyone will have had to erect
a fence.
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The interim standards require TSDFs to comply with the
financial responsibility requirements for closure and post-closure
care. Again, EPA should be more flexible and should not simply
mandate the establishment of trust funds for closure and post-closure
care. Few companies have sufficient capital to comply with this
regulation, and even fewer companies can afford to sacrifice
the present use of this capital. Potential insolvency should not
be the only grounds for relief from this provision. Guarantees
of financial responsibility can be made through a variety of
methods, and EPA should adopt financial responsibility requirements
that can be adapted to a variety of economic circumstances.
5. Application of the proposed regulations to existing
industrfal facilities
EPA has proposed that existing as well as new facilities
comply with all of the new regulations. Compliance with the
siting requirements will be particularly difficult for existing
organic chemical facilities. For instance, the proposed regulations
prohibit the location of TSDFs in "500-year floodplains." Since
many organic chemical manufacturers are located along rivers,
they would have to close down or relocate. The proposed siting
requirements are so inflexible in so many aspects that they will have
a serious disruptive effect on many organic chemical plants.
The application of the proposed regulations to facilities
built to comply with EPA's NPDES regulations will also have a
detrimental effect on existing industrial facilities. Many organic
chemical manufacturers have invested large sums of money to
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comply with the NPDES provisions of the Federal Water Pollution
Control Act. The proposed regulations now require the alteration
of these NPDES facilities to comply with the hazardous waste
regulations. Because of these and other problems raised by
the proposed regulations, which we will address in our written
comments, SOCMA believes that EPA should alter the proposed
regulations to obtain maximum utilization of existing equipment
and facili-ties which afford a reasonable if not fail-safe level
of protection.
6. The on-site storage exemption
EPA has proposed that storage of hazardous waste on the
site of generation for a period of less than 90 days be exempted
from the general hazardous waste storage requirements. in es-
tablishing the 90 day limitation, EPA has not considered the
realities of organic chemical manufacturing. For many small
organic chemical manufacturers 90 days is too short a period
in which to accumulate the amounts of hazardous waste that are
economic for shipment and disposal. Shipment of these smaller
quantities would further decrease the ability of small manufacturers
to compete for the limited hazardous waste treatment, storage and
disposal capacity.
In conclusion, SOCMA is concerned whether the organic
chemical industry, particularly its smaller members, can
possibly comply with the currently proposed hazardous waste regu-
lations. The overly stringent regulation of existing organic
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chemical facilities, in conjunction with the inflexible design
and operating standards, will seriously disrupt the economic
growth of the industry, and may threaten the economic viability
of small manufacturers. The proposed regulations must be modi-
fied to take into account what improvements in hazardous waste
management are economically and technically feasible.
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AIR POLLUTION CONTROL DISTRICT
OF JEFFERSON COUNTY
''77*' 914 EAST BROADWAY
LOUISVILLE. KENTUCKY 40204
PHONE (502) 587-3327
February 26, 1979
Mrs. Gerri Wyer (WH-562)
Public Participation Officer
Office of Solid Waste
U. S. Environmental Protection
Agency
401 M Street
Washington, D. C. 20460
Dear Mrs. Wyer:
Please enter the attached statement into your
hearing record for hazardous waste regulations proposed
December 18, 1979. I was in Washington both on February
20 and 21 in hopes of presenting this statement. How-
ever, on both days the Department of Commerce building
was closed due to snow.
Sincerely,
Michael T. DeBusschere, P.E.
Air Pollution Control Officer
MTD:mc
Enc
Thomas Devine, Director
Air & Hazardous Materials Division
U. S. EPA Region IV
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February 20, 1979, Searing Statement on
Proposed Hazardous Waste Regulations
Mr. Chairman, my name is Mike DeBusschere and I am the Air
Pollution Control Officer of Jefferson County, Kentucky. I am
responsible for the enforcement of air pollution control rules,
orders, and regulations of the Air Pollution Control Board of
Louisville and Jefferson County and supervise the Board's
engineering and enforcement staff to that purpose. I am a
registered professional engineer in the states of Kentucky and
Indiana, and am currently on an Intergovernmental Personnel Act
assignment from EPA, Region tV in Atlanta, My comments today
address areas of your proposed hazardous waste regulations which
impact on air quality as we see it in Louisville and potentially
in every other major manufacturing urban center in our country.
We are deeply interested in the control of hazardous wastes.
In recent years, our area has been impacted directly and visibly
affected in a public manner by improper transport and disposal of
such wastes. As one of the top ten industrial manufacturing centers,
our community produces significant amounts of rubber, plastics, chemicals,
paint, automobiles, and appliances which all generate wastes classified
under the proposed regulations as hazardous. In addition, the
Louisville Gas & Electric Company has begun installation of flue gas
desulfurization systems on the last three of its eight SO, controlled
generating units in our county. FGD sludge has also been classified
as hazardous waste.
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Recent incidences have brought transport and disposal of
hazardous wastes to local public attention. In the spring of 1977,
the Metropolitan Sewer District discovered that large quantities
of hexachlorocyclopentadiene CHEXA for short! and octacyclopentene
(OCTA) had been dumped into their sewer system. The contamination
and toxicity of the sewer system was so great that the Morris Forman
sewage treatment facility Ca new $6 million EPA funded plant! was
shut down, and raw sewage by^passed into the Ohio River at a rate
of over 100 million gallons a day. Subsequent clean-up costs have
totaled over $988,000 to date, not including the incidents in the
initial discovery of the contamination.
The Louisville and Nashville Railroad CLSN), headquarted in
Louisville, has had over 100 train derailments since 1977. In
Louisville, derailments included neoprene monomer, acrylonitrile , chlorine
and hydrocyanic acid tank cars. In one instance, evacuation of
local residents was required. Another incident involved derailment
adjacent to the Gait House Hotel, downtown, where visitors and local
conventioners alike were threatened with exposure to toxic gas as
they would use the underground parking lot not 100 feet from the
tracks on which the derailed and tilted tank car rested. Because of
these incidents, local government has organized a response team
called Hazmet, composed of police, fire, health, pollution control
and civil defense groups to help limit the danger to local inhabitants
from such accidents. Recently, in an effort to help reduce derailments,
the FTC has limited L&N to a 30 mph limit when transporting hazardous
wastes instead of the normal 50 mph. L&N, however, is contesting the
FTC ruling.
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Finally, and most recently, the discovery of drums dumped at
various locations in and around Jefferson County has arroused local
concern to new heights. The area known as Valley of the Drums is
estimated to have 20-100,000 55 gallon drums containing unidentified
liquid wastes. Similar sites inside Jefferson County are being
inventoried and removed at significant expense to not only local
and state government, but to EPA as well. The real question in
this instance is "where will the waste go ultimately?", aside from
more pervasive questions as to what is the waste, who generated
it, who put it there, how much and when was it put there.
As a local air pollution control official, I would like to
now discuss certain aspects of the proposed regulations which I
feel will have bearing on many similar local and State agencies
throughout the country responsible under the Clean Air Act for
protecting healthful air quality.
§250.45-1 tncineration
All State Implementation Plans currently regulate solid waste
incinerators for particulate emissions. Existing source requirements
vary widely; However, new source requirements are defined by EPA
to require meeting a "Best Available Control Technology" minimum
limitation of .08 grains/dry standard cubic foot corrected to 12%
CC>2. Many state plans do not address organic compounds emitted
from solid waste incinerators, and still fewer address liquid waste
incinerators.
However, recent events described above has led the staff of
the Air Pollution Control Board to be concerned about disposal of
hazardous liquid waste. The Clean'Air Act Amendments of 1977
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contained requirements for designating non-attainment areas for
photochemical oxidants, and for achieving ambient standards for
oxidants by 1987. Our entire county was so designated, and as
such, local and state clean air laws must reflect a stringency
that will demonstrate reductions in volatile organic compounds
which react to form oxidants. Examples of stringent controls
proposed by our Board include attaining an equivalent of 85%
reduction in solvent emissions in the painting of automobiles, light
trucks, and large appliances, inspecting all registered light duty
vehicles for compliance with Federal Motor Vehicle Emission
Standards, and committing local transportation planning organizations
to designing a transportation system which limits air pollution
emissions to the maximum extent feasible. Recognizing the need
to protect our citizens from potential hazards in incinerating
liquid wastes, the Board has also proposed a regulation establishing
minimum equipment standards for liquid waste incinerators. We
are aware of two such operations in the County, with another being
planned. Our proposed regulation requiresi
(1) maintaining an average gas temperature of 1600° F.
and a residence time determined based on permit
application description of wastes to be burned.
C2) fail-safe devices and auxiliary fuel designed
to either interrupt waste input when there's a
flame out, or maintain adequate chamber
temperature,
C31 scrubbers when halogenated wastes are burned,
C4i air or steam atomizers when waste of 750 SSU
viscosity or greater is burned.
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(51 flow indicators on feed lines, and exit gas pyrometer
measurement.
The staff feels that our regulation is sufficient to protect
the public from emissions of unburned wastes from incinerators
provided case-by-case review is performed. Knowledge of wastes
received must necessarily preceed any permit issued to construct.
The Clean Air Act has other provisions which are applicable
in the control of toxic waste disposal. Under Section 111, EPA
may promulgate emission or equipment standards for any new
stationary air contaminant source as a New Source Performance
Standard. Or, after proper designation, hazardous wastes may be
regulated by emission standards or equipment standards under
Section 112, National Emission Standards for Hazardous Air
Pollutants. Finally, under Part B of the Act, entitled Ozone
Protection, the EPA can promulgate specific control regulations upon
a determination that emissions from hazardous waste incinerators
or other disposal techniques may affect air quality or
endanger public health or welfare.
We, therefore, are concerned with respect to your proposed
regulations that for certain disposal methods, and specifically
incineration, that the Clean Air Act is not being utilized as the
enforcement mechanism, with State and local air pollution control
agency capabilities already in place duplicating future efforts of
agencies delegated authority under this new proposal. EPA should
consider specific delegation to air pollution control agencies for
enforcing this section of the proposal.
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As to thi equipment standards proposed, we agree that the
temperature requirements and retention time presented in 250.45-1(dt
and Gel should be adequate to sufficiently destroy hazardous wastes.
However, we feel that should an operator demonstrate destruction
and combustion efficiencies to the satisfaction of the permitting
authority equal to the proposal, the facility should be permitted
with periodic inspections and certifications as a follow—up to
ensure maintenance.
Case*-by-case review of incineration facilities will also
promote technology development to the extent that absolute fixed
requirements as found in 250.45-<-lCdI and Cel will not become the
only design approved. Low temperature, high pressure thermal
oxidation was employed by the Metropolitan Sewer District to
eliminate a majority of the hexa and octa in contaminated sludge
prior to incineration at around 1700° F. Effluent sampling at
various points throughout the incineration showed very effective
reduction (about 96 %). At one other facility operated by a major
chemical manufacturer, waste chlorinated hydrocarbons and
toluene are incinerated at lsOO° C. for 1 sec. and passed through
a scrubber and hydrochloric acid absorber. Its capacity is 27
million pounds/year and achieves 99.96% control efficiency.
Economic incentives in developing low cost incineration techniques
must also be allowed in the search for an effective disposal method.
Incineration does provide a final resolution to the disposal
problem which landfilling in containers cannot offer, and therefore
is an important option which should be allowed to be explored
fully and economically.
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Lastly, where incineration is concerned, we recommend and
strongly urge that EPA provide legislation and funding for state
and local governments to build and operate approved incineration
facilities for their communities to assist and provide an outlet
for destruction of hazardous wastes. Self-sufficient government
operated facilities offer two major advantages over privately owned
and distant incineration operations. First, enforcement of manifest
and transport requirements can be consolidated at local area levels.
Wastes produced locally can be inventoried and tracked in
proximity of generation, and will not need to be transported long
distances over potentially poorly maintained transportation facilities,
changing hands several times until its final disposal site. The
knowledge of who is generating what and where did it go can be
maintained at the local level where the impact is generally felt.
Secondly, local generators and transporters can be made to bear the
costs of its by-products by local or State governments in a variety
of ways not available in a national or log-distance program. Local
tax structures, zoning laws, environmental regulation, and inspection
have been established long ago, and can be adapted to require all
such waste to be delivered to a single disposal facility with appro-
priate identification, and disposal charges. Much of the technical
and legal framework already exists in urban centers. One major
ingredient missing, however, is the capital. Whether in the form
of grants or loans to erect adequate incineration facilities, funds
must be made available Federally to initiate local disposal mechanisms.
§ 250.46-2 Utility Waste
This section concerns the Air Pollution Control Board as a local
regulatory body in two ways. The implication that FGD sludge and
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fly ash generated and collected by power plant S02 scrubbers and
particulate control devices is hazardous waste conflicts with
the opinion that these materials are relatively inert and conflicts
with the EPA supported position that removal of SC>2 and particulates
is teth beneficial and economically feasible in protecting the
ambient air quality. The Louisville Gas & Electric Company has
installed FGD systems at three plant sites in Jefferson County
(a total of five units, three more to go). NPDES permits for
landfilling FGD and ash have been issued, and studies by LG&E have
demonstrated the stable nature and vegetation surface recoverability
of the sludge. It is, therefore, surprising to see utility sludge
classed as a hazardous waste. We request that the proposed regulations
be modified to clarify the difference between hazardous waste and
utility sludge.
Secondly, scrubbing and particulate removal at LG&E plants has
been shown essential to meeting and maintaining ambient air standards
under the Clean Air Act. Any program which requires extensive
surveillance, security and reporting of sludge transfer to fill
sites should be defered until such time as air quality requirements
in the form of Board Orders, EPA orders, or other rulings are met.
We do not wish to entertain delays in completing compliance programs
and starting up srubbing units because permits under the proposed
regulations have not been issued by EPA or the designated RCRA agency.
We suggest that if a utility has received NPDES permits for sludge
disposal facilities, that as an interim, the requirements of §250.46-2
be delayed or negotiated. Furthermore, if a utility can show that
its FGD sludge and ash are inert or should not be classified as
a hazardous waste under Part 3001, then they are exempt from the Act,
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This section has far reaching implications in light of
recent EPA regulations that require all new coal-fired boilers
greater than 250 million BTU/HR rated capacity be equipped with
scrubbers. A recently negotiated SO2 compliance program for TVA,
the largest power system in the country, also relies heavily on
FGD systems.
Emergency Relief
If the proposed regulations address Federal assistance in
emergency situations, they do so oBscurely. The Federal Register
dated December 18, 1978 did not include any that I could find.
Given recent events in the Louisville area, some provisions which
address Federal and local authority in relieving emergency situations
is necessary- Injunctive relief to prohibit dumping or other disposal
methods, confiscatory powers to seize hazardous waste improperly
stored, and immediate disposal authorities should be spelled out
clearly in the regulations. A method for charging the generators,
transporters, or disposers of hazardous wastes removed under emergency
situations, and the conditions which would constitute an emergency
are also needed. Such commonly used phases such as "emminent health
danger" which are left up to value judgements should be avoided in
favor of subjective definitions of what contitutes an emergency.
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$tat? of
DEPARTMENT OF HEALTH
JOHN FITCH PUkZA
JOANNE E FINLEV, M D , M P M P.O. BOX 1 MO, TRENTON, N.J O8625
COMMISSIONER
February 26, 1979
Mrs. Geraldine Wyer
Public Participation Officer
Office of Solid Waste (WH 562}
U.S. E.P.A.
401 M Street, S.W.
Washington, D.C. 20460
Dear Mrs. Wyer,
This is in follow-up to my call to your office on February 21
regarding my statement on the proposed definition of infectious waste.
I had been scheduled to appear at the hearing on February 2U, but the
snowstorm Intervened.
Enclosed are ten copies of my statement for distribution to the panel
and for Inclusion in the hearing record. Also, I would be happy to explore
with the EPA staff in greater detail any of the matters discussed in my
statement. My FTS number Is 477-7300. I probably could also arrange
another trip to Washington if that would be useful.
I hope you have dug out from the great snow of '79, and I wish
you an early Spring.
regards,
John D. Slade, M.D.
Communicable Disease
Control Program
JDS:do
end.
cc: John P. Lehman
Dir., Hazardous Waste Mang. Dlv.
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STATEMENT
ON
THE DEFINITION OF INFECTIOUS HOSPITAL WASTE
AS PROPOSED FOR HAZARDOUS WASTE:
GUIDELINES AND REGULATIONS
(Section 3001, Part 250-14, b, I. i, A)
Federal Register 43 (243):58958, Dec. 18, 1978.
By
John D. Slade, M.D.
New Jersey State Department of Health
P.O. Box 1540, Trenton, NJ
EPA Hearing Department of Commerce
February 20, 1979 Washington, D.C.
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My name is Dr. John Slade. I an the Epidemic Intelligence Service
Officer from the Center for Disease Control assigned to the New Jersey
State Department of Health. I am here today to present the views of
the State Health Department on the definition of infectious hospital waste
which the Environmental Protection Agency has proposed in Hazardous Waste:
Guidelines and Regulations, Section 3001, Part 250-14, subpart b.
As a preface to my remarks, let me say that I am in substantial
agreement with the thoughts expressed by Mr. George Mallison of the
Hospital Infections Branch at the Center for Disease Control, in his
January 2, 1979 letter to Mr. John Lehman, as well as in his earlier corre-
spondence to Dr. Rakshpal. I will not repeat Mr. Mallison'a specific
points here. Rather, I will outline a general approach to the problem
of Infectious waste which we have found useful in New Jersey.
Last year, the Health Department reviewed the matter of infectious
waste because we needed to revise the section in our hospital regulations
about waste disposal. The existing regulation dated back to a time when
every hospital had an Incinerator. Whenever there was any question raised
about an Infectious hazard from some waste, whether it really was a hazard
or not, it could always be burned. Now, however, largely because of the
Clean Air Act and its local variants, 41% of New Jersey hospitals no
longer have onslte incinerators.
We approached the problem epidemiologlcally; that is, we tried to
evaluate what the real risks were of someone exposed to various hospital
wastes becoming infected and ill.
This is quite different from the approach taken in EPA's proposed
definition. The proposed definition equates contamination, or, more
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precisely, probable contamination, with infectiousness, and therefore
with hazard. Now, while it is certainly true that an uncontaminated,
sterile object cannot be infectious, the converse is not necessarily
true. That is, not all that is contaminated is infectious.
Let me give you two examples. First, a drug which is intended for
injection must be sterile. On the other hand, the same chemical, when
formulated as a tablet or a capsule, need not be sterile. Second, there
is a clamp used for many things in a hospital called a hemostat. It was
designed as a surgical instrument. When it is used in an operation, it
must, of course, be sterile. However, the same instrument is also often
used to pinch off plastic tubing in Infusion sets at the bedside. In this
context, it is not expected to be sterile, and, indeed, it is probably
frequently contaminated with CDC class 2 organisms, with no detectable harm
to anyone.
Certainly, the EPA list of hospital departments names sources in
whose wastes CDC classified agents may commonly be found. However, it is
another matter to make the leap to identifying these contaminated wastes
as infectious. Except for materials from microbiology and for sharps,
hospital wastes by and large pose no special infectious hazards outside
of the hospital. I say this despite the obvious fact that hospitals
themselves rightly enforce sometimes elaborate internal waste handling
policies on their wards.
Hospitals justifiably treat certain wastes such as dressings and
discarded urinary catheters as dangerous items. We feel, though, that
these same items may be safely disposed of through usual solid waste
disposal channels once they are off the ward. This is not the contra-
diction it first appears to be.
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In recent years, much has been learned about the epidemiology of
hospital acquired infections. Modern infection control technology and
isolation techniques have grown out of this study. One of the fundamental
principles we use is that there is a chain which must be completed for
an infection to occur. Interruption of the chain at any point will prevent
infection. Often, our control measures actually interrupt the chain at
several points.
The chain of infection includes the following links:
an agent (the pathogen),
a reservoir,
a portal of exit from the reservoir,
a route of transmission,
a portal of entry into the host,
entry in an infectious dose, and finally,
a susceptible host.
Hospitals are filled with sick people. Patients are compromised by
illness itself, surgical or traumatic wounds, instrumentation, cannulae,
immunosuppression and immobilization. Patients are susceptible and have
many available portals of entry for pathogens. Isolation procedures and
infection control technology are largely designed to protect this special
group. The methods Involved include physical isolation, handwashing, the
use of disposable or clean recyclable equipment and the discarding of
contaminated solid waste either directly into the sewer or off the ward
via double bagging. Generally, wards have dirty utility rooms to hold
accumulations of solid waste prior to removal. These elaborate rituals
have developed because they are of epidemiologically proven value in
preventing infections in this special group of compromised people.
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However, the very same Items are not necessarily hazardous in a
dumpster or a landfill. This is true even if they are partially exposed
or inadvertently handled. This is because, by and large, those who are
in contact with these items outside of the hospital are not debilitated,
nor do they usually have unprotected portals of entry. The chain of
infection is not likely to be completed because the reservoir is more or
less contained, the pathogen lacks a suitable portal of entry and the
potential host is not overly susceptible. Furthermore, most pathogens are
shortlived outside of their host or the laboratory.
Therefore, what constitutes an infectious hazard depends not only on
the waste itself but also on the setting in which exposure occurs and who
is likely to be exposed. The inside of a hospital is a special place in
which special precautions must be observed. These do not necessarily apply
outside of the hospital. Despite the enormous amount of data supporting
current infection control practices within our hospitals, I have found no
epidemlological data which suggest that the usual ward-generated wastes
require special handling outside of the hospital.
The lack of epldemiologlcal data about the infectious hazards of moat
hospital wastes (except for specific classes to be discussed below) is
itself an Important observation. To be sure, it may only reflect the
"WNL phenomenon" (we never looked), but I do not think so. Unlike many
chemicals which may be varied in their toxic manisfestations, exhibit
long latencies, be difficult to analyze for and be persistent in the
environment, most infectious diseases have a relatively brief Incubation
period, have sterotypical manisfestations and the causative organisms
are not usually persistent. These three characteristics (brief Incubation
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period, diagnosable disease and lack of persistence) favor the epldemiolog-
ical study of infectious wastes as opposed to chemical wastes. The lack
of data suggests that there may not be a very strong relationship of
infection to current hospital solid waste disposal practices. For many
chemicals, on the other hand, the lack of data may only mean that it
has not been feasible to do the necessary studies.
Let me now turn to the areas where there are genuine infectious
hazards in hospital solid wastes. These are the microbiology laboratory
and sharps, chiefly hypodermic needles, needle electrodes and scalpel
blades. Here, there is a large literature which amply documents that
even healthy people are at substantial risk of infection unless certain
precautions are taken.
In the laboratory, pathogens are deliberately grown, amplified and
concentrated to an enormous degree so they can be identified and charac-
terized. Solid microbiological laboratory wastes should be Incinerated
onsite or autoclaved prior to disposal.
Used sharps contain several links in the chain of infection. Besides
being contaminated, they offer a route of transmission and create their
own portal of entry. The Department believes that they, too, should be
autoclaved and either ground up into Che sewer or boxed in rigid containers
and disposed of with other solid wastes*
Parenthetically, there are a very few, quite rare infectious diseases
In which appropriate isolation Includes decontamination of wastes. Examples
are anthrax and the African hemorhaglc fevers. However, these are so
uncommon that it Is not reasonable to try to regulate their waste disposal
by the mechanism of the Solid Waste Disposal Act. Prudent medical
practice and the broad emergency powers of health officials are sufficient
means of control.
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Pathologic specimens are chiefly an aesthetic problem. They usually
do not pose an infectious hazard.
The philosophy I have Just outlined is contained In the Health
Department's new regulation on Pathological and Infectious Waste Disposal
which Is attached to my text. We have worked cooperatively with Mew
Jersey's Department of Environmental Protection in the development of
this regulation, and they agree with this approach.
Our definition does not equate mere contamination with infectlousness.
Rather, we have applied epidemiclogic principles and have reviewed the
accumulated experience with the problem. We feel that only a small
fraction of a hospital's usual wastes are infectious hazards, namely,
materials from microbiology and sharps. Furthermore, we feel strongly
that these materials should be rendered safe prior to their leaving the
hospital. Health care institutions should not be generators of hazardous,
infectious waste.
Finally, there is the matter of cost. I have indicated where there
is a real hazard and where there Is not. Disposing of contaminated
hospital-generated material in the manner EPA has proposed will be expen-
sive, yet, from an epidemiological point of view, its benefits can never
be assessed. I know of no measure of reduced morbidity and mortality
which could be used to evaluate the improvement in the public's health
from the definition EPA has proposed.
We recommend that EPA consider New Jersey's approach to the definition
of infectious hospital wastes. We believe that our new regulation is
closer to the EPA definition of a hazardous waste (Section 1004(5))
than the one which the EPA has proposed.
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i*titT»*^ F** 7ttf«f
Proposed Addition - Hospital Licensure Manual
Section 306. Amends Section 305.D sentence #1
306.0 Pathological and Infectious Waste Disposal
306.1 Each hospital shall develop and implement written
policies and procedures for the collection, stor-
age, handling and disposition of all pathological
and infectious wastes within the facility, and
for the collection, storage, handling and dispo-
sition of all pathological and infectious wastes
to be removed from the facility. These policies
and procedures shall, as a minimum, include the
following:
306.1.1 Solid wastes from the microbiological laboratory
shall be autoclaved or incinerated.
306.1.2 Liquid wastes from the microbiological laboratory
shall be autoclaved prior to disposal into the
laboratory sewage system.
306.1.3 All pathology specimens and wastes, including
gross and microscopic tissue removed surgically or
at autopsy, shall be incinerated unless otherwise
provided for by law.
306.1.4 Solid sharp or rigid items such as needles,
syringes and scalpel blades shall be autoclaved
prior to disposal. Needles and syringes shall be
destroyed as stipulated in N.J.S.A. 2A:170-25.17
and they, along with other sharp or rigid items,
shall be either ground and flushed into the sewage
system or placed in a rigid container and disposed
with other solid waste material.
306.1.5 Solid non-rigid contaminated waste material such
as blood tubing and disposable equipment and
supplies shall be autoclaved, incinerated or re-
moved from the hospital and disposed of in a
manner approved by the Department of Environmental
Protection.
306.1.5.1 All such material not autoclaved or incinerated
within the hospital shall be doubly packaged in
impervious plastic heavy duty bags prior to removal
from the hospital and disposal in a manner approved
by the Department of Environmental Protection.
306.1.6 Fecal matter shall be flushed into the municipal
sewerage system.
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306.1.7 All containers used for storage of infectious
wastes shall be sanitized by a method approved
by the Department at least once every 24 hours.
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1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ENVIRONMENTAL PROTECTION AGENCY
PROPOSED HARZARDOUS WASTE REGULATIONS HEARING
1st Floor Auditorium
HEW North Building
330 Independent Street, SW
Washington, D. C.
Friday, February 23, 1979
8:30 a.m.
PANEL MEMBERS
DOROTHY A. DARRAH
TIMOTHY FIELDS
JOHN LEHMAN
MATT STRAUS
HARRY TRASK
ELISA FRIEDMAN
FRED LINDSAY
WILLIAM SPEARY
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1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
2.1
24
25
INDEX
SPEAKERS
Dana Davoli
Geraldine V. Cox
James Greco
Arnold Schiffman
Sandra Jerabek
John Serrell
James F. Villaume
Richard Moffa
Robert G. Gallaghar
Walter Studabaker
Daniel K. Moon
George Hanks
Robert Pease
Thomas D. Alfano, Jr.
Karl T. Johnson
Leslie Dach
John F. Stoviak
Wallace C. Koster (Not present, but comments
end of the transcript.)
PAGE
9
41
47
74
94
104
114
122
130
139
154
162
172
178
186
196
bound at the
1A
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1 PROCEEDINGS
2 MR. LEHMAN: Good morning. Let's see if we can
get started. My name is John Lehman. I am Director of the
Hazardous Waste Management Division of EPA's Office of
Solid Waste here in Washington.
On behalf of EPA, I would like to welcome you
to the public hearing which is being held to discuss the
proposed regulations for the management of hazardous waste.
We appreciate your taking the time to participate in
developing these regulations being issued under the authority
of the Resource, Conservation and Recovery Act, or RCRA.
The Environmental Protection Agency, on December 18
13 1978, issued proposed rules under Sections 3001, 3002,
14 3004 of the Solid Waste Disposal Act substantially amended
by the Resource, Conservation and Recovery Act of 1976,
Public Law 94-5E.
These proposals respectively cover first criteria
for identifying existing waste, identification methods and
'9 a hazardous waste list. Second, standards applicable to
20 generators of such waste for record-keeping, labeling, using
21 proper containers and using a transport manifest; and
third, performance design and operating standards for
hazardous waste management facilities.
These proposals, together with those already
published pursuant to Section 3003, on April 28, 1978,
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1 Section 3006 on February 1, 1978, Section 3008 on August 4,
2 1978, and Section 3010 on July 11, 1978, and that of the
3 Department of Transportation pursuant to the Hazardous
Materials Transportation Act, on May 25, 1978 along with
Section 3005 regulations for permitting, constitute the
6 Hazardous Waste Regulatory Program under Sub-Title C of
7 the Act.
EPA has chosen to integrate these regulations
pursuant to Section 3005 and for State Hazardous Waste
10 Program Operation pursuant to Section 3006 of the Act with
11 proposals under the National Political Discharge Elimination
12 System, Section 402 of the Clean Water Act, and the Under-
13 ground Control Program under the Clean Water Act.
14 These programs will appear soon as proposed rules
15 under 40CFR, Parts 122, 123 and 124.
16 This hearing is being held as part of our
public participation process and the development of this
regulatory program.
The panel members, who share the roster with
20 me, are from your left, Matt Straus, program management and
21 guidelines planner in the Hazarous Waste Management Division,
EPA, Washington; Elisa Friedman from the Office of General
23 Counsel, EPA, Washington; Dorothy Darrah from the Office of
24 General Counsel, EPA, Washington; and Fred Lindsay who is
Chief of the Implementation Branch of the Waste Management
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1 Division, plus other staff members that will join us from
2 time to time during the hearing today.
3 Due to the postponement of these hearings due
4 to the weather problems we had in Washington this week, we
5 will enter ten statements on all three sections of the Act
6 today: Section 3001, 3002 and 3000 — well, actually, all
V four sections — 3001, 2, 3, and 4 of RCRA. We would ask
8 that speakers tailor their remarks to try to make them
9 as terse as possible so that we can get as many speakers
10 before us today as possible.
11 We do have the auditorium reserved for this
12 evening and, depending on our progress, we may extend into
13 the evening hours rather than come back on Saturday. If
14 necessary, however, we do have the auditorium reserved for
15 tomorrow. If we do have speakers yet to come, we will
16 extend over into Saturday.
17 The comments received at this hearing and the
18 other hearings, as noted in the Federal Register, together
19 with the comment letters received, will be a part of the
20 official docket in this rule making process. The
21 commentary closes on March 16th for Sections 3001 through
22 3004. This docket may be seen during normal working hours
23 in Room 2111B, Waterside Mall, 401 M Street, S.W. in
24 Washington, D.C.
25 in addition, we expect to have transcripts of
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each hearing within about two weeks of the close of the
hearing. These transcripts will be available for reading
at any EPA library. A list of these locations is available
at the registration table outside.
With that as background, I would like to lay the
groundwork and rules for the conduct of this hearing. The
focus of a public hearing is on the public's response to
a regulatory proposal of the agency or, in this case,
agencies since both EPA and the Department of Transportation
10 are involved. The purpose of this hearing, as announced
11 in the April 28, May 25 and December 18, 1978 Federal
12 Registers, is to solicit comments on the proposed regulations
13 including any background information used to develop
comments.
15 This public hearing is being held not primarily
16 to inform the public, but rather to obtain the public's
17 response to these proposed regulations, and thereafter,
18 revise them as may seem appropriate. All major substantive
19 comments made at the hearing will be addressed during
20 preparation of the final regulations. This will not be
21 a formal hearing with a right to cross examination. The
22 members of the public are to present their views on the
23 proposed regulation to the panel, and the panel may ask
questions of the people presenting statements to clarify
25 any ambiguities in their presentation.
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1 Some questions by the panel may be forwarded in
writing to the speaker. His or her response, if received
within a week of the close of this hearing, will be
included in the transcript; otherwise, we will include
5 it in the docket.
The Chairman reserves the right to limit lengthy
7 questions, discussions, statements.
If you have a copy of your statement, please
submit it to the Court Reporter. Written statements will
10 be accepted at the end of the hearing. If you wish to
11 submit a written, rather than an oral statement, please
12 make sure that the Court Reporter has a copy. Written
13 statements will also be included in their entirety in the
14 record.
15 Persons wishing to make an oral statement who
16 have not made an advance request by telephone or in
17 writing, should indicate their interest on the registration
18 card. If you have not indicated your intent to give a
19 statement and you decide to do so, please return to the
20 registration table, fill out another card, and give it to
21
one of the staff.
As we call an individual to make a statement,
23 he or she should come up to the lectern, identify himself
for the Court Reporter, and deliver his or her statement.
35 The Chairperson will inquire as to whether the
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speaker is willing to entertain questions from the panel.
2 A speaker is under no obligation to do so, although within
3 the spirit of this information-sharing hearing, it would
4 be of great assistance to the Agency if questions were
5 permitted.
Today's activities appear like this: We will
take a break in mid morning. We will break for lunch at
approximately noon or thereabouts, reconvene approximately
an hour and a half later, then, depending on our progress,
10 we will either conclude today's sessions or break for
11 dinner and reconvene at 7 p.m. for the evening session.
12 Phone calls will be posted on the registration
13 table at the entrance, and rest rooms are located outside
14 to the right down an escalator to the lower floor on the
15 right-hand side.
16 Also, I might point out there is a cafeteria
17 downstairs down the escalator to your right. Just keep
18 to your right as you get off the escalator, and you will
19 find the cafeteria.
20 If you wish to be added to our mailing list for
21 future regulations, draft regulations or proposed
22 regulations, please leave your business card or name and
23 address on 3 x 5 cards at the registration desk.
24 Yesterday we went into the basic outline of the
25 proposed regulations. I will not do that again today.
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I should say that EPA intends to promulgate final regulations
under all sections of Sub-Title C no later than December 31,
1979. However, it is important to the regulative
communities to understand that the regulations under
Section 3001 through 3005 do not take effect until six
months after promulgation. That will be approximately
June of 1980. Thus, there will be a time period after
final promulgation during which time public understanding
of the regulations can be increased.
10 During this same period, notification required
11 under Section 3010 are to be submitted and facilities
12 permit applications required under Section 3005 will be
13 distributed for completion by applicant.
14 With that as a summary of the Sub-Title C and
15 the proposed regulations to be considered at this hearing,
16 I will return this meeting to the Chairperson, Dorothy
Darrah.
MS. DARRAH: Good morning. Welcome to our second
day of hearings. I want to emphasize that if you do have
20 a copy of your statement, give a copy to the Court Reporter
-' preferably before you speak. That will be best. If you
-2 don't have an extra copy, if you would mind leaving your
23 one copy with him, he can xerox it and he will return it to
you. We would appreciate that very much.
Summarize your remarks insofar as possible, and also
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1 when you come to the rostrum to speak, please identify
2 the sections that you will be addressing today.
3 The first three speakers this morning are going
4 to be — I will let you know in advance — Dana Davoli,
Geraldine Cox, and James Greco.
DR. DAVOLI: Good morning, my name is Dr. Dana
Davoli. I am a staff scientist for Citizens for a Better
Environment.
My comments today will be limited to Sections 3001
and 3002. My comments on 3002 are rather lengthy; therefore,
T will summarize those.
Comprehensive regulations for the management
of hazardous wastes are needed urgently. This need has
never been greater or more apparent. In the past, public
drinking water supplies have been contaminated with
chemicals that cause cancer and birth defects; there have
i" been massive fishkills in rivers and streams, and we have
IS seen hundreds of other instances of damage to the environ-
19 ment and public health as a result of improper management
of hazardous wastes. Recent problems at Love Canal have
focused the public's attention on the hazardous waste issue;
the story in the Niagara area is still unfolding; three other
sites have been found that are even larger and potentially
more dangerous than Love Canal. At least one of these is
leaking toxins into groundwater, threatening the water
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10
supplies of thousands of area residents. And Love Canal
is only one of hundreds, possibly thousands, of dangerous
3 hazardous waste disposal sites throughout the country.
4 On December 19, 1978, the U.S. Environmental
5 Protection Agency (EPA) proposed regulations that define
6 hazardous wastes and impose controls on persons generating,
7 treating, storing, and disposing of such wastes. EPA touted
8 these regulations as "comprehensive" and said that they would
require that "al_l_ hazardous wastes be identified and safety
10 transported to sites... for treatment or disposal."
11 Yet a thorough review of EPA's regulations shows that the
regulations are not as comprehensive as EPA would have us
13 believe; indeed, many of the same types of cancer-causing
14 chamicals that were responsible for disasters at Love Canal
15 and Toone, Tennessee, will go unregulated.
16 Section 3001 - IDENTIFICATION AND LISTING OF HAZARDOUS WASTES.
17 We will focus our comments on those sections of
IS the proposed 3001 regulations which define a toxic waste.
IS A toxic waste, according to EPA's proposal, is one that:
20 (a) falls under the definition of a toxic waste,
21 because it contains one or more of the chemicals
22 for which Primary Drinking Water Standards have
23 been developed.
24 (b) is found on the hazardous waste lists.
25 These two definitions, even when taken together,
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11
will not define as toxic many of the wastes that must be
2
controlled to adequately protect public health and the
3
environment.
According to definition (a), a solid waste is
5
toxic if the extract obtained from applying the Extraction
6
Procedure (EP) contains excessive concentrations of any
one of the fourteen substances for which Primary Drinking
8
Water Standards (DWS) have been developed. Excessive
9
concentrations are levels which exceed by tenfold the
10
Drinking Water Standards (in mg/1) developed for these sub-
11
stances.
12
Under this definition, EPA will be regulating some,
13
but not all, of the hazardous wastes containing the fourteen
14
substances for which Drinking Water Standards have been
15
developed. But more than 100,000 chemicals are commonly in
16
use in the American marketplace, many of which are known
17
to be acutely toxic and/or to cause cancer, birth defects,
18
genetic damage, or systemic damage.
19
And, for example, the National Institute of
20
Occupational Safety and Health (NIOSH) lists 21,453 chemicals
21
for which toxicity information is available; of these
22
chemicals, almost 2000 are suspected or known carcinogens,
23
and another 300 are suspected or known mutagens and teratogen:
24
NIOSH has published a preliminary list of 325
25
carcinogens they suggest should be regulated in the workplace
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12
The U.S. EPA's Office of Pesticide Programs
has issued or has indicated an intent to issue Rebuttable
Presumptions Against Registration (RPARs) for over seventy
pesticides as a result of their acute and chronic toxicity
effects on humans and the eco-system.
Thus, while thousands of substances are known
to be harmful, EPA is proposing to designate as toxic only
those wastes containing the fourteen substances for which
Drinking Water Standards have been developed.
10 To increase the scope of hazardous wastes defined
11 under Section 3001, EPA has resorted to its second definition
12 (b), use of hazardous waste lists. Hazardous wastes, such
13 as solvents and degreasing agents, and hazardous waste
process streams, such as heavy ends and still bottoms from
15 the manufacture of certain organics, are included in these
16 lists. But for this approach to be comprehensive, EPA
17 must know that a particular hazardous component is present
18 in a given industry waste stream or have information that such
19 a waste stream is hazardous. It would take years for EPA
to develop such information.
21 For example, consider the manufacturing industry
22 for organic chemicals. The Hazardous Waste Assessment Study
23 done for this industry by TRW lists hundreds of chemical
24 products of this industry that are potentially hazardous
more than 100 of which are produced in amounts exceeding
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13
1 50 million pounds per year. TRW chose 21 of these chemicals,
2 representing less than 10 percent by weight of the total
3 production of the organic chemical industry, and performed
4 indepth studies of the types of hazardous waste streams gen-
5 erated by the manufacture of each chemical. In addition,
6 waste streams, listed by TRW, now appear on EPA's hazardous
7 waste process list for the organic industry. Thus, while
8 hundres, if not thousands, of potentially hazardous waste
9 streams are generated by the manufacture of organic chemicals,
10 other than pesticides, EPA has listed only a fraction of
11 these, accounting for less than 10 percent of the industry's
12 product. In addition, many waste streams resulting from
13 use of these organics will go unregulated, including those
14 generated when such organics are used to produce other products
15 (eg., dyes, plastics, pesticides). We can illustrate the
16 problems inherent in the EPA proposal with a few concrete
17 examples.
18 Carbon Tetrachloride - Carbon tetrachloride is
19 a non-flammable organic used for a variety of purposes:
20 for the chlorination of organic compounds; as a refrigerant
21 and propellant; as an agricultural fumigant; and as a
22 degreasing agent. It is a carcinogen and has been found
23 in the air of houses at Love Canal and in the drinking
24 water in Toone, Tennessee.
25 (1) Because a DWS has not been developed for carbor
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14
tetrachoride, wastes containing this compound are not toxic
by definition (a); also, it does not fall under any of the
other definitions of a hazardous waste given in Section 300]
(ignitability, corrosivity, reactivity).
(2) Some of the waste streams containing
carbon tetrachloride will be regulated under the hazardous
wastes lists, including those resulting from the manufacture
of this chemical and when it has been used as a degreasing
agent. Waste streams resulting from its use in the
chlorination of other organics, as a fumigant, and as a
refrigerant and propellant will go unregulated.
12 (3) Even though carbon tetrachloride appears on
13 Appendix IV (DOT list) , this compound is not "normally
14 shipped" by rail or truck under the name carbon tetrachloride
15 thus even pure solutions, as well as off-specification batche:
of this carcinogen, will not be regulated.
Trichloroethylene - Trichloroethylene (TCE) is
a non-flammable organic used for a variety of purposes:
19 as a chemical intermediate in the manufacture of organics
20 and Pharmaceuticals; as a dry cleaning agent; as a fumigant;
21 as a degreasing agent; and as an extraction solvent. It is a
99 known carcinogen, and is one of those chemicals identified
93 at the Love Canal site, in the air of homes surrounding the
site, and as the culprit in other hazardous waste damage
reports.
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15
1 (1) Like carbon tetrachloride, TCE would not
2 be regulated under EPA's definition of toxicity.
3 (2) Some of the waste streams containing TCE will
4 be regulated under the hazardous waste lists compiled by
6 EPA. These include those generated during its use as a
6 solvent or degreasing agent. Waste streams generated as a
7 result of its use as an intermediate in the synthesis of
8 organics and Pharmaceuticals, as a fumigant, or as a dry
9 cleaning agent will go unregulated.
10 (3) Even though TCE appears on Appendix IV
11 (DOT list) it is not "normally shipped" by truck, rail or
12 vessel under the name of trichloroethylene. Thus, even pure
13 solution and off-specification batches will not be labeled
14 as hazardous wastes.
15 When other toxic chemicals are put through this
16 type of analysis, it becomes clear that EPA's regulations
17 will not control the disposal of waste streams or even pure
18 solution of toxins known to have caused environmental and
19 health damage. For example, Appendix V, the Selected Priority
20 Pollutants, which will be regulated under the Clean Water Act,
21 lists many toxins known or suspected of being carcinogens,
22 rautagens, teratogens, and neurotoxins; yet waste
23 streams, off-specification materials, and even pure solutions
24 of many of these compounds will not be considered hazardous
25 because they are not "normally shipped" under their chemical
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16
1 names, they do not appear on the hazardous wastes lists,
2 and they are not subject to Drinking Water Standards.
3 Clearly, EPA must strengthen its regulations that
4 define toxic wastes. Expanding the hazardous wastes lists
5 will be helpful but inadequate, because it will take years
6 for EPA to develop all the information it needs to make this
7 approach comprehensive. Therefore, in addition to adding
8 to the lists of hazardous wastes, the criteria used in
9 definition (a) must be expanded. These new criteria must
10 use the toxicity information already developed for thousands
11 of substances, rather than limiting themselves to the
12 fourteen Drinking Water Standards. Additionally, toxicity
13 testing should be included as a means of identifying
14 hazardous wastes. In its Advanced Notice of Proposed
15 Rulemaking, EPA proposes a definition of toxicity along
16 these lines. We are suggesting utilizing both analytical
17 and testing approaches to define toxic waste. It may be
18 several years for this ANPR to be implemented. There is
19 no need to wait. Both analytical and testing
20 methodologies are now available for EPA to use in expanding
21 its toxic waste definition. As EPA has admitted in its
22 background document, the technology is not lacking. Rather
23 "economic factors" are keeping this approach from being
24 proposed. Unfortunately, the "economic factors" means
25 economics only as it relates to industry and not the
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17
1 economics of cleaning-up hazardous waste disposal sites
2 or the medical costs of cancer, birth defects, and other
3 environmentally caused diseases.
4 A. Analytical Approach
5 As already stressed, EPA must use available toxicit
6 information in its definition of toxicity. The ability to
7 use such information requires that a comprehensive
8 identification and evaluation of the chemical components
9 of a waste be performed by the generator of that waste. It
10 would be the generator's responsibility to compare this
11 waste stream information to criteria developed by EPA that
12 define acutely and chronically toxic substances and waste
13 streams. The California Department of Health uses such
14 an approach in its "Characterization and Assessment System
15 for Hazardous and Extremely Hazardous Wastes."
16 For economic reasons, many industries have already
17 determined the components of their waste streams.
18 Maximization of the amount of product produced requires a
19 knowledge of the amounts of starting materials used as well
20 as of the intermediates, by-products and end-products formed.
These industries as well as those that do not normally
-- develop such information should be required to analyze
their waste streams using sensitive analytical procedures
24 such as gas chromatography and mass spectrometry. Such an
25
analysis would indicate not only the major components of
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1 the waste stream but also the presence of toxic contaminants •
2 e.g., contamination of trichlorophenol waste streams with
3 dioxin.
4 A few waste streams, like those generated by
5 the petroleum industry, are extremely complex. This makes
analysis difficult. Other waste streams may contain
components for which sensitive analytical techniques are
not available. These types of waste streams, not amenable
9 to regulation by the analytical approach, would have to be
10 handled primarily through hazardous waste lists and toxicity
11 testing.
12 In develping criteria against which an industry
13 can determine if its waste is hazardous, EPA should use
14 information from both acute and chronic testing. For
15 acute toxicity information a system similar to that developed
16 by the California Department of Health could be used. Under
17 this system, a waste is toxic if it has a calculated mammalian
18 acute oral, dermal, or inhalation toxicity at or in excess
19 of established criteria limits (e.g., oral LDjg - 2000 mg/kg)
20 The California agency also developed a criterion limit
21 for acute toxicity for aquatic vertebrates (1X55 ~ 500 mg/1) .
The California criteria are established using a formula that
takes into account the fact that wastes contain more than
one toxic substance and can produce additive and
synergistic effects.
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19
Similar criteria should be developed by EPA using
not only mammalian and aquatic acute toxicity information
when available, but also information from aquatic inverte-
brates, terrestial animals (e.g., fish-eating bird and
5 reptiles), and plants,
6 For chronic toxicity information, several
approaches could be taken. EPA should prepare a list of
known carcinogens, mutagens, and teratogens, similar to the
Controlled Substances List in EPA's ANPR but greatly expanded.
10 Because there is no safe level for exposure to carcinogens
11 and mutagens, and probably not for teratogens acting at
12 the genetic level, wastes containing such substances would
13 be defined as hazardous.
14 Additionally, criteria should be developed which
15 use established standards such as the Water Quality Criteria
16 developed pursuant to the Clean Water Act and chronic
17 toxicity information developed on other chemicals regulated
18 by EPA, such as the Priority Pollutants and RPAR pesticides.
19 Obviously, a purely analytical approach will not be
20 adequate to define as hazardous all of those waste streams
21 that should be regulated. This is in large part because,
22 for most organics, little or no toxicity information is
23 available; that which is available is largely a result of
24 acute toxicity testing. Additionally, waste streams are
25 usually mixtures of wastes which can act in an additive and
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20
synergistic fashion; the single components of the waste
itself can also interact to form toxic by-products. Finally,
some waste streams are complex mixtures of compounds which
elude analysis and thus are not subject to an analytical
test for toxicity.
For these reasons, we in large part support the
testing (bioassay) approach developed by EPA in its ANPR.
This appraoch should be incorporated now into the proposed
regulations to that it will be included in the final
regulations promulgated in December of 1979.
B. The Testing Approach
The testing scheme we envision is similar to
that developed by EPA in its Advanced Notice of Proposed
Rulemaking (ANPR). A waste would first be subjected to
the Extraction Procedure (EP) developed by EPA. The extract
produced would then undergo a variety of tests for mutagen-
icity, bioaccumulation, aid for acute and chronic effects on
mammals and on aquatic and plant life. To lessen the economic
impact, this testing scheme would be a graded one, with
small generators doing minimal testing and larger generators
doing more comprehensive testing.
In the preamble to these proposed regulations, EPA
implies that such an approach is infeasible because of the
lack of adequate testing protocols. This is certainly not
the case. Both the Office of Toxic Substances and the Office
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21
1 II of Pesticide Programs have developed testing protocols to
2 detect chemicals that bioaccumulate, or that are acutely and
3 chronically toxic; these protocols include many of those
4 same tests that EPA has rejected as "infeasible" for defining |
5 hazardous wastes As EPA admits in its background document,
6 it is economics, not lack of adequate test protocols, that lec|
7 II them to reject testing as a means of identifying hazardous
wastes. This is difficult to justify given the enormous
costs, both in terms of human health and environmental
10 clean-up, resulting from pollution by hazardous wastes.
11 Additionally, many of these tests are very inexpensive,
12 (a few hundred dollars per test) and would be economically
13 feasible for hazardous waste generators to utilize,
14 especially if a graded system of testing is developed for
15 large and small generators.
16 We do have some objections to the Extraction
17 || Procedure (EP) developed by EPA. This extraction procedure
18 cannot predict the long-term stability or integrity of
19 any waste in the environment because it was designed solely
20 to examine the leaching potential of wastes in an isolated
situation — that situation in which the leachate is controllejd
21
22 " by the waste itself or municipal refuse decomposition
23 " products. In practice, many industrial wastes are mixed
24 " with others during collection, storage, transport, and
25
disposal. This mixing can considerably augment the extracta-
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22
bility of toxic components. This is especially true for many
classes of known mutagens and carcinogens that are relatively
non-polar compounds, and minimally soluable in water; the
EP described by EPA would be ineffective in extracting such
compounds from solid wastes contaminated with them. Addi-
tionally, potential health problems and environmental
contamination via discharge of insoluable dust and particles
through the air or surface water run-off cannot be predicted
by this extraction test.
10 Despite these problems with the EP proposed by
11 EPA, we feel that at the present it is best available elution
12 technique that can be performed prior to testing of wastes
13 and, thus support its use in a testing approach to defining
14 hazardous wastes. We encourage EPA to begin developing (1)
15 extraction methods that will elute both polar and non-polar
16 compounds from wastes and (2) fractionation and/or
17 concentration methods for liquid wastes and the liquid
18 extraction of solid wastes to be done prior to testing in
19 bioassays.
20 The problems in the EP that EPA is proposing
21 stresses the need for the analytical approach we suggested
22 in defining hazardous wastes. In the analytical approach,
23 the total concentration of the waste components are
24 considered, not just the extractable concentrations; thus,
25 it will cover many of the organic toxins in solid wastes
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23
1 that the EP would miss.
2 This three pronged system for defining hazardous
3 wastes — an analytical appraoch, a testing approach, and
4 hazardous waste lists — should serve as a comprehensive
5 method for defining hazardous waste streams. We urge EPA
6 to adopt such an approach in its final regulations under
7 Section 3001.
8 Exclusion of Sewage Sludge From Coverage Under
9 Sub-title C.
10 In the preamble to Section 3001, sewage sludge
11 from POTW's is excluded from regulation under Subtitle C.
12 Instead, EPA states its intentions to rely on Section 405
13 of the Clean Water Act to provide "equivalent protection
14 from improperly disposed sewage sludge." CBE feels that such
15 action would be a direct violation of RCRA; Section 405
16 does not provide legal authority to command "equivalent
17 protection".
Subtitle C contains a specific statutory mandate
for EPA to promulgate and enforce regulations relating to
20 hazardous sewage sludge. Such regulations must provide for
21
substantial monitoring by generators and disposers, "cradle
to grave" manifest systems, and, most significantly,
23 financial responsibility for the ultimate treater, storer
and disposer of the hazardous waste. None of these
provisions are within the statutory ambit of Section 405.
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24
Additionally, the clear directive of Section 405 is to
provide for the BENEFICIAL USES of non-hazardous sewage
sludge, while the directive of Subtitle C is to stringently
regulate that portion of sewage sludge which may be hazardous.
The two statutory provisions are not coextensive, nor are the
in conflict. To provide equivalent protection, the statutory
bases must provide equivalent authority; it is clear that
Section 405 and Subtitle C do not.
9 There is a definite need for comprehensive manage-
10 ment of sewage sludge under Subtitle C. On a national basis,
11 25 percent of the input into sewage treatment plants is
12 waste from indistrual sources such as chemical plants and
13 metal plating shops; in some cases, this industrial input
14 is more than 50 percent. Thus, sewage sludge contains
15 the gamut of industrial pollutants such as toxic metals and
16 organics — no industrial waste can make such a claim. And
17 for many sewage sludges, these toxincs are present in
18 extremely high concentration. Based on cadmium content alone,
19 EPA has estimated that 67 percent of all sewage sludge in
20 the United States would fail the Section 3001 criteria for
21 hazardous wastes. In contrast, less than 20 percent of all
22 industrial wastes fail these same criteria.
23 Section 3002 - STANDARDS APPLICABLE TO GENERATORS OF
24 HAZARDOUS WASTES.
25 My comments now will be on Section 3002, Under
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25
1 Section 3002 I would first like to talk about EPA's
2 identification of Hazardous Waste Generators.
CPE is opposed to the 100 kilogram exemption
proposed by EPA. It will leave the public and the
envoronment unprotected from clearly hazardous wastes which
6 is contrary to the intent of Congress as expressed in RCRA.
7 EPA has estimated that up to 15 percent of the
annual production of about 344 million metric tons of
industrial waste is hazardous. A cut-off point of 100 kilogrj
10 per month for hazardous waste generators could result in
11 0.5 percent of such wastes being exempt from Subtitle C
12 control — this amounts to 568 million pounds of hazardous
13 waste. Not even included in this figure are the volumes
14 of hazardous waste generated by retailers and farmers
15 who have also been exempted by these regulations.
16 In both the legislative history of RCRA and in
17 Section 3002 of the Act itself, it is clear that protection
18 of public health and the environment, and not economics,
19 is to be the basis upon which generator regulations are to
20 be developed. However, the rationale given by EPA for its
21 generator exclusions make it clear that economics is the
22 major consideration; the proof that these exemptions will
23 still provide protection of public health and the environment
24 is lacking.
25 EPA's rationale for the generator exclusions is
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26
1 best summarized by statements made in their background
2 document to Section 3002:
3 "Studies of past environmental damage incidents
4 at landfills (Appendix H) have shown that it was vei
5 large auantities of waste that caused damage in
6 most documented incidents. Small quantities of
7 hazardous waste appear to have no adverse
8 effects on the environment particularly if they
9 are required to be disposed of at a Subtitle
10 D facility. "
ll Such statements do not offer "proof" that the
12 generator exemptions will be protective:
13 (a) The cases of past environmental damage
14 incidents at landfills documented by EPA likely
15 represent only a fraction of those that have
16 actually occurred, given the large gaps in EPA's
17 knowledge of past disposal practices.
IS (b) Environmental damage at landfills is only
19 one possible hazard resulting from improper
20 management of hazardous wastes; damage during
21 transport, storage and from disposal other than that
22 at landfills should also be considered. When this
23 is done, we find that several damage incidences have
24 occurred from improper management of small
25 quantities, in some cases one drum, of hazardous
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27
1 waste. This is clearly documented in Appendix
2 J (Hazardous Waste Incidents) of EPA's
3 Environmental Impact Statement.
4 (c) Without the manifest and other record-keeping
5 and reporting requirements, EPA will be unable
to ensure that the millions of pounds of hazardous
wastes generated by small industries, retailers,
and farmers will ever reach Subtitle D or
Subtitle C facilities.
(d) Regulations for Subtitle D facilities are
not adequate to protect the environment from
12 contamination with hazardous wastes. The general
13 criteria proposed for sanitary landfills for the
protection of air and water as well as the methods
15 suggested to ensure this protection are
16 significantly weaker than those in Section 3004.
17 It is doubtful, for example, that leakage of toxins
18 from a sanitary landfill would ever be detected
19 because there is no requirement for detailed
groundwater analysis. This could lead to especially
21 severe problems at sanitary landfills receiving
22 hundreds of small deliveries of hazardous waste
from generators.
24 (e) EPA makes the calculation that if all excluded
26 generators produce the maximum (100 kg/month) ,
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1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
28
the ratio of non-hazardous to hazardous waste
in sanitary landfills would be 25:1 to 30:1, a
ratio that EPA says is above the "dangerous" level
of 4:1 to 3:1. We are unclear as to how this
number was reached, but assume it is an average
calculated by EPA. Using an average number does
not account for the problem that many small industri
are often located in the same area of a town or
city and would utilize the same sanitary landfill
to dispose of their hazardous waste. Such a
situation could easily drive the codisposal ratios
toward the more dangerous levels of 4:1.
To protect health and the environment, EPA must not exempt
small generators, retailers, or farmers from the proposed
generator standards; instead lesser administrative
requirements should be institued for these generators to
reduce their economic burden.
II. Reporting Requirements
A. Waste Stream Data
Section 3002 requires submission of reports to the
Administrator (or State agency) setting out "the quantities
and disposition of hazardous waste generated during a
particular time period." The hazardous waste generator
reports that EPA is proposing for such reporting require very
little information from the waste generator concerning the"
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29
1 actual composition of its waste, other than shipping
2 description and quantity generated. We feel that these
3 reports should be expanded to include additional information:
4 (a.) The type of process which produced the
5 waste (for example, origanic chemicals production
6 or metal etching).
7 (b) The type of waste (for example, solvents,
neutralized sludge, sflent catalyst fluid).
9 (c) The composition Of the waste, which would
10 entail a listing of the waste components and their
total concentrations in the waste.
12 (d) The evaluation of the waste, which gives
the reasons for defining the waste as hazardous
14 (for example, toxicity — by testing or analysis —
15 ignitability, etc.)
Such information should be provided by the generator since
generators have the most knowledge about the components
18
present in their waste streams.
19 If EPA requires detailed analytical information
about waste streams for generators as we suggest in our
21 comments on 3001, it will be wa^y for generators to include
22
such information in their reports to the Administrator.
23
Generator analyses will also aid those persons who must
24
analyze wastes prior to disposal or treatment at 3004
25 facilities.
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30
1 At the national level, this waste stream informatioi
2 would serve as a data base upon which EPA could develop
3 additional regulations for managing hazardous wastes or
4 modify existing ones. For example, it would aid in expanding
5 the hazardous wastes lists developed under Section 3001
6 and guide EPA in the types of resource conservation and
recovery systems and waste treatment systems needed in the
8 future.
In the regions and states, such information would
10 provide data needed by local officials to handle problems thai
11 result from mismanagement or accidental release of hazardous
12 wastes. The knowledge that dioxin was a component of a
^ hazardous waste that entered the environment as a result of
14 a plant explosion or train derailment would be important in
16 developing emergency response plans and clean-up of the
16 waste. Additionally, knowledge of the components of the
17 wastes in a landfill found to be contaminating the environment
18 is essential in conducting thorough analyses of water, air
" and soi; the importance of waste stream data supplied by
20 Hooker chemical Company to New York officials in the Niagara
21 area exemplifies this. And finally, waste stream data is -
22 essential for public involvement in the RCRA program; it pro-
23 vides the types of information needed for enforcement
24 of existing hazardous waste regulations as well as for
25 actions under Sections 3001 (c) and 7004 (a) of RCRA which
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31
provide for petitioning of the EPA to promulgate new or amend
existing regulations.
3 B. Frequency of Reporting
4 We encourage EPA to increase the reporting
5 frequencies for generators. Large generators should be
required to report monthly utilizing the "annual" reporting
forms developed by EPA which supply information on the
shipping description and quantity of the waste. Small
generators (100 kilograms per month), need report only semi-
10 annually on these forms.
11 Detailed information on waste streams, which EPA
12 should require from generators, need only be reported
13 semi-annually for large generators and annually for all other
generators. Changes in the composition of a generator's waste
15 stream because of the use of new practices or modification
16 of existing practices should be reported within thirty days
17 of the change.
18 The reporting requirements for manifests not
19 received should also be modified. EPA should require that
20 a generator who has not received the original manifest
21 within thirty days after the date of shipment report immed-
iately to the Administrator. The generator should then take
23 all actions necessary to locate and receive the manifest
24 and to assure that the waste is properly disposed of. If he
has been unable to accomplish this within thirty days, the
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32
generator should submit a detailed report to EPA.
Thank you.
MS. DARRAH: Do you have any questions?
MR. LINDSAY: I have about two items, one is
a request and something I would like to explore a little
6 bit further.
With regard to the 100 kilogram limit as you
quoted in there, one of our major reasons for not
including that — there were a number — I mean for
excluding that is we do have very little data or information
on damages that are caused by disposal and unsatisfactory
municipal landfills, if you will. If you have any
13
information which is counter to that, experience and so
on, we would like to have it.
DR. DAVOLI: You have it in your background
document. You list incidences, small quantities of
pesticides in the midwest being disposed of improperly.
18 MR. LINDSAY: They weren't in landfills and
19
would not come anywhere close to the kind of things we
are talking about in Subtitle B.
1 DR. DAVOLI: I am saying that is not — that is
22
an improper assumption.
23 MR. LINDSAY: It is illegal if they don't.
4 People can always just choose if they want to ignore the
25
manifest and do what they please. That is illegal.
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33
If they are not going to follow the law, they are not
going to follow the law. If you do have additional
information other than what we have, we would like to
have it.
Second of all, I would like to explore something
here a little bit more and get your comments on how we
are going to handle these things. A number of your
comments went toward the approach that we needed to
expand, for example, the number of wastes that are in
10 the system, expand the number of people by getting rid
11 of perhaps this small generator exclusion and getting
12 foreigners in the system and a variety of other people
13 and expanding the reporting frequency and the amount of
reporting which is done. I am very much afraid, for
15 example, that we are going to do two things if we go that
16 route, and that is, No. 1, we are all going to drown on
17 paper.
18 Do you have any comments for us, how we might
19 manage that? We are going to have hundreds of thousands —
20 we would have hundreds of thousands of additional generators
21 and tens of thousands of additional facilities — landfills
22 and things like that — suddenly being in the system,
23 reporting to us in really an expanded approach. I wonder
24 if you have any comments on that.
25 DR. DAVOLI: I still think the information should
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34
1 be available and there should be methods with other toxic
programs in ways of storing this information by computer,
and I can't see why that also can't be done by your program.
MR. LINDSAY: We will have a computer program
5 that will store the data.
DR. DAVOLI: It should be available at regional
offices for State agencies and other environmental
purposes.
MR. LINDSAY: One other point I would like to
touch on with regards to that same thing is this great
11 expansion of numbers of people, small people, in this
12 system. If you can comment with respect to this, how
13 it is going to be. There is a lack of available capacity
that exists and is going to exist, I am afraid, for some
time. One of the things I am afraid of is that a lot of
16 these people will simply decide that it is too burdensome
17 and decide to ignore all the regulations and get rid of
18 the small quantities particularly — and some may get
big quantities — elicitly dumping them down sewers, into
20 back yards rather than complying to the minimal approach
21 by sending it to a Subtitle B facility. This would be
22 counter-productive. We would end up with stuff in back lots
and so forth rather than in the municipal facilities where
we think they can handle the small quantities.
25
Do you have comments on the likelihood of that?_
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2
3 generators.
4
from happening? I don't expect we will have the enforcement
capability to start following up on small generators. Do
7 you have any thoughts on that?
DR. DAVOLI: Not really.
9 MR. LINDSAY: After today, that will be helpful.
35
DR. DAVOLI: Not on the likelihood but just that
that is a possibility that might happen with some small
MR. LINDSAY: How can we stop that sort of thing
. MR. LEHMAN: There is one section of your
testimony that leaves me confused, and I would like to
clarify that, if possible. On the one hand, you are
indicating that you believe that the 100 kilogram exception
is not correct and that we should essentially have a zero —
a lower exception; and you say that, along with that, that
we, rather than have the exception, we should reduce the
administrative load on these folks.
A little later you indicate that as far as
reporting requirements go, you think we should ask for more
reporting data more often.
DR. DAVOLI: On the larger generators.
MR. LEHMAN: For larger generators.
DR. DAVOLI: Right.
MR. LEHMAN: Then both cases in terms of the
reporting data and frequency.
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36
1 DR. DAVOLI: I guess it would be more reporting
2 for the larger generators and less for the smaller generators
3 More than what you are asking for now.
4 MR. LEHMAN: I see. I think I see.
5 In other words, you are making a distinction
6 between —.
7 DR. DAVOLI: I am saying you should have
reporting from everyone, but I am also saying you should
have more reporting than you have asked for from larger
10 generators.
11 MR. LEHMAN: Am I correct in assuming that when
12 you are talking about smaller and larger generators in
13 the sense that we are just talking about, that you are
14 referring to 100 kilograms per month power?
15 DR. DAVOLI: That's fine, for everyone, for
retailers, farmers.
16
17 MR. LEHMAN: You also include everyone in the
18 system?
19 DR. DAVOLI: Yes.
20 MR. LEHMAN: And when you say less reporting for
21 small people, small generators, what do you mean in terms
22 of frequency for those people?
23 DR. DAVOLI: I think I already mentioned it. It
24 would be, like, for example, the manifest for the larger
25 ones, summaries of the manifest should be done monthly or
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37
semi-annually. Reporting on waste stream data should be
done semi-annually and less often for the smaller ones.
MR. LEHMAN: That's okay. I just wanted to get
your feeling.
MR. TRASK; I would like to explore a point you
raised on trichloroethylene which you used as an example.
7 DR. DAVOLI: Right.
8 MR. TRASK: Maybe you put your finger on something
9 we have missed — I hope not, but I believe you did.
10 DR. DAVOLI: All right.
11 MR. TRASK: You said that even though
12 trichloroethylene appears on the DOT list, that it is
13 not shipped by vessel under that name. What name is it
normally shipped under?
15 DR. DAVOLI: From talking to people in the
16 State of Illinois who are in charge of all those sections
in transporation, they told me it is ORMA. It only has
18 to be labeled as trichoroethylene if it is shipped by air.
I9 Otherwise, a poison if shipped by any other means.
20 MR. TRASK: Under the nomenclature system
21 we have set up for hazardous waste, that would not be
22 sufficient. It would have to take the name trichloroethylene
23 DR. DAVOLI: Even if we state ORMA.
24 MR. TRASK: ORMA only indicates a hazard.
25 DR. DAVOLI: Then the marking — we get into some
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38
1 terminology here —.
2 MR. TRASK: It may be semantics.
3 DR. DAVOLI: The State of Illinois thinks that —.
4 MR. TRASK: I don't knovv.
5 DR. DAVOLI: Okay.
6 MR. TRASK: I don't know exactly. They have a
7 DOT regulation in that state. The relationship between
8 them and EPA may not be that great.
9 DR. DAVOLI: Yes.
10 MR. TRASK: Under our system, it would be listed
11 as, say, a solvent NOS, and then the word trichloroethylene
12 would have to appear. The ORMA only indicates the hazard.
13 DR. DAVOLI: Okay.
14 MR. TRASK: That's the way our system works.
15 Did you find something different than that?
16 DR. DAVOLI: I did from the official in Illinois.
17 One thing I was trying to point out is the way the
18 regulations are written now, pure solutions are taken off
19 of specification materials if it is normally shipped from
20 the name given in one of the appendices which would be
21 regulated. If you look at the appendices, for example,
22 priorities of pollutants, none of the PRT pollutants would
23 fall under the regulations.
24 MR. TRASK: Before you make a final decision on
25 that, I call your attention to, I think it was Wednesday's
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1
all of the 311 materials. The hazardous substances. That
3
4
5
39
Federal Register where DOT is proposing to add to its list
might take up some of the priority pollutants.
DR. DAVOLI: As the regulation standards stand
now, they would not cover them.
6 MR. TRASK: We hoped we designed this so if the
DOT systems didn't pick it up, then the EPA system would.
So there would not be a gap between there.
DR. DAVOLI: Right now I think it doesn't.
MR. TRASK: Right now it doesn't, but when
these become final, it will. The word "waste" would
show in front of the name of the hazardous material, so
it would be "waste trichloroethylene."
DR. DAVOLI: It is not a pure solution.
MR. TRASK: If it was off spec materials,
off spec materials and pure solutions. What about waste
containing 50 percent trichloroethylene?
DR. DAVOLI: That would depend on whether the
generator elected to call that material.
MR. TRASK: What does the other 50 —.
DR. DAVOLI: The substantive generator, what he
wants to label it.
MR. TRASK: The generator's responsibility is
to determine what the identity of that waste is.
DR. DAVOLI: That is not exactly —.
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40
1 MR. TRASK: Well, if you have some thoughts on
what else we could do, we would be interested in hearing
Q
them — whose responsibility it is to do what, that sort
of thing.
5 DR. DAVOLI: Okay.
MR. STRAUS: I have one question for clarification.
You gave as an example, you said to modify the toxicity
Q
characteristics, and it is something similar to the
California system. Do you want us to use the California
10 system?
11 DR. DAVOLI: I think that there is some problem
12 with the California system, and I don't think that it is
comprehensive enough because, first of all, their criteria
14
has only been established for acute toxicity, and it has
only been for acute toxicity for mammals and some aquatics;
that should be expanded to toxicity in other animals.
They do have a list for very hazardous compounds like
18
carcinogens that have to be expanded. EPA has to develop
19
some other sort of criteria,
90
MR. STRAUS: Any thoughts that you have on how
21
the California system or our system could be expanded would
22 , ,
be appreciated.
00
DR. DAVOLI: Okay.
MS. DARRAH: Excuse me. Do I understand you do
25
want to speak later on Section 3004?
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41
1 DR. DAVOLI: No.
2 MS. DARRAH: The second speaker this morning
3 is Geraldine Cox.
4 MS. COX: Good morning. I am Geraldine Cox,
Vice President and Technical Director of the Manufacturing
Chemists Association (MCA). MCA is a non-profit trade
association having 191 United States company members
representing more than 90 percent of the production capacity
of basic industrial chemicals within this country. MCA
10 members operate about 1500 plants in nearly every state
11 MCA member companies generate, transport, treat, store and
12 dispose of waste and are accordingly directly and materially
13 affected by the proposed regulations.
!4 MCA will be submitting detailed comments to EPA
15 on the proposed regulations. In the time available today,
16 I will summarize our principal concerns on the Section 3001
17 regulations dealing with the identification and listing of
18 hazardous waste.
19 Definition of Waste. EPA in Section 250.10(b)
20 (2) (ii) (A) proposed to define "other discarded material"
21 to include various "used Oils" that are incinerated or burned
22 as fuel. This proposal would result in classifying boilers
23 burning these oils as hazardous waste incinerators subject
24 to special rules. We urge that EPA redefine "other discarded
25 material" so as to exclude materials such as these oils for
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42
1 which there is a commercial market or a beneficial use,
2 such as for heating,
3 As the regulations are presently written, the
definition of "other discarded material" is prblematical
in that it is inconsistent with the ordinary usage of the
term "discarded" by including materials having significant
value-in-use due to their energy content. Within the chemical
processing industry, there are numerous situations where
9 residues from a process are burned in heat recovery facilitie
10 to supply energy needs of the process or another part of the
11 plant. We believe that it is clear from the legislative
12 history and from the plain meaning of the term "discarded"
13 that oils which are burned as fuel should not be included
14 within this term. Furthermore, we believe that EPA's pro-
is posal confuses the Section 3001 listing process with the
16 establishment of standards for disposal under Section 3004.
Most mineral oils will probably be non-hazardous (depending
18 on their prior use), and the logical approach would be to
19 remove them from the list and allow them to be categorized
20 by the generator just like any other waste.
21 Hazardous Waste Characteristics. Section 250.13
22 of the proposal defines hazardous waste characteristics so
23 broadly that many common materials which, if they were
24 "wastes" would be classified as hazardous and subject to all
the hazardous waste regulations. We believe that this is
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1 inconsistent with the statutory scheme. The language in
2 the legislative history of RCRA demonstrates that Congress
3 was focusing on a category of waste which posed very serious
4 health and environmental hazards. The words "serious"
5 and "substantial" were repeatedly used in qualifying the
6 hazard addressed by the statute.
7 Degree of Hazard. We are also concerned about the
8 fact that the Agency has proposed to establish identical
9 reporting, transport, treatment, storage and disposal stand-
1° ards for all "hazardous waste" as defined in the regulations,
11 with the exception of "special wastes." However, both the
12 statute and its legislative history indicate a congressional
13 intent that EPA take into account the degree of hazard posed
14 in setting the applicable standards. There are certainly
15 categories of wastes other than "special wastes" which
16 warrant a lesser degree of control. For example, a waste tha
17 is hazardous because it is ignitable should not be required
18 to meet the same standards for disposal as a severely toxic
19 waste. In its comments, MCA will attempt to illustrate
20 the kind of classification scheme which would provide
21 additional flexibility and should be examined further by
22 EPA.
23 Double Standard for Listing and Delisting. Section
24 250.15 of the proposed rules would allow a waste to be
25 delisted if the results of the described tests show that the
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waste does not exhibit the specific hazard characteristics
that caused it to be listed in the first place. The
difficulty is that the Agency has expressly decided not to
apply certain testing requirements in determining which
characteristics identify a hazardous waste because such tests
6 are unreliable. Nonetheless, various substances are listed
7 as hazardous because of such alleged characteristics. The
proposed delisting procedure puts the generator in the un-
9 tenable position of being required to use unvalidated tests
10 to attempt to delist a waste that was listed without the
11 benefit of test data derived by validated tests in the
12 first place. Although MCA does not object to the
13 principle of establishing a hazardous waste list, the
14 industry must have some validated mechanism for delisting
is wastes based on a showing of minimal risk of hazard.
16 In our comments, we will be submitting detailed
17 criticisms of the particular tests and characteristics
18 that EPA has proposed.
19 Leachate Extraction Procedure. EPA in Section
20 205.13 (d) (2) (i) (E) has proposed to obtain a leachate
21 using an acid medium extraction procedure. While the concept
22 of evaluating leachate to access the toxicity of a. waste is
23 valid, distilled water should be used instead of acetic acid
24 because the acid medium produces an overly sensitive and
25 inappropriate extraction product. Furthermore, if EPA uses
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an acid medium, it should be used only for metals analysis anc
todetermine if a waste should meet stringent hazardous waste
disposal standards for mixed waste disposal. Often a
particular industrial waste is disposed of by itself and is
not subject to such leaching of metals from a waste in contact
with organic acids. Finally, we urge that this distilled
water procedure ought to apply where it can be shown that the
waste as handled at a particular facility will not be subject
to an acidic environment. If the management practice for
1° a specific waste does not produce a hazardous leachate
11 the waste in that situation is not hazardous and should
12 not be subject to stringent hazardous waste disposal
13 standards.
We thank you for this opportunity to express our
15 views, and hope that the Agency will carefully consider our
16 written comments on this proposal.
17 MS. DARRAH: Thank you. Will you answer questions?
18 MS. COX: Surely.
MR. STRAUS: You gave as an example that you feel
that different types of waste should be — I guess managed
differently and you gave us an example that you thought
22 ignitable waste should be handled different than toxic
23 waste, and I was wondering whether you can expand upon
24 what the differences you see should be.
25 MS. COX: Well, in many cases, ignitable waste
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1 would be used as waste fuel oils as they are defined as
2 other discarded materials. They would not be allowed to
be burned according to the regulations.
MR. STRAUS: No, the regulations do not say you
cannot burn it, what it says is you need to get a permit
if you want to burn it. It does not disallow it.
MS. COX: It is required that it be combusted
in a certain type of facility which may not always be
9 available and might not be appropriate for that type of —
might not be necessary for that type of waste.
MR. STRAUS: I won't belabor the point. Basically,
what it says is if you want to burn it in a boiler, it
does not disallow it, but basically you will need a permit
to do it.
MS. COX: We have heard things in the past that
waste oil, I guess, mostly from automotive oil, has -been
burned in boilers and schools and in other establishments
that waste oils, the concentrations of lead are high and
without first cleaning the oil up, you can have quite a
lot of air pollution.
Doesn't air pollution control laws cover that
anyway?
MR. STRAUS: To a certain degree, but not fully.
The other question I had deals with, I guess,
extraction procedure. You suggest we use distilled water
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rather than acetic acid leachate as proposed in the
regulations. If we use distilled water — let me put it
this way — the main purpose of the extraction procedure
is as a screening mechanism to determine who's in the
system and who is not in the system. You indicate you
should use distilled water, especially if the disposal
7 site is known that is going to accommodate industrial
type waste. As far as sanitary garbage is concerned, my
question is, how do we determine this without getting you
in the system?
MS. COX: All right. We are proposing essentially
a two-tier system where the first tier would be the
distilled water test. If it passed that test, then the
material would be allowed to be disposed of in a special
industrial landfill type facility. If the material was
destined for a municipal landfill, a subsequent analysis
using the acetic acid extraction would be to determine
whether or not this material would be appropriate for
disposal in a sanitary landfill.
MS. DARRAH: Thank you very much.
James Greco.
MR. GRECO: My name is Jim Greco. I am employed
with the Browning-Ferris industries, and my response is
as the Director of its Government and Industry Affairs
Program.
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1 Accompanying me is Mr, William Speary, also
employed with Browning-Ferris Industries, who is our
n
Environmental Counsel.
I have four short statements that address 3001,
5
3002 and 3004, and I do appreciate the opportunity, if
I can, to give them all at this time.
7 MS. PARRAH: I hope you will summarize these
as far as possible.
MR. GRECO: They have been abbreviated and we
10 will go through them.
11 In the introductory supplementary information
12 accompanying the December 18th proposed regulations, EPA
13 acknowledges that it does not under-estimate the complexity
14 and difficulty of the proposed regulations... that, rather,
the proposed regulations reflect the large amounrs of
16 hazardous waste generated and the complexity of the move-
17 ment of hazardous waste in our diverse society. We can
18 appreciate the task required of EPA, particularly of its
19 Office of Solid Waste. That Office, we feel, has pursued
20 its responsibilities admirably and conscientiously since
21 the enactment of Public Law 94-580, conducting numerous
22 public meetings and seeking to involve broad public input
23 in its rulemaking activities.
24 Pursuant to our review of the proposed 3001 rule,
25 we feel the dual mechanism for determining whether a waste is
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hazardous — a set of characteristics and a listing of
particular hazardous waste — makes sense, in addition to
being in accord with the amended Solid Waste Disposal Act.
The listing, however, should logically be derived from the
5 criteria or characteristics. Our comments, at this time,
6 focus upon the issues of ignitability, the extraction
procedure, the exclusion of waste solvents, and the
demonstration for non-inclusion of a waste.
9 Regarding ignitability we recognize that EPA is
10 proposing a new classification of waste that would differ
11 from existing DOT waste classifications. The new
12 classification would be termed "ignitable waste" and be
13 defined as any material with a flash point of less than
14 140 degrees F. DOT classifies any material with a flash
15 point less that 100 degrees F as "flammable" and any material
16 with a flash point between 100 degrees F and 200 degrees F
17 as "combustible." The EPA rational for creating a new
18 classification is the assumption that "although the DOT
19 limit for flammable liquid is adequate for transportation
20 purposes, waste may be subject to much higher temperatures
21 during storage, disposal, or handling incident to waste
22 management." It is irrational to assume that higher
temperatures will be reached during storage in a DOT container
24 at a disposal site than the temperature that will be
25 reached in the same container during transit. It is also
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1 irrational to assume that more potential risks are involved
2 in handling a material at a permitted waste facility with
3 totally trained personnel as opposed to the risks involved
4 in the transportation of the same material across the
5 public highways. Special procedures that may be required
6 to maintain safety during specific treatment and disposal
procedures should be made a part of the facility permit.
Thus, the creation of a new waste classification is not
justified and would simply create confusion in complying
10 with DOT placarding and containerization regulations.
11 We recommend that the EPA definition/classification for
12 addressing "fire hazards" be consistent with DOT.
13 With respect to the identification method for toxic
14 waste, we support the concept of an extraction procedure
15 for determining if a solid waste can be disposed in a
16 sanitary landfill or if it must be handled as a hazardous
17 waste. However, provisions should be made for stabilized
18 materials that are disposed in isolated or special areas.
19 We do not support and are strongly opposed to the procedure
20 for obtaining the solid waste extract that has been developed
21 by the EPA. We believe that far too little thought has gone
into the development and the consequences of this procedure.
We support the efforts of the ASTM Subcommittee D19.12 in
this regard and recommend that the EPA adopt the extraction
procedure developed by this subcommittee.
561
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1 As to waste solvents, although we understand
2 the rational for excluding from these regulations waste
solvents processed for solvent recovery and the recovery
facilities, we propose that these waste streams be manifested
to provide tracking of these waste streams. We do not agree
with the exemption from these regulations of empty drums that
7 formerly contained hazardous wastes.
In Section 250.15 Cg) it is proposed that the
decisions of the presiding officer at a hearing held under
paragraph (f) shall constitute final Agency action, and are
not appealable to the Administrator. The decisions of the
12 presiding officer at a hearing should not constitute final
10
Agency action. We suggest that these decisions should be
appealable to the Administrator.
We appreciate the opportunity to bring these
comments to the Agency's attention.
17 With respect to Section 3002, Standards
1 Applicable to Generators of Hazardous Waste, once the
1Q
means for determining whether a waste is hazardous for
the purposes of Section 3001 of Public Law 94-580 is
finalized, we understand that the responsibility for commencinj
the proper management of such wastes — according to the
Subtitle C regulations, when promulgated — is upon persons
who produce or generate such wastes. These persons — or
generators — may be businesses, industries, institutions.
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2
3
4
5
6
7
applicable to generators of hazardous waste and wish to addres
9 four areas of the proposed regulations, namely:
52
governments, or whoever generates such wastes. Such wastes
are a by-product of our society —• the products and services
which characterize our standard of living and the dependence
of this "standard of living" upon chemicals. Though
determined to be hazardous, these wastes can be managed
safely.
We have carefully reviewed the proposed standards
(1) the furnishing of general chemical
composition information
(2) the identification of harzardous waste
generators — in particular, the 100 kilograms
per month exemption
(3) the manifest system
(4) waste oil generators requirements
Regarding the first area, we draw attention to the opening
paragraph of the supplementary information on Page 58969
wherein it is noted that requirements are to be established
for the furnishing of information by generators on general
Chemical composition to persons transporting, treating, storirg
or disposing of hazardous waste. This is certainly consistent
if not identical with the wording of Section 3002 of P.L.
94-580. However, on Page 59000 of the proposed 3004
standards in Article 250.43 (f) it is stated that:
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1 "All owners/operators shall obtain a detailed
2 chemical and physical analysis of each hazardous
3 waste handled at the facility at the time of
4 initiating management of the hazardous waste.
5 This analysis shall identify the hazardous char-
6 acteristics of the waste which must be known to
7 enable the owner/operator to comply with the
8 requirements of this Subpart,..."
9 We feel that the "general chemical composition"
10 information referred to in the Act and presented as back-
11 ground information for the proposed 3002 rules should be
12 consistent with the "detailed chemical and physical
13 analysis" information called for in Article 250.43(f). In
14 the former case the furnishing of such general information
15 is the responsibility to obtain such detailed information
16 is upon the facility owner/operator. To obtain such
17 detailed information an owner/operator may obtain the
18 information from the generator or from laboratory or
19 other analysis. If obtained from the generator, a mechanism
20 should be provided to the generator, such that the furnishing
21 of detailed information, only to the extent necessary, can
22 be treated as confidential, if requested. If the
23 information is to be obtained via owner/operator analysis,
24 the cost of gathering the necessary information may be
25 greater than the expense incurred by the generator providing
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54
such information — since a facility owner/operator may not
be as familiar with a waste as its generator.
With respect to the identification of hazardous
waste generators, while we understand "the rationale for the
proposed exclusion of generators who generate less than 100
kilograms per month of hazardous wastes, we are aware of no
legal basis for such an arbitrary exemption. However, due
to the higher degree of toxicity of some wastes — regardless
of the quantity generated — we believe that the exemption
10 should be conditioned upon the degree of hazard of the
11 waste regardless of the volume. It is noted that the Agency
12 considered such classification but acknowledged a lack of
13 sufficient data to do so. Perhaps, however, such
14 categorization could be based upon toxicity and a list could
15 be prepared, including the more toxic heavy metals, such as
lfi arsenic and cadmium, and the more persistent and toxic
17 organics, such as dioxin.
18 As to the proposed manifest system, we support
19 the establishment of a national manifest system that would
20 be uniformly consistent from state to state. We can
21 appreciate the problems inherent in developing a national,
22 interchangeable form, however practicality, public
23 understanding and confidence, and enhanced tracking and
24 verification of wastes managed would far outweigh the
25 problems to be overcome.
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Regarding the manifest itself on Page 58972 of the
supplementary information, it is mentioned that "the
generator designates on the manifest the address of one or
more permitted facilities where the waste is to be
delivered and signs it." While we recognize the need for
flexibility in designating multiple permitted facilities,
we suggest that one facility be designated as the primary
destination. EPA should require that the transporter deliver
the wastes included in the manifest to this facility unless
10 the facility refuses to accept the waste or is otherwise
11 unavailable to accept the waste due to circumstances beyond
12 the transporter's or generator's control. The transporter
13 must not be permitted to seek an alternative facility unless
14 (1) he has made a good faith effort to deliver to the
15 primary facility; (2) he has received authorization from
16 the generator to delivery to an alternative facility;
17 and (3) the alternative facility likewise has a
18 valid permit under Section 3005 of RCRA. The generator must
19 remain responsible for insuring that the waste is delivered to
20 a permitted facility and must be required to verify delivery
21 to the alternate facility and report this to the EPA and/or
22 the state. If the wastes are not delivered to the primary
23 destination then the generator should be immediately informed.
24 We feel this will minimize unwarranted confusion in the
25 tracking of individual waste shipments while also serving
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to minimize the probability of lost, unaccounted for
shipments by a transporter.
Comment was specifically requested on the
regulatory approach and possible alternatives for addressing
the indiscriminate disposal of waste oil. In Article 250.28
(a) it is proposed that "If a generator of waste oil enters
into an Assumption of Duties Contract with a transporter
governed by Subpart C... the transporter... shall become
independently liable for performance of the duties assumed
10 by him under this Subpart." We would support this option
11 for small waste oil generators, such as service stations,
12 if it can be assured that the transporter is able to be
13 financially responsible and accountable for problems which
U may result from unintentional or intentional actions.
15 Since there are no "financial responsibility" requirements
16 for a transporter, many — which may have created problems
17 in the past — would be allowed to continue "business as
18 usual." If waste oil generators are not capable of
19 complying with these regulations and/or the economic and
20 administrative burden is too great, it would seem more
21 appropriate to provide for the transfer of these
22 responsibilities to a treatment and/or disposal facility
23 which is much more regulated than the transporter in addition
24 to being more financiall capable of assuming this transfer
25 of responsibility.
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We acknowledge that the objective of the Agency's
hazardous waste management program is to insure that
hazardous wastes are identified and competently controlled
4 from the point of generation, through transportation, to
5 ultimate disposition at a permitted treatment, storage or
6 disposal facility. We feel that this objective is attainable
7 for the general public, American industry, and responsible
governments demand no less than such assurances.
It is cited in the supplementary information on
10 Page 58982 that the
11 "Section 3004 standards not only establish the
12 levels of environmental protection that hazardous
13 waste treatment, storage, and disposal facilities
14 must achieve, they also are the criteria against
15 which EPA officials will measure applications for
permits."
17 On Page 58948 particular mention is made of the requirement
18 that generators of hazardous waste must manage their waste
in an environmentally sound manner — which will create
a large new demand for adequate hazardous waste management
capacity. Furthermore, it is noted that:
"EPA must take into account the need for more
16
23 hazardous waste management capacity as it develops
24 this regulatory program because public health and
25 the environment will not be well protected if o ie
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16
17
18
19
20
21
22
23
24
25
58
1 of the results of the program is to shut down
2 most of the facilities currently available.
3 Hence, we feel it important that the general public be made
aware that these 3004 standards — levels of environmental
protection required of permitted facilities — can ensure
the safe management of hazardous wastes. Such public
awareness and recognition is a necessary pre-requisite and
building block for any hazardous waste control program to
9 be effective. However, the public may not be convinced
10 unless the technical standards are sound, enforceable, and
11 enforced. In this vein we feel it imperative that EPA,
state governments, and industry increase their efforts to
enhance public participation in the rulemaking/permitting
process and public education and awareness of the need for
and feasibility of hazardous waste management technology.
The recently announced "Waste Alert" and "Waste Watch"
programs seem to be a step in this direction and should
focus, we hope, increased public attention on the 3004
standards as the "measuring mechanism" for the environmentally
safe management of hazardous waste.
It is stated by the Agency and consistent with the
intent of Congress that the 3004 standards are the criteria
by which a facility shall be permitted. The criteria — the
3004 standards — are to be applied to each hazardous waste
management facility. Additionally, new facilities permit
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applications should be carefully scrutinized by state
agency programs. We feel the role of the states looms most
important. It is the most practicable and proper level of
government for implementing an effective hazardous waste
management program. States should establish and/or adopt
technical criteria consistent with Federal standards for
hazardous waste management treatment, storage, and disposal
facilities regarding site location and operation performance.
The criteria, rules, and regulations should be strictly
enforced and applied objectively. State governments and their
permitting agencies should be encouraged to exercise, as
necessary, pre-emptive powers to ensure action upon a permit
application within a reasonable period of time — for example,
ninety days. However, we believe that the EPA must establish
the level of the highest (as well as lowest ) performance
standards necessary to exercise these pre-emptive powers and
protect public health and the environment.
BFI is ultimately familiar with the problems inheren
in siting and developing hazardous waste treatment, storage,
and disposal facilities. As the general citizenry becomes
increasingly aware of the environmental and public .health
hazards resulting from improper disposal of hazardous waste,
the "siting problem" becomes increasingly more difficult.
However, we do not believe that direct government involvement
in the acquisition, development, and operation of hazardous
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waste management facilities will alleviate this public cc-ncen
2 or eliminate the "siting problem". Those who advocate direct
3 government intervention in the "siting problem" or the exclus-
4 ive use of public lands for hazardous waste facilities seem
5 to feel that it is possible to eliminate all public oppositiot
6 to hazardous waste management facilities. The crucial issue
7 is not whether or not it is possible to obtain unanimous loca
acceptance of the location of a facility in a particular
community or neighborhood, but whether or not the greater
10 public-at-large can be made to understand the necessity
11 for proper waste disposal.
12 In this respect we feel that governmental ownership
13 state or Federal — of hazardous waste disposal sites is not
14 desirable, would not likely be in the best public interest
15 would not likely lead to the best designed sites, would
16 not likely encourage R&D or improved practices/ and may be
17 less than effective regarding self-regulation. Currently
18 our company and other responsible firms are developing
19 additional facilities to meet the demand for hazardous waste
20 treatment and disposal. Such facilities can be developed
21 where geologic formations and terrain are conducive to the
location for such facilities, streamlined permit programs
and procedures are in place, enforcement authority exercised,
24 and a demand within an economically viable market area
exists. It is in this type of business environment, where
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private enterprise competes for business opportunities,
2
where incentives for quality service persists and new
3
innovative practices and techniques may be derived, and
where the public is most efficiently served. Though it
5
certainly is within the prerogatives of governmental
6
agencies to own and stimulate the development of hazardous
waste sites, it is not the answer to siting problems or to
creation of expanded capacity. If a state or the
9
Federal government embarks on a program to establish
government-owned facilities we do not feel that such a program
is one of the better approaches. If a program and procedure
for government-financed and owned facilities is going to be
established by a state or the Federal government, then the
same provisions, requirements, benefits, etc. should be
accorded to privately developed, financed, and owned
facilities. The private sector should not be precluded
from siting and developing facilities. If government-owned
facilities can benefit from pre-emptive powers regarding
siting, so too should privately-developed facilities.
All facilities should be required to follow the same permit
procedures and be regulated uniformly.
Earlier I mentioned the importance of the state's
role in implementing an effective national program for
the proper management of hazardous waste. Many states are
now assuming the responsibilities associated with this
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paramount role. Others, we feel, should likewise be
encouraged to do so. However, to whatever extent the
mandates of Subtitle C of Public Law 94-580 are implemented,
hazardous waste management facilities are needed. That need,
of course, can only be fulfilled if treatment, storage, and
disposal facilities are located, designed, and operated so
as to protect public health and the environment. Hence, the
crux of whether or not such facilities are established and
permitted is a responsibility not necessarily best — or
10 even better — fulfilled by government ownership of such
11 facilities or political pressure "to locate elsewhere"
12 such facilities. Though these are ready remedies and
13 seemingly publicly-popular solutions, these approaches
14 will not, in our opinion, foster fulfillment of the law's
15 objectives.
16 With respect to the last statement, I would
17 like to present the financial responsibility and other
18 requirements of Section 3004 of Standards for Owners and
19 Operators of Hazardous Waste Treatment, storage and disposal
20 facilities.
21 Frequently the question arises as to what
22 guarantees can be made regarding the ultimate management
23 of hazardous wastes. Legitimately, the public — becoming
24 more alarmed when hearing of hazardous waste disposal problem;
25 becomes more skeptical of government and industry initiatives
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l to properly manage these wastes. Throughout our testimony
2 at these hearings and at prior public meetings, we have
3 stated that we feel that hazardous wastes can be managed
4 safely so as to protect human health and the environment.
5 Where such wastes can be treated and rendered non-hazardous
6 or less hazardous within reasonable economic impacts,
7 they should be. Where such wastes are disposed into or upon
8 the land — whether trapped in deep geologic formations,
9 secured within surface containment/disposal facilities,
10 or mixed into soils, certain land naturally lends itself
11 for the location of these facilities. Additionally, such
12 facilities can and should incorporate design and operating
13 safeguards engineered and constructed for environmental
14 protection.
15 A key issue addressed in the proposed 3004 rules —
16 and prompted by Congressional concern — is the extent
17 of financial responsibility to be required, as may be
18 necessary or desirable, of hazardous waste management facility
19 owners and operators for continuity of facility operation,
20 proper closure of a facility, post-closure monitoring and mair
21 tenance, and assurances in perpetuity for remedying any
22 problem and compensating any damaged parties, in the event
23 an incident may occur. In the supplementary information
24 presented on Page 58987 of the proposed rules, it is cited
25 that:
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1 "Because of the uncertainties associated with
2 long-term disposal of hazardous waste and the
3 unavailability of post-closure non-sudden liability
4 coverage from the private section, EPA is consider-
5 ing seeking legislative authority to create a
6 Federally administered fund to provide such
7 protection. The fund would be available to satisfy
8 legitimate claims for damage when damage occurs
9 after a hazardous waste disposal facility has closed
10 but would be established in such a way as to
11 encourage responsible waste management by the owner/
12 operator during facility operation."
13 One of the questions posed by EPA in the proposed regulations
14 and for which comment is solicited is:
15 "Is a Federal fund for post-closure financial
16 responsibility for hazardous waste disposal sites
17 desirable and if so, how should it operate?"
18 We support the creation of a self-sustaining national fund
19 and request that serious consideration be given to the
20 approach proposed by NSWMA referred to as the "Hazardous
21 Waste Insurance Act" .
22 We feel that such a fund is not only desirable
23 but necessary. In a December 19, 1978 GAO report —
24 "How to Dispose of Hazardous Waste — A Serious Question
25 That Needs to be Resolved" -- reference is made to a
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l December 29, 1977 letter authored by the NSWMA which states
2 that:
3 "Private firms must have some means to project
4 and manage the risks, and costs of potential liability
5 flowing from hazardous waste management operations.
6 Whereas, liability under current legal doctrines
7 is open-ended as to amount and time, traditional
8 insurance, bonding or other arrangements are not
9 adequate. The public cannot assume that any
10 company, surety or insurer will maintain in
11 perpetuity the financial ability to cover this
12 potential risk; nor can any private corporation
13 reasonably be expected to create the needed new
14 facilities if it must encumber its balance sheet
15 with perpetual and infinite contingent liabilities
16 for closed facilities."
17 From our perspective, BFI can meet the financial
18 responsibility requirements proposed for site life operation.
19 Regarding post closure financial responsibility and
20 liability, however, we, as other larger corporations, may
21 find it very difficult if not impossible to meet, or will
22 find it to be too great a business risk to assume, post closu e
23 potential risks. Understandably, many may question the need
24 for a private enterprise to have limited liability and feel
25 it politically unpalatable or .contrary to our nation's
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competitive business ethic. A key consideration, however,
regarding this issue is that with respect to post-closure
liabilities of prior business operations, there exists no
assured mechanism for sufficient deriving funds after
closure of a facility to compensate for post closure
pollution-related damages under the present law. The concept
of a national fund supported by fees assessed on hazardous
wastes disposed is becoming more widely discussed and
accepted. However, we feel that in order to encourage the
continued development of hazardous waste management facilitie
by private enterprise, such a fund necessarily must be
12 conditioned upon a limitation and ultimate termination of
13 liability — so long as properly permitted facilities and
practices ongoing during site operation conform or
15 exceed all applicable regulations and are certified thereof
16 by appropriate regulatory authorities.
17 However, this is not to imply that we believe in
limiting the amounts of damages recoverable by damaged
19 parties from these incidents. Rather we advocate that
20 each hazardous waste management facility owner or operator
21 be responsible for compensating any harmed parties up
22 to certain specified reasonable amounts during the operating
23 life of a facility. And any recovery for incidents and
24 cost resulting thereof rising subsequent to proper closure
25 should then come from the funds.
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l We respectfully request that the proposed NSWMA
2 approach and the GAO report noted earlier be included as
3 part of the public record of these hearings and stimulate
further deliberation on the issue of financial responsibility.
At this point I will be willing to entertain
any questions from the panel or the audience.
MS. DARRAH: Thank you.
MR. LINDSAY: Early on you talked about the
9 test information that we require for treatment, storage
10 _ and disposal, people permitted for shipments coming in
11 and for waste in general. In terms of the test information
12 for waste, you know, for the receipt of each kind of
13 waste, it was our intent, basically, to cause information
14 to be gathered which would be sufficient for determining
15 how to treat and/or dispose of materials safely. We
16 thought we had modeled that requirement on the basis of
17 what the progressive companies do now. Apparently you feel
18 we have gone beyond that; is that right? We have asked for
19 too much there and you don't need that much information.
20 MR. GRECO: With respect to the general composition
21 or detailed chemical?
22 MR. LINDSAY: What is called detailed chemical
23 composition.
24 MR. GRECO: I don't think you have gone beyond.
25 The issue we have raised is obviously any type of program
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involving more than one party, whether it is government
or company regulated or a company that services another
company's waste must be underlined with trust and
responsibility. However, there is uncertainty on where
the responsibility lies with providing such information.
Clearly to provide general chemical information, the
response is a generator. As we understand it, sometimes
if that generator doesn't provide more detailed chemical
and physical analyses, we are unable to perhaps provide
10 the information unless we undertake tests to determine
ll what else might go into that waste.
12 MR. LINDSAY: Don't you test the waste that you
13 receive?
H MR. GRECO; We do test the waste, but do you
15 test the waste ifor every conceivable constituent that
16 may be in that waste?
17 MR. LINDSAY: I don't think that was our intent.
18 I think our intent was that for each truck that receives
19 waste, we want to have the kind of quick tests that have
20 been developed by a number of companies to determine whether
21 or not the material they receive is reasonably what they
22 expected to receive based on their contract.
23 With regard to the more comprehensive testing, if
24 one does test the material before he starts with it the
25 first time, I think our intent was to gather sufficient
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1 information so they can be handled adequately. If it
2 was a finable material, perhaps you can make suggestions
3 to us as to how we could change that. Are you saying the
4 generator should provide that information?
5 MR. GRECO: I can understand the problems of
6 both sides, I think.
7 In many instances it is not necessary for the
generator to provide that detailed type of information,
9 but in some cases with the uncertainty on how the waste
10 is going to be managed because maybe the regulations
11 aren't in effect yet, some companies like ours want to know
12 what that waste is and we may go further to characterize
13 that waste and general type of information added.
14 MR. LINDSAY: We want to be sure that everybody
15 wants that kind of information before we start handling it.
16 Do you see what I'm saying?
17 MR. GRECO: I guess you are getting at the
18 difference between general information and details and to
19 what extent.
20 MR. LINDSAY: We don't want to go overboard but
21 we want to make sure every facility receives and retains
22
themselves information available to enable them to do the
23 job right.
24 If you can recommending wording to us or changing
26 in the wording that would accomplish that without going to>~
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far, that would be very helpful, I think,
MR. FIELDS: Following up on Mr. Lindsay's
comments, these regulations, we thought it was normal
business practice with your firms and on-site facilities
to enter into contract with your clients that you are
accepting waste from and part of that arrangement would
be to get analyses of the waste that you are going to
be examining from that client. We were anticipating that
being part of general business practice, for the generator
10 to submit that detailed information.
11 MR. GRECO: There are a lot of negotiations going
12 on. Gus Speary may be able to address that. I know you
13 were interested in time constraints.
14 MR. SPEARY: We have standard form contracts
15 which are approved by me and others. We have submitted
16 this contract. In our contract, we request that the
17 generator provide us with the waste or that the waste we
18 contract to receive is in fact what we have received and
19 that our responsibilities do not begin until we accomplish
20 or achieve that, and that is that if he gives us what he
21 says he is going to give us, in each and every case, then
22 we will take it and it is our contract lender's understanding
23 that we will be responsible for that. At this time we
24 are negotiating with some major generators and they have
25 categoric"'1'1" Declined to accept that kind of a language.
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1 They do not want to provide us with that kind of information
2 at this time by contract. They will not obligate themselves
3 by contract.
4
MR, FIELDS: You are not getting enough information
5 from your clients so as to adequately manage the waste.
6 You need more information,
7 MR. SPEARY: We need more information, and it
is not the kind of information that we can readily
generate ourselves.
10 MS. DARRAH: Identify yourself.
11 MR. SPEARY: For the record, my name is William
12 Speary, Environmental Counsel for the BFI.
13 MR. TRASK: I have a couple of questions, Mr.
Greco, with respect to the identification of generators
issue. You mentioned we potentially could base a
separation of degrees of hazard on toxicity and then you
used as an example heavy metals and then you used dioxin.
Am I to assume that you would put those two in the high-
19 hazard category and everything else in the low-hazard
20 category?
21 MR. GRECO: No, sir, those were two examples
22
named, just examples.
23 MR. TRASK: Are there other chemicals your
24 technical people have developed rationale for?
25 MR. GRECO: I am not aware of that, but I would be
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happy to respond to the agency's request.
MR. TRASK: I would appreciate that because it
may give us a handle on how to do this.
Another question is you mentioned in the waste
oil issue that you would support the transporter becoming
independently reliable providing he had financial
responsibility. Do I take that to mean that you would
advocate financial responsibility for all transporters
of hazardous waste?
MR. GRECO: Theoretically, yes, but practically
11 speaking it is not conceivable because of so many
12 transporters. The converse then would be whether or not
13 the types of waste, there should not be that transferrence
of liability but maybe that should be between the
15 generator and the hauler, if that hauler operates a
16 treatment or disposal facility, or the generator operates
17 a treatment or disposal facility.
18 MR. TRASK: Thank you.
19 MR. STRAUS: I have one quick question. You
20 indicated that you strongly oppose the extraction procedure
21 outlined in the proposed regulations. I wonder if you can
expand on that. What in particular about this extraction
procedure? Are there certain parts or do you oppose the
total extraction procedure?
25 MR. GRECO: Not the total extraction procedure.
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It is my concern that the ASTMB 1912 would be more
appropriate. Some materials can be chemically fixed.
3 In fixing those materials, you can render them non-
4 hazardous and they could be disposed of. The test
procedure as defined now, those chemically fixed materials,
once chemically fixed may still become hazardous waste
by using the extraction procedure as it is defined now.
MR. STRAUS: I may suggest that you provide us
any data you have on how your waste react in the field once
10 they are landfilled. And if you have any data which would
11 indicate that your stabilized waste does not break up in
12 the field, we would appreciate that.
13 MS. DARRAH: Gus, the major generators, have
14 they offered you an explanation? Is it a confidential
problem?
16 MR. SPEARY: Basically that is their position.
17 We discussed, I guess in the past we have, in previous
18 contracts, we have been willing to accept more generalized
19 types of information; but as we see the 3004 requirements
20 on us coming down, we feel that in order to comply with
21 3004, we need more information from them. And they are
22 concerned about confidentiality. That is why we concluded
23 in our conference that, you know, if we can work it into
24 enter into secrecy agreements with the generators and if
25 this information would be handled on a confidential basis.
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TOSKA and other regulatory programs you have got
established, this might be the mechanism whereby we can
obtain that kind of information and satisfy their concerns
4 as well as our own.
5 MS. DARRAH: Have any of them suggested to
6 you they don't know or that they are not willing to perform
7 the necessary tests?
MR. SPEARY: No, that hasn't been raised with
us as far as I know.
10 MR. LINDSAY: Gus, following up just on that,
11 isn't there another option that you can do the testing
12 yourself and backcharge them for it?
13 MR. SPEARY: Sure. But basically, the concerns
14 we have is that we may do that on a spot basis, but we
15 have got to have a target for what we are going to test
16 for. We can't test for the entire spectrum of the
17 chemical world. I mean, we have trucks backed up from
18 here to New York.
19 MS. DARRAH: Thank you very much.
20 Mr. Arnold Schiffman.
21 MR. SCHIFFMAN: My name is Arnold Schiffman
22 from the Maryland Water Resources Administration. I will
23 relate my comments today on the generator and transporter
24 requirements to the overall theme that these proposed
25 regulations are both too stringent to work and inadequate
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to protect the public health and the environment. The
2 basic problem is EPA's policy to reject the approach of
3 varying the degree of regulation to the degree of a waste
4 hazard. As a result, major parts of these regulations
are technically indefensible and unworkable. The following
are examples of these problems.
First, EPA proposes to exempt persons from the
generator requirements who produce less than 100 kg of
any hazardous waste per month. Therefore, 100 kg of
10 dioxin is regulated in the same manner as 100 kg of waste
11 oil. In addition, since it is not a hazardous waste,
12 the regulations blithely state that these so-called
13 "small quantities" of wastes may be disposed of safely at,
14 for example, any landfills meeting Subtitle D RCRA criteria,
15 without manifest or generator requirements. This is a head-
16 in-the-sand approach, since there is no way to assure that
17 extremely hazardous wastes are delivered to an appropriate
18 facility.
19 There are four issues concerning the quantity
20 exemption that I find fascinating. First, the reason for
21 the exemption is the onerous cost that small generators
22 will incur in complying with the regulations. This cost
23 is, in turn, a direct function of the way the regulations
24 are written.
25 Second, there is a basic inconsistency between the.
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concept of testing whether or not a waste is hazardous
and the concept of a quantity exemption. For example,
under the extraction procedure test for toxicity, sample
(x) of a waste gives an extract just exceeding the limit
of 0.1 mg/1 cadmium while sample (y) of another waste
6 yields an extract with ten times this value for cadmium.
7 Thus, a 100 kg sample of waste y is really the equivalent
of a 1000 kg sample of waste x — one exempt, the other, not
exempt. In addition, the testing procedure essentially
10 excludes the water fraction of sludges. However, it is
11 unclear whether or not the 100 kg exemption is also on a
12 dry weight basis. Is a 10.0 kg of a 10 percent hazardous
13 sludge the same as 100 kg of a 20 percent sludge?
14 A little aside. The screening procedure is
15 referred to as a screening process. My conception of
16 a screening process is where you screen a large number
17 of things down to a smaller number, and then make a further
18 test. This regulation says this in one part, but then in
19 the other part they make that test directly related to
20 Drinking Water Standards. That is not really the screening
21 procedure.
22 Third, the 100 kg exemption combined with the
23 ninety day exemption for storage will encourage the small
24 hazardous waste generator to do exactly the wrong thing —
25 get rid of his waste in dribs and drabs. A more sensible
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approach would be to hold the waste and safely store
it until a sufficient quantity has been accumulated to make
it worthwhile for a waste hauler to pick it up and
transport it to a proper disposal facility. The generator's
5 "reward" for doing the- sensible thing is to become a
5 generator with all the attendant paperwork. In addition,
7 he must qualify as a storage facility with all the permit
and regulatory requirements.
Lastly, the reason for rejecting classification
of waste by degree of hazard is that EPA "lacks sufficient
data to distinguish among the degrees of hazard of
12 various waste on the basis of its potential to cause health
13 or environmental harm." It's true that there is a lack of
14 information. But, where it is written that we have to make
these distinctions for all wastes? Where we know of
16 great risk — allow little or no quantity exemption; where
17 we do not know — allow a substantial quantity exemption.
18 EPA has structured the regulations in a manner that creates
19 problems and then proceeds to discuss alternatives for
2Q dealing with them, thus further compounding the problem.
No wonder the economic analyses projects plant closures.
22 The requirements for gasoline stations and waste
23 oil are incredible. These requirements may severely damage
24 Maryland's waste oil recycling program. It has been enough
25 of a challenge in Maryland to convince gasoline statior-
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to install waste oil storage tanks in order for the public
to have a place to bring their waste oil far collection and
recycling. The requirements of this regulation will
come as an unpleasant surprise in spite of the friendly
neighborhood waste oil transporter who will solve the
gasoline station operator's problem (for a price!). What
previously was a public service will now be viewed as a
serious liability resulting in a refusal to accept the waste
oil.
10 Another serious problem under the EPA proposal for
11 gasoline stations is the question of whether or not such a
12 station will be responsible for storage requirements under
13 subparts D and E of these regulations, including permits,
14 monitoring, security, contingency plans, bonding and
15 financial and closure requirements. It appears that they
16 will. Gasoline stations that accumulate waste oil for
17 recycling and reuse under approved programs should be
18 completely exempt from hazardous waste regulations, as
19 should waste oil haulers and persons who treat the waste oil
20 and turn it into a usable product. Waste recycling is
21 encouraged by less, not more regulation. I emphasize the
22 word "approved". I have no difficulty with EPA evaluating
23
24
25
state laws or programs and approving them as it is satisfying
the responsibility of record.
The manifest requirements allow some other
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1 document such as a shipping paper to substitute for the
2 hazardous waste manifest. Although it's nice to see EPA
3 cooperating with DOT, there seems to be confusion as to the
4 objectives of the two programs. The main objective of the
5 hazardous waste manifest is to track the waste; the main pur-
6 pose of DOT requirements are to deal with accidents. DOT
7 regulates transport of products. There is a built-in
8 tracking system as the shipper gets paid when his product
9 is received and the customer needs the product. This is
10 not the case for wastes and is the reason the manifest
11 is needed. Thus, a hazardous waste manifest can substitute
12 for a shipping paper or bill of lading — not the other way
13 around. And, I also have no difficulty with standardized
14 forms of requirements nation-wide, but not substituting
16 one document for another. The manifest should rank
16 supreme in this area.
17 A far more serious problem is the generator
18 reporting requirements. As with many other parts of the
19 hazardous waste regulations, here we have a good idea that
20 is misapplied. True, the generator is a focal point of the
21 program. However, it is absurd to attempt to make a generato:
22 reporting system the prime mechanism for tracking hazardous
23 wastes. First, such a system is inadequate for tracking.
24 Yearly or quarterly reports are not frequent enough to
25 detect problems and solve them. The manifest system has to
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operate on a daily or weekly basis. Second, these
burdensome requirements on industry provide ammunition
and a firm basis for people to justifiably complain about
the high cost of regulation.
I understand EPA proposing these generator
requirements if EPA has to operate the program. I
understand that the Federal law may not be adequate for
haulers. I understand that some hazardous waste generators
have acted irresponsibly in the past. I don't understand
10 how a basically simple concept as the manifest can be made
11 so complicated. I don't understand why EPA does not
12 recognize that these regulatory controls are not
13 necessary for all hazardous wastes. I don't understand how
14 EPA could ignore the fact that the states have a vested
15 interest in tracking hazardous wastes generated or disposed
16 of within their boundaries. The State of Maryland has the
17 beginnings of an operating manifest system and expects only
lg one thing from generators of hazardous waste. That is to
19
20
21
22
23
24
25
religiously and accurately fill out the manifest form and
mail the State a copy on the same day the waste is shipped.
In the case of a generator who disposes on-site, or at an
off-site disposal area he owns, the disposal facility
permit is the controlling mechanism. The State of Maryland
has taken the responsibility of tracking wastes generated and
disposed of within her borders. We will share the burden
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1 of managing hazardous wastes with our industry. This is
2 the field reality as contrasted with the office fantasy
3 of EPA.
4 I will continue tomorrow on the same theme — that
5 the decision to have relatively uniform requirements for all
6 hazardous wastes, regardless of degree of risk, causes
7 more problems than it actually solves.
8 Continuing on to Section 3004 of the facility
9 permit. The following examples are on the same thing.
10 Injection wells are exempt from these regulations
11 under the assumption that they will be covered by the Safe
12 Drinking Water Act. There is a great danger here of setting
13 up a system whereby like wastes are regulated differently.
14 The Underground Injection Control regulations must have
15 provisions identical to the hazardous waste regulations for
16 financial responsibility, closure, post-closure, manifests
17 and monitoring. There are slso some conceptual problems
18 such as: 1) a comparison between storing wastes in a
19 surface impoundment versus underground storage by an
20 injection well and, second, the wisdom of discouraging land
21 disposal of liquid hazardous wastes and thereby perhaps
22 encouraging underground waste injection. I didn't mention
23 ocean disposal because this seems to have been sensibly
24 covered under the 1978 amendment. It seems like ocean
25 disposal is clearly in the terms of manifest, transporation,
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and probably the most important penalty provisions. 1
think the ocean disposals, as proposed, makes a lot of
sense. I am a little prejudiced in this area. I thought
injection oils were decreasing. We may have a big increase
in injection oils if this goes through.
Storage is defined to exclude wastes stored less
than ninety days. There are several problems with this
exemption: 1) There is no recognition of different waste
9 characteristics or quantity. It is difficult to compare stor-
10 age of ten drums of Kepone versus ten drums of waste oil.
11 2) The concept of storage used by EPA seems to be limited
12 to non-permanent or moveable containers such as steel drums.
13 Permanent type structures such as impoundments and basins
14 could be used for storage. For example, is a storage basin
15 or impoundment emptied by tank truck every ninety days
16 exempt from permit requirements? 3) The ninety day
17 standard favors large waste generators at the expense of
18 small generators. For many small waste generators it would
19 be both cost effective and sensible to accumulate their
20 waste and minimize the number of waste shipments. If they
21 do this, they then are subject to generator requirements
22 and storage permits. The same analogy as to the 100 kilogram
23 exception. 4) The storage requirements ignore — maybe
24 ignore is too strong a term. Let's say "seems" than "ignore"
25 Section 304 (e) of the Clean Water Act which requires control
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of plant site runoff, spillage or leaks, sludge or waste
disposal, and drainage from raw material storage for toxic
or hazardous pollutants.
A major issue of these regulations is protection
of groundwater. The key concept here is what is an aquifer?
What are we protecting? Everything rests on how one defines
the usable quantity of water that can be obtained from an
aquifer. There are two elements to this problem: aquifer
yield and water quality. A well yielding ten gallons per
10 minute of water with a dissolved solids content of 10,000
H mg/1 is useless here but may be of some value in a western
12 state. EPA takes 10,000 mg/1 dissolved solids as a "given"
13 for defining what aquifers to protect and then debates yield.
!•* This is an untenable position based solely on a Congress
15 Committee Report for the Safe Drinking Water Act. It is
16 silly to set the same design standards for hazardous waste
facilities overlying low yield aquifers that contain water
18 with 10,000 mg/1 dissolved solids and high yield aquifers
19 that contain water with 100 mg/1 dissolved solids.
20 EPA intends, by these regulations, to establish
21 facility design standards. For many of these standards there
22 are variances or "notes". Where used, these notes make
23 the standards guidelines. Large companies may be able to
24 muster the resources to convince a permit writer to grant
25 a variance, small companies will probably be stuck with the
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11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
84
guideline. The result will be a substantial
variability in facility design nationwide for like wastes.
A variation based not on degree of risk or technical
consideration but on individual choice of permit writers.
These hazardous waste regulations establish human
health and environmental standards for ground and surface
water. This is laudable except that ground and surface water
are treated as separate things. This is not true. Ground-
water provides the base flow of streams. The groundwater
standard is based on drinking water standards under the
Safe Drinking Water Act; the surface water standard is
based on Water Quality standards under the Clean Water Act.
The two standards are not compatible in all cases. For
certain substances such as cadmium/ silver and pesticides,
the maximum contaminent level established for drinking
water is toxic to aquatic life -- in some cases the toxic
level is one thousandth of the drinking water standard.
Thus, comparing groundwater quality in the vicinity of
landfills against drinking water standards or basing
tests for hazardous wastes, such as the Extraction Procedure,
on protecting underground sources of drinking water can
give a false sense Of security. In many cases, contaminating
groundwater means contaminated subsurface flow and polluted
streams.
The design standards for landfills and surface
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impoundments rely heavily on low permeability soil barriers
or artificial liners. Although the basic concept of liner-
drain systems is sound, there are numerical values for liner
permeability and thickness that appear to have little or no
basis and puzzling inconsistencies such as a lack of faith
in artificial liners with a permeability of 1 x 10 cm/sec
for landfills and trust in slightly thicker artificial
liners with a permeability of 1 x 10 -7 cm/sec for surface
impoundments. You have to dig through the regulations to
10 find some of these things, by the way. There also seems to
11 be an erroneous assumption that the designs provide
12 complete containment. My best guess as to the reason for
13 design inconsistencies is a misunderstanding of the meaning
14 of the coefficient of permeability. A permeability of
15 1 x 10 -7 cm/sec refers to the ease with which a fluid will
lg pass through a liner — not the time it takes to pass
17 through. Years ago, the coefficient of permeability was
18 expressed as gallons per day per square foot. This made it
19 clear that a low permeability meant that a liner will allow
20 small quantities of water to pass in a unit time not that
2i it will take a long time for any water to pass through.
22 Thus, a saturated clay liner five feet thick with a
23 permeability a 1 x 10 -7 cm/sec will not retard water
24 movement for about fifty years (five feet -f- coefficient of
permeability). That is wrong, absolutely wrong. On the
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contrary, this liner in a surface impoundment one acre
in size with one foot of water in it will theoretically leak
nearly 7,000 gallons in one year. This is a relatively small
quantity — about 2 percent of the volume in the impoundment.
The issue of liners is complex. Although water
will pass through them it is not certain whether or not
dissolved contaminents will also pass through. In any case,
liner-drain sys terns should be based on an assumption of
leakage, not containment. Under a leakage assumption, the
10 objective of a drain would be to move leachate as rapidly
11 as possible to a collection point. This means a design
12 based on drain permeability, slope and length in addition
13 to liner permeability. You can do a lot with these — with
this type of design standard. A lot of cost effective
15 evaluation. You do not need a -10th to the -7, perhaps
16 -10th will do. All sorts of things you can do. I
17 would appreciate the panel considering my assumption as
18 to permeability. I have the uncomfortable feeling that
19 EPA will be receiving comments asking for values to tend
20 to the -8 on the basis that fifty years is not enough,
21 that we need 500 years.
22 Perhaps the greatest problem with these regulations
23 is the lack of attention given to the problem of hazardous
waste disposal capacity and finding acceptable new sites.
25 on the whole, design standards in these regulations are not-
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adaptable to existing facilities. A liner-drain system
2
cannot be retrofitted to an existing landfill or surface
Q
impoundment.
Not only do the regulations not address siting
and capacity but they actually exacerbate the problem.
Many existing surface impoundments and landfarms will
literally have to be dug up and carted away to landfills
thus using up needed disposal capacity. EPA proposes to
allow small quantities of almost any kind of hazardous
wastes to go to sanitary landfills handling municipal
refuse. Obtaining new sanitary landfill sites is a vexing
problem and so emotional that there will be successful
efforts in many areas to prohibit hazardous wastes from
going to these facilities. We have already run across this
in Maryland, thus further exacerbating the problem.
EPA has exempted hazardous waste facilities from
these regulations. This is a mistake and will cause
tremendous problems unless new Federal legislation is passed.
The problem is not so much the existing abandoned hazardous
waste facilities but the operating facilities that will
close when faced with requirements they cannot meet. The
interim permit will only make things worse. It does not
take too much imagination to envision what will happen to
a hazardous waste landfill with, for example, three years
remaining capacity. The operator will make all the money
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1 he can under an interim permit and then close. This is not
2 a good or evil judgment. I am making, it is just, I think,
3 a fact of life statement. All existing hazardous waste
4 facilities must come under some permit requirements whether
5 they operate or not. We cannot allow disposal by
abandonment. If we do then these regulations will become
a Love Canal cookie cutter,
Thank you.
9 MS. DARRAH: I have to say thank you for that
10 last sentence, but we thank you for your comments.
11 Will you answer questions for us?
12 MR. SCHIFFMAN: Yes.
13 MS. DARRAH: Thank you.
14 MR. SCHIFFMAN: I would especially like to
15 respond to some of what I looked into on the short-term
basis on permeability, if anybody knows.
17 MR. FIELDS: EPA has some reasons as to why we
18 are different as far as permeability specifications for
19 landfills versus surface impoundments. We specify
20 permeability of ten to the -7 cm. per second for surface
21 impoundments, liners and permeability of ten to the -12
22 cm. per second for landfill liners.
23 MR. SCHIFFMAN: I am not questioning if you are
24 reasonable. I guess I am. I am questioning why there i.s
25 a lack of trust and landfill.
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1 MR. FIELDS: The waste is going to be there
2 permanently in the landfill case. In the case of a surface
3 impounder, that plant will close and the landfill would
have to comply with landfill requirements. And surface
impoundments, they would have to have ten to the -12
for surface impoundments. We want to have a more tight
liner in a case of a landfill because the waste is most
8 likely going to be there longer, aybe, you know, permanently
9 whereas in the case of a surface impoundment waste, a
10 lot of times, is dug up, collected periodically and taken
11 to a landfill. There should be some difference allowed in
12 the case of a landfill versus an impoundment in terms of
permeability of liners.
MS. DARRAH: If he would like to ask questions
about what's behind regulations, we will be happy to talk
to you about it at lunch break or another break, but given
our number of speakers, we prefer to go on.
MR. FIELDS: I will ask another question. Your
19 statements on storage — are you implying that you would
20 recommend we have some sort of limitation on the quantity
21 of waste that can be stored at a facility?
22 MR. SCHIFFMAN: That is one thing that is
23 possible. The storage problem is a very different one.
24 Some of my present thinking is that perhaps maybe we
25 shouldn't even use a permit mechanism for it and just design-
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1 a construction standard. Almost anything we do is going
2 to cause problems. I don't have any easy answer. I have
3 a feeling that there must be a closer look at what exactly
is being done at a particular facility. The difficulty
with that is you can end up and would likely end up
issuing permits to some facilities on some judgment
factor and be opened to challenge as to why you didn't
issue it for another.
In Maryland we are ignoring that for the time
10 being, although our laws are the same as for EPA. We
11 haven't done anything on that issue. We just concentrated
12 on storage where there is a site storage where there is
13 no problem. It seems to cause more problems than it is
14 worth. I don't know.
15 MR. FIELDS: On the problem —. Well, we can
16 get into further discussions later about this. You indicated
,17 in the case of surface impoundments, why are these called
18 service devices? We have in our regulations defined
19 storage as being in tanks or containers, but that is the
20 way the generators define storage. That may not be
21 what is typically the way the other side of the world in
22 a lot of cases may use the term storage. But there is
23 no recourse in that area.
24 MR. SCHIFFMAN: I understand, without going into
25 details, there is inconsistent logic as to surface impound-
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I ments.
2 MR. FIELDS: I am sorry. I missed your last
3 statement.
4 MR. SCHIFFMAN: There is inconsistency as to
5 the logic situation as to what the surface impoundments
5 are. They should be safe. I just didn't understand it.
7 MR. FIELDS: That is why we are calling it
3 surface impoundment storage, because there are going to
be emissions.
MR. SCHIFFMAN: I thought that is what you said.
MR. FIELDS: You indicated we should not be
12 writing design standards that provide for containment
13 depending upon the contamination of a particular aquifer
14 that the site is over. One of the problems we have not
been able to write is design standards that can predict
a certain release of emissions of contaminents into the
groundwater above a facility.
18 Do you have any idea of how we can write
19 design standards?
20 MR. SCHIFFMAN: Yes. The design standards
21 shouldn't be based oijt-a containment analogy, either landfill
22 or impoundment. You can't, as I said, you can't keep the
23 stuff back. What comes out is a different factor. If
24 you design on a basis of leakage, design your drain systems
25 to catch it and deliver it somewhere — you have got the
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problem of what you do with it when you get it, of course,
but on that basis, you can get some idea, you can design
for a collection efficiency. You can catch the material
and you can take it to a point where you can look at it.
MR. FIELDS: Aren't you, in fact, there in that
system also denying containment because you are still going
to collect water that is generated? You are not going to
allow that to get to the ground.
MR. SCHIFFMAN: If it is designed by containment,
it does not depend on something that is 100 percent
inpermeable. It does not depend on making it perhaps
12 difficult for people to meet those requirements. It
13 depends on an efficiency design, and it can't collect 100
percent, but whatever it does collect, it collects it
and then brings it to a point where you can treat it,
put it back in or do something with it. The design
standards for land, the slopes are too low and there are
no specifications as to the drains. You can make calculation
19 showing these drains won't work, nothing will come out, just
20 slow circulation downward even with a ten to the -7 liner.
21 MR. FIELDS: Thank you for your comments
22 MR. TRASK: You testified, like many others,
23 that there should be a national uniform manifest system
set up. Maybe you didn't say system, but you said manifest
25 and you indicated that Maryland has one of its own that is jus
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beginning to operate.
2 MR. SCHIFFMAN: Correct.
3 MR. TRASK: As you know, a number of other states
also have operating manifest systems. If we were to get
a national uniform manifest which took care of all the
requirements of manifest and all the other requirements,
would you use it?
MR. SCHIFFMAN: If it was a tenth of the way
9 sensible, I would be committed to it. I don't have to
10 ask if it is halfway sensible. The system can't work without
11 I don't want to go into details, but we have a complicated
12 data, prior to design, data handling systems and some of
13 our concepts have changed. The generators become very,
14 very important, not so much the specific waste compounds,
15 and it is going to be sufficient enough for us to set it
16 up for our state. It would be difficult to handle other
17 state manifests coming in although we can do it. The
18 only reason I am hesitant is — I think it is obvious
19 why I am hesitant in dealing with Federal agencies.
20 MR. TRASK: I guess the answer generally is no.
21 MR. SCHIFFMAN: I will tell you, I must — I would
22 force myself to use it. I don't want to be negative or
23 overly cautious. I would do anything to use it if it was
24 developed.
MS. DARRAH: Thank you very much. I am going to
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1 read the order of the next five speakers. Given that
2 we have had to delay the hearings and that we are taking
3 comments on all sections today, I would appreciate it,
rather than reading through three of four pages of names —
many people, you know, are not here — during the break
that we are going to take, if I don't read your name now
and if you do want to speak on any of the regulations
that we are considering today, give your card to the
registration desk, or on another form indicate that you
10 want to speak.
11 Let me read these names. Sandra Jerabek,
12 John Serrell, Richard Moffa, Robert Gallagher and Walter
13 Studabaker.
14 If I have not read your name and you do want
15 to speak, please let the registration desk now. We will
16 take a ten-minute break and reconvene at 11 a.m.
17 (Whereupon, a short recess
18 was taken.)
19 MS. DARRAH: Sandra Jerabek.
20 MS. JERABEK: Good morning, I would like to
21 make comments on 3002 and 3004 today. My name is Sandra
22 Jerabek, and I am with the Waste Project Director at
23 the National'Wildlife Federation. The Federation is the
24 nation's largest conservation organization, representing
4.1 million associate and affiliate members and supporters,.
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in all 50 states, Puerto Rico, Virgin Islands, and
Guam. The poisoning of our environment and our health
by toxic chemicals is an issue that has concerned the
membership of the Federation for many years now.
I would like to begin by commending the
Environmental Protection Agency (EPA) for grappling with
such a new and difficult area as hazardous waste control.
The mandate of the Resource Conservation & Recovery Act
9 (RCRA) is challenging, and the regulatory structure is
10 complex. The Federation especially wishes to commend EPA
11 for actively seeking to incorporate so much public comment
12 and involvement along the Way.
13 On the one hand, we appreciate the difficulty of
14 EPA's task in developing this program. On the other hand, we
15 are deeply concerned that these long-awaited regulations
16 are still too weak. Moreover, we are concerned that EPA
17 is contemplating further changes which may seriously impair
18 the regulatory scheme. We will be submitting more extensive
19 comments to EPA before March 16th. Today, however, I
20 would like to touch briefly upon a few issues in Section
21 3002.
22 EPA is proposing a small generator exclusion limit
23 of 100 kg per month. This means that anyone generating less
24 than roughly 220 pounds monthly does not have to comply
25 with the regulatory system for hazardous waste. As proposed/
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these relatively "small" amounts of dangerous wastes can
be disposed of in a sanitary landfill approved under
Subtitle D of RCRA. The manifest and record-keeping and
reporting requirements would not be in force for these
100 kg amounts. Moreover, the EPA has offered for comment
a number of alternatives to condition still further
requirements for small generators, including raising this
exclusion limit to 1,000 kg per month.
The Federation is strongly opposed to any increase
10 in the exemption level. In early December, when such a
il proposal first came to light, we sent a letter of protest
12 to EPA Administrator Costle. Today, we are just as concerned
13 that exclusion limits — whether they be 100 kg or 1,000
14 kg — fail to take into account the degree of hazard of
15 each waste. Even generators of 100 kg per month of an
16 extremely toxic waste can wreak substantial damage if the wast
17 is not handled properly. EPA estimates that raising the
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exclusion limit to 1,000 kg would excluse only 5 percent of
all industrial hazardous waste — but we would like to point
out that this 5 percent is about 2 million tons annually,
or 4 billion pounds. The Federation considers exempting this
amount of hazardous waste a serious violation of the RCRA
mandate to protect the public health and the environment.
Not only does the Federation oppose an increase in
the exemption level, but we ask EPA to eliminate the 100 kg
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1 per month exclusion in order to take into account small
2 amounts of extremely hazardous waste. We are concerned
3 that amounts of waste less than 100 kg monthly may become
concentrated in municipal landfills, particularly as
5 industries tend to be clustered locationally. Moreover, if
6 there are no manifest or record-keeping or reporting
requirements, how is the EPA to ensure that wastes find their
way to a Subtitle D landfill? How is EPA to enforce this
requirement, with no documentation to check it against?
10 We are sympathetic to EPA's concerns about the
11 limited resources of EPA or state regulatory management,
12 resources which will be particularly strained in the early
13 part of the program. Therefore, we would recommend an option
14 which phases in regulatory coverage over the next two years,
15 ultimately decreasing the exclusion limit to zero. This
16 phase-in should be done according to degree of hazard. The
17 Federation feels that this is necessary to give EPA a means
18 of "tracking" small amounts of waste. At the very least,
19 EPA should impose record-keeping and reporting requirements
20 on companies generating small amounts of waste.
21 Another point which deeply concerns us is the
22 Agency's intent to study alternatives to provide relief for
23 certain industry segments where economic impacts are expected
24 to be most severe. We were pleased to see that the Agency
25 now considers temporary exemptions for such industry groups
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1 to be "questionable on legal and equity grounds." However,
2 the phased implementation which it is now considering does
3 not strike us as very different. We feel that such a
4 decision is not within EPA's jurisdiction because no provision
5 regarding economic considerations is made in RCRA, and so
6 we find that the Agency should consider the hazard posed
by these industries before it considers economic impact.
When promulgated, the regulations may already be almost
g two years late, and will take many years more to become truly
10 effective. We urge EPA to avoid any additional delays or
11 deferrals.
12 Finally, on this point, the Federation would like
13 to ensure that the Agency balances the economic impact on
14 certain industries against the overall economic and health
15 costs of allowing improper disposal practices to continue.
We all know that these "clean-up" costs may range into
billions of dollars, and that such costs thus far have
typically been borne by the public. However
19 if EPA implements RCRA strictly, the costs of hazardous
20 waste generation will be borne more appropriately by those
21 producing the waste and their customers.
22 In the course of our work, we have had many
23 discussions with state and local environmental and public
24 interest organizations, including our own affiliate orgari-
25 izations. Public concern on this issue is very high, and
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these organizations are eagerly awaiting strong federal
leadership for their states. I would like to emphasize
to you the strong public support that currently exists
out in the field for making these regulations as forceful and
comprehensive as possible.
Section 3004
7 Section 3004 of RCRA, which sets standards for
hazardous waste treatment, storage and disposal facilities,
spans many complicated issues. We have time today only to
touch on isolated segments of the standards. We would,
u however, like to express our concern that the Agency, in an
12 attempt to be flexible, may be leaving too many potential
13 loopholes in the requirements. Because these standards
14 are so key in the task of building public trust and
15 confidence in hazardous waste management, we would
16 recommend making them as stringent as possible.
17 First, we were pleased to note the Agency's state-
]8 ment that disposal of hazardous waste should be avoided when-
ever possible and practical. EPA gives a clear preference
for alternatives such as destruction of wastes, treatment
21 to render wastes non-hazardous, or treatment in preparation
22 for resrouce recovery and reuse. Here the Agency indicates
23 that it hopes to encourage treatment by not regulating
24 it extensively.
While we could not agree more that disposal
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1 should be the option of last resort, the Federation
2 questions whether this is the best means available to the
3 Agency for promoting alternatives. The regulatory
structure at present does not provide sufficient incentives
for recycling or waste reduction innovations. At the
very least, we would like to see EPA initiate an
aggressive campaign to encourage all options short of
disposal. Disposal methods such as landfilling will
require tremendous long-term care and monitoring of the
wastes. Because waste detoxification or recycling reduces
the burden of this long-term responsibility, we feel that
12 the Agency should promote these options just as seriously
13 as other components of its hazardous waste management
14 program
15 Next I would like to review quickly a few areas
where we believe that the EPA has allowed so much flexibility
17 that it may undercut the effectiveness of the regulations.
18 Throughout Section 3004, as EPA explains, it has used the
19 so-called "note mechanism" to allow exceptions to facility
20 design and operating standards when they can be shown to be
unnecessary. While the Federation appreciates the need
22 for flexibility in applying some of the more routine-type
23 standards, we fear that the note mechanism could be extremely
24 counter-productive in other circumstances.
A more routine standard, for example, might be
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4 animals off the site. Such flexibility is probably desirable.
In other instances, however, we are concerned that equivalency
cannot be so easily demonstrated, and that the administrative
7 burden of checking such claims will prove too much for EPA
g or state resources. We are particularly concerned that
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the requirement for a six foot fence around the site. In
this case, it is probably relatively easy for the operator to
demonstrate an equivalent means of keeping people and
EPA wishes to allow exceptions to standards prohibiting
the location of the facilities in the following areas:
coastal "high hazard" areas; 500-year floodplains; wetlands;
areas where the existence of endangered and threatened species
or their critical habitat might be jeopardized; and recharge
zones of sole source aquifers. The Agency is also proposing
to allow exceptions to the rule that post-closure care must
be continued for twenty years after closing a landfill or
facility where wastes have not been removed.
We would like to hear more about the criteria that
EPA plans to use in allowing exceptions to these rules.
EPA does not explain how it plans to grant exceptions;
we would expect, at the very least, circulation of such a
proposal with adequate opportunities for public participation.
The Federation finds it difficult to envision how one can
adequately demonstrate that a sole source aquifer, for
example, will never be endangered, or that a chemical landfill
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at some point no longer needs post-closure monitoring. In
Section 3002, the Agency is considering increasing the
small generator exclusion limit from 100 to 1,000 kg monthly
in an attempt to ease the strain on regulatory resources.
Instead, we suggest EPA might better ease this burden by
tightening up this system of "notes" or exceptions, so that
it does not have to check the claims, rather than increasing
the quantities of hazardous waste allowed to bypass the
regulatory system
1° Under Section 3004, EPA also solicites comment on
whether landfills approved under Subtitle D, which provide
12 a lower level of protection, should be allowed to receive
13 small amounts of hazardous waste. As stated earlier, the
Federation feels that no amount of highly toxic or highly
15 hazardous waste should be disposed of in a municipal sanitary
16 landfill. At the very least, such amounts should be
tracked through the manifest system and reporting requirements
18 at least to ensure that they reach sanitary landfills.
19 In conclusion, I would like to emphasize why EPA
20 should endeavor to make these standards as strong as possible.
As most of us know, there is tremendous public opposition
22 to the siting of hazardous waste management facilities.
23 Part of the reason for this opposition is a lack of public
24 confidence in the ability of companies to run these facilities
25 properly. The standards which EPA has developed, plus the
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enforcement efforts to follow, will play a critical role
in determining how much performance at these facilities
will improve. This will, in turn, determine whether public
confidence increases.
4
In fact, based on our work with many state and
local environmental organizations, we are certain that the
stringency of these standards will help to determine
whether these citizen groups will support the development
of new treatment, storage, and disposal facilities. The
success of the Subtitle C regulations hinges on the
ability of a state or locality to site safe facilities.
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But without strict operational procedures and a good
performance record, public acceptance of these facilities
will never be won, and comprehensive regulation of hazardous
waste will never become a reality.
Thank you.
MS. DARRAH: Thank you. Will you answer questions?
MS. JERABEK: Certainly.
MR. LEHMAN: Ms. Jerabek, your comments on
Section 3002, you raise an approach that I don't believe
we have heard before, and I would like to explore it with
you a little bit. This basically, as I understand it,
concept of phasing down the exemption level to zero over
a two-year period, basing this on the degree of hazard,
I have a couple of questions on this. What did you envision
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being the, you know, starting point for that reduction
to zero? In other words, are you assuming that you are
starting at 100 kg per month and going to zero, or some
higher level and going to zero?
MS. JERABEK: I was assuming that one would
start with 100 kg per month because that is already a
considerable amount of hazardous waste to allow to go
untracked. That is about 2,640 pounds per year per
generator. But I would like an opportunity to reply
further on that to the Agency.
MR. LEHMAN: Thank you.
MS. DARRAH: X think my comments to the panel
is that they should try to limit their questions to
the cause and effect. Thank you.
John Serrell.
MR. SERRELL: Good morning. I may remind the
panel I have got some remarks in front of you buried in
that pile of papers you have.
I would like to also point out that I appreciate
the schedule and my comments apply specifically to 3004.
My name is John Serrell. I am manager of Planning
and Development of Liqwacon Corporation.
I Introduction
Ladies and Gentlemen, my name is John J. Serrell
and I am Manager of Planning and Development of Liqwacon
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1 Corporation. Liqwacon is a small service company
2 specializing in the treatment, storage and disposal of
3 industrial liquid waste. Liqwacon customers include
companies involved in the production of chemicals and
electronic equipment, and companies in the metal plating
industry. At present, Liqwacon has one waste treatment
and disposal facility in operation located in Thomaston
Connecticut. We consider ourselves to be the best treatment
9 storage and disposal facility in all of New England. We
10 also believe we have a successful concept in waste disposal
11 and plan to expand our operations in the future.
As a pioneer company in the area of environmentally
13 safe disposal of waste, Liqwacon has a keen interest in
14 commenting on these proposed rules in implementing RCRA.
15 Moreover, Liqwacon has the type of expertise in this area
16 which should be especially helpful to EPA in its process
17 of developing these extremely important and necessary
18 regulations.
My presentation is broken into two areas. First,
20 I would like to present to you our philosophy of rulemaking
21 which differs somewhat from the EPA approach. Second, we
22 would like to address four specific areas in the proposed
23 rules with suggestions for modifications.
24 II General Comments on the Proposed Regulatory Schei
25 As presently conceived, the proposed rules would provide
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for very specific design and operating standards for hazardous
waste treatment, storage and disposal facilities.
Liqwacon believes that this regulatory structure
is unnecessarily complex and will create a veritable plethora
of requirements which neither the waste disposal industry nor
EPA should desire. We believe itvmakes much more sense to set
forth health and environmental goals as the foundation upon
which design and operating characteristics should be estab-
lished on a case-by-case basis. Using health and environmente
goals as the core of the regulatory structure, the program
would operate well and efficiently in the following manner.
First, certain specific health and environmental
safety rules should be established by EPA, in accordance
with the mandates of RCRA. These goals should provide for
adequate protection of humans and the environment from the
adverse affects of hazardous waste.
Second, EPA should establish broad design and
operating characteristics for treatment, storage and disposal
facilities based upon the previously established health
and environmental goals.
Third, individual permit writers should apply
the general design and operating standards, on a case-by-
case basis, to facilities seeking a permit.
For example, the Preamble discusses the proposed
requirement that the active portion of a facility be surround^
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1 by a six-foot fence. Under the proposed rules, the six-
2 foot fence requirement could be waived if it can be
3 demonstrated that some other method would be just as
4 effective. We believe it makes more sense to set a general
design standard to the effect that the active portions of the
facility be surrounded by a barrier capable of preventing
unauthorized entry. The permit writer in a case such as
this would determine what kind of barrier would be adequate
to keep unauthorized persons out of the particular facility
10 for which he was issuing a permit. This may be less than,
11 equal to, or more than the six-foot fence specified in the
12 proposed rules.
13 In this way, each facility could be constructed,
14 maintained, and operated in a manner which would protect
15 health and the environment and provide necessary
16 flexibility in the design and operation of facilities.
17 Because various areas of the nation differ substantially
18 from each other with respect to geography, climate and
19 population, facilities located in one area would need
20 different kinds of design and operating characteristics
21 than facilities in another area in order to achieve the same
22 health and environmental goals. This fact of life should be
23 recognized in the RCRA rules.
24 With respect to the first speaker, I would like
25 to make a comment, picking up on something someone said
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earlier, it is impossible to design hazardous waste treat-
2
ment and storage facilities on a cookie cutter basis.
And the more specific these regulations are, the more
4
defined you are making that cookie cutter. We are not
5
trying to bypass the regulations; we are trying to do the
best job possible. I wanted to address that comment to the
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previous speaker.
With respect to specific comments on specific
portions of the proposed rules, I would now like to briefly
indicate to you four specific sections of the proposed
rules which Liqwacon believes are either unnecessary or
misguided.
Number one, the definition of the term "generator"
found in Section 250.41 is too broad. As part of the
waste treatment service provided to its customers, Liqwacon
could very well produce post-treatment pre-disposal waste
which either fit into one of the hazardous waste categories
listed under Section 250.14, or which meet one of the
hazardous characteristics set forth in proposed Section
250,13.
Because the term "generator" is defined as "any
person... whose act or process produces hazardous waste
identified or listed under subpart A," Liqwacon might well
be deemed a generator. This would require that Liqwacon send
itself a manifest and otherwise deal with itself as,-if it
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were its own customer. This untenable situation would be
compounded by the fact that Liqwacon provides its own
transportation for the waste of its customers. What would
be deemed one single transaction, that of treatment and
disposal of customer waste, by one single entity, would be
viewed under the proposed rules as three separate transactions
involving three separate entities... Liqwacon would be a
generator, a transporter, and a disposal facility, and
would have to deal with itself under these various guises.
We do not feel that RCRA contemplates, or the EPA
intentionally desires such a result. The remedy to this
problem is rather straightforward. The term "generator"
should be redefined to exclude commercial treatment
14 facilities which are in the business of treating generators'
15 wastes.
This change in definition would in no way interfere
17 with or upset the regulatory scheme mandated by RCRA. To the
18 contrary, the change would further the goals of RCRA by
19 providing for a clear and reasonable understanding of who
20 is, and who is not, a "generator" of hazardous waste.
2j Number two, we have strong reservations with regard
to proposed Section 250.43-l(d). That section states
that in accordance with Executive Order 11988, Floodplain
Management, a facility should not be located in a 500-year
floodplain. This requirement misrepresents the executive
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3 "Floodplain" to mean an area subject to a i percent chance
4 of a flood in any given year. This is the traditional
definition for a 100-year floodplain, not a 500-year
6 floodplain. Moreover, the Executive Order is directed
7 exclusively to Federal Government agencies and not to
8 private industry. If EPA wishes to apply the terms of the
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order.
First, the Executive Order defines the term
Executive Order to private industrial facilities by analogy,
it should offer at least some plausible reason for doing so.
Furthermore, the note to Section 250.43-1 (d) is
particularly unhelpful. The note states that a facility may
be located in a 500-year floodplain if it can be demonstrated
that the facility is designed, constructed, operated and
maintained so that it will not be "inundated" by a 500-
year flood. We are not sure what inundated means and there
should be some definitional guidance in the regulations.
Number three, we strongly object to the broad
certification requirement set forth in Section 250.143-5.
The language of the certification seems to be based on a
concept of strict liability. Under the proposed language,
the certifying officer would probably be liable for any
errors or omissions in a report to EPA regardless of
whether he exercised due diligence in checking the complete-
ness and accuracy of the report. Surely RCPA does not
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contemplate the creation of such strict liability.
2 Indeed, such a result would be totally unacceptable to any
3 reasonable and prudent businessman.
4 We would simply like to say that we have never
seen the kind of certification proposed in this subsection
and we believe that it is unauthorized. Accordingly,
we suggest that the certification be rewritten to conform
to more traditional forms. Our written comments will
contain a specific proposal.
10 Number four, in Section 250.43-9, the proposed rule;
11 set forth financial requirements for owner/operators of
12 facilities. Owner/operators are to set up a secured
13 trust fund to assure cash is available to close their
14 facilities. A second trust is required to assure that funds
15 are available to monitor and maintain landfills up to
16 twenty years after they have been closed.
17 We agree with the objective of the proposed rules
18 in that owner/operators should guarantee their own ability
to close a facility and monitor and maintain it for some
20 period of time after closure. However, the proposed rules
21 as written, are penalizing and provide a strong disincentive
22 to those considering in investing in facilities.
23 In order to deal with the hazardous waste problem
24 in the United States, a massive amount of capital will be
25 required from the private sector to invest in facilities.
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This capital is put up at risk, with the expectation of
a commensurate financial return. The effect of the financing
requirements in the proposed rule will be to increase
substantially the capital demands on the industry. Funds that
would otherwise be available for investment will be locked
up in a trust fund and become useless or dead capital.
Perhaps another form of financial guarantee would
be adequate and avoid the problem of tying up scarce capital.
Our recommendation is that a facility be able to show that
10 it has enough corporation assets to provide a source of
11 compensation for cleanup activities.
12 This demonstration of financial responsibility could
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be as simple as a net worth test. For example, the facility
could annually send to the EPA an audited balance sheet,
(which presumably would be held confidential), and which woulc
show net worth of a certain amount. The agency could
specify various minimum amounts of net worth for each type
and size of facility. In this way, the EPA would be assured
that the owner/operator was financially responsible to pro-
vide for adequate closure activities and post-closure
monitoring and maintenance.
If an owner/operator of a facility were not able
to demonstrate adequate net worth, he would still have the
option of establishing the required trust account.
IV Conclusion
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To conclude our presentation, we would like to
state that we applaud EPA's substantial effort to develop
a workable program for the management of hazardous waste
under RCRA, Obviously, much thought, preparation, and
diligent effort went into the proposed rules. Likewise,
6 we appreciate this opportunity to present our comments on
7 your work efforts. We believe that together, government
and industry can develop a viable solution to the health and
9 environmental problems posed by hazardous waste. In this re-
10 spect, Liqwacon hopes to continue its role as a pioneer
11 in the waste disposal industry and looks forward to working
12 with you in the future.
13 Thank you.
H MS. DARRAH: Will you answer questions?
15 MR. SERRELL: Gladly.
16 MR. FIELDS: I have two items I think that will
17 help you in your final comments. I think they will help
18 you in submitting them. First of all, you are right.
19 There is no 100-year floodplain in the Executive Order.
20 If you give me a call at the office, there is the floodplain
21 executive document which talks about the applicability of
22 floodplain. I will be happy to send you a copy of that.
23 That implements that Executive Order that is talked about
24 in our standards.
25 MR. SERRELL: Does that apply to industry or
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1 agencies?
2 MR. FIELDS: It applies to industry, private and
3 Federal sectors.
4 The second thing is that if you became a
5 generator, you would have to fill out a manifest and send
6 it to us. You would not have to, you know, if your
7 generator has his waste disposal on site. You do not have
8 to.
9 MR. SERRELL: We have a plant in a landfill
10 separated by five or so miles.
11 MR. FIELDS: Okay. In that situation —.
12 MR. SERRELL: In that situation, by your
13 definition, we have two separate facilities.
14 MR. FIELDS: That is correct.
15 MS. DARRAH: Thank you.
16 Our next speaker is Gene Gockley.
17 MR. VILLAUME: My name is James Villaume. I
18 am a project scientist and geochemist at the Pennsylvania
19 Power and Light Company. I am here today to present the
20 testimony originally prepared for Gene Gockley, Manager of
21 the Environmental Management Section of Pennsylvania Power
22 and Light. Most of these comments will be directed at the
23 proposed 3004 regulations.
24 PP&L is a large investor-owned utility providing
25 electric service to nearly one million customers in central-
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eastern Pennsylvania. As a major consumer of coal, we
2 are also a large generator of solid waste — specifically fly
3 ash and bottom ash. • In one yar this ash totals about 1.5
million tons, or enough to cover a football field to a
depth of 750 feet. Thus, what happens with the present round
of rulemaking is very important to us.
While PP&L is amply aware of the need for proper
solid and hazardous waste management and believes that
additional controls may be necessary in some cases, we urge
10 the EPA not to overreact to a few problems which may not
11 be representative of the utility industry. Our company
12 for one, takes a serious interest in protecting the
13 environment when planning the design and operation of its
14 solid waste facilites, and we feel our past record bears
15 this out.
16 We are particularly concerned that under the
l7 presently proposed regulations all hazardous waste is
being considered equally hazardous, with the exception
19 of some high-volume, low-risk special wastes. We note
2" for example, in the proposed 3004 regulations that all
2i hazardous waste facilities must be designed and operated
according to the same very stringent standards or show
23 that an equivalent degree of protection can be achieved
24 by some other means. In the case of a surface impoundment
for hazardous waste, this would mean a minimum ten-foot
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thick, in-place clay barrier or a double liner system with
leachate detection. While such nearly absolute containment
may be warranted in the case of some very dangerous wastes,
it has been our experience that a significantly lesser
degree of containment will insure adequate protection of
human health and the environment for most utility wastes,
even if they are classified as hazardous under the EPA's
proposed test procedure.
We note, too, that if we generate hazardous waste
10 at one of our steam electric stations in excess of 100
11 kilograms per month, we must send it to a hazardous waste
12 facility. But also being a generator of large volumes of
13 low-risk solid waste, an attractive option open to us would
be to dilute the low-volume, hazardous wastes with the high-
15 volume, low-risk wastes by co-disposal. If properly done,
16 the result would be an essentially low-risk operation.
17 Unfortunately, under the presently proposed regulations,
18 such co-disposal is discouraged because it would have to
19 meet the costlier requirements established for hazardous
20 waste facilities. In the process, some very important side
21 benefits would also be lost. For example, more land would
22 have to be taken up for separate disposal facilities. And
23 even more important, if the hazardous waste were disposed
24 of alone without any low-risk dilution, it would still be
25 more hazardous than the diluted waste and would require
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further management and watching.
We strongly favor any approach which would allow us
to look at our total waste disposal needs and to use
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alternate disposal practices where we can demonstrate that
they will insure adequate protection of human health and
6 || the environment. We have been operating under such a
7 I' system for years with our state environmental agency and
the system has worked well. It makes certain that the
costs of managing utility wastes are only as high as they
10 need to be. I would also point out that utilities are
11 in somewhat of a unique position in that we not only generate
12 but also dispose of most of our own solid wastes, frequently
13 at the same site. Thus, we are not dealing with a wide varietjy
14 of wastes of vastly different properties with which
15 we have no familiarity.
16 Another troubling aspect, or quirk actually,
17 of the regulations as presently written has to do with the wayj
18 they seem to overlook highly variable and only marginally
19 hazardous wastes. Again, utility fly ash and bottom ash
20 come readily to mind, although there are probably others.
21 Suppose, for example, that a waste is initially tested and
22 found to be hazardous. We then go ahead and design an
23 elaborate facility to handle it. After the facility is
24 in operation, the same waste is retested and found to be non-
26 || hazardous. We could continue to send it to the hazardous
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waste facility, but clearly there is an economic advantage
to managing it only as a solid waste. We might then want
to proceed to design and construct a solid waste facility,
so that we would always be covered no matter how the waste
tested out in the future. To point out the real irony
of this situation, consider that the waste going to the two
facilities is basically the same, and yet the hazardous
waste facility may have to have a 10-foot in-place clay barrie;
and the solid waste facility may need only a 1 or 2-foot
compacted clay liner. Again, we urge the EPA to consider
an approach to the regulations which takes the true nature
of individual wastes and the proven practices for managing
them into account and does not establish rigid, across-the-
board standards which must be blindly followed in every case.
This brings me to my final point, regarding the
inclusion of utility fly ash and bottom ash as special wastes
under the hazardous waste regulations. We believe that these
two types of solid waste should not be made to bear the
hazardous waste label at all. We wonder if maybe the EPA,
by its proposed test procedure, has created a system whereby
large quantities of wastes will be declared hazardous when,
in fact, those wastes have not and will not cause environmenta
problems. Nearly all of our ash basins, for example, support
a fish population and are major stopover points for many
different migratory fowl, which actually prefer the basins
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over nearby lakes because they are warm and ice-free.
The basins, however, are never used by livestock for watering,
since area farmers provide their own fencing. If anything,
they represent an "attractive nuisance" as places to swim
or boat, which is something quite different from the acute
danger posed by an open waste facility containing noxious
materials. Thus, we wonder why the EPA would require ash
disposal facilities to be fenced as if they contained truly
hazardous wastes. Not only would the cost of complying with
this requirement be excessively high — about SI.2 million
for some fifteen miles of fence in PP&L's case — it would
12 be unjustified in terms of the additional protection to be
13 provided.
We are concerned by the hazardous waste label, too,
15 from the standpoint of what it will do to our ash marketing
16 program, which is expected to account for revenues and
17 savings of some SI million this year to PP&L and has a
18 potential for expanding tremendously in the future.
19 Clearly, no one would want to use this material if he thought
20 it was really hazardous and if he had to meet all of the
21 hazardous waste management requirements. It has been our
22 experience in marketing ash for various applications that
23 it is not harmful and that it is a valuable resource which
24 deserves to be used more fully, not "swept under the carpet"
25 by burying it in large landfills or impoundments.
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The alternative is to classify utility ash as a
solid waste subject only to the management guidelines for
solid waste and to some reasonable restrictions on reuse.
Were this to be done, there is no reason to expect that
any environmental problems would result. Our company,
and the utility industry in general, has a proven record
of responsible solid waste management. Consideration
ought to be given also to the fact that we have had many
years of experience in the ash disposal business and continue
to adhere to the numerous environmental laws and
regulations which apply to us. We urge the EPA, in
carrying out its duties with regard to hazardous waste,
not to use an across-the-board approach to writing
regulations which does not take into account the special
and well established nature of utility ash and its value
in supplementing the rapidly disappearing natural
resources of this country.
This concludes a summary of our major concerns
regarding the proposed 3004 regulations. PP&L will, however,
be submitting more detailed comments to the EPA on these
regulations and the other proposed RCRA regulations published
on December 18.
Thank you.
MS. DARRAH: Thank you. Will you answer questions?
MR. VILLAUME: Certainly.
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MR. LEHMAN: I have a question. Some of your
concluding remarks puzzled me here. If I may quote from
your paper, it says, "We urge the EPA, in carrying out
its duties with regard to hazardous waste, not to use an
across-the-board approach to writing regulations which
do not take into account the special and well-established
7 nature of utility ash and its value in supplementing
8 the rapidly disappearing natural resources of this
country." That is a little surprising to me, because we
thought we did exactly that.
MR. VILLAUME: I guess —.
MR. LEHMAN: A special waste category for such
waste.
MR. VILLAUME: We appreciate that, you know, EPA
has gone that far, but I guess we are requesting that they
go the next step and put in just the solid waste category
17 and do away with any kind of hazardous waste label
18 whatsoever. As I pointed out in our statement today, I
feel that by having that hazardous waste label there, it
20 does severely impact on, you know, the reuse potential
21 of fly ash and bottom ash.
22 MS. DARRAH: I just would like to clarify that.
23 I am surprised that none of my fellow panel members have
24 not asked this. I am sure you realize this, but it is for
25 the benefit of the record and other people listening, but
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unless utility waste meets or fails, depending upon the
terminology you want to use, one of the characteristics
of 3001, it is, indeed, not a hazardous waste.
MR. VILLAOME: But putting it under Subtitle C
regulations, you automatically alert the public, I feel,
to the possibility that they are dealing with something
that could potentially be hazardous. So the label in the
statement is still there.
MR. LEHMAN: Can 1 follow up on that?
!0 MR. VILLAUtoE: Sure.
11 MR. LEHMAN: You have to bear with me. We have
12 heard this comment a couple of times. Clearly, if the
13 material, ash, bottom ash, could not meet or fail, as
14 the case may be, any of the characteristics, it is not
15 a hazardous waste. I don't understand the logic of your
16 statement frankly.
17 MR. VILLADME: I think I made my point, too,
18 so I see no reason to add anything.
ig MS. DARRAH: Anymore questions?
20 Thank you.
21 Richard P. Moffa.
22 MR. MOFFA: Thank you for the opportunity to
23 speak. I will keep my remarks brief. I am;Richard Moffa
24 with the Office of Land Pollution Control, Ohio Environmental
25 Protection Agency, and these comments are basically
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represented on behalf of that agency. The Director is
2 James Macavoy.
3 Ohio EPA staff have reviewed the proposed rules,
4 and we believe them to be reasonably thorough and adequate,
5 particularly since they are intended to be minimum,
nationwide standards. Our hazardous waste management
legislation, which was enacted in December, becomes
effective in March and it does require that all rules are
to be more stringent than the regulations promulgated in
10 accordance with Subtitle C of RCRA. We are concerned
11 that the proposed standards be no less stringent than
12 existing Ohio rules and criteria affecting the design
13 and operation of land disposal facilities for solid wastes
14 and hazardous wastes. We have problems with certain
15 criteria which seem to be less stringent. The most important
16 point we would like to touch upon is, I think, the design
17 criteria for the land disposal facility that requires a
18 minimum distance, five feet between the soil barrier —
19 that is, five feet of soil one to the -10 to the 7th cm.
20 per second permeability and the historical high groundwater
21 table is insufficient.
22 We currently utilize criteria which require
23 a minimum of 25 feet of clay with a permeability of 10 to
24 the -7 cm. per second or less between the bottom of a cell
25 and the high groundwater. Secondly, it has a groundwater
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yield of S gpm or less.
Our standards for sanitary landfills for community
type refuse require a minimum isolation of five feet of
low permeability soil between the bottom of the waste and
the high groundwater table. In certain geohydraulic
conditions — high production aquifer — we may require
even greater separation.
The required isolation of 150 m or 500 feet between
the landfill and any functioning water supply well is not
10 sufficient. Ohio regulations for sanitary landfills for
11 community refuse establish a minimum of 1,000 feet between
12 that portion of the landfill where wastes are to be
13 deposited and any water well. We also feel that it should
14 be clear in the regulations that a leachate collection
15 and removal system should be required at all hazardous
16 waste landfills. Further, we are concerned with the
17 apparent inconsistencies between landfill design 1 and
18 design 2. Design 1 requires only one leachate collection
19 and removal system overylying 5 feet of soil of 10 to the
20 -7 cm. per second permeability. Design 2 requires two
21 such collection and removal systems where a 3-foot soil
22 liner and an artificial membrane liner are used. The extra
23 two feet of soil in design 1 does not appear to provide
24 protection equivalent to design 2.
25 We have a comment on the artificial liners, the
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requirement for surface impoundments. This was touched
on by the previous speaker where the permeability of it
is 10 to the -7 cm. per second, whereas landfill is 10
to the -12 cm. per second.
We also feel that the extract level, which is
expressed in Section 250.13(b), I believe, for certain
toxics of ten times the primary drinking water standards
and the associated tenfold dillution factor assumed over
a distance of 800 feet and an underground aquifer does
not appear supportable. It does not take into account
its factors for channels in certain geologic formations
12 such as limestone which underlies much of Ohio, particularly
13 the northwest. Neither does it take into account heavy
withdrawals from an acquifer.
15 We feel these concentrations must be specified,
16 the use of the Drinking Water Standards themselves would
17 be more justifiable.
18 We are basically concerned particularly that
19 the hazardous waste landfill criteria can be interpreted
20 to allow hazardous waste landfills in most areas of Ohio.
21 This is contrary to our approach which is to identify
22 a small number of areas which may be suitable for secure
23 landfills, and to limit the numbers and location of such
24 land disposal facilities accordingly. We view burial in
25 the land as a final alternative after concentration.
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neutralization, oxidation or other treatment, and high
temperature incineration. An adequate land disposal
will not serve to encourage 'such technologically more
complex and more expensive management alternatives.
As far as the landfill criteria, the siting
and design criteria would be wholly inadequate for Ohio.
There are additional comments which are written,
and we will send some more in prior to March.
That's basically the substance of my comments.
1" MS. DARRAH: Thank you. Will you answer questions
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MR. MOFFA: Certainly.
MR. LINDSAY: You mentioned that your
regulations will be more stringent than ours and that you
expect this will give you problems. On what basis would
that be?
MR. MOFFA: Problems created by our legislation
which will be to the effect that our rules can be not
more stringent than yours.
MR. LINDSAY: You will have to change yours?
MR. MOFFA: We will have to backtrack, which
we won't do. We have to fight with the legislature about
that. Your requirements we realize have to apply over
50 states, 52, depending upon the method you use to count.
MR. LINDSAY: 56.
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MR. MOFFA: It grows every day. We realize you
have a problem in that sense. And, when we were developing
our legislation or working on the legislation with the
legislature, we tried to point these problems out, but
it didn't make any difference to most of the people
concerned. They felt we should have a program totally
consistent with yours. I think if you maintain the kind
of standards expressed here in the final regulation,
we would probably go back to the legislature and ask for
10 specific exceptions. We do think that the five feet is
11 simply not justifiable. That is our minimum.
12 MR. LINDSAY: I don't want to get into pros and
13 cons of your opinions versus ours because that will take
forever, but in your comments, your written comments,
15 make sure you give us the rationale to which you base
16 the facts that ours are not sufficient and why yours are
17 more suitable.
18 MR. MOFFA: I should point out again that, you
19 know, part of the difference is just the philosophy that
20 we have that at least seven areas in the state which are
21 geologically suitable, we decided this is a matter of policy
22 that we will pick the best spots to start with and we
23 don't want to allow hazardous waste into the areas. We
2* are not arguing that we have extremely superior technical
25 expertise. It is a question where the five feet is so
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1 different from ours we can't accept that. We think it is
2 a responsibility on your part, also, to try to establish
3 land disposal criteria which serve to concur with the
4 more technological concepts and admittedly more expensive
5 types of treatments.
6 MR. STRAUS: Did you say that your criteria
7 is based on the geological conditions in the state? They
8 were based on the geological conditions in the state?
9 MR. MOFFA: The criteria, we base — we
10 searched for areas which had the most suitable, the
11 largest deposits of low permeability clay and low groundwork-
12 so we, in a sense, started with the most strenuous
13 assumptions and looked for those areas, and fortunately,
14 of course — and with the study done by Matel
15 pretty much agreed that we could have such areas.
16 MR. FIELDS: The low permeability clay you are
17 talking about, what permeability are you talking about
18 in the State of Ohio?
19 MR. MOFFA: The areas we have identified — and
20 that includes the location of the one secure landfill
21 which I think is one of the best sites in the country —
22 but generally it is 10 to the -7 cm. or better. We
23 are fortunate in having, again, about half a dozen general
24 areas. We don't own the land; it doesn't mean the land
25 is available, but there are sections of the state that have
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is the minimum 25 feet the 10 -7, is that a natural
site, no artificial liner?
MR. MOFFA: In fact, the one secure landfill
9 site has 40 feet or more of clay of that permeability.
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these types of deposits we are looking for. I am not
suggesting everybody is that fortunate, but there is a very
wide discrepancy between what we have and others. This
five feet minimum, I think, is insufficient.
MR. FIELDS: You are recommending a minimum
of 25 feet of 10 to the -7 soil for a natural site; is
that what you are saying?
MR. MOFFA: That is what we use. Again, I
don't know if we would recommend that you use it. That
you use 25 feet realizing again you have to apply your
criteria across the entire country. We don't want to have
to backtrack to five feet. On top of this 25 feet, we
are talking about a design criteria that we use which
collects drainage on top of that and this one facility
has an artificial membrane on top of that which is
extremely tight.
MR. FIELDS: I want to reemphasize what Fred said
earlier. When you comment to us, emphasize why you feel
that our numbers are not adequate and why there is a need
for neutral protection which you feel we ought to provide.
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MR. MOFFA: Thank you.
2 MS. DARRAH: Thank you very much.
3 Robert Gallagher.
4 MR. GALLAGHER: My name is Robert Gallagher
and I am president of Applied Health Physics, Inc. Our
company is the oldest U.S. firm founded and operated by
professional health physicists still providing radiological
and environmental safety services. We are licensed and
perform hazard evaluation, decontamination and disposal
10 of radiological as well as other toxic and hazardous waste,
11 such as berylum asbestos and others.
12 I have been involved professionally in the
13 radiological evaluation and control of radioactivity
14 associated with the phosphate industry in the U.S. and
foreign countries since 1952. Our company has conducted
16 environmental radiological studies for industrial clients
17 in Florida, California, Idaho, Tennessee, New Mexico,
18 Canada and in Europe.
19 I have come here today to present testimony
20 that I hope will encourage the U.S. Environmental Protection
21 Agency to rely on better protection of the environment by
applying better technological and administrative methods,
rather than inappropriate and costly regulatory controls.
My remarks deal primarily with Section 3001, 3002 and 3004.
By the way, these comments are solely that of a
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health physicist and industrial hygienist and do not
represent those of any client or any other organization,
either commercial or professional. My verbal comments
will be augmented by written statements within the prescribed
comment limits.
I would like to start off with the view that
the potential risks of asbestos waste are becoming a
national public health threat as more of the materials
are removed from ships, from schools and from other
10 buildings. I do not believe they have'been adequately
11 considered, especially relevant to transportation and
12 disposal in the proposed regulations.
13 Then to move on, having performed environmental
14 studies of unmined as well as mined and reclaimed phosphate
15 areas in many states and in other countries, I am
16 disappointed in the inadequacy of the EPA's study of
17 radioactivity of the phosphate industry as evidenced by
18 technical quality of background documents used in the
19 preparation of the proposed regulations. These documents
20 and the EPA studies, as well, lack professional and scientific
21 quality which could have been achieved in the planning and
22 preparation of both the environmental studies and the
23 documentation had they utilized professionals who are
24 currently certified by such organizations as American Board
25 of Health Physicists, American Board of Industrial Hygiene
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and American Board of Safety Professionals.
Furthermore, it is my personal and professional
belief that the EPA must become more aware of not only
what it does in attempting to protect the environment,
but also more concerned about how it does it and what
impacts will result. Not to consider just cost benefit
but also to objectively evaluate what impacts might result
from EPA's actions that inadvertently and adversely
9 effect both industry and the taxpayers when other Federal,
10 state and possibly foreign environmental protection officials
11 attempt to apply EPA's controls.
12 For example, when EPA officially labels something
13 a "hazardous waste", the impact travels worldwide as the
14 computerized industries such as insurance, international
15 investments, banking, hotlines, take appropriate action to
16 protect their environment. The EPA's action has resulted
17 in reactions that do not stop at our borders. The economic
18 impact of improperly identified by-products called "hazardous
19 by the EPA — even though corrective action may be taken
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officially later on — will take years to overcome.
The suspicion that surrounds certain Florida
real estate following EPA's press release several years ago
concerning radioactivity risks, based upon an admittedly
inadequate inconclusive study of a few private residences,
resulted in devastating financial losses to individuals.
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property owners. Somehow, someday, there should be some
mechanism to obtain legal and financial recourse for gross
injustices that have occurred from our "tax dollars at
work".
I believe it was a tragic misconception for the
EPA to label and thus liable slag and fluid bed prills
from elemental phosphorous production as a "hazardous
waste". This is a by-product of the thermal processing
of phosphate rock. These materials maintain traces of
10 naturally occurring radioactivity as unwanted contaminants.,
11 However, the EPA has not produced any valid evidence that
12 these materials have resulted in the release of radon
13 into the atmosphere or external radiation levels in
14 excess of the currently accepted limits for the protection
15 of public health. Although the EPA has been conducting
16 studies of thermal processing of phosphate rock for at
17 least three years in several states, the sampling and
18 analysis of radon emanation from slag and fluid bed prills,
19 so far as I can determine, has been grossly inadequate to
20 justify the inclusion of these materials as potentially
21 hazardous as evidenced in background documents, EPA reports
22 or studies funded by the EPA.
23 In order to ascertain specific facts with which
24 comparisons can be made with analyses we have made of the
25 samples, I hereby respectfully request the EPA to make
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available to me results of radon analyses EPA has
obtained prior to December 1978, indicating the number of
locations of samples, analytical results in terms of
test methods used.
Please bear in mind that what we are attempting
to do is to obtain scientific evidence that will show the
valid conclusions that is the basis for and one of the
technical background documents that we reviewed for the
statement that included slag and fluid bed prills from
elemental phosphorous production because, "In the
administrator's judgment, this waste stream poses a
potential radiological hazard".
I believe this was based on decisions by the
EPA administrator, based upon the results of radon from
structures built on radium-bearing soil which cannot
be compared to slag and prills that are not wastes and do
not have comparable emanation factors to that of reclaimant
phosphate soils in Florida.
Furthermore, it is my personal experience as
a chief executive officer of a licensed radioactive waste
disposal firm, that current facilities for disposal of
low level radiation wastes are grossly inadequate, expensive,
and cannot accept the volume projected by these proposed
regulations. Additional facilities with tremendous capacity
and numerous in their geographic distribution will be require*
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It is my considered opinion that the EPA study
of economic impacts grossly underestimate the damage and
effects that the EPA's actions are beginning to have on
jobs, product costs, phosphate manufacturing plans for the
near and long term, future plans of industry. I firmly
believe the impact the EPA's action can result in the loss
of more than one hundred jobs, eventual closing of at least
one phosphate production plant, and direct and indirect
costs to taxpayers and the industry in excess of $1 billion.
I would like to call the EPA's Office of Solid
H Waste Management to an official recommendation submitted
12 to EPA by a task force No. 16. Radiological measurements
by officials assigned to duties in these responsible
areas by the National Conference of Radiation Control
15 Program Directors charged with implementing the criteria
16 and assisting in the enforcement of the regulations.
The National Bureau of Standards should review
and approve all Federal guidelines, standards and
19 regulations that require radiation measurements prior to
20 the promulgation of such guidelines, standards and
regulations to assure that such radiation measurements
22 are both technically feasible and practically attainable.
23 Another one, the National Bureau of Standards should
coordinate the development of model sampling procedures,
chemical separation procedures and analytical measurement
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l methods for a variety of environmental radiocontaminants
2 which could be used by all state, Federal, and private
3 laboratories to ensure consistency in the quality of
measurement.
5 The last one, the National Bureau of Standards,
6 in cooperation with EPA, should be designated as a Federal
7 agency responsible for coordinating efforts among the
Federal and state agencies to immediately develop a uniform
data reporting system so that present environmental
10 data that are being generated throughout the country can
11 be used and evaluated in terms of possible exposure to
12 population.
13 This was submitted in June of 1977 and so far
14 as I can find has not been acted upon.
15 Furthermore, I urge use by EPA of the leaching
16 test methodology developed by ASTM as approved by the
17 National Bureau of Standards, especially relative to the
18 test methods for determing leachability that will most
readily duplicate actual environmental conditions where
potentially hazardous materials may be stored or deposited.
In closing, I wish to add my support to that of
22 others, especially the National Solid Waste Management's
23 Association for the establishment of a self-supporting
24 Federal finance protection fund similar to that which was
established by the Price Anderson Act and augmented by and
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developed by commercial insurance pools to cope with
future financial disasters that might otherwise effect
the state and local governments. Having had direct
exposure in the establishment of the insurance pools,
I can assure you this approach can afford the greatest
degree of protection to the public, industry and official
agencies charged with this responsibility during and after
closure of waste facilities.
It is desirable, economically feasible and
we must recognize that it is essential that these financial
requirements be able to withstand the test of time beyond
the Statute of Limitations and provide equitable reimbursement
for parties injured or affected adversely by these waste
facilities over future decades.
I thank you for the opportunity to present
these suggestions and observations, and we look forward
to the mutual benefit that can accrue from future
technical assistance in resolving of problems associated
with the materials of radioactivity of these unwanted
contaminants.
MS. DARRAH: Can you answer questions?
MR. GALLAGHER: Yes, ma'am.
MS. DARRAH: I guess there aren't any. Thank you.
We will recess for lunch and reconvene at 1:30 p.m.
(Whereupon, at 12:15 p.m., the"-
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l hearing was adjourned to
2 reconvene at 1:30 p.m. this
3 same day.)
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1 AFTERNOON SESSION
2 1:30 p.m.
3 MS. DARRAH: We would like to reconvene.
4 The first speaker this afternoon will be Walter
5 Studabaker.
6 MR. STUDABAKER: For the record, my name is
7 Walt Studabaker. I am here to represent the Association
8 of American Railroads, and we will address Section 3001,
9 3002, and 3004.
10 The Association of American Railroads is a non-
11 profit organization interested in expanding all aspects
12 of modern railroading. Our members include over 90 percent
13 of the independent freight carrying railroads in the United
14 States. We sincerely appreciate the opportunity to
15 address such a panel. I do regret that Mr. Alan Roberts
16 with the Department of Transportation is not here today,
17 and I understood that he was to be here.
18 MR. LINDSAY: He was here.
19 MR. TRASK: He was here but will not be here this
20 afternoon.
21 MR. STUDABAKER: I understand.
22 The EPA's sudden closing of the comment has taken
23 the railroad industry by surprise. The industry was counting
24 upon the opportunity to present its comments on the whole
25 package of rulemakings within the 60-day period previously
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1 indicated after issuance of the EPA's last proposed rule-
2 making. The impact of the rules on the industry from the -
3 standpoint of being possible generators of hazardous
4 waste is still being evaluated, and fairness dictates
5 that the comment period should be extended for at least
6 one more month or until April 17th.
7 Regarding the specific sections, Section 3001,
8 we have several comments.
9 The railroad industry takes strong exception
10 to the EPA's proposed method of identifying hazardous
ll waste; that is, a waste is hazardous if it is thought to
12 exhibit any of the characteristics of the hazardous waste
13 or if it is on the EPA hazardous waste list, thus placing
w the burden on the generator to prove that a given waste is
15 not hazardous. This proof must be based on expensive
16 and extensive testing. We have used a reputable laboratory
17 in Atlanta and found that testing for toxicity will cost
18 up to $6 thousand for representative samples.
19 However, if a generator must prove a given material
20 is not a hazardous waste, must we test a sample from each
21 generating facility? Or can we test a representative
22 sample generated by similar facilities? So long as the
23 representative sample is truly representative, then we
24 feel the latter approach is reasonable, and it should be
25 allowed. We are now collecting data and will present that.
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To prove waste is not a hazardous waste, we
feel that the rulemaking requires tests for several
different things including ignitability, corrosivity,
reactivity, toxicity and radioactivity, whether it is
mutegenic, bioaccumulative or toxic organic. In reference
to your Page 58950 of the preamble to Section 250,
Subpart A, states that the first four are the only
characteristics for which the Agency confidently believes
test protocols are available. We would appreciate
clarification on this apparent double standard.
One immediate problem which we think may develop
is that many generators will elect to classify their
wastes as hazardous to forego the cost and trouble of
testing. Thus, many materials of only marginal harm may
be treated as hazardous waste with all the cost of compliance
and an obvious overloading of disposal sites could develop.
Item 2: We firmly support the "degree of hazard"
concept and will present detailed suggestions in our final
written comments as to how this will be implemented.
Item 3: Numerous references are made in Subpart
A to "waste oil" but the rules themselves contain no clear
definition of waste oil. Waste oil is defined on Page 58950
of the preamble to Section 3001 as "other discarded material"
to mean any material which is "a waste oil (excluding animal
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or vegetable oil) incinerated or burned as fuel," But
Page 58954, Subpart A, Section 250.10, further states
that, "other discarded material" is used lubricating,
4 hydraulic, transformer, transmission or trucking oil
6 which is incinerated or burned as fuel. To avoid any
possible confusion over what waste oil is, the term should
be defined as is indicated in Section 250.10 (b) (2)(ii) A.
Item 4: We also ask for clarification as to
whether any waste oil which is sold to contractors is
a covered waste. Inasmuch as such waste oil still has
value and is not being discarded, it is our position that
the hazardous waste rules would not apply. We feel this
view is consistent with the example stated on Page 58950
in the preamble to Subpart A which states that a used
solvent sent to a solvent facility would not be considered
16 a discarded material, and thus not subject to the hazardous
]7 waste regulations. Please confirm that this reclaimant
18 oil will not be classified as hazardous waste.
19 Item 5: A related point needing clarification
20 involves No. 2, diesel fuel,' which is inadvertently spilled,
at an engine repair facility but captured and reclaimed
22 from the stemming of an oil-water separator. Again, it is
23 our position that such reclaimant fuel oil is not a discarded
material nor a material found on any hazardous waste list,
and therefore, can be reused as a boiler fuel or sold to a
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l refiner. Please confirm this.
2 Item 6: The EPA indicates that it is working
on a common coding system in conjunction with the chemical
abstract service for all listed wastes and waste streams
which it and the DOT intends to regulate under each of its
statutes. As for the listed waste, the AAR urges the use
of the 49 series standard transportation commodity code
STCC, a seven-digit commodity identification system
already voluntarily used by the.railroad industry and
10 many chemical companies. We ask that the EPA work closely
with the Department of Transportation so that shipments
12 of hazardous materials designated as such by the DOT will
13 include hazardous wastes and hazardous substances to be
designated by the Environmental Protection Agency. The
15 carriers need this precise identification in light of
16 notification and clean-up liabilities. Without specific
17 shipper identification to the carrier of the hazardous
18 waste, it is tendering to the carrier. The carrier will
19 not know the characteristics of the lading being traasported,
20 and thus will not know the most appropriate immediate
21 emergency responses it should take in the event of a spill.
22 We feel the STCC already in use would assist in this matter
23 and should be considered in the selection of a transportation
24 code.
25 Under Section 3002: The first order of concern
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that the members of the Association of American Railroads
has is we feel that the 90-day maximum time allowed for
generators to store hazardous wastes on sites without
needing a permit is arbitrarily short, and we ask how
this time period was derived. The time period should be
set for the individual hazard involved and be flexible
enough to allow for routine plant activities. We will
present specific examples and detailed suggestions in
our final comments.
Item 2: We applaud the responsibility being
shown at these hearings with the EPA and DOT jointly
working on the problem of transporting hazardous wastes.
We support the DOT'S recognition of the impact of
environmental regulations on transporation and of the
need to incorporate these regulations in the appropriate
rules affecting the transportation industry.
Item 3: The AAR recommends that the DOT go
through the necessary rulemaking procedures to incorporate
EPA requirements which impact the transportation community
into their hazardous materials regulations. We further
propose that an overall plan be developed which addresses
the different aspects of the regulations of other agencies
which the DOT will ultimately address. We have carefully
examined the DOT proposed ORM-E classification. Its
implementation in DOT regulations will not permit .the
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transportation community to deal successfully and practically
with differing environmental regulations. Instead, we
propose that the DOT create a new Subpart 0 entitled
"materials regulated by other agencies." Subpart O could
then be divided into different and specific sections.
For example, we propose a new Part 173.1500 be titled,
"EPA hazardous substances"; 173.1600 - EPA hazardous
wastes; and 173.1700 - EPA toxic substances. By identifying
materials in this manner, the department would inform the
shipping and transportation community of required practices
and regulations of other agencies within the DOT regulatory
framework. Likewise, we recommend that the department
identify materials which are regulated by other agencies
and their hazardous material tables.
The AAR will be submitting a proposed framework
for dealing with materials regulated by other agencies
in our final comments to be filed by March 16th.
Item 4: The railroad industry takes exception
to the EPA's note on Page 58973 that the states may require
more information on the manifest than is required by the
DOT-EPA. States are pre-empted from requiring additional
or different information on the shipping papers than is
required by the DOT materials transportation bureau by
virtue of Section 112 of the hazardous materials transporation
act.
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1 -Furthermore, from the standpoint of inter-state
2
carriers, it is absolutely essential that there be only one
3 set of manifest requirements that will apply throughout —
4 at both the Federal and state levels.
5 Item 5: Subsection 250.26 would seem to
indicate that labeling would be required for cargo tanks
and tank cars because of the broad definition of packaging.
Current DOT regulations s-et forth in Paragraph 172.400 B-ll,
excerpts from the labeling requirements: cargo tank or
tank car other than a multi-unit tank car tank, and this
exclusion to be consistent with the DOT requirements should
be incorporated in Subsection 250.26.
The AAR presumes that this was the intent of the
14 EPA in any event since Subsection 250.26 requires labeling
15 and placarding of each shipment of hazardous waste and
16 labeling and marking of each package of hazardous waste
17 in accordance with 49-CRF172.
18 At this time, however, 49-CRF172 is specific
to hazardous materials and makes no mention of hazardous
waste requirements. This again points out the need for
21
DOT and EPA to work as closely as possible in these areas
22
affecting transportation. DOT must maintain the regulatory
23
responsibility for transportation and make the necessary
inclusions in their regulations to accommodate these EPA
25 rules or the railroad industry will find compliance difficult
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if not impossible.
In Section 3004, we have four things. The railroad
industry objects to the regulatory overlap with the
Clean Water Act, the Clean Air Act, and the Safe Drinking
Water Act, particularly including coverage of surface
impoundments that are part of an existing EPA approved
NPDES treatment system.
Item 2: We object to the proposed facility
design standards since they make no distinction between
existing and new facilities in the design and location
11 criteria and make no distinction among classes of waste.
12 The rule is laying too heavily upon 'procedural standards —
operator training, contingency plans, security — when
they should focus on performance standards.
15 Item 3: The industry notes, with much amazement,
16 the EPA's arbitrary exclusion of sludge generated by
17 municipal waste water systems — on the ground that such
18 sludge will be treated separately under Section 405 of the
19 Clean Water Act. We submit that the use of facility
20 ownership as a discriminator for coverage under RCRA is
21 arbitrary. Either the private sector should be treated
22 like the public sector or vice versa.
23 Item 4: We also object to the EPA's definition
24 of spill set forth at 250.41 A79 which includes any
25 unplanned discharge or release of hazardous waste into the
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1 air. RCRA in Section 1004, Part 3, only governs the
2 discharge of hazardous waste into or onto the land or water.
3 Any impact on the air is an indirect impact to be regulated
by the EPA only after there has been a discharge to land
or water. This inconsistency between EPA's rulemaking
and RCRA should be corrected.
That concludes my comments, but I would entertain
any questions.
9 MS. DARRAH: Thank you very much.
10 MR. LINDSAY: Relative to your comment on waste
11 oil, I think, if I am not mistaken you mentioned waste oil
12 should be any reclaimed regardless of what its use should
13 be allowed, to be in the same category as solvents or
14 other materials that you reclaim; is that right?
15 MR. STUDABAKER: Yes.
16 MR. LINDSAY: That gets us then into the problem
17 of waste oils which frequently contain metal contents and
18 other additives which are sometimes blended or sold directly
19 for burning in school boilers and other types of boilers
20 which are inappropriate. Under our scheme it would still
21 be possible to burn waste oil in boilers and so forth.
22 It would just be necessary for the company or whoever wanted
23 to do it to get a permit. I am afraid if we do not control
24 the burning of waste oil in some fashion — that is, get
25 it into the system so it can be controlled, we will
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continue to have these problems with that material being
burned in the school boilers and other inadequate facilities.
If we were to exclude these kinds of materials
from manifest and so on, can you comment on how we would
be able to prevent inappropriate burning, shall I say?
MR. STUDABAKER: Well, let me ask you a question
so I understand yours. When you refer to waste oil in
the regulations, are you referring only to used lubricating
oil, transmission oil, cutting lube oil?
10 MR. LINDSAY: I believe so, yes. Cutting oils
is also a part of it, too.
MR. STUDABAKER: Cutting oils. Any oils like
reclaimed oils coming from an engine repairing facility
reclaimed at the facility and sold to the refiner will
18 still be classified as a waste oil under that regulation.
16 MR. LINDSAY: Unless it is refined or something
is done with it for'purposes other than burning at the
boiler.
19 MR. STUDABAKER: Yes. If it is sold to a
20 reclaimer, though —.
21 MR. LINDSAY: To refine • it into a lubricating
22 oil or something like that, then it would not be covered,
23 otherwise it would be?
24 MR. STUDABAKER: That is the position we want
26 clarified.
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1 MR. LINDSAY: That is the classification. If
2 we take these things out of the system so there is no longer
any control via the manifest system, how would we prevent
these things from being burned in school boilers and so
5 forth?
6 MR. STUDABAKER: You answered that earlier.
You talked about what do you do to actually enforce these
types of regulations on just a simple disposal item,
municipal landfill. Your enforcement will be difficult.
10 I can't propose a method for doing it. You will find,
11 at least in the railroad industry, the waste oil that
12 we reclaim from an engine refueling or engine repair
13 facility has significant monetary value to it and that
H our interests are to collect as much of it as we can and
15 get the money benefit back from it.
16 MS. SCHAFFER: X have a question concerning
17 your proposed change in the DOT regulations. Do you think
18 that we should take all of the — or the DOT should take
19 all the materials that are considered hazardous by EPA
20 and put it into this other section even though they may
21 already be regulated by DOT under one of the other
22 classifications as hazards?
23 MR. STUDABAKER: I think this would be covered
24 if they were put into the DOT hazardous materials table.
25 They are already in there as a regulated hazard material,
651
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they would be covered under hazardous waste and would not
be listed. Those items listed in your regulation for
hazardous waste, if they were included in the DOT hazardous
materials table, they would then also show up and would
not overlap.
MS. SCHAFFER: I think those are no longer included
MR. TRASK: I have a question about your comments
on the 90-day storage rule, if I recall that. You said
it was arbitrarily short. Do you have any thoughts on the
length?
MR. STUDABAKER: I have a thought in terms of
we have an industry-wide questionnaire being distributed
but we are trying to get a very good handle on just what
a normal storage practice would be in the railroad for a
variety of ways. There are four or five ways that come
up that may fit the definition, and we are trying to find
exactly what it means, what kinds of normal operating
conditions take place for parts cleaning — do you normally
recharge it every six months or every ninety days? That
kind of question needs to be answered in order to make a
firm standing.
MR. TRASK: When do you think this data will be
available?
MR. STUDABAKER: The problem is, again, I mentioned
at the very beginning, cutting off the commenting period ha£
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crippled us from getting back accurate data. We are going
to find that we will get selective railroads coming back
with information that hopefully will be indicative for the
whole industry. I am asking it for March 5th. Less than
a week ago it went out. I will trust we can get good
data. We hope to have it by March 5th and we will share
it with you. We intend to have it in our files by then.
MR. TRASK: One final question. Do you propose
in Subpart 0 for 49CRF172?
10 MR. STUDABAKER: Yes.
11 MR. TRASK: I mean 49-CFR173. You would split
12 it up into three parts, did I understand you?
13 MR. STUDABAKER: Yes. 173 ends with 1400 and
14 we would propose to add 1SOO, 1600 and 1700 and just
15 hazardous waste.
16 MR. TRASK: Would you prefer to do that rather
than have these hazardous waste and substances and toxic
18 substances melted into the existing DOT table?
19 MR. STUDABAKER: Well, yes, I think we would.
20 The actual organization of how we would propose
21 the DOT includes the EPA materials which will come in our
22 final conference which is being worked on right now. I
23 suspect that it will come back asking for individual listings
24 so that they can just be extended as EPA introduces more
25 substances to control.
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1 MR. TRASK: Okay.
2 MS. DARRAH; You mentioned a figure of $6 thousand
3 for a representative example,
4 MR. STUDABAKER: Yes,
5 MS. DARRAH: What tests did that figure involve?
6 MR. STUDABAKER: The way you list the toxicity?
7 MS. DARRAH: You were saying to do the extraction
8 procedure?
9 MR. STUDABAKER: Yes.
10 MS. DARRAH: You have quoted figures.
11 MR. STUDABAKER: I have a 14-page report.
12 MR. LINDSAY: We would like to see that. We
13 actually show $390. There is a bit of discrepancy.
14 MR. STUDABKER: I hope so.
15 MS, DARRAH: The other thing I guess you were
16 questioned on the 90-day storage requirement. You were
17 saying we should set storage times for individual wastes.
18 Were you saying that we do that on every one of the
19 wastes that will be regulated in that list of characteristics
20 or what?
21 MR, STUDABAKER: I will tie that in with the
22 question that has been talked about several times regarding
23 the degree of hazardous waste, and again this information
24 that we are trying to get is geared toward just how bad
25 are the waste streams that we have and in what way can we
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look at proposing to use new methods of control for
2
different types of hazards. I don't think you can do that
with one waste, but you can do that if you talk about
hazard classes which I will name two which have been mentionec
several times: not so bad and very bad.
MR. LINDSAY: You said you don't believe the
states would be allowed?
MR. STUDABAKER: Correct.
MR. LINDSAY: Assuming that they were, if
what you had was a form which was uniform except at the
end, for example, or on the other side, there was an
12
additional part that generators in a particular state
13
would have to fill out, would that cause us difficulty
if 90 percent of it was uniform, and then, for example,
some states wanted some additional information for its
16
own purposes?
17 MR. STUDABAKER: That probably would be attached
to a bill of lading or whatever you were using.
19 MR. LINDSAY: All right, I don't have any more
questions.
MS. DARRAH: The next speaker is Daniel Moon.
22
MR. MOON: My name is Daniel Moon, and I am
23
representing Rollins Environmental Service. Thank you for
24
the opportunity for submitting comments. We will be
25
submitting additional comments later in writing, but there
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are a few points that I would like to make today.
2 No. 1, on-site selection as it applies to the
3 buffer zone, we definitely feel a concept of a buffer zone
is certainly valid, but we feel that the 200 feet is
excessive. The 100 foot buffer or earlier drafts is
compatible with applicable state experience and would be
sufficient in most cases. Particular note is taken of
the current thinking about siting such facilities
currently industrialized areas seem most favorable.
10 However, in an industrialized area, sizable pieces of
11 land are hard to come by. For example, a fifty-acre
12 site would be reduced by 50 percent under the 200 foot
13 rule, under the best of conditions. We feel there should
be a rethinking of the idea of the 100 foot buffer zone.
15 No. 2, under the continuity of operation as
16 it applies to the closure procedures, I think that the
17 regulations — if I read them correctly — do not right
18 now only address the issue of final closure. I think you
19 must have sufficient funds available to close the facility
20 at any point in time if the owners-operators are unable
21 to continue operation. The establishment of the correct
22 amount of the trust fund established is critical, and if
23 necessary, EPA, when it comes down to actually establishing
24 the funds, should consider the opinion of a third party to
25 determine the amount of that fund and not just utilize tte
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information supplied by the particular facility.
2 I think one of the major concerns that I have
3 not seen addressed to date and maybe it is to be addressed
in the following procedures, is the need for a placement
of a specific limitation on the quantities of waste that
are allowed to be stored in a hazardous waste facility
at any one point in time. Our experience to date more
than reinforces the need for some limitation, especially
in light of the need to establish some type of
10 closure fund. If you don't know what the waste amount
11 is on that site, it is impossible to establish that fund.
12 No. 3, on post-closure liability, we support
13 the thinking of legislative authority for their correction
14 of a proposed fund. This is an absolutely critical
15 effort and it should be received — it should receive
16 the highest priority of the agency. We also support the
17 specific legislation proposed by the National Waste
18 Management Association on this matter. Our national
19 responsibilities as it applies to the requesting of
20 regulations or proposed regulations, I think the need for
21 a working set of responsible controls has been heavily
22 studied. Those proposed regulations both appear to be
23 and are burdensome. However, given the economic realities
of waste disposal and the political and emotional issues,
25 we believe the Agency has chosen the proper direction.
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The federally administrated fund is extremely desirable
inasmuch as it represents a pooling of sites in the nation.
Each state must set up a fund recognizing the same high
potential level of claims. However, operating with a
grossly smaller base of sites, many states would be unable
to put together a fund of sufficient size without
extraordinarily high contributions.
No. 4: On landfills as it applies to alternative
designs presented in the proposed regulations, the need
for technology and landfill design is obvious if we are
11 to meet the needs for secure disposal of hazardous wastes.
12 Many industrialized sections of the nation have no 10
13 to the -7 soils. So that technologies must be utilized.
14 We applaud the use of two design alternatives. However
16 our experience in attempting to implement designs which
16 are equivalent, tend to get hung up on a two point theory
17 which somewhat logically assumes that if you are not
18 on the line connecting the two points, then you cannot
19 be equivalent. I don't understand the rationale for the
20 two designs, but we will continue with that.
21 We encourage the Agency to either develop a
22 method to evaluate specific designs, for example, by
23 defining the minimum containment period based on permeability
24 or expand the list of alternative designs so that a broader
25 feel of equivalents can be established so that a state or
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local agency can more readily evaluate what is actually
being explained in the regulations. Obviously, this
multiple design approach cannot be introduced by these
regulations. There cannot be, however, any individual
standard that will have greater environmental and cost
impact on the regulated community than that for the
design of secure land confinement systems. We believe
the extra coverage will prove extremely beneficial and
9 that despite its expanded nature, it will still fit
10 appropriately.
11 And finally, I would like to address the broad
12 issue of siting. I think over the last couple of years, EPA
13 has placed their major emphasis on the development of the
14 regulations with considerable justification. I
15 feel it is now time for EPA to step back and take a more
16 comprehensive look at the evolving field of the hazardous
17 waste management. One of the most critical issues is the
18 siting issue, especially as it applies to the need for
19 additional capacity within the industry.
20 At the press briefing on the publication of
21 these proposed regulations in December, Doug Costle said
22 something to the effect that the development of hazardous
23 waste management facilities was "do-able". This statement
24 needs to be carried into the field. One of the many needed
25 and positive actions that I think EPA could take is to have
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members of its staff who are acknowledgable and experts
in the field of hazardous waste and acknowledgable about
the proposed regulations be available to present legislative
committees, hearing boards, zoning commissions in public
hearings and make the fact known that a facility can be
designed, constructed and operated so as to protect public
health and the environment, and that a facility sited
in a local area will not automatically result in the
creation of another Love Canal.
Thank you.
I will be willing to answer any questions.
MR. LINDSAY: Let me just address one point.
You mentioned something about a two point theory with
regard to the landfill design criteria. Do I understand
what you are saying correctly — let me try this — that
any alternative design to those two doesn't fall somewhere
in between them, that it is not acceptable; is that what
you think we are saying?
MR. MOON: I am not saying that you don't think
it is acceptable. It is hard to define how you fall in
between the two exactly anyway.
MR. LINDSAY: Yes.
MR. MOON: It is very difficult. If you are dealing
with a state regulatory agency — at this point in time, if
you are trying to explain your alternative design to a local
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l agency or just about anybody and it doesn't exactly fit
2 within the framework of the design of the proposed Federal
3 regulations, it is not going to be acceptable.
MR. LINDSAY: Let me follow that through then
with what I think is a logical conclusion. Instead of
having a note system which allows for verification which
talks about an equivalent containment, you would rather
see something like 47 alternative designs from which one
must choose; is that preferable?
10 MR. MOON: We could leave the note system in.
11 I think we have to determine how we evaluate the existing
12 designs. I mean, how are they compatible or how do they
13 stand up to each other? Are they equivalent? What is
the basis for their design that you use? If you can state
15 in the regulations what that is, then anybody can utilize
16 that for any other design. In lieu of that, I think we
17 need to place just more than two designs within the
18 regulations — three, four, five or six so that people
19 can compare your design with one of those in the Federal
20 regulations, or if it happens to be exactly like one of
21 those in the Federal regulations, would make it a more
22 realistic thing.
23 MR. LINDSAY: To design the variable?
24 MR. MOON: That would be good, yes.
MR. TRASK: I have a quick question on storage
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limitation. You indicated there are specific limitations
on the quantity being stored on any one site at any
one time. Were you referring there strictly to storage
facilities or were you looking at generators?
MR. MOON: I wasn't necessarily looking at
generators; I was primarily looking at hazardous waste
treatment.
MR. TRASK: Thank you.
9 MS. DARRAH: You mentioned closure procedures.
10 I don't know if you were here earlier today. We had a
11 comment on the fact that deposits of this using the present
12 value factors is too burdensome, and we: should be using
13 some sort of net worth. First of all, I have a question.
14 You said sufficient funds needed to be available so the
15 facility can be closed at any time. Are you saying we
16 should not from the start allow the use of — allow the
17 build-up of the funds using an interest rate?
18 MR. MOON: I don't want to specifically address
19 the mechanism for establishing the funds or the financing.
20 Okay? That's another matter which I am not expert on,
21 to say the least. However, the funds are established,
22 I think, sufficient funds need to be available to close
23 the facility at any point in time and not just when the
24 facility plans on closing because too many of them aren't
25 closed when they plan on being closed, if .you know what
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l I mean.
2 MS. DARRAH: Sure. You don't care to offer us
3 a comment right now as to what you think of it.
4 MR. MOON: Those mechanisms?
5 MS. DARRAH: Right.
e MR. MOON: I would defer that.
7 MS. DARRAH: Okay. We have no other questions.
8 We are getting a lot of calls at the office
9 about whether we are starting tomorrow or starting tonight.
10 For your information, we have at the moment five more
11 speakers who wanted to address their comments to us
12 today. If there are any other people here who do want
13 to speak today, please check with the registration desk.
14 The next speaker is George Hanks.
15 MR. HANKS: I am George Hanks, Assistant Director
16 of Federal Government Relations of the Union Carbide
17 Corporation. I am appearing today on behalf of the
18 Manufacturing Chemists Association or MCA. MCA is a non-profi
19 trade association having 191 United States company members
20 representing more than 90 percent of the production capacity
21 of basic industrial chemicals within this country. In the
22 prior hearings, you have heard from other witnesses on
23 behalf of MCA with respect to the significant effect that
24 EPA's regulations will have on the chemical industry, and our
25 comments on Sections 3001 and 3002 of the proposed regulation
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In my comments today, I will focus on MCA's
principal concerns with the RCRA Section 3004 regulations
relating to the standards for owners and operators of
hazardous waste treatment, storage, and disposal facilities.
These comments will be ampliefied considerably in the
written comments which MCA will be submitting to EPA.
In the matter of Cover of NPDES Facilities, EPA
has proposed to establish design and operating standards
for "surface impoundments," "basins" and "chemical, physical
10 and biological treatment facilities" for hazardous waste.
11 This proposal would regulate many NPDES treatment facilities
12 that have been designed and constructed at substantial costs
13 in order to comply with the 1977 requirements of the Federal
14 Water Pollution Control Act. We do not believe Congress
15 could not have intended that these recently completed NPDES
16 facilities would be subject to new standards under RCRA.
17 NPDES related facilities may well be the largest volume
18 waste systems which EPA proposes to cover. However, potential
19 hazards in these facilities are generally low in view of the
20 low concentrations of hazardous substances, the existing EPA
21 regulation of NPDES facilities, and the further EPA
22 regulations being developed to meet the best management
23 practices under the 1977 amendments to the Clean Water Act.
24 At most, NPDES facilities should be subject to less stringent
25 standards as are planned for special wastes.
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1 In the matter of General Site Selection, EPA
2 has in Section 250.43-1 proposed standards which do not
3 allow new or existing facilities to be located in a regulator!
floodway; and do not allow facilities to be located in a
coastal zone high-hazard area, a 500-year flood plain or
wetland unless compliance with certain requirements in the
"Notes" can be demonstrated. This appears to rule out
construction in many industrial areas, in river valleys
and on the Gulf Coast except at large additional expense.
10 Inclusion of Regulations Under Other Statutes:
11 Section 250.42 of the proposal would incorporate standards
12 under the Federal Water Pollution Control Act, the Clean
13 Air Act and OSHA. We object to this proposal on the grounds
14 that EPA should not now incorporate in RCRA regulations
15 unknown future changes in regulations developed under
16 those other statutes. Section 3004 requires promulgation
17 in accordance with the Administrative Procedure Act and
18 after an opportunity for a public hearing. In addition,
19 RCRA does not authorize "double jeopardy" by, for example,
20 making a Clean Air Act problem into a RCRA violation as well.
21 EPA's proposal would subject facility owners to duplicate
22 enforcement and penalties. In addition, many of the
23 standards issued under these other laws are not legally
24 or technically appropriate for application to hazardous
25 waste treatment, storage and disposal. For example, EPA
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1 refers to harmful quantities under Section 311 of the Clean
2 Water Act. However, these so-called harmful quantities
3 have been held invalid by the District Court for the
4 Western District of Louisiana, and have just recently been
5 revoked by EPA and replaced with a new concept of a
"reportable quantity" under the 1978 amendments to Section
7 311. The incorporation in RCRA of regulations under Section
311 and the other laws enumerated in the proposal is improper
and unjustified.
In the area of Financial Responsibility, EPA
has proposed that, as a condition to permit issuance, a
facility owner/operator deposit cash in a bank trust account
in an amount equal to the estimated cost of closing the
facility. We urge that flexibility be provided in the
regulations which allows alternatives such as a surety bond
or guarantees.
EPA has also proposed that a facility owner/
operator maintain financial responsibility of $5 million per
occurrence for accidental injury and property claims arising
out of the release of materials from each such facility.
Such responsibility must be evidenced by liability insurance,
or self insurance not exceeding 10 percent of equity.
We object to this proposal on the ground s that the statute
does not authorize the establishment of financial
responsibility for private damage claims, that the $5 million
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figure is insupportable, that even the largest corporations
would have difficulty in complying with the $5 million
requirement through self insurance, and that these
requirements fail to provide the degree of flexibility
required by Section 3004 of RCRA. Many small hazardous
waste facility owner/operator cannot afford insurance of
this magnitude and would be forced out of business. We urge
that "insurance" for private damage claims be deleted as
9 a requirement and, in the alternative, that the percentage
10 of equity in the proposal be raised and the $5 million figun
11 be lowered.
12 Variances of Alternative Standards: EPA has
13 proposed to rely primarily on design specification standards,
14 rather than performance standards. We urge that EPA allow
15 greater flexibility through a general variance providing
16 that a facility will not be required to meet the design and
17 operating standards if it can show (a) that it meets the
18 human health and environmental standards or (b) that it will
19 achieve performance substantially equivalent to that
20 achieved by EPA's prescribed design and operating standards
2i for any requirement, and not solely where EPA has provided
22 "Notes." The industry has long argued for performance
23 standards in place of specific design specification
24 standards. The Agency's proposed regulations provide
25 minimal flexibility to develop and use alternative
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technologies. Particularly since the proposed
regulations apply equally to new and existing facilities,
the inflexible use of specification standards will
arbitrarily cause many well designed and environmentally
sound facilities to be out of compliance.
In the matter of Interim Status Requirements,
the concept of an interim status is valid and specifically
required by Section 3005 (e) of RCRA. However, we urge
that it be implemented to ensure equitable treatment of
members of the regulated community during the interim
status period. As written, the regulations could allow
one company's permit application to be reviewed on the
day after it is filed and its facility either forced to
shut down or immediately be saddled with an onerous
compliance schedule, while its competitor next door may not
have his permit application acted upon for five years.
Furthermore, the regulations should be modified to allow
owners of facilities with interim status to make good faith
judgments as to their compliance with the applicable
regulations including the "Note" requirements. Finally,
the regulations should allow a reasonable compliance period
for each of the interim requirements. Additional time must
be provided for achieving compliance with particular
requirements such as; building a fence, developing a contingenc
plan, and so forth. In our comments, we will set forth a
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specific proposal^as to appropriate compliance periods
2 for specific interim requirements.
3 We trust that EPA will review the written comments
in detail and thank you for this opportunity to express
5 our views.
8 MS. DARRAH: Thank you. Will you^answer questions
for us?
MR. HANKS: Surely.
9 MR. LINDSAY: One of the comments that you made,
10 we haven't heard from anyone else — unless I misunderstood
11 it — this has to do with the site life liability,
12 insurance coverage business. Did I understand you to
13 say that you felt that the statute; that is, the legislation,
14 didn't give us the authority to regulate, to cause the
15 accumulation of money or some provision for covering
16 damage to third parties?
17 MR. HANKS: This is my understanding.
18 MR. LINDSAY: It would be interesting if you
19 could document that saying that in your detailed comments.
20 MR. HANKS: I think this will be documented in
21 our detailed comments, Mr. Lindsay. I am sorry to say
22 that this is an area I don't appreciate as much as I do
23 with the engineering problems.
24 MR. LINDSAY: Nor me for that matter.
25 We were under the impression that is one of the
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things Congress intended to do. We want to see what
2 your comments are.
3 Another point you made towards the end, I
would like to talk about that. You said that you
were afraid — these aren't your words but in my notes —
afraid that the implementation of the regulation during
the interim standard period would provide for equity.
I can understand what you are saying.
9 MR. HANKS: Yes.
10 MR. LINDSAY: And then you went on to say
that the way in which that might be corrected would be
12 to force compliance during the interim period.
13 MR. HANKS: No.
M MR. LINDSAY: No?
15 MR. HANKS: I am sorry, no. I was talking
16 about compliance with interim standards.
17 MR. LINDSAY: Interim status requirements?
18 MR. HANKS: Right. The matter of how to equitably
19 treat the owners of facilities that apply for permits
20 is probably best to treat it by something not dissimilar
21 from the way both the Federal Air Pollution Control and
22 Clean Air Act operate. A fixed date for compliance would
23 represent a time period in which all should comply.
24 MR. LINDSAY: I guess our problem is that — it
25 all depends on how many states assume the program.
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1 MR, HANKS: Sure,
2 MR, LINDSAY: To seek authorization. You know,
what their capactiy is to deal with it, the permit
applications and ours, assuming we were running the
program. We suspect this is probably in the ball park.
Somehow we are going to have to come up with some
sort of procedure for prioritizing those. If you have
got any thought on that that would make the equity
problem more equitable, we might hear those, too.
10 MR. HANKS: I suggest at this time that I
11 won't be able to offer thoughts on that, but I will see
12 that we address that.
13 MR. LINDSAY: Okay.
MS. SCHAFFER: Just as a clarification on
what Fred was saying concerning the interim, compliance
with the interim status, you are saying that a facility
who has given a certain amount of time to come into
compliance with the interim status should be required
19 right off the bat?
20 MR. HANKS: I am sorry to say, but I forget
21 how the regulations address this, but there are a number
22 of things that may be possible to comply with immediately.
23 You might be able to comply in thirty days, other sixty,
24 others a hundred days, something like that. You need to
recognize that all the interim requirements cannot be
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necessarily met immediately or even in a very short period
of time, in some cases, and we have suggestions on that.
MS. SCHAFFER: I was going to say if you can
provide us with suggestions, it will be super.
MR. STRAUS: Let me say that the regulations
don't become effective for six months until after they
are promulgated, so you want six months?
MR. HANKS: I think, Mr. Straus, that the time
periods in which they are cast in do take into account the
10 six month period.
11 MS. DARRAH: I have a specific question. You
12 said that the percentage of equity to be used should be
13 raised. Are you going to provide us with specifics?
14 MR. HANKS: As I recall, I think we may have a
15 suggestion on that. This came into account when one
16 of the major companies that is a member of MCA began to
17 tabulate just the number of sites they had and I think they
18 have 88 sites. Now, some of those sites may have incincerator
19 on them, landfills and so on. Whether 88 is the number or
20 88 times the number of facilities, this then became something
21 in the neighborhood of $300 million of financial
22 responsibility for one of the major chemical companies
in the United States which exceeded 10 percent of equity.
MS. DARRAH: You do think that there is some
number that is more reasonable and if there is some reason for
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1 that, we would like to know.
2 MR. HANKS: I will be glad to see that we address
3 that.
4 MS. DARRAH: Thank you very much.
5 Robert Pease.
6 MR. PEASE: I am Robert Pease. I work for the
7 Mitre Corporation of Bedford, Massachusetts. Because
8 Mitre has not previously produced a written statement
9 for the panel, I want to make it clear that these are
10 my personal comments and do not represent Mitre Corporation.
11 MS. DARRAH: Personal comments as a private
12 citizen?
13 MR. PEASE: That is correct. I myself do not
14 work — I do not work for the department — the department
15 that was involved in the Environmental Impact Statement.
16 I work in Bedford, Massachusetts, and we are involved in
17 assisting states in the clean-up of hazardous waste
18 situations such as siliesium. We are also involved in
19 the implementation of disposal sites.
20 My first comment is, as it comes from my
21 experience in implementation. There is a comment that
22 has been made by previous speakers and concerns the
23 categories of wastes according to degrees of hazard.
24 I realize it is not a new comment, but I want to put a new
25 perspective on it.
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The problems involving the implementation of
hazard waste facilities at the moment is that in the public's
mind, in all classes of chemicals, they are of equal
toxicity. I believe that the legislation supports this
to produce an impediment of the implementation of
harzardous waste facilities. I can
foresee states wishing to provide disposal facilities
for such lesser hazard chemicals like metel hydroxide
sludges, and it would be beneficial to come to the public
10 and say, "This waste which we are disposing of in your
11 community is a Class 3 waste," or something like that.
12 Which, according to EPA, is the lowest hazard possible.
13 I believe that this would ease the process of siting which
would be very difficult and may be the biggest stumbling
15 block of this legislation.
16 My second comment is concerning hazardous
waste disposals by carbon companies. I am not sure whether
18 this is in the litigation, but I wanted to bring it to
19 pour attention. It may-Very well be.
20 Activated carbon is being used to a great extent
21 to add molecules in many hazardous waste materials. It is
22 used in hazardous waste disposal companies as the final
23 process step on their eight-list waste streams. The organics
of that is multiple. There are many kinds and impossible
25 to identify. This carbon is usually taken from hazardous .
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1 waste disposal companies by the carbon suppiiez and
2 regenerated.
3 Now, the generation of the carbon is a thermal
4 process which involves partial oxidation and the molecules
5 are burned in afterburners in the regeneration column.
6 I am not sure whether any afterburners achieve the design
7 characteristics of hazardous waste incinerators which
8 would be two seconds, and an appropriate number of
9 degrees, but I don't recall. So, I have a number of
10 questions.
11 First of all, our carbon regenerators, are
12 they covered under the incineration section under Subtitle
13 C? What happens to the provision that the generators
14 of hazardous waste treatment — in this case it would
16 be activated carbon — they are required to analyze it
16 for the chemicals present. I believe that would be
17 impossible with activated carbon because its absorption
18 capabilities are for multiple organic compounds. Because
1!* the carbon is being degenerated, is this recycled material
20 and would be exempt from the legislation? These are
21 possibilities that I am unsure of.
22 My third point is one in which I am in disagreement
23 with many previous speakers. I am in favor of EPA's use
24 of an acid eluent in the extraction procedure. I agree with
25 your reason that this simulates the situation in a sanitary
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lab. I believe that an acid eluent should be used to
determine whether something that should go into Subtitle
D landfill or a Subtitle C landfill is appropriate.
But after that, I believe that a water eluent should be
used as a second step to determine whether the waste should
go into — which appropriate landfill the waste should
go into. The waste should be categorized according to
waste toxicity. It is conceivable that there is a proper
disposal of lower acid waste, and a water eluent would
10 be that determining factor. I do not believe that solvent
11 recycling costs should be excluded from the regulations.
12 The Resin Chemical Corporation is an example of this.
13 That is essentially a solvent recycling company and yet
14 the person took in many types of waste and eventually
went bankrupt.
I agree, also, with other previous speakers
that the 100 kg cut-out is not appropriate or extremely
18 hazardous waste. If a categorization system were in
19 effect, certain waste could be delineated that if they
20 were so toxic, that they would come under the regulatory
21 scheme. I don't think this would unduly increase the
number of generators being regulated, whereas the motor oil
generators of the gasoline stations would be exempted from
this.
That concludes my comments.
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1 MS. DARRAH: Thank you.
2 MR. LINDSAY: Mr. Pease, you said that you are
3 in favor of the acid eluent. You also went further to say
4 you would prefer a two-step, first the acid test then
5 some sort of a water test. How would you feel about a
6 proposal we heard twice, once from MCA and once by a
7 consulting firm in the mid-west concerning a two-step
8 process the other way around, whereby 1, the first would
9 be distilled water and if it failed that test, it was
10 hazardous in all senses of the word, and the second step,
11 which would be the acid eluent, and you would only need
12 to run that if you were sending the waste to a municipal
13 landfill or some other environment.
14 MR. PEASE: I think that is a backward procedure.
is As you said, if it failed the water test, it is —.
16 MR. LINDSAY: If it doesn't fail the water test,
17 but the acid test.
18 MR. PEASE: I am thinking that EPA, as I perceived
19 the spirit of the original regulations, that this is to
20 designate whether the material is hazardous or not.
21 MR. LINDSAY; Whether it should enter the system.
22 MR. PEASE: That is correct. If it failed the
23 acid test, then it would be called hazardous and the water
24 test might determine the degree of hazard.
25 MR. LINDSAY: The way it works now under the system.
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if it failed the acid test it would enter the system,
and if it didn't fail the water test, the facility could
get a permit. That is the way the regulations are now.
MR. STRADS: I am wondering if you can expand
on the dategorization of ways that less hazardous waste
would be easily — more easily for people to accept than,
I guess, a highly hazardous waste. Can you expand on this
from your experience?
MR. PEASE: Well, the New England region does
10 not have clays of acceptable permeability for a hazardous
11 wasteland that would contain all types of waste. AT the
12 moment, waste must be sent to Niagara Falls. There are
13 two companies in Niagara Falls which can dispose of the
waste. Niagara Falls is the proper place for hazardous
waste disposal.
I anticipate, though, that the New England States
well, there are a number of studies ongoing now.
18 Massachusetts and Connecticut, each have their own siting
19 studies and New England also to locate disposal facilities.
20 These facilities will be used for metel hydroxide sludge
21 produced from treatment of metel bearing waste streams.
22 Already in Massachusetts they are gearing up for options
23 for the siting of landfills there. It would be much easier
24 if we go into it saying that these chemicals are not the
25 same — Love Canal is a much lower toxicity and the EPA
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l regulations backs us up.
2 MS. DARRAH: Thank you very much.
3 Thomas D. Alfano, Jr.
4 MR. ALFANO: My name is Tom Alfano and I am the
resident vice president of Wohlraich and Anderson. This
statement is in support of the financial responsibility
requirements concerning insurance for both sudden and
accidental and non-sudden and accidental pollution
9 resulting from the escape of hazardous wastes into the
1° environment.
11 I am here representing Wohlraich and Anderson
12 Ltd. and Hawden Agencies, Ltd. of New Jersey, which are
13 member companies of the Alexander Howden Group Limited,
14 London, England. Alexander Howden is one of the largest
insurance brokers in the world with total assets of over
250,000,000 pounds or approximately S500 million as of
1' December 31, 1977. Howden Agencies is the exclusive
18 U.S. underwriting manager for a pool of insurance companies
19 writing environmental impairment liability, also known as
pollution insurance.
21 This policy specifically covers non-sudden and
22 accidental pollution to air, water or land. While this
23 coverage has been available in the U.S. since 1975, it is
24 not widely known. A number of educational seminars have been
25 held around the country for the leading insurance brokers.
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However, only recently has interest in gradual pollution
increased. Limits of $5 million per claim, $10 million
annual aggregate are now available in order to comply with
the EPA financial responsibility requirements for non-sudden
and accidental pollution. I would like4to discuss three
important areas. First, a brief history of the pool; second,
specific policy insuring agreements — which I hope won't
bore you too much — conditions and exclusions, and third,
the potential impact that these regulations would have on
the insurance industry.
POOL HISTORY
The pool concept began in 1972 when H. Clarkson
Limited, a Lloyd's brokerage firm, initiated negotiations
with leading European insurers to discuss the concept of
insuring gradual pollution. These individuals were leaders
at that time in that they recognized the fact that gradual
pollution coverage was not widely available and, in addition,
they were aware of the increasing social pressure for this
protection. An elaborate technical plan was developed
that classified various industries by a numerical value
on the basis of environmental hazards associated with each
industry. In addition, a network of environmental engineers
was organized to perform services and insure uniform
quality throughout the world. These surveys provide on-
site inspections, a review of the current state of compliance
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with all applicable regulations, and an evaluation of the
2 ability and attitude of management toward pollution control.
3 At the present time, the pool insures one of the largest
hazardous waste disposers in the country. In addition,
5 another leading hazardous waste disposer has ordered a survey
6 and a formal quotation has been released. Also, interest
has been shown by the other leading hazardous waste disposers.
These companies decided to seek pollution insurance
prior to the EPA proposed guidelines. They obviously
10 recognized the critical need for gradual pollution protection
ll Typical costs for this insurance range from a minimum
12 premium of $5,000 which would apply to a relatively innocuous
13 risk to $80,000 or more for one of the large hazardous waste
disposer operations. The hazardous waste dispoer currently
written is being charged a premium in the area of $80-
16 90,000. It is our feeling that premium costs will be
17 reduced as Insureds comply with the EPA guidelines and
18 regulations.
19 POLICY TERMS AND CONDITIONS
20 The first insuring agreement of the EIL policy
21 states that "... the Insurers agree to indemnify the
22 Insured against all sums which the Insured shall be obliged
23 to pay for damages by reason of the liability imposed upon
24 the Insured by law on account of:
25 (a) Personal Insury, including death at any time
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1 resulting therefrom;
2 (b) Property DamaGe;
3 , (c) Impairment or diminution of or other
interference with any other environmental right
or amenity protected by law, arising
within the territorial limits designed in the Declarations
and caused by Environmental Impairment in connection with
the business of the Insured and in respect of which a claim
has been made against or other due notice has been received
10 by the Insured during the Policy Period."
11 The important phrase is the term environmental
impairment which is defined as:
(a) the emission, discharge, dispersal, disposal,
seepage, release or escape of any liquid, solid,
15 gaseous or thermal irritant, contaminant or pollutan
16 into or upon land, the atmosphere or any water-
course or body of water;
18 (b) the generation of smell, noises, vibrations,
19 light, electricity, radiation, changes in
20 temperature or any other sensory phenomena; arising
21 out of of in the course of the Insured's
22 operations, installations or premises, all as
23 designated in the Declarations.
24 This comprehensive definition not only fills the gap left
by the standard pollution clause in the insured's present
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liability policy but expands the forms of environmental
impairment to provide a total pollution definition. The
policy is written on a claims made basis. This means that
claims made during the policy period are covered even if
the environmental impairment occurred prior to the
inception date of the policy.
Exclusion 4 is worth particular note. The
exclusion stated that coverage is not provided for "Liability
arising from Environmental Impairment in respect of which
1° any executive director or any officer of the Insured or any
II employee with specific responsibility for environmental
control was aware of noncompliance with any applicable
stature or regulation or instruction relating to
Environmental Impairment issued by competent authority
15 PROVIDED ALWAYS that until next renewal date of this
16 policy this exclusion shall not apply where the Insured
is operating under conditions of noncompliance under a
IS permit or order of such authority and with good faith
19 efforts to comply as soon as can reasonably be expected
20 of the Insured with any applicable statute or regulation
21 or instruction issue by the authority." This key wording
22 makes it clear that the policy will not cover the willful
23 polluter. This is an important point since it is always
24 a condition and a warranty that the insured will comply
2S with all environmental regulations and failure to do so
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will negate the policy.
One final exclusion that I want to mention is
Exclusion 8 which states coverage is not provided for
"Liability arising from Environmental Impairment due to a
sudden, unintended and unexpected happening." This
exclusion can be deleted; however, it should be noted that
the limit of liability for sudden and accidental pollution
will be restricted to $10 million in the aggregate and will
not comply with the EPA regulations for sudden and
10 accidental limits of $5 million per occurrence.
11 IMPACT ON THE INDUSTRY
12 The insurance industry is conservative by nature.
13 While insurance for sudden and accidental pollution is
14 normally a part of every insured's portfolio, protection
15 against non-sudden and accidental is generally not
16 available through the standard insurance companies. There
17 is no question that "Love Canal" and other horror stories
18 that we have all read about have created a changing social
19 climate. The public has demanded action from the
20 government to ensure public safety in dealing with
21 hazardous waste.
22 The compilation of codes, rules and regulations
23 by specific action of the government in response to the
2* increasing demands of the public sector is not without
25 recent precedent. As an example, the Employee Retirement
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1 Income Security Act of 1974 embodied a host of standards
of performance by which trustees of employee benefits
and welfare plans were held accountable. A direct result
of such a codification of rules and regulations was the
creation of a measurable insurance risk — the wrongful
6 violation of such standards of performance. With this
reality two major insurance groups, American International
Group and Lloyd's of London, prepared liability policies
9 to protect these trustees. As rates became determinable
based on loss experience and these companies realized a
fair profit on this class, other insurers were attracted
to the marketplace. Today, there are no less than ten
insurance groups competing for this coverage.
The EPA is now creating a strikingly similar
situation with "non-sudden and accidental" requirements.
By codifying specific rules, regulations, obligations and
standards of performance, the EPA provides for the
insurance industry the measurable risk — the degree of
compliance or non-compliance — with a specific code of
regulations. Howden Agencies' environmental impairment
policy is the first to recognize this measurable risk and
provide protection. As we continue to be an equitable
and responsive insurer for this liability coverage, our
successful participation will, inevitably, attract other
insurers into the marketplace. We welcome these regulations
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1 and we will work toward providing insurance along with the
2 rest of the world insurance marketplace.
3 MS. DARRAH: Thank you.
4 MR. LINDSAY: I would like to ask one thing.
When you got involved, there were all those exclusions,
and I had trouble following that. If in your formal
presentation — are you going to send us a written
presentation of that?
9 MR. ALFANO: Sure.
10 MR. LINDSAY: If you could decipher that for us,
11 that would be helpful, I think.
12 I guess it is fair to say from your last comment
13 that you expect competition pretty soon, right?
14 MR. ALFANO: I hope so, definitely.
15 MR. LINDSAY: Is there anyone else in this
16 country now that is writing it other than the group that
you represent that you know of?
18 MR. ALFANO: Quite frankly I am in the sales
19 marketing end of the business. I understand there have
20 been a couple of policies outstanding but there is not
21 a program of such.
22 MR. LINDSAY: And yours is?
23 MR. ALFANO: Yes.
24 MR. LINDSAY: Thank you.
25 MS. DARRAH: No more questions. Thank you.
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1 Karl T. Johnson.
2 MR. JOHNSON: My name is Karl T. Johnson and
3 I am Vice President for Member Services of the Fertilizer
Institute in Washington, D.C. The Fertilizer Institute,
(TFI), is a non-profit trade association of the fertilizer
industry whose membership includes over 300 companies
which produce more than 90 percent of the fertilizer
produced in the United states.
9 In my previous comments, I addressed issues of conce
10 to TFI and its member companies arising from the regulations
11 proposed to implement the provisions of Section 3001 of
12 the Resource Conservation and Recovery Act of 1976 (RCRA).
13 Today, I wish to discuss certain issues arising from the
1/1 regulations proposed to implement Section 3004 of RCRA.
15 An issue of major concern to TFI and its member
companies is the relationship between the RCRA regulatory
17 program and the National Pollutant Discharge Elimination
18 System (NPDES). The preamble to the Section 3004 regulations
19 states that the regulations are applicable to industrial
20 wastewater treatment systems permitted under the NPDES
21 program
22 TFI believes this policy is contrary to the
23 provisions of RCRA, unnecessary and counterproductive.
24 TFI believes that the dissolved materials
25 in industrial wastewater subject to regulation under the
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NPDES program have been specifically exempted from
coverage under RCRA by Section 1004 (27) of the statute
which exempts such materials from the definition of solid
TFI believes that, beyond being contrary to the
language of RCRA, the duplicative regulation of NPDES
permitted facilities is unnecessary to achieve the purposes
of RCRA. While EPA itself does not become involved in the
engineering aspects of wastewater treatment facilities
constructed pursuant to an NPDES permit, generally such
permits require that the state in which the discharge occurs
approve the design and detailed engineering of such
facilities. Consequently, there is ample authority to
address the concerns embodied in RCRA when dealing with
NPDES permitted facilities without resort to duplicative
regulation.
Such duplicative regulation can also have a major
negative impact on current efforts directed at abatement of
industrial wastewaters. Take, for example, the general
siting requirements applicable to new hazardous waste
treatment facilities. These standards Gould act to prohibit
the construction of necessary new or additional industrial
wastewater treatment facilities in certain areas.
Unlike a classic solid waste treatment-facility, the siting
of which can often be subject to considerable variation
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depending on conditions such as those addressed in the
2
general siting criteria, an industrial wastewater treatment
plant must be sited in the immediate vicinity of the facility
producing the wastewater to be treated. Where such a
location is prohibited by the general siting criteria,
of the proposed regulations the only alternative would involve
the shut down of the wastewater generating industrial
Q
facility, a result which, TFI assumes, was not EPA's
9 intent.
Beyond the anomolies created for those regulated
pursuant to the duplicative regulatory scheme proposed by
12
EPA, that scheme may adversely affect the integrity of
EPA's own industrial wastewater abatement program. The
cost of conforming existing and future wastewater treatment
15 facilities to the stringent engineering standards of the
proposed Section 3004 regulations may well run to billions
of dollars. TFI does not believe that these costs were
18
ever considered when EPA developed its effluent guidelines
19
under the Sections 301 and 304 of the clean Water Act. The
failure to consider these costs may well jeopardize the
21
integrity of many effluent guidelines.
All of these concerns and problems can be avoided
23
without the loss of program effectiveness if EPA follows
24
the clear language of RCPA and exempts industrial wastewater
25
treatment facilities constructed in compliance with NPDES
539
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1 permits from regulation pursuant to RCRA.
2 Turning to another major issue, TFI is concerned
3 that many of the proposed engineering and performance
standards are far too detailed for regulations of general
applicability, and often do not address the potential
harm associated with the hazardous wastes to which they
are made applicable.
Examples of this problem can be found in the
proposed regulations governing wastes produced by the phos-
10 phate industry. These wastes have been designated as "special
11 wastes" and only selected provisions of the proposed Section
12 3004 regulations are proposed to be applicable to such
13 wastes. This "special waste" designation was occasioned
14 by EPA's recognition that the Agency did not have
15 sufficient information as to either the hazards posed by these
16 wastes or the effectiveness of current treatment techniques.
17 As I pointed out in my earlier statement, TFI believes that
18 the proper course under such circumstances is to not list
19 any such wastes as hazardous until the information necessary
20 to make the threshold judgments concerning hazard level and
21 the effectivenes s of current management techniques is
22 available. However, TPI would also like to make it clear
that if EPA persists in its effort to regulate these
24 wastes in the face of insufficient data, the concept of
25 treating them as "special wastes" is an essential one. It
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1 would be counterproductive and, indeed, legally
2 impermissible to apply all the Section 3004 criteria to
3 these wastes when there is insufficient data to determine
whether or not such stringent requirements are necessary
5 to protect public health, welfare and the environment.
6 Nonetheless, even the 3004 requirements made
applicable to phosphate wastes as "special wastes" illustrate1
the impossibility of attempting to dictate, by regulation,
specific detailed engineering requirements for all
10 categories of wastes when such wastes are of differing types
11 and degree of potential hazard. For example, the proposed
12 regulations purport to make the general site selection
13 criteria applicable to new phosphate waste storage
14 facilities. At the same time, overburden from phosphate
15 mining is listed as a hazardous waste. Obviously, the
16 vast quantities of such overburden from a new phosphate
17 mine cannot be transported any distance and must be stored
18 in the immediate proximity of the mine site pending use in
19 reclamation activities. Just as obviously, new phosphate
20 mines must be sited where the phosphate rock can be found.
21 Sometimes the rock is found in areas which the proposed
22 general site selection criteria would prohibit as a. site
23 for storage of mine overburden. The only potential
24 hazard identified by EPA as being even a possible problem
25 with phosphate wastes involves inhalation, in an enclosed
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structure over significant periods of time, of certain decay
products of the Uranium naturally associated with phosphate
rock.
Clearly, a hazard.of this kind is totally unrelated
to the siting of an open air, relatively short term
storage area ijor phosphate mine overburden. Consequently,
7 the effect of the application of the general site
8 selection criteria in such a case could be to prohibit
the development of a new and necessary phosphate mine in
10 order to achieve a purpose totally unrelated to any potential
11 hazard to health or to the environment.
12 As another example, the security requirements,
13 including perimeter fencing, have also been made applicable
to phosphate related wastes. Again, the fencing of the vast
areas on which such wastes are treated, stored or disposed
16 of in no way relates to the only potential harm identified
17 by EPA as being associated with such wastes. Furthermore,
18 the cost of compliance with such a requirement would be
19 immense. One TFI member company estimates that
20 approximately 55 miles of fencing will have to be installed
21 at a cost of approximately 1.2 million dollars. Another
22 company estimates that approximately 150 miles of fence
23 would be required at a cost which has not yet been
determined, but would clearly exceed $2 million.
TFI recommends specifically that the above describee
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requirements be deleted insofar as they apply to the
2 phosphate related wastes and as a general matter, TFI
3 recommends that the entire Section 3004 regulations be
restructured to state general requirements which are gen-
erally applicable to all wastes with the inclusion of
specific recommended standards to be applied by permit
writers to individual circumstances as necessary. Such
a procedure will give permit writers close to the
individual circumstances of a given case the necessary
10 flexibility to establish requirements which will protect
11 health and the environment without placing unnecessary
12 and perhaps counterproductive requirements on all those
13 regulated under RCRA.
14 Turning to a related issue, the proposed
15 regulations would set minimum post-closure care requirements
16 for phosphate related waste treatment facilities. TFI
1' believes it is premature to set any such requirements when
18 EPA has stated that it has insufficient information to
19 determine whether current practices are adequate to insure
20 necessary protection of health and the environment.
21 TFI recommends that post-closure care requirements for
22 phosphate related waste not be established until adequate
23 information is available to make meaningful regulatory
24 judgments.
25 TFI and its member companies are also concerned
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about several other issues arising from the proposed
Section 3004 regulations, including the scope and amount
of groundwater monitoring required, and the extent
of visual inspections called for by the proposed
regulations. While time does not permit detailed
discussions of these issues, they will be covered in
TFI's written comments.
In summary, the institute is concerned that the
overlap of the proposed Section 3004 regulations with other
10 regulatory programs is not permissible and is unnecessary.
11 TFI is also concerned generally with the attempt made in the
12 proposed regulations to prescribe detailed engineering
13 and performance standards for the handling of all regulated
14 wastes regardless of their crucial differences of degree
15 and type of potential hazard.
16 TFI recommends that these major general concerns
17 be addressed by eliminating duplicative regulations, and by
18 establishing regulations prescribing general standards
19 which can be implemented at the local level on a case by
20 case basis after consider of the individual characteristics
21 of given wastes and given waste management techniques.
22 Thank you.
23 MS. DARRAH: Thank you. Will you answer questions?
24 MR. .JOHNSON: Certainly.
25 MR. FIELDS: Mr. Johnson, one of your first
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comments was that you did not understand — you felt that
RCRA in relation to NPDES requirements were unnecessary
and counterproductive. We feel there is a need for RCRA
because of groundwater protection needs in the facility.
Is it your belief that groundwater protection provided
through the NPDES is adequate to treat waste that might
be hazardous?
MR. JOHNSON: No. 1, as I stated, RCRA provisions
don't apply themselves to those wastes. They are not
10 covered by RCRA.As to whether waste might be generated
in a treatment facility which is hazardous, they could
12 logically be covered by the regulations.
13 MR. FIELDS: But your comment was that you felt
I4 RCRA was imposing RCRA requirements that were unnecessary.
15 The question is, do you believe there is no need for
RCRA controls on groundwater protection and facilities?
MR. JOHNSON: I can't say there is no need for
18 RCRA controls to protect groundwater, but the NPDES
19 systems provide ample opportunity to control these waste
20 water treatment facilities.
MR. FIELDS: The second question was regarding —
22 you made several statements regarding the fact that the
23 general siting requirements applicable to the facilities
24 would cause undue hardship to your industry, specifically
28 and in general. Could you be more specific regarding
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which general siting requirements would cause problems
for you in terms of siting facilities?
MR. JOHNSON: Well, I think that we will cover
this in our detailed comments, but I believe that there
is a requirement concerning quick claim protection or
elimination and some quick claim areas. In the case of
mining, it is certain that a mining area is going to
be within a 500 year quick claim or a substantial quantity
of it, and there is no place to move that or other than
10 a place in a floodplain.
11 MR. FIELDS: That note is not enough for you.
12 MR. JOHNSON: I don't see that the note gives
13 relief. Perhaps if the note was — I'd have to reread
that again, but if you would have a general requirement
that says to consider floodplains and with specific
examples of some developed or given time of such situations,
they could be identified at the individual site.
18 MR. FIELDS: You also made a statement that
19 proposed 3004 regulations may well run into the billions
20 of dollars. Two questions: Were you talking about all
21 3004 or were you just talking about the special rate
22 standards?
23 MR. JOHNSON: The entire.
24 MR. FIELDS: The entire 3004. All industry or
just your industry"?
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1 MR. JOHNSON: The entire industry in that case.
2 MR. FIELDS: Are you going to address those cost
3 estimates in your written statement?
4 MR. JOHNSON: To the extent that we are able.
5
21
yes.
6 MR. FIELDS: I have nothing further.
7 MR. STRAUS: Just one thing. When you submit
your detailed comments, you indicated that the cost —
this morning I think someone said it would cost 1.2
10 million dollars to fence 50 miles and you said 55 million.
11 That is quite a big difference.
12 MR. JOHNSON: I didn't hear those comments.
13 I wasn't present. I don't know what the basis of his
14 estimates are, but we could give you details as to how
15 the estimate was made for 1.2 and 55. Probably the
16 great differences are in the sites or the particular
17 requirements.
18 MR. STRAUS: If you were to give the geographical
19 area -- you are talking about the geographical area that
20 might have some bearing?
MR. JOHNSON: Yes.
22 MS. DARRAH: No more questions? Thank you.
23 Leslie Dach.
24 MR. DACH: My name is Leslie Dach, I am a science
26 associate with the Environmental Defense Fund. This
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afternoon I will be discussing several points applicable
to Section 3004 legislation.
One of the major environmental hazards resulting
from improper disposal of hazardous waste comes from
inactive sites — TSDFs no longer receiving new shipments
of hazardous wastes but which are still owned by the person
who owned the site while it was actively receiving wastes.
Included in the inactive site category are inactive portions
of otherwise active facilities. EPA, citing "enormous
10 technical, legal and economic problems" is not applying
11 Section 3004 to such facilities. EDF strongly disagrees
12 with this decision. Love Canal, the Valley of the Drums
and Toone, Tennessee are examples of such sites. Because
14 many of these sites were built years ago, they have little,
15 if any, environmental safeguards. Groundwater around
16 these sites is rarely monitored for contamination.
17 The advent of strict RCRA permit requirements
18 is likely to result in even more sites becoming inactive
19 once the regulations go into effect. There will be great
20 incentive for substandard TSDFs to take in vast amounts
21 of hazardous waste before RCRA goes into effect (thereby
22 saving generators the burden of paying for the better
23 management soon to be required) and then to close down, rather
24 than investing the capital necessary to meet RCRA requirements
25 There is no disagreement that inactive sites are
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1 a public menace. EPA admits this in the preamble. Yet,
2 protection of the public from the hazards associated with
3 these facilities has been neglected by EPA. EPA has not
4 vigorously searched out inactive TSDFs. In case where
5 inactive sites have been identified, the agency often
6 failed to inspect these sites to determine the extent
7 of or potential for environmental contamination. EPA's
8 rationale for its inaction is a shortage of personnel
9 needed to identify or inspect these sites and of money
10 needed to pay for monitoring and analysis of air
II or water. The bottom line is that residents of neighborhoods
12 in which inactive hazardous dumps are located don't know
13 where they are and have no way of determining whether
14 their water is safe to drink or their air is safe to
15 breathe.
16 In the preamble to the regulations, EPA suggests
17 that the imminent hazard section of RCRA (42 U.S.C. Section
18 6973) is sufficient to protect the public from the hazards
19 associated with inactive TSDFs. EDF disagrees with the
20 agency's conclusion. The bringing of an imminent
21 hazard action is highly resource intensive. The agency
22 simply does not have enough lawyers to bring the large number
23 of imminent hazard actions that would be needed to
24 effectively eliminate the inactive site problem. In
25 addition, the burden of proof which must be met to sustain an
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imminent hazard decision is very heavy. The agency must
have detailed information on the particular site and the
effect of that site on health and the environment. Such
information is' not available for the majority of inactive
sites and, according to EPA, would take more time and
personnel to generate than the agency has available.
EPA has failed to document the "enormous"
problems it says will arise from applying the Section 3004
standards to inactive sites. EDF believes that there is
legal authority in RCRA to apply Section 3004 standards
to inactive sites. If an inactive site may discharge or leak
hazardous wastes into the environment, the site in question
falls within the definition of "disposal" in Section 1004 (3)
of the Act. Such a site is not "inactive" in terms of the
continuing dangers posed by the hazardous waste it contains.
EDF, therefore, urges EPA to require the owners or
operators of inactive sites to comply with a subset of the
requirements of Section 3004 and to obtain permits under
Section 3005. At a minimum, owners and operators of such
sites should have to meet the requirements for security,
contingency plans and emergency procedures, limited visual
inspections, groundwater and air monitoring, closure
and post closure care and financial requirements for closure
and post closure care. Some modification of these require-
ments from those currently described in Section 3004 for
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active sites may also be acceptable.
2 we believe that there are many advantages to the
3 approach suggested above. Mandating those requirements
will minimize the risks associated with inactive TSDFs
as well as the likelihood of harm, and will identify
damage in its earliest stages. The costs and resource
requirements needed to identify and clean up these sites
will be shifted from the agency to the person responsible
9 for creating the site.
10 2. Application of Section 3004 standards to
H active TSDFs with interim permit status.
12 EDF supports EPA's decision to apply certain
13 Section 3004 requirements to sites holding interim
H permits. It is particularly important that strict
15 requirements apply during interim status because the time
16 a facility has to bring itself into compliance with
Section 3004 requirements is open-ended. Legal authority
18 for such requirements exists in Section 3004 of the Act.
19 Compliance with the permit requirements of Section 3005
20 is only one of seven requirements Congress set forth for
21 inclusion in Section 3004 regulations. The interim status
22 provision of Section 3005(e) applies only in lieu of the
23 specific requirements of Section 3005 (a) and 3010 (b) that
24 operators of hazardous waste disposal facilities must have a
permit issued pursuant to the RCRA regulations within six
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months of their promulgation. The remaining Section 3004
requirements for TSDFs are not affected by the interim
status provisions. If Congress had intended to exclude
all interim status TSDFs from Section 3004 requirements
then there would be no Section 3004 regulations to take
effect on the date specified in Section 3010 (b).
EDF believes that certain other requirements,
in addition to those EPA'has proposed, should apply to
interim permittees. EDP therefore urges EPA to require:
(1) Groundwater and leachate monitoring for all
facilities, whether or not such systems are already
in place. Monitoring data is essential to
identify sites violating the human health and
environmental standards and to trigger appropriate
action against these sites.
(2) Submission of a closure plan as outlined
in Section 250.43-7 (c).
(3) Landfill requirements under Section
250.45-2 (b) (6,7,9 and 10). These are requirements
limiting the kinds of waste that can be put in
a landfill (b)(6), and for diversion structures
(b)(7), gas collection systems (b)(9) and cover
material (b) (10).
EPA should further require that all of these requirements
be met by TSDFs within six months after final promulgation,
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of these regulations. This time frame is supported
by Section 3010 (b) of the Act. Certification of
adherence to these requirements should be required as part
of the permit application procedure.
In addition to the immediate benefits of
applying the foregoing requirements to all active TSDFs
they will also provide a disincentive for substandard TSDFs
to plan on continuing active operation until EPA acts
on their permit applications, with no intention of
10 actually bringing the facility into compliance with Section
11 3004 requirements.
12 3. Siting requirements for hazardous waste
13 facilities.
14 Because of the uncertainties surrounding the
15 effectiveness of the design and management criteria
required by EPA in Section 3004, the defects in the
endangerment concept and the weaknesses in the proposed
18 human health and environmental standards, no hazardous
19 waste facility should be sited near the recharge zones
20 of important aquifers. There is no laboratory or field
21 experience showing that hazardous waste facilities meeting
22 the Section 3004 requirements will not discharge waste for
23 as long as that waste is biologically hazardous. In
24 addition, there is always the possibility of spills, other
25 accidents or human error. Apparently, in recognition of such
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potential problems, EPA has included some general siting
requirements in Section 250.43-1 of the Section 3004
regulations. However, these requirements are inadequate
to protect health and the environment.
In addition to the siting requirements proposed
by EPA, EDF suggests the following system. EPA should
establish three categories of aquifers or aquifer
segments: (1) priority aquifers, (2) other underground
drinking water sources (UDWS) and (3) non-underground
10 drinking water sources. The priority class should include
11 at a minimum, all sole source aquifers designated according
12 to Section 1424 (e) of the Safe Drinking Water Act, plus
13 all other aquifers which, though not sole or principal
drinking water sources, are of exceptional importance,
15 either because of their contribution to surface waters or
16 their value as potential drinking water sources. Because
17 of regulatory inertia and the irreversibility of groundwater
18 contamination, all aquifers with less than 10,000 ppm total
19 dissolved solids should be initially placed in the priority
20 class. The burden of proof should be on the applicant
21 for a permit to show that an aquifer does not belong in the
22 priority class. No hazardous waste facilities should be
23 allowed in the recharge zone of a priority aquifer. No
24 exceptions to this blanket prohibition should be made unless
25 the permit applicant can show that no alternative site exists
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within a multistate area. The variance of the sort
permissible under the Note in Section 250.43-1 (g) should not
be allowed under any circumstances, because of the weakness
of the endangerment concept and of our knowledge of
hazardous waste treatment, storage and disposal technolgies.
The underground drinking water sources category
should include aquifers, which although they may be actual
or potential drinking water sources, warrant less protection
9 because of existing contamination or availability of
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25
other drinking water sources, and the absence of
significant surface water effects. TSDFs over these
aquifers would be permitted if they met the Section 3004
requirements.
The non-underground drinking water sources
class should consist of aquifers which are saline, highly
polluted or otherwise of severely limited value. There
would be no reduction of Section 3004 requirements
for TSDFs over these aquifers but EPA and the State should
identify these aquifers and encourage location of TSDFs
over them.
EOF believes that adoption of the approach we
have suggested will make the siting of TSDFs easier by
increasing public confidence in the selected site. In
our written comments on the Section 3005 regulations, EDF
will suggest a regional planning mechanism for classifying
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1 aquifers and for selecting TSDF sites.
2
3
standard.
4 The groundwater human health and environmental
5 standard, as presently proposed, is wholly inadequate to
protect health and the environment. The groundwater standard
relies solely on the concept of endangerment derived from
8 Subtitle C of the Safe Drinking Water Act. The agency's
205
4. Groundwater human health and environmental
reliance on it comes from a misplaced desire to achieve
intra-agency consistency, which is inappropriate in this
instance because RCRA's mandate is far broader than SDWA's.
RCRA requires EPA to protect health and the environment,
rather than just health, against adverse effects from
improperly managed hazardous waste. Because groundwater
discharges into surface water and plays a crucial role in
maintaining wetlands, groundwater contamination can have
severe ecological effects. Moreover, the notion that the
existing drinking water standards are sufficient even to
protect the public health from the constituents of
hazardous waste is simply wrong. As EOF pointed out in its
testimony on Section 3001, the chemicals for which
standards exist under SDWA represent only a small portion
of the universe of toxic chemicals. EPA should therefore
abandon the endangerment concept and replace it with a
non-degradatinn concept. Any increase from background
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levels of any non-threshold toxic chemical listed in
2 Section 250.13(d) of the Section 3001 regulations, because
3 of human health effects, should be considered a violation of
the groundwater human health standard.
5 5. Confidentiality.
6 Public knowledge of the hazardous wastes at a
TSDF and the results of TSDF monitoring is essential if the
citizen suit provision of RCRA and public oversight of
9 RCRA enforcement are to have any real meaning. The
10 agency should therefore indicate in the Section 3004
11 regulations its intent to maximize public disclosure of
12 such information. EOF believes that disclosure of the
13 nature of hazardous waste received and the results of moni-
14 toring at off-site facilities which handle waste from more
15 than one generator does not violate any prescription of
16 18 U.S.C. Section 1905, is in the public interest, and
17 should be routinely disclosed. RCRA protects information
18 about the particular constituents of waste from a particular
19 generator where disclosure would reveal genuine trade secret
20 or other proprietary information. However, the mere fact
21 that certain specific hazardous wastes are handled at
22 p disposal site is not entitled to protection. On
23 the contrary, the public has a right to know what kinds of
24 hazards may be posed by the waste handled there and to ensure
25 that such wastes are properly disposed. The TSDF itself
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. has no proprietary stake in that information and the
identity of the generator can be protected as appropriate.
In many cases, the TSDF marketing department will be
publicizing the facility's ability to handle certain
wastes.
EDF agrees that the waste at an onsite disposal
facility, or an off-site facility containing waste from
only a single generator, poses a more difficult problem.
Nevertheless, the same considerations are relevant.
We urge EPA to give this issue thorough study in order to
determine how the presence of hazardous wastes, especially
those produced from a number of individual processes or
plants, can be disclosed to the public. One approach
where a satisfactory showing has been made that more
specific information is entitled to protection under 18
U.S.C. Section 1905 might be reliance on the use of
generic terminology as is currently being proposed under
Section 5 of TSCA. Such terminology is intended to give
the public sufficient data to assess the toxicological
potential of a compound without revealing genuine trade
secret information.
6. Note System.
As presently proposed, the Note system incorporated
in Section 3004 grants far too much discretion to the
permit writer. While EDF agrees with the agency's desire
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to provide some flexibility in the Section 3004
regulations in order to take advantage of site specific
3 conditions, the present Note approach to granting variances
4 is far too broad.
5 The agency must distinguish among the regulatory
requirements of Section 3004 in terms of the degree of
discretion allowed. EDF has little problem with permitting
discretion in approving contingency plans or compliance
with security requirements. We have considerable problems,
10 however, with granting discretion to permit writers on such
11 issues as siting facilities over sole source aquifers,
12 landfill design, leachate and groundwater monitoring, and
13 post closure care.
14 This is not the appropriate forum for a detailed
is evaluation of all the Notes proposed by EPA. Our written
16 comments will contain such an evaluation. At this time,
17 we will limit our remarks to suggesting a general approach
18 for the agency.
19 The present Section 3004 requirements should be
20 divided into three classes, depending on the importance of
21 the requirements and the difficulty of evaluating the
22 kind of evidence that would support a variance. The
23 first class would consist of requirements for which all
24 existing Notes, should be eliminated. Included in this
25 class would be the Note'in Section 250.43-1 (g) allowing
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TSDPs over sole source aquifers. These aquifers
are simply too important to place at risk when our
laboratory and field experience with hazardous waste
management technologies is so sparse.
The second class of requirements would be those
for which variances, through the Note procedure, were
permitted — but only after EPA approval and after
submission of specific kinds of data listed in the
regulations. Examples of requirements which should fall
10 into this class include post closure care, monitoring, and
11 landfill design. These requirements are essential to
12 achievement of RCRA's environmental goals and require
13 relatively sophisticated analysis by the permitting
authority for proper evaluation of the information
15 submitted by the applicant.
16 The final class of requirements would be those
of lesser importance and which involve evaluation of less
technical information, such as security, and contingency
19 plans. Variances from these requirements could be left
20 up to the local permit writer with general guidance from
21 EPA.
22 7. Waste specific management practices.
23 EPA should attempt to characterize waste
24 according to the degree of hazard and tailor TSDFs
25 specifically to contain that hazard. As currently written,
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1 the Section 3004 regulations are targeted at TSDFs
2 planning to handle a variety of hazardous wastes. In such
situations, the facility must be designed and operated to
4 protect the environment from the worst of the wastes
handled. EPA apparently intended the Note procedure to
allow permit writers to modify Section 3004 requirements
7
8 problems with the Note system outlined earlier, EOF suggests
to allow waste specific facilities. However, because of the
that EPA expand on the special waste concept of Section
250.47 and, in the regulations themselves, create a number
of additional special waste site categories and describe
the Section 3004 requirements that would be
applicable to them. No special waste should be exempt from
the requirements of Section 3002 and 3003.
EOF believes that such a classification scheme,
based on a number of factors including compatability and
chemical half-lives, is possible for reactive, corrosive,
and ignitable wastes. Waste specific sites could be
developed for such materials at significant savings.
Regarding toxic wastes, EDF does not believe,
given the present state of scientific knowledge, that non-
threshold toxic chemicals can in any meaningful way be
classified on the basis of potency. The scientific
state of the art of risk assessment is simply too weak to
support such a classification. Inherent weaknesses in the
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statistical models used to extrapolate from high to
low doses, and in our knowledge of the synergistic reactions
between toxic pollutants, the comparative sensitivities
among different animal species and strains, and between
a particular animal and man, precluse placing much
confidence in any risk assessment exercise.
EDF does believe, however, that meaningful
distinctions among toxic chemicals can be made on the
basis of biostability and bioaccumulation. For example,
10 it is known that PCBs are an extremely bioaccumulative
11 class of compounds, often by a factor of 10 . The relative
12 bioaccumulativeness and biostability of the different PCS
13 isomers has also been investigated. The more halogenated
the isomer, the more biostable and bioaccumulative it is.
It is also known that benzidine, a human carcinogen, is not
highly biostable. It degrades rapidly in surface water.
17 EPA should search the scientific literature for
18 such information for those chmicals that trigger a
19 hazardous waste listing. Such information could be
20 used to develop waste specific disposal sites for
21 toxic chemicals. In some cases, where the material in the
22 dump has an extremely short half-life, the amount of post
23 closure care and post closure financial responsibility
could be reduced.
On the other hand, in cases where the material is
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highly bioaccuraulative or biostable, EDF maintains
2 that a landfill is not an appropriate final resting place.
In such cases the agency should require that the waste
be incinerated or chemically or biologically degraded.
Thank you.
MS. DARRAH: Thank you. Will you answer questions?
MR. FIELDS: I have not got a question but a
request. Your concept of having three classes of standards
Q
in terms of associated notes, it would help us in your
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comments if you would indicate what standards should be
in those three classes.
MR. DACH: I didn't say anything interesting?
MS. DARRAH: Thank you.
Is there anyone else here who wants to offer
comments on 3001, 2, 3 or 4? I don't have anyone else
listed.
Would you come up and identify yourself, your
name and affiliation, please, and the sections that you
will address?
MR. FALLON: I was debating whether I would
do this or not, but I will.
My name is Anthony Fallon, and I am an
environmental engineer and I will speak as an environmental
engineer on this problem.
From what I have read in the Federal Register
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213
and from what I have heard here, I see what I will call
2 an Achilles heal. It manifests itself in two ways. No. 1
3 whatever material is for reclaim or a facility is a reclaim,
4 it is exempt; and the second thing is that the word
5 "waste" is not really defined. It is associated with
hazardous waste oil, mining, minerals, but it is not
defined as to, let's say, the essence of waste, not
8 what it is but what makes up or what is a true waste.
9 To sort of help you understand what I am trying
10 to say here, if I took a tank truck — let's give an
11 example — if you had a tank truck of spent acids,
12 sulphuric acid, if that material is called waste, then
13 it is covered by RCRA and its movements are controlled.
If that material is called a raw material for reclaim,
then the way I understand it, it is not claimed by RCRA
and its movements are not then controlled. So to
17 address this thing, I have three ideas or three solutions.
18 No. 1, the intent or the scope of the Act
should state that a waste which is ultimately classified
20 • by a generator as hazardous must be registered and then
21 handled in an environmentally sound manner whether it
22 is treated, disposed, supplied for, whatever, or used.
23 Second, I would say define the term "waste" as
24 that — or include this as part of the definition in addition
25 to others as any material resulting from an operation in which
724
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214
I is not sold in the market, thus does not reduce the
2 production or operating cost of the operation.
3 In Section 3004, any facility which handles
4 a waste which is classified hazardous by the generator
5 for treatment, for disposal, for storing or for reclaim
6 value, must register and obtain any necessary permits
7 as required by RCRA.
8 Now, to get back to our example, I think if
9 you had those three things in the definition put in,
10 then whatever you call — since the material is not
11 being sold, then you would have to classify it as a
12 waste. The generator, in other words, would have to make
13 several judgments. No. 1, he has to call it a waste.
14 If he is not selling it and it is not adding anything
15 to his process, in fact, if he has to pay to get rid of
16 it, then he has to classify it as a waste. Once classified
17 as a waste, then you can get into whether it is a hazardous
18 waste or not and then it is covered by the Act.
19 I think this is necessary from a couple points
20 of view. From a waste generator's point of view, there is,
21 an equity or possibly injustice. If a person has to
22 incur the cost of RCRA and tries to meet RCRA and if there
23 is someone that bypasses RCRA — well, it could be a
24 potential problem. Also, it may present a problem for
25 a facility operator engaged in the treatment and handling
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10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
215
of hazardous waste because normally if you are getting
into recycling or reclaiming the cost, there is some
money to be returned from the reclaimant material. This
would lower the cost disposal.
In other words, an approach could be that you
could dispose of this spent sulphuric acid. The cost
would be to a reclaimer half the cost from a disposal
treatment firm. This economic incentive or economic
difference is due to the reclaimed value of material.
As long as the reclaimer is not misrepresenting himself,
I think everything is fine. A problem may come in if
the reclaimer is misrepresenting himself.
I guess in conclusion I am not against recycling,
as the Act is really trying to foster, but I think, I
hope that RCRA engenders competition in these fields.
However, the competion should result in an environmentally
good result, and I don't want to see a continuance of
practices which the Act is trying to stop.
MS. DARRAH: Thank you. Will you answer questions
for us?
MR. FALLON: Yes.
MR. LEHMAN: Sir, could you repeat for us
the second suggest you had about the definition? When
something is a waste and what is not a waste? You went
over that a little quickly.
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216
MR. FALLON: I define waste, and I don't mean
2 this as the sole definition of waste, but you can add it
3 in as a category or something, but I define the term as
4 that material resulting from an operation and which is
5 not sold in the market, thus does not reduce the production
or operation cost of the operation.
MR. LEHMAN: So your definition is based on
value, then, whether the material can be sold or not?
9 MR. FALLON: No. I mean to intend there that
10 if I have an operation, process or whatever you want
11 to call it, and there is some end product from it, there
12 may be some end material; that material really is a waste.
13 If I can't sell it — and if I could sell it it would
be a by-product. A by-product, then, I would envision
15 as being covered by TOSKA but not under RCRA. I don't
16 look at value but it is relationship with the process.
17 MR. LEHMAN: The distinction between whether or
not it can be sold implies that it either has value to
19 someone or it does not have value to someone, isn't that
20 correct?
21 MR. FALLON: Well, the reason I included that
term is to cover this fact that if someone says they
23 can reclaim a waste, they naturally will charge at a lower
24 price. I will still end up paying to get rid of the waste
but at a much lower price, though.
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217
1 MR. LEHMAN: Well, I —.
2 MR. FALLON: I am not a —.
3 MR. LEHMAN: Let me just comment, if I may.
4 We have considered that as a potential definition and
5 I would like to get your comment about one aspect that
concerns us and that is, well, first of all, certain
types of waste are of sufficient value that they are
actually purchased by the reclaiming operation, rather
than the generator having to pay to have them —.
10 MR. FALLON: Then it is sold. That waste is sold.
11 MR. LEHMAN: No, that would be outside of the
12
control according to you.
13 MR. FALLON: That is correct. Then I would
view that as a by-product. Then I would say that that
material should be registered under TOSKA. I am not
16 that familiar with TOSKA.
17 MR. LEHMAN: Yes. The other thing that concerns
me is — which we have considered the possibility of —
19
what you might call a conflict where we feel that normally
9Q
it would not have any value, the material, but if it
was in fact purchased at some very low cost, it would then
meet your definition which is mainly it has some value,
someone has bought it. In fact, it is a way to get around
the regulatory requirement. You see, that is why we
•?5
are concerned about a definition based on that. I would
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218
like to give you a response to that.
2 MR. FALLON: Well, if someone wants to pay me
3 for waste, I will gladly take the money and sell it to them.
I don't know how you can — well, that's something I
guess — I don't understand how you could, say, make
money flow around, but I guess -- I am just looking at
it from my point of view. If I can sell my waste, then
I can reduce my cost and — I don't fully understand what
you are saying or trying to get at. It is in the same
10 category as someone misrepresenting himself when he says
11 he can reclaim.
12 MR. LEHMAN: Thank you.
13 MS. DARRAH: Thank you very much.
14 Is there anyone else who would like to offer
15 comments on the RCRA regulations?
16 Okay. We will close this Washington set of
17 RCRA hearings, and I want to thank everyone for their
18 attention and for their comments.
19
20 (Hearing adjourned.)
23
24
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REFUSE DISPOSAL ASSOCIATION OF PENNSYLVANIA
COMMENTS OF PROPOSED HAZARDOUS WASTE
REGULATIONS SECTION - 3004
Our comments reflect the feelings of our membership on the current
draft regulations. Our membership is composed of small and medium
sized private refuse contractors and sanitary landfill operators.
We are specifically concerned with the financial requirements of
the regulations and with the separation of sanitary landfills from
these regulations:
The proposed financial requirements impose a burdensome system of
regulating the generation and disposal of hazardous wastes. The
proposed regulations, if effectuated, will force many small and
medium sized operators, who are otherwise capable of playing a
significant role in the environmentally sound disposal of hazardous
and industrial wastes, out of business.
The most onerous and unreasonable provisions of the proposed
regulations are those set forth in Subpart "D" prescribing the
closure/post-closure and financial responsibility requirements for
owners/operators of hazardous waste facilities. Submission of
closure and post-closure plans is a prerequisite to obtaining a
permit under RCRA, such plans are to contain, but shall not be
limited to a description of how the facility shall be closed; a *
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description of possible post-closure uses of the land; the estimated
time required for closure; and, any anticipated partial closures.
This regulation, in effect, unrealistically requires a potential
hazardous waste facility operator to gaze into a crystal ball and
attempt to predict the intricate details of closure and post-closure:
activities. Then, based on this prediction, the potential operator
is required to estimate the cost of these activities and establish,
in cash, separate closure and post-closure trust funds to assure a
ready fund to be drawn on by EPA in the event that closure/post-
closure is not properly performed. EPA reserves the right to adjust
the amount of these trust funds to whatever figure it feels is
appropriate without first satisfying basic procedural safeguards.
These requirements are overbearing and absolutely unrealistic. The
closure of a landfill is neither simple, nor inexpensive; the larger
the facility, the more complicated and costly closure will become.
There is no technical basis for determining a closure plan twenty
to thirty years in the future. Waste streams will change; the type
of waste deposited at any given site will change; and technologies
will change. The proposed rules concede this point by the conspicous
absence of any specific standards or guidelines for closure. None-
theless, upon the joint speculation of the potential operator and
EPA, the operator is required to invest, for periods varying between
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twenty and fifty years, enormous sums of cash before it can obtain
an EPA permit.
Equally as onerous and unrealistic are EPA's proposed insurance
requirements. These proposed regulations require each potential
hazardous waste facility operator to show evidence of a minimum
of five million dollars of financial responsibility per occurrence,
per site for sudden and accidental occurrences during the life of
the site, and a minimum of five million dollars per occurrence,
per site for non-sudden and accidental occurrences. EPA
states that both types of insurance coverage in these amounts
are available from the private sector. Evidence of financial responsi-
bility may be established either by liability insurance, self-insurance,
a combination of the two, or some other form of financial responsibility
acceptable to EPA.
The alleged availability of liability insurance in the stated amounts
is unsubstantiated by EPA, and is suspect in light of the comments
received from many sanitary landfill operators. We have contacted
several large insurance companies. Each has indicated that this
type of insurance is not now available and that if it were to become
available, the cost would be excessive. The cost will be so excessive
as to eliminate small and medium sized operators who now form an
important component of the hazardous waste disposal market.
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The scope of these proposed regulations is not sufficiently de~
fined. It is not clear whether the operation of a sanitary
landfill falls within RCRA's requirements. We feel that sanitary
landfills should be specifically separated from such requirement
by statement in Section 250.46 of these regulations. If not, a
very onerous situation could develop for the sanitary landfill
operator and also defeat the concept of the EPA's 100 kg/mo./
generator exclusion. If more than one such industry used the
same sanitary landfill, the landfill operator would become a
hazardous waste generator and be subject to all RCRA regulations.
In face of this situation, sanitary landfill operators will refuse
to accept any hazardous waste whatsoever.
The environmentally safe disposal of hazardous waste has become a
national problem. The vital need to insure environmentally sound
procedures for hazardous waste disposal is undisputed. We whole-
heartedly endorse the goals of the Resource Conservation and Recovery
Act of 1976. However, we feel that the proposed regulations do not
provide for the development of sites to dispose of hazardous waste.
The regulations are too burdensome financially for development of
hazardous waste disposal sites on private lands. Moreover, it is
doubtful that any municipality will feel responsible for the dis-
posal of hazardous waste generated in their habitat. The proposed
regulations only partially solve the problem.
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We feel that if the goals of RCRA are to be achieved relatively
quick, the Federal Government will have to mandate their lands
for use as hazardous waste disposal sites. Establishment of such
sites on public lands would not be hampered through delays in
permits due to lengthy court battles over site location if such
sites were remote to populated areas, and enforcement of the
manifest system would be enhanced.
Section 250.45-2 (a) (2), the historical high water will be very
difficult to define technically. We suggest replacing the term
"historical" with "seasonal".
Section 250.45-2 (b) (11) , to make the requirement meaningful, we
suggest inserting the word "potential evaporation" for "evaporation".
John F. Stoviak
Wallace C. Koster
REFUSE DISPOSAL ASSOCIATION
OF PENNSYLVANIA
February 20, 1979
S2. A/,
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219
REPORTER'S CERTIFICATE
4 DOCKET NUMBER:
CASE TITLE: Proposed Hazardous Waste Regulations
6 HEARING DATE: February 23, 1979
7 LOCATION: Washington, D. C.
I hereby certify that the proceedings and evidence herein
are contained fully and accurately in the notes taken by me
at the hearing in the above case before the
12 ENVIRONMENTAL PROTECTION AGENCY
and that this is a true and correct transcript of the same.
14
15
16
17
Aone Reporting Company
1411 K Street N.W.
Washington, D.C. 20005
20
21
23
24
25
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Hearing on Hazardous Waste Regulations
Section 3004
Statement by
Arnold Schiffman
Maryland Water Resources Administration
I will relate my comments today on standards for hazardous
waste treatment, storage and disposal facilities to the overall
theme that these proposed regulations are both too stringent to
work and inadequate to protect the public health and the
environment. The basic problem is EPA's policy to reject the
approach of varying the degree of regulation to the degree of a
waste's hazard. As a result, major parts of these regulations
are technically indefensible and unworkable. The following
examples will illustrate this point.
Injection wells are exempt from these regulations under the
assumption that they will be covered by the Safe Drinking Water
Act. There is a great danger here of setting up a system whereby
like wastes are regulated differently. The Underground Injection
Control regulations must have provisions identical to the
hazardous waste regulations for financial responsibility, closure,
post-closure, manifests and monitoring. There are also some
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conceptual problems such as: 1) a comparison between storing
wastes in a surface impoundment versus underground storage by
an injection well; and 2) the wisdom of discouraging land
disposal of liquid hazardous wastes and thereby perhaps
encouraging underground waste injection.
Storage is defined to exclude wastes stored less than
90 days. There are several problems with this exemption:
1) There is no recognition of different waste characteristics
or quantity. It is difficult to compare storage of 10 drums of
Kepone versus 10 drums of waste oil. 2) The concept of storage
used by EPA seems to be limited to non-permanent or moveable
containers such as steel drums. Permanent type structures such
as impoundments and basins could be used for storage. For
example, is a storage basin or impoundment emptied by tank truck
every 90 days exempt from permit requirements? 3) The 90 day
standard favors large waste generators at the expense of small
generators. For many small waste generators it would be both
cost effective and sensible to accumulate their waste and minimize
the number of waste shipments. If they do this, they then are
subject to generator requirements and storage permits. 4) The
storage requirements ignore Section 304 (e) of the Clean Water
Act which requires control of plant site runoff, spillage or
leaks, sludge or waste disposal, and drainage from raw material
storage for toxic or hazardous pollutants.
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A major issue of these regulations is protection of ground-
water. The key concept here is what is an aquifer? What are we
protecting? Everything rests on how one defines the usable
quantity of water that can be obtained from an aquifer. There
are two elements to this problem: aquifer yield and water quality.
A well yielding ten gallons per minute of water with a dissolved
solids content of 10,000 mg/1 is useless here but may be of some
value in a western state. EPA takes 10,000 mg/1 dissolved solids
as a "given" for defining what_aquifers to protect and then debates
yield. This is an untenable position based solely on a Congress
Committee Report for the Safe Drinking Water Act. It is silly to
set the same design standards for hazardous waste facilities
overlying low yield aquifers that contain water with 10,000 mg/1
dissolved solids and high yield aquifers that contain water with
100 mg/1 dissolved solids.
EPA intends, by these regulations, to establish facility
design standards. For many of these standards there are variances
or "notes". Where used, these notes make the standards guidelines.
Large companies may be able to muster the resources to convince
a permit writer to grant a variance, small companies will probably
be stuck with the guideline. The result will be a substantial
variability in facility design nationwide for like wastes. A
variation based not on degree of risk or technical consideration
but on individual choice of permit writers.
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These hazardous waste regulations establish human health '
and environmental standards for ground and surface water. This
is laudable except that ground and surface water are treated as
separate things. This is not true. Groundwater provides the
base flow of streams. The groundwater standard is based on
drinking water standards under the Safe Drinking Water Act; the
surface water standard is based on Water Quality standards under
the Clean Water Act. The two standards are not compatible in all
cases. For certain substances such as cadmium, silver and
pesticides, the maximum contaminent level established for drinking
water is toxic to aquatic life - in some cases the toxic level is
one thousandth of the drinking water standard. Thus, comparing
groundwater quality in the vicinity of landfills against drinking
water standards or basing tests for hazardous wastes, such as
the Extraction Procedure, on protecting underground sources of
drinking water can give a false sense of security. In many cases,
contaminating groundwater means contaminated subsurface flow and
polluted streams.
The design standards for landfills and surface impoundments
rely heavily on low permeability soil barriers or artificial
liners. Although the basic concept of liner-drain systems is
sound, there are numerical values for liner permeability and
thickness that appear to have little or no basis and puzzling
inconsistencies such as a lack of faith in artificial liners with
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a permeability of 1 x 10 cm/sec for landfills and trust in
slightly thicker artificial liners with a permeability of
*-7
1 x 10 cm/sec for surface impoundments. There also seems to
be an erroneous assumption that the designs provide complete
containment. My best guess as to the reason for design
inconsistencies is a misunderstanding of the meaning of the
-7
coefficient of permeability. A permeability of 1 x 10 cm/sec
refers to the ease with which a fluid will pass through a liner -
not the time it takes to pass through. Years ago, the
coefficient of permeability was expressed as gallons per day per
square foot. This made it clear that a low permeability meant
that a liner will allow small quantities of water to pass in a
unit time not that it will take a long time for any water to
pass through. Thus, a saturated clay liner five feet thick with
-7
a permeability of 1 x 10 cm/sec will not retard water movement
for about 50 years (5 feet 7 coefficient of permeability). On
the contrary, this liner in a surface impoundment one acre in
size with one foot of water in it will theoretically leak nearly
7,000 gallons in one year. This is a relatively small quantity -
about 2% of the volume in the impoundment.
The issue of liners is complex. Although water will pass
through them it is not certain whether or not dissolved con-
taminents will also pass through. In any case, liner-drain
systems should be based on an assumption of leakage, not
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containment. Under a leakage assumption, the objective of a
drain would be to move leachate as rapidly as possible to a
collection point. This means a design based on drain permeability,
slope and length in addition to liner permeability.
Perhaps the greatest problem with these regulations is the
lack of attention given to the problem of hazardous waste
disposal capacity and finding acceptable new sites. On the whole,
design standards in these regulations are not adaptable to existing
facilities. A liner-drain system cannot be retrofitted to an
existing landfill or surface impoundment.
Not only do the regulations not address siting and capacity
but they actually exacerbate the problem. Many existing surface
impoundments and landfarms will literally have to be dug up and
carted away to landfills thus using up needed disposal capacity.
EPA proposes to allow small quantities of almost any kind of
hazardous wastes to go to sanitary landfills handling municipal
refuse. Obtaining new sanitary landfill sites is a vexing problem
and so emotional that there will be successful efforts in many
areas to prohibit hazardous wastes from going to these facilities.
EPA has exempted abandoned hazardous waste facilities from
these regulations. This is a mistake and will cause tremendous
problems unless new federal legislation is passed. The problem
is not so much the existing abandoned hazardous waste facilities
but the operating facilities that will close when faced with
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requirements they cannot meet. The interim permit will only make
things worse. It does not take too much imagination to envision
what will happen to a hazardous waste landfill with, for example,
three years remaining capacity. The operator will make all the
money he can under an interim permit and then close. All existing
hazardous waste facilities must come under some permit requirements
whether they operate or not. We cannot allow disposal by
abandonment. If we do then these regulations will become a
Love Canal cookie cutter.
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National Wildlife Federation
1412 16TH ST, N W , WASHINGTON, DC 20036 202—797-6800
Friday, February 23, 1979
Comments of the NATIONAL WILDLIFE FEDERATION
on the PROPOSED REGULATIONS on Subtitle C, Sections 3002 and 3004
of the RESOURCE CONSERVATION AND RECOVERY ACT OF 1976.
Good morning. Ky name is Sandra Jerabek, and I am Waste Project Director
at the National Wildlife Federation. The Federation is the nation's largest
conservation organization, representing 4.1 million associate and affiliate
members and supporters in all 50 states, Puerto Rico, Virgin Islands, and
Guam. The poisoning of our environment and our health by toxic chemicals is
an issue that has concerned the membership of the Federation for many years
now.
I would like to begin by commending the Environmental Protection Agency (EPA)
for grappling with such a new and difficult area as hazardous waste control.
The mandate of the Resource Conservation & Recovery Act (RCRA) is challenging,
and the regulatory structure is complex. The Federation especially wishes
to commend EPA for actively seeking to incorporate so much public comment
and involvement along the way.
On the one hand, we appreciate the difficulty of EPA's task in developing
this program. On the other hand, we are deeply concerned that these long-
awaited regulations are still too weak. Moreover, we are concerned that EPA
is contemplating further changes which may seriously impair the regulatory
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Section 3002 ... February 22, 1979
scheme. We will be submitting more extensive comments to EFA before March 16.
Today, however, I would like to touch briefly upon a few issues in Section 3002,
which sets standards for companies that generate hazardous waste.
First, EFA is proposing a small generator exclusion limit of 100 kg per month.
This means that anyone generating less than roughly 220 pounds monthly does
not have to comply with the regulatory system for hazardous vaste. As proposed,
these relatively "small" amounts of dangerous wastes can be disposed of in a
sanitary landfill approved under Subtitle D of RCRA. The manifest and record-
keeping and reporting requirements would not be in force for these 100 kg
amounts. Moreover, the EPA has offered for comment a number of alternatives
to condition still further the requirements for small generators, including
raising this exclusion limit to 1,000 kg per month.
The Federation is strongly opposed to any increase in the exemption level.
In early December, when such a proposal first came to light, we sent a
letter of protest to EFA Administrator Costle. Today, we are just as concerned
that exclusion limits—whether they be 100 kg or 1,000 kg—fail to take into
account the degree of hazard of each waste. Even generators of 100 kg per
month of an extremely toxic waste can wreak substantial damage if the waste is
not handled properly. EFA estimates that raising the exclusion limit to 1,000
kg would exclude only 52 of all industrial hazardous waste—but we would like
to point out that this 51 is about 2 million tons annually, or 4 billion pounds.
The Federation considers exempting this amount of hazardous waste a serious
violation of the RCRA mandate to protect the public health and the environment.
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Section 3002 ... February 22, 1979
Not only does the Federation oppose an increase in the exemption level, but we ask
EPA to eliminate the 100 Jcg per month exclusion in order to take into account
small amounts of extremely hazardous waste. We are concerned that amounts of
waste less than 100 kg monthly may become concentrated in municipal landfills,
particularly as industries tend to be clustered locationally. Moreover, if
there are no manifest or record-keeping or reporting requirements, how is the
EPA to ensure that wastes find their way to a Subtitle D landfill? How is
EPA to enforce this requirement, with no documentation to check it against?
We are sympathetic to EPA's concerns about the limited resources of EPA or
state regulatory management, resources which will be particularly strained in
the early part of the. program. Therefore, we would recommend an option which
phases in regulatory coverage over the next two years, ultimately decreasing
the exclusion limit to zero. This phase-in should be done according to
degree of hazard. The Federation feels that this is necessary to give EPA
a means of "tracking" small amounts of waste. At the very least, EPA should impose
record-keeping and reporting requirements on companies generating small
amounts of waste.
Another point which deeply concerns us is the Agency's intent to study
alternatives to provide relief for certain industry segments where economic
i impacts are expected to be most severe. We were pleased to see that the Agency
now considers temporary exemptions for such industry groups to be "questionable
on legal and equity grounds." However, the phased implementation which it
is now considering does not strike us as very different. We feel
that such a decision is not within EPA's jurisdiction because no
provision regarding economic considerations is made in RCRA, and so
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Section 3002 ... February 22, 1979
we find that the Agency should consider the hazard posed by these industries
before it considers economic Impact. When promulgated, the regulations nay
already be almost two years late, and will take many years more to become
truly effective. We urge EPA to avoid any additional delays or deferrals.
Finally, on this point, the Federation would like to ensure that the Agency
balances the economic impact on certain industries against the overall
economic and health costs of allowing improper disposal practices to continue.
We all know that these "clean-up" costs may range into billions of dollars,
and that such costs thus far have typically been borne by the public. However,
if EPA implements RCRA strictly, the costs of hazardous waste generation will
be borne more appropriately by those producing the waste and their customers.
In the course of our work, we have had many discussions with state and local
environmental and public interest organizations, including our own affiliate
organizations. Public concern on this issue is very high, and these organiza-
tions are eagerly awaiting strong federal leadership for their states. I would
like to emphasize to you the strong public support that currently exists out in
the field for making these regulations as forceful and comprehensive as possible.
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Section 3004 ... February 22, 1979
Section 3004
Section 3004 of RCRA, which sets standards for hazardous waste treatment, storage
and disposal facilities, spans many complicated issues. We have time today only
to touch on isolated segments of the standards. We would, however, like to
express our concern that the Agency, in an attempt to be flexible, may be leaving
too many potential loopholes in the requirements. Because these standards are
so key in the task of building public trust and confidence in hazardous waste
management, we would recommend making them as stringent as possible.
First, we were pleased to note the Agency's statement that disposal of hazardous
waste should be avoided whenever possible and practical. EPA gives a clear
preference for alternatives such as destruction of wastes, treatment to render
wastes non-hazardous, or treatment in preparation for resource recovery and reuse.
Here the Agency indicates that It hopes to encourage treatment by not regulating
it extensively.
While we couldn't: agree more that disposal should be the option of last resort,
the Federation questions whether this is the beet means available to the Agency
for promoting alternatives. The regulatory structure at present does not
provide sufficient Incentives for recycling or waste reduction innovations. At
the very least, we would like to see EPA initiate an aggressive campaign to en-
courage all options short of disposal. Disposal methods such as landfilling
will require tremendous long-term care and monitoring of the wastes. Because
waste detoxification or recycling reduces the burden of this long-term responsi-
bility on society's resources, we feel that the Agency should promote these
options just as seriously as other components of its hazardous waste management
program.
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Section 3004 ... February 22, 1979
Next I would like to review quickly a few areas where we believe that the EPA
has allowed so much flexibility that it may undercut the effectiveness of the
regulations. Throughout Section 3004, as EPA explains, it has used the so-
called "note mechanism" to allow exceptions to facility design and operating
standards when they can be shown to be unnecessary. While the Federation
appreciates the need for flexibility in applying some of the more routine-type
standards, we fear that the note mechanism could be extremely counter-productive
in other circumstances.
A more routine standard, for example, might be the requirement for a 6 foot
fence around the site. In this case, it is probably relatively easy for the
operator to demonstrate an equivalent means of keeping people and animals off
the site. Such flexibility is probably desirable. In other instances, however,
we are concerned that equivalency cannot be so easily demonstrated, and that
the administrative burden of checking such claims will prove too much for FVA
or state resources. We are particularly concerned that EPA wishes to allow
exceptions to standards prohibiting the location of the facilities in the
following areas: coastal "high hazard" areas; 500-year floodplains; wetlands;
areas vhere the existence of endangered and threatened species or their
critical habitat might be jeopardized; and recharge zones of sole source
aquifers. The Agency is also proposing to allow exceptions to the rule that
post-closure care must be continued for 20 years after closing a landfill or
facility where wastes have not been removed.
We would like to hear more about the criteria that EPA plans to use in allowing
exceptions to such rules. EPA does not explain how it plans to grant exceptions;
we would expect, at the very least, circulation of such a proposal with adequate
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Section 3004 February 22, 1979
opportunities for public participation. The Federation finds it difficult to
envision how one can adequately demonstrate that a sole source aquifer, for
example, will never be endangered, or that a chemical landfill at some point
no longer needs post-closure monitoring. In Section 3002, the Agency Is con-
sidering Increasing the small generator exclusion limit from 100 to 1,000 kg
monthly in an attempt to ease the strain on regulatory resources. Instead, we
suggest, EPA night better ease this burden by tightening up this system of
"notes" or exceptions, so that it does not have to check the claims, rather
than increasing the quantities of hazardous waste allowed to bypass the regula-
tory system.
under Section 3004, EPA also solicits comment on whether landfills
approved under Subtitle D, which provide a lower level of protection, should
be allowed to receive small amounts of hazardous waste. As stated earlier,
the Federation feels that no amount of highly toxic or highly hazardous
waste should be disposed of in a municipal sanitary landfill. At the very
least, such amounts should be tracked through the manifest system and reporting
requirements, to ensure that they reach sanitary landfills.
In conclusion, I would like to emphasize why EFA should endeavor to make these
standards ae strong as possible. As most of us know, there is tremendous
public opposition to the siting of hazardous waste management facilities. Fsrt
of the reason for this opposition is a lack of public confidence in the ability
of companies to run these facilities properly. The standards which EFA has
developed, plus the enforcement efforts to follow, will play a critical role
in determining how much performance at storage or disposal facilities will
improve. This will, in turn, determine whether public confidence Increases.
749
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Section 3004 February 22, 1979
In fact, based on our work with many state and local environmental organiza-
tions, we are certain that the stringency of these standards will help to
determine whether these citizen groups will support the development of new
treatment, storage, and disposal facilities. The success of the Subtitle C
regulations hinges on the ability of a state or locality to site safe facilities.
But without strict operational procedures and a good performance record, public
acceptance of these facilities will never be won, and comprehensive regulation
of hazardous waste will never become a reality.
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ORAL COMMENTS BY JOHN J. SERRELL
GIVEN TO EPA, FEBRUARY 22, 1979, ON RULES PROPOSED UNDER
SECTION 3002 AND 3004 OF THE RESOURCE CONSERVATION AND
RECOVERY ACT OF 1976 AS PUBLISHED IN THE FEDERAL REGISTER,
MONDAY, DECEMBER 18, 1978
JOHN J. SERRELL
Manager, Planning & Development
Ligwacon Corporation
Norristown & Narcissa Roads
Blue Bell, PA 19422
(215) 825-2100
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I INTRODUCTION
Ladies and Gentlemen, my name is John J. Serrell and I
am Manager of Planning and Development of Liqwacon Corpora-
tion. Liqwacon is a small service company specializing in
the treatment, storage and disposal of industrial liquid waste.
Liqwacon customers include companies involved in the produc-
tion of chemicals and electronic equipment, and companies
in the metal plating industry. At present, Liqwacon has one
waste treatment and disposal facility in operation located
in Thomaston, Connecticut. We consider ourselves to be the
best treatment storage and disposal facility in all of New
England. We also believe we have a successful concept in
waste disposal and plan to expand our operations in the future.
As a pioneer company in the area of environmentally
safe disposal of waste, Liqwacon has a keen interest in
commenting on these proposed rules in implementing RCRA.
Moreover, Liqwacon has the type of expertise in this area
which should be especially helpful to EPA in its process of
developing these extremely important and necessary regulations.
My presentation is broken into two areas. First, I
would like to present to you our philosophy of rule-making
which differs somewhat from the EPA approach. Second, we
would like to address four specific areas in the proposed rules
with suggestions for modifications.
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II GENERAL COMMENTS ON THE PROPOSED REGULATORY SCHEME
As presently conceived, the proposed rules would provide
for very specific design and operating standards for hazardous
waste treatment, storage and disposal facilities.
Ligwacon believes that this regulatory structure is un-
necessarily complex and will create a veritable plethora of
requirements which neither the waste disposal industry nor EPA
should desire. We believe it makes much more sense to set
forth health and environmental goals as the foundation upon
which design and operating characteristics should be estab-
lished on a dase-by-^ase basis- Hsing health and environmental
goals as the coca &t the regulatory structure, the program wo&id
operate well and efficiently in the following manner.
First, certain specific health and environmental safety
rules should be established by EPA, in accordance with the
mandates of RCRA. These goals should provide for adequate
protection of humans and the environment from the adverse affects
of hazardous waste.
Second, EPA should establish broad design and operating
characteristics for treatment, storage and disposal facilities
based upon the previously established health and environmental
goals.
Third, individual permit writers should apply the general
design and operating standards, on a case-by-case basis, to
facilities seeking a permit.
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For example, the Preamble discusses the proposed
requirement that the active portion of a facility be surrounded
by a six-foot fence. Under the proposed rules, the six-foot
fence requirement could be waived if it can be demonstrated
that some other method would be just as effective. We believe
it makes more sense to set a general design standard to the
effect that the active portions of the facility be surrounded
by a barrier capable of preventing unauthorized entry. The
permit writer in a case such as this would determine what kind
of barrier would be adequate to keep unauthorized persons out
of the particular facility for which he was issuing a permit.
This may be less than, equal to, or more than the six-foot
fence specified in the proposed rules.
In this way, each facility could be constructed, main-
tained, and operated in a manner which would protect health
and the environment and provide necessary flexibility in the
design and operation of facilities. Because various areas of
the nation differ substantially from each other with respect
to geography, climate and population, facilities located in
one area would need different kinds of design and operating
characteristics than facilities in another area in order to
achieve the same health and environmental goals. This fact of
life should be recognized in the RCRA rules.
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Ill SPECIFIC COMMENTS ON SPECIFIC PORTIONS OF THE
PROPOSED RULES
I would now like to briefly indicate to you four
specific sections of the proposed rules which Liqwacon believes
are either unnecessary or misguided.
Number one, the definition of the term "generator" found
in Section 250.41 is too broad. As part of the waste treatment
service provided to its customers, Liqwacon could very well
produce post-treatment pre-disposal waste which either fit into
one of the hazardous waste categories listed under Section 250.14,
or which meet one of the hazardous characteristics set forth in
proposed Section 250.13.
Because the term "generator" is defined as "any person...
whose act or process produces hazardous waste identified or
listed under sub-part A," Liqwacon might well be deemed a
generator. This would require that Liqwacon send itself a man-
ifest and otherwise deal with itself as if it were its own
customer. This untenable situation would be compounded by the
fact that Liqwacon provides its own transportation for the waste
of its customers. What would be deemed one single transaction,
that of treatment and disposal of customer waste, by one single
entity, would be viewed under the proposed rules as three
separate transactions involving three separate entities...
Liqwacon would be a generator, a transporter, and a disposal
facility, and would have to deal with itself under these var-
ious guises.
755
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We do not feel that RCRA contemplates, or the EPA
intentionally desires such a result. The remedy to this
problem is rather straightforward. The term "generator"
should be redefined to exclude commercial treatment facilities
which are in the business of treating generators' wastes.
This change in definition would in no way interfere
with or upset the regulatory scheme mandated by RCRA. To the
contrary, the change would further the goals of RCRA by pro-
viding for a clear and reasonable understanding of who is, and
who is not, a "generator" of hazardous waste.
Number two, we have strong reservations with regard to
proposed Section 250.43-l(d). That section states that in
accordance with Executive Order 11988, Floodplain Management,
a facility should not be located in a 500-year floodplain.
This requirement misrepresents the executive order.
First, the Executive Order defines the term "Floodplain"
to mean an area subject to a one-percent chance of a flood in
any given year. This is the traditional definition for a
100-year floodplain, not a 500-year floodplain. Moreover,
the Executive Order is directed exclusively to federal govern- '
ment agencies and not to private industry. If EPA wishes to
apply the terms of the Executive Order to private industrial
facilities by analogy, it should offer at least some plausible
reason for doing so.
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Furthermore, the note to Section 250.43-l(d) is particu-
larly unhelpful. The note states that a facility may be located
in a 500-year floodplain if it can be demonstrated that the
facility is designed, constructed, operated and maintained so
that it will not be "inundated" by a 500-year flood. We are
not sure what inundated means and there should be some defini-
tional guidance in the regulations.
Number three, we strongly object to the broad certifica-
tion requirement set forth in Section 250.143-5. The language
of the certification seems to be based on a concept of strict
liability. Under the proposed language, the certifying officer
would probably be liable for any errors or ommissions in a
report to EPA regardless of whether he exercised due diligence
in checking the completeness and accuracy of the report. Surely
RCRA does not contemplate the creation of such strict liability.
Indeed, such a result would be totally unacceptable to any
reasonable and prudent businessman.
We would simply like to say that we have never seen the
kind of certification proposed in this subsection and we believe
that it is unauthorized. Accordingly, we suggest that the
certification be rewritten to conform to more traditional forms.
Our written comments will contain a specific proposal.
Number four, in Section 250.43-9, the proposed rules set'--
forth financial requirements for owner/operators of facilities.
Owner/operators are to set up a secured trust fund to assure
cash is available to close their facilities. A second trust is
required to assure that funds are available to monitor and
maintain landfills up to 20 years after they have been closed.
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We agree with the objective of the proposed rules in that
owner/operators should guarantee their own ability to close
a facility and monitor and maintain it for some period of
time after closure. However, the proposed rules as written,
are penalizing and provide a strong disincentive to those con-
sidering in investing in facilities.
In order to deal with the hazardous waste problem in the
United States, a massive amount of capital will be required
from the private sector to invest in facilities. This capital
is put up at risk, with the expectation of a commensurate
financial return. The effect of the financing requirements in
the proposed rule will be to increase substantially the capital
demands on the industry. Funds that would otherwise be avail-
able for investment will be locked up in a trust fund and be-
come useless or dead capital.
Perhaps another form of financial guarantee would be
adequate and avoid the problem of tying up scarce capital.
Our recommendation is that a facility be able to show that it
has enough corporate assets to provide a source of compensation
for cleanup activities.
This demonstration of financial responsibility could be
as simple as a net worth test. For example, the facility
could annually send to the EPA an audited balance sheet, (which
presumably would be held confidential), and which would show
net worth of a certain amount. The agency could specify various
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minimum amounts of net worth for each type and size of facility.
In this way, the EPA would be assured that the owner/operator
was financially responsible to provide for adequate closure
activities and post-closure monitoring and maintenance.
If an owner/operator of a facility were not able to demon-
strate adequate net worth, he would still have the option of
establishing the required trust account.
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IV CONCLUSION
To conclude our presentation, we would like to state that
we applaud EPA's substantial effort to develop a workable
program for the management of hazardous waste under RCRA.
Obviously, much thought, preparation, and diligent effort went
into the proposed rules. Likewise, we appreciate this opportun-
ity to present our comments on your work efforts. We believe
that together, government and industry can develop a viable
solution to the health and environmental problems posed by
hazardous waste. In this respect, Liqwacon hopes to continue
its role as a pioneer in the waste disposal industry and looks
forward to working with you in the future.
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PENNSYLVANIA POWER & LIGHT COMPANY
COMMENTS ON EPA PROPOSED REGULATIONS UNDER
SECTION 3004 OP THE RCRA
FEBRUARY 23, 1979--WASHINGTON, D.C.
CCN 773037 _
I am jyOno.H. Gooltley, Manager of the Environmental Man-
agement Section of Pennsylvania Power & Light Company.
PP&L is a large investor-owned utility providing elec-
tric service to nearly one million customers in central-
eastern Pennsylvania. As a major consumer of coal, we
are also a large generator of solid waste - specifically
fly ash and bottom ash. In one year this ash totals
about 1.5 million tons, or enough to cover a football
field to a depth of 750 feet! Thus, what happens with
the present round of rulemaking is very important to us.
While PP&L is amply aware of the need for proper solid
and hazardous waste management and believes that addi-
tional controls may be necessary in some cases, we urge
the EPA not to overreact to a few problems which may not
be representative of the utility industry. Our company,
for one, takes a serious interest in protecting the envi-
ronment when planning the design and operation of its
solid waste facilities, and we feel our past record bears
this out.
j We are particularly concerned that under the presently
proposed regulations all hazardous waste is being con-
)l J / sidered equally hazardous, with the exception of some
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high-volume, low-risk special wastes. We note, for ex-
ample, in the proposed 3004 regulations' that all hazar-
dous waste facilities must be designed and operated
according to the same very stringent standards or show
that an equivalent degree of protection can be achieved
by some other means. In the case of a surface impound-
ment for hazardous waste, this would mean a minimum 10-
foot-thick, in-place clay barrier or a double liner sys-
tem with leachate detection. While such nearly absolute
containment may be warranted in the case of some very
dangerous wastes, it has been our experience that a sig-
nificantly lesser degree of containment will insure
adequate protection of human health and the environment
for most utility wastes, even if they are classified as
hazardous under the EPA's proposed test procedure.
We note, too, that if we generate hazardous waste at one
of our steam electric stations in excess of 100 kilograms
per month, we must send it to a hazardous waste facility.
But also being a generator of large volumes of low-risk
solid waste, an attractive option open to us would be to
dilute the low-volume, hazardous wastes with the high-
volume, low-risk wastes by co-disposal. If properly done,
the result would be an essentially low-risk operation.
Unfortunately, under the presently proposed regulations,
such co-disposal is discouraged because it would have to
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meet the costlier requirements established for hazardous
waste facilities. In the process, some very important
side benefits would also be lost. For example, more
land would have to be taken up for separate disposal
facilities. And even more important, if the hazardous
waste were disposed of alone without any low-risk dilu-
tion, it would still be more hazardous than the diluted
waste and would require further management and watching.
We strongly favor any approach which would allow us to
look at our total waste disposal needs and to use alter-
nate disposal practices where we can demonstrate that
they will insure adequate protection of human health and
the environment. We have been operating under such a
system for years with our state environmental agency and
the system has worked well. It makes certain that the
costs of managing utility wastes are only as high as they
need to be. I would also point out that utilities are
in somewhat of a unique position in that we not only gen-
erate but also dispose of most of our own solid wastes,
frequently at the same site. Thus, we are not dealing
with a wide variety of wastes of vastly different proper-
ties with which we have no familiarity.
Another troubling aspect, or quirk actually, of the regu-
lations as presently written has to do with the way they
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seem to overlook highly variable and only marginally haz-
ardous wastes. Again, utility fly ash and bottom ash
come readily to mind, although there are probably others.
Suppose, for example, that a waste is initially tested
and found to be hazardous. We then go ahead and design
an elaborate facility to handle it. After the facility
is in operation, the same waste is retested and found to
be non-hazardous! We could continue to-send it to the
hazardous waste facility, but clearly there is an econom-
ic advantage to managing it only as a solid waste. We
might then want to proceed to design and construct a sol-
id waste facility, so that we would always be covered no
matter how the waste tested out in the future. To point
out the real irony of this situation, consider that the
waste going to the two facilities is basically the same,
and yet the hazardous waste facility may have to have a
10-foot in-place clay barrier and the solid waste facili-
ty may need only a 1- or 2-foot compacted clay liner.
Again, we urge the EPA to consider an approach to the
regulations which takes the true nature of individual
wastes and the proven practices for managing them into
account and does not establish rigid, across-the-board
standards which must be blindly followed in every case.
This brings me to my final point, regarding the inclu-
sion of utility fly ash and bottom ash as special wastes
-------
under the hazardous waste regulations. We believe that
7
these two types of solid waste should not be made to
bear the hazardous waste label at all! We wonder if may-
be the EPA, by its proposed test procedure, has created
a system whereby large quantities of wastes will be de-
clared hazardous when, in fact, those wastes have not and.
will not cause environmental problems. Nearly all of our
ash basins, for example, support a fish population and
are major stopover points for many different migratory
fowl, which actually prefer the basins over nearby lakes
because they are warm and ice-free. The basins, however,
are never used by livestock for watering, since area
farmers provide their own fencing. If anything, they
represent an "attractive nuisance" as places to swim or
boat, which is something quite different from the acute
danger posed by an open waste facility containing noxious
materials. Thus, we wonder why the EPA would require
ash disposal facilities to be fenced as if they contained
truly hazardous wastes. Not only would the cost of com-
plying with this requirement be excessively high—about
$1.2 million for some 15 miles of fence in PP&L1s case--
it would be unjustified in terms of the additional pro-
tection to be provided.
We are concerned by the hazardous waste label, too, from
the standpoint of what it will do to our ash marketing
-------
program, which is expected to account for revenues and
savings of some $1 million this year to PP&L and has a
potential for expanding tremendously in the future.
Clearly, no one would want to use this material if he
thought it was really hazardous and if he had to meet
all of the hazardous waste management requirements. It
has been our experience in marketing ash for various
applications that it is not harmful and that it is a
valuable resource which deserves to be used more fully,
not "swept under the carpet" by burying it in large
landfills or impoundments.
The alternative is to classify utility ash as a solid
waste subject only to the management guidelines for
solid waste and to some reasonable restrictions on reuse.
Were this to be done, there is no reason to expect that
any environmental problems would result. Our company,
and the utility industry in general, has a proven record
of responsible solid waste management. Consideration
ought to be given also to the fact that we have had many
years of experience in the ash disposal business and
continue to adhere to the numerous environmental laws
and regulations which apply to us. We urge the EPA, in
carrying out its duties with regard to hazardous waste,
not to use an across-the-board approach to writing regu-
lations which does not take into account the special and
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well established nature of utility ash and its value
in supplementing the rapidly disappearing natural re-
sources of this country.
This concludes a summary of our major concerns regard-
ing the proposed 3004 regulations. PP&L will, however,
be submitting more detailed comments to the EPA on these
regulations and the other proposed RCRA regulations pub-
lished on December 18.
Thank you.
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Environmental
Defense
Fund 1525 18th Street, NW, Washington, D.C. 20036 • 202/833-1484
February 20, 1979
For more information contact:
Leslie Dach, (o) 202/833-1484
(h) 202/244-9055
STATEMENT OF THE ENVIRONMENTAL DEFENSE FUND
ON THE ENVIRONMENTAL PROTECTION AGENCY'S PROPOSED
REGULATIONS IMPLEMENTING SECTION 3001 OF THE
RESOURCE CONSERVATION AND RECOVERY ACT
Good Morning. My name is Leslie Dach. I am a Science Associate
with the Environmental Defense Fund (EOF) . EOF is a national,
not-for-profit, public interest environmental organization with over
45,000 members. Through litigation and administrative and Con-
gressional lobbying, EDF attempts to eliminate unnecessary exposure
to toxic chemicals. Concerning the Resource Conservation and
Recovery Act (RCRA) {42 U.S.C. 6901 e_t seq.) , EDF commented on
EPA's proposed regulations implementing sections 4004 and 3010,
and along with a number of other organizations brought suit in
U.S. District Court over EPA's failure to promulgate certain RCRA
regulations (including the ones under discussion here) by the
date designated in the Act. In that suit, the Court ordered EPA
to finalize its regulations by December 31, 1979.
This nation's current hazardous waste management practices
arc an environmental catastrophe of staggering proportions.
American industry generates over 96 billion pounds of hazardous
OFFICES IN EAST SETAUKET. NY (MAIN OFFICE). NEW YORK CITY (PROGRAM SUPPORT OFFICE), WASHINGTON. DC. BERKELEY. CALIFORNIA, DENVER. COLORADO
fttiavl on 100% fheycM pip*,
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waste a year. Of that amount, which is roughly equivalent to the
total weight of every car now on the road, less than 10% is dis-
posed of properly. The rest seriously threatens the water we drink,
the air we breathe and the environment we enjoy. Included in this
96 billion pound figure are chemical poisons that kill and dehabilitate
— chemicals that cause cancer, birth defects and nervous system
damage. Often these are chemicals that have already offended the
public sensibility and have made the headlines of our newspapers
and television news — chemicals like asbestos, PCBs and kepone.
The threat to groundwater is particularly serious. Over half
the American population relies on groundwater for its drinking water
supply. Almost one fifth of America's population relies on ground-
water from individual wells, wells without treatment systems — sso
that polluted water goes directly from the well into people's mouths.
Groundwater is an extremely fragile resource. It doesn't clean
itself like surface water. Once dirtied, it stays that way for
hundreds of years. Polluted groundwater travels like
a slug. The pollutants don't mix well with the surrounding water
and, therefore, the chemicals remain highly concentrated.
The disease and dislocation caused by improperly managed
hazardous waste are not figments of some radical environmentalist
nightmare. They are already upon us, and new disasters are
discovered regularly. Groundwater supplies in towns like Toone,
Tennessee, and Grey, Maine have been poisoned, and citizens are
forced to find alternate sources of drinking water. People in
Love Canal, New York have been forced to leave their homes. Hundreds
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of others would like to leave, but no one in their right mind will
buy their property. Residents of Love Canal exhibit extraordinarily
high rates of birth defects and other illnesses.
These publicized incidents are only the tip of the iceberg. EPA
estimates that there are at least 30,000 hazardous waste dump
sites across the country. A recent EPA study indicated that at 86%
of the industrial land disposal sites investigated, hazardous mate-
rials had migrated into water supplies off the premises of the
site. In over half the sites, groundwater had been contaminated
to the point where it violated EPA's drinking water standards.
The status of surface impoundments is similarly bleak. EPA indi-
cates that most of the hundreds of thousands of surface impound-
ments holding hazardous wastes are unlined and unmonitored.
The costs of inadequate hazardous waste regulation are
astronomical. Cleaning up a dangerous hazardous waste dump costs
much more than properly disposing of that waste in the first place.
For example, it would have cost only $4 million to properly dispose
of the waste in Love Canal. The estimated cost to the State of
New York to clean it up is over $23 million. That figure doesn't
include the costs of the physical and psychological damage suffered
by residents of that area. Over $2 billion in damage claims have
been filed to cover those losses. In another famous example, some-
one paid $75,000 to have PCBs dumped on the roads of North Carolina.
It would have cost only $100,000 to dispose of those PCBs in an
environmentally safe manner. The cost to the State of North
Carolina to clean up that mess is now estimated at between $2.5
million and $12 million.
The price society will have to pay for the years it neglected
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this issue has recently been estimated by EPA. Based on an esti-
mated 1200 hazardous waste sites that threaten public health
and the environment, the Agency put the cost of cleanup at
a staggering $22 billion. This figure doesn't include the
costs of cleaning up the groundwater itself. Nor does the
$22 billion include the monetary and psychological costs of
the illness and death potentially attributable to these sites.
Furthermore, the 1200 sites on which the total figure is based
could very well be an under-estimate of those sites that require
cleanup. In this time of worry about inflation, the proper
anti-inflation strategy is to strictly regulate hazardous
wastes.
Congress passed the Resource Conservation and Recovery Act
to prevent Love Canals. Congress gave EPA a strong mandate to
protect the public health and environment from the dangers of
hazardous waste. The American people, judging from their reaction
to Love Canal, want strong protection. The regulations we are
discussing today are EPA's response to Congress' mandate and the
public's demands. Unfortunately, the proposed regulations fall
far short of guaranteeing public safety. While they will result in
far better hazardous waste management than currently practiced,
the regulations are unacceptable in their present form. They leave
the public unprotected.
At today's session, EOF will focus its remarks on the proposed
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regulations in section 3001 of RCRA defining toxic hazardous waste.
EDF strongly believes that the proposed 3001 regulations exempt
significant amounts of toxic hazardous waste from RCRA regulation.
This is unacceptable. EPA admits as much in the Environmental
Impact Statement (EIS) accompanying RCRA. The EIS says that the
toxicity characteristic exempts 35% of the potentially hazardous
waste generated by the chemical and allied product industries,
particularly the organic chemicals industry. Shockingly, even some
of the chemicals which forced the evacuation of Love Canal will
not be completely regulated under EPA's proposal.
As currently proposed in the section 3001 regulations, a waste
is considered a toxic hazardous waste only if it contains above a
specified amount of a substance for which there is a National Interim
Primary Drinking Water Standard, or if the waste or the process
generating it are specifically listed by EPA. Without question,
this approach exempts significant amounts of known hazardous waste.
It makes a mockery out of Congress" intentions and the public's
need for protection.
The first problem with EPA's approach is that only 14 substances
are regulated under the Safe Drinking Water Act (SDWA). Clearly,
these are only a few of the substances known to pose a human health
or environmental risk. The 14 do not include significant numbers
of known carcinogens, teratogens and mutagens. The organics
standard already proposed under the SDWA is not even included. Also,
the SDWA aims only at protecting human health. It does not require
standards to protect the environment. Yet RCRA calls on EPA to
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protect public health and the environment.
The process and waste lists were designed to fill the gaps
left by the specific chemical listing approach. They don't. They
are limited to those processes or wastes for which EPA has consti-
tuent information, derived either from contract studies, damage
reports, or other experience. If there hasn't been a contract
study of a particular industry, its waste probably isn't listed.
Even if there has been a contract, it usually only looked for
selected waste constituents. It didn't identify all the hazardous
waste produced by the target industry. For example, the study of
the petroleum refining industry looked for one polynuclear aromatic;
the study of the organic chemical industry looked only at selected
processes and selected wastes within those processes.
In short, the list is based more on historical accident than
thorough science, and, therefore, is hardly a complete listing of
all processes generating hazardous waste.
The holes in the process list are a mile wide. The examples
we will mention are only illustrative, not exhaustive, of the
hazardous wastes exempted by the lists. For example, wastes con-
taining the acknowledged toxic pollutants targeted for regulation
under the Clean Water Act or pesticides cancelled or RPARed by
EPA are typically included by the process list only if they are
off-specification or spilled materials. Amazingly, wastes containing
these same chemicals from processes in which they are used or manu-
factured are usually not on the list. In addition, wastes containing
many hazardous chemicals, never having been looked for by the con-
tractors ,aren't on the list at all. For example, the dye intermediate
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o-anisidine, which caused tumors in over 90% of the animals tested,
is nowhere on the process list.
So it is clear that both the specific chemical list and the
waste process lists exempt significant amounts of hazardous waste
from RCRA. EPA itself recognizes this, saying the process list
is a "first step,* and the SDWA standards are being revised.
Yet EPA is content to allow its current proposal to stand. He
are not. EOF will not hesitate to bring suit against EPA in
order to rectify the present unacceptable situation. He strongly
feel,that insofar as EPA's limited approach is largely based on
economic and not scientific concerns, it is an illegal one.
To replace the current proposal, EOF suggests the following
system:
1. EPA should expand the list of substances, specified in
$250.13(d), whose presence in waste above a specified concentra-
tion renders a waste hazardous. The list should contain, at a
minimum, the following substances when they are of environmental
concern and when feasible analytical methodology is available:
(1) pesticides, particularly if they are cancelled, suspended or
RPARed; (2) the priority pollutants targeted for regulation under
the Clean Hater Act; and (3) substances regulated by EPA, OSHA,
FDA, or CPSC, or identified in the scientific literature as car-
cinogenic, mutagenic, teratogenic or neurotoxic.
In most cases analytical methodology is available for detec-
tion of these chemicals down to the parts per billion (ppb) level.
Although this methodology has not yet been verified on different
types of waste samples, such verification is not a difficult process.
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Moreover, the cost of testing for the additional chemicals is
minimal compared to the benefits of including such wastes in the
program. EPA's water program indicates that the cost of testing
for all 129 priority pollutants down to the 10 ppb range will
range from $700 to $2,000. Moreover, according to EPA, only about
10% of generators will actually have to test their waste against
the list. Those that do test can, on the basis of their knowledge
of their production process, limit the number of chemicals that
must actually be looked for.
EDF maintains that any detectable level, using the best available
analytical methodolgy, of a non-threshold or bioaccuinulative pollu-
tant listed in §250.13(d) in the extract from the Extraction
Procedure (EP) makes a waste hazardous. However, EDF does not
support the EP proposed by EPA. The present EP does not adequately
model the effects of mismanagement on a waste sample, and should be
revised to simulate harsher conditions. In addition, because of
the weaknesses of any EP, the presence of a listed chemical, above a
certain concentration in the waste itself, should make a waste
hazardous.
EDF does not support the ten-fold dilution factor which the
agency proposes to use for estimating the dilution of leachate
from the landfill to the first well. Case studies have indicated
dilution levels below ten. Because our ability to model the site
and waste specific dilution of a leachate in groundwater is minimal,
protection of the public health demands that no dilution factor be
allowed.
In our comments on §3004, EDF will present a categorization
of wastes according to persistance and biostability. This
categorization can result in cost savings in the design of
§3004 facilities.
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2. EPA should lengthen the list of processes in §250.4.
Use of the process approach shifts to the generator the burden
of demonstrating that a particular facility's waste is not
hazardous. It simplifies enforcement because it clearly
identifies a facility as a hazardous waste generator.
EDF maintains, that at the present time, the process list
can be expanded to include all processes producing any of the
specific chemicals listed in §250.13(d). In addition, greater
use should be made of process information available from states
already regulating hazardous waste.
Even if EPA adopts our suggestions of lengthening the list
of specific chemicals and the list of processes, wastes hazardous
to the public will still be exempt from the RCRA program. Sole
reliance on lists relegates the RCRA program to those wastes or
waste constituents about which a substantial amount of toxicological
information already exists. Such an approach exempts equally
hazardous materials, that by dint of historical accident have not
been the subject of government, academic or industry scrutiny.
Because the number of chemicals tested for toxicity is so small,
the amount of hazardous material exempted by the listing approach
may be large.
EDF maintains that only the use of toxicology tests, similar
to those outlined in the Advanced Notice of Public Rulemaking
(43 Fed. Reg. 59022), will fully protect the public from hazardous
waste. EDF recognizes that because limited toxicology testing
capability exists presently in this country, not all waste can be
tested for toxicity. Our written comments will address this
testing issue in detail and suggest a workable approach for EPA.
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EPA's contention that adequate protocols for toxicological
testing of waste are not available is a misrepresentation of the
facts. EPA itself requires these same tests as part of the system
for demonstrating that the waste from a facility identified by
the process list is not hazardous. Yet, without any support what-
soever, they simultaneously say that the tests aren't good enough
to decide who should be on the list. This is nonsense. The scienti-
fic problems with the tests are with sample preparation and not with
the toxicological foundations of the tests themselves. These diffi-
culties can be overcome with a few months of vigorous effort.
As I mentioned, because of time limitations, I have only
focused, in a general way, on some of our concerns with the
proposed $3001 regulations. We will be expanding on these concerns
in our written comments. Thank you.
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STATEMENT
BY
IU CONVERSION SYSTEMS, INC.
AT
EPA PUBLIC HEARING
FEBRUARY 22, 1979
We will submit detailed written comments on Section
3004 but we feel compelled to address what we consider the
paramount issue of this section — liability. At the hearing
in New York the representatives from both New York and New
Jersey expressed need for perpetual monitoring and main-
tenance of closed sites. We reserve comment on the necessity
for such monitoring, but we strongly object to the injustice
of burdening the disposer with such a liability.. Although
the proposed regulations hold in reserve post closure finan-
cial responsibility, there is no provision to ever relieve
the disposer of such liability. Insurance coverage for
post closure non-sudden occurences is dubious at best and if
ever available is cancellable without recourse. No company
can exist with an indefinite, unguantifiable liability.
Under such conditions a company could not comply with SEC
regulations and would be unable to sell stock.
The regulations as written require the disposer to
monitor and maintain a closed site for 20 years. That auto-
matically implies liability for any escape of contaminants.
To impose such a liability on an owner who has constructed
and operated a facility in accordance with EPA regulations
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is inequitable. Further, it casts doubt on the Agency's
confidence in its own regulations and procedures. In our
opinion the only equitable answer is a federal fund which
would assume all liability after proper closure and certifi-
cations. We suggest that a fund structured as follows be
given consideration.
a. The fund should be initiated by a federal
appropriation. It should be maintained by a
charge or tax on the treatment and disposal of
hazardous wastes similar to a sales tax. Since
most disposal sites have a substantial life and
^Jtf >£u.' >fi u~e<"- •/
initially^only apply to permitted sites after
closure/ a substantial sum should be accumulated
before any expenditure is necessary. If the
regulations are followed, few if any expendi-
tures will be needed. In time, the fund may
grow to such a size that it can also be used
for corrective action at abandoned sites.
b. A maximum claim of $2 million for each occurence
should be established with mechanism for special
alloments for disastrous incidents such as Lcve
Canal. Few, if any such incidents should
occur if disposers adhere to the regulations.
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c. The charge should be a percentage of treatment/
disposal costs. A charge per unit weight or
volume is unfair because of the varying degrees
of hazards. If disposer is qualified, he will
know how to treat a waste and will charge more
for difficult wastes. Such wastes will therefore
bear their share of the fund. Alternatively, two
or three classes or categories of waste could be
established and a fee per unit weight assigned to
each class. Establishing the fee on a wet weight
basis could stimulate additional pretreatment.
d. The fund should be maintained by the federal
government. Payments by the fund should be
made at the request of those state agencies that
have accepted primacy under the regulation, and
with the approval of the EPA Regional Office.
The funds should not be diverted for any other
•use.
e. Additionally, we suggest state ownership of closed
sites. If all sites were operated on the basis
that the land would be deeded to the state after
closure, the owner could include the cost of the
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property in his operating costs. The state would
be more circumspect about closure and there would
be no question about the ownership after closure.
We recognize that the EPA does not have the
authority to impose ownership on the states, but it
may well be that the states would react favorably
to such a procedure and the federal government
could provide some monetary incentive to encourage
the takeover. Both New York and New Jersey
expressed the need for the termination of the
operator's liability and state involvement at the
hearing in New York.
f. For further assurance that the disposer has com-
plied with regulations, his liability could be
extended for a limited time after closure, not
to exceed five years.
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Browning-Ferris Industries, Inc.
FANNIN BANK BLDG • P 0. BOX 3151 • HOUSTON, TEXAS 77001 • (713)790-1611
Presentation
of
James R. Greco
Director
Government and Industry Affairs
Browning-Ferris Industries, Inc.
for the
Public Hearing
Proposed Hazardous Waste Regulations
U.S. Environmental Protection Agency
»0 CFR Part 250
Subpart B
Section 3002 Standards Applicable to Generators of Hazardous Waste
February 22, 1979
Washington, D.C.
pursuant to publication in the
December 18, 1978
Federal Register
Pages 58969- 58981
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Once the means for determining whether a waste is hazardous for the
purposes of Section 3001 of Public Law 9*-5XO is finalized, we understand that
the responsibility for commencing the proper management of such wastes —
according to the Subtitle C regulations, when promulgated -- is upon persons who
produce or generate such wastes. These persons — or generators — may be
businesses, industries, institutions, governments, or whoever generates such
wastes. Such wastes are a by-product of our society — the products and services
which characterize our standard of living and the dependence of this "standard of
living" upon chemicals. Though determined to be hazardous, these wastes can be
managed safely.
We have carefully reviewed the proposed standards applicable to
generators of hazardous waste and wish to address four areas of the proposed
regulations, namely:
(1) the furnishing of general chemical composition information
(2) the identification of hazardous waste generators — in particular,
the 100 kilogram per month exemption
(3) the manifest system
W waste oil generators requirements
Regarding the first area, we draw attention to the opening paragraph of the
supplementary information on page 5S%9, wherein it is noted that requirements
are to be established for the furnishing of information by generators on general
chemical composition to persons transporting, treating, storing, or disposing of
hazardous waste. This is certainly consistent if not identical with the wording of
Section 3002 of P.L. 94-580. However on page 59000 of the proposed 3001*
standards in Article 250.Mtf) it is stated that:
"All owners/operators shall obtain a detailed chemical and physical
analysis of each hazardous waste handled at the facility at the time of
initiating management of the hazardous waste. This analysis shall identify
the hazardous characteristics of the waste which must be known to enable
the owner/operator to comply with the requirements of this Subpart,..."
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We feel that the "general chemical composition" information referred to in the
Act and presented as background information for the proposed 3002 rules should
be consistent with the "detailed chemical and physical analysis" information
called for in Article 250.WU). In the former case the furnishing of such general
information is the responsibility of the generator whereas in the latter situation
the responsibility to obtain such detailed information is upon the facility
owner/operator. To obtain such detailed information an owner/operator may
obtain the information from the generator or from laboratory or other analysis.
If obtained from the generator, a mechanism should be provided to the generator,
such that the furnishing of detailed information, only to the extent necessary,
can be treated as confidential, if requested. If the information is to be obtained
via owner/operator analysis, the cost of gathering the necessary information may
be greater than the expense incurred by the generator providing such information
— since a facility owner/operator may not be as familiar with a waste as its
generator.
With respect to the identification of hazardous waste generators, while we
understand the rationale for the proposed exclusion of generators who generate
less than 100 kilograms per month of hazardous wastes, we are aware of no legal
basis for such an arbitrary exemption. However, due to the higher degree of
toxicity of some wastes — regardless of the quantity generated — we believe
that the exemption should be conditioned upon the degree of hazard of the waste
regardless of the volume. It is noted that the Agency considered such
classification but acknowledged a lack of sufficient data to do so. Perhaps,
however such categorization could be based upon toxicity and a list could be
prepared, including the more toxic heavy metals, such as arsenic and cadmium,
and the more persistent and toxic organics, such as dioxin.
As to the proposed manifest system, we support the establishment of a
national manifest system that would be uniformly consistent from state to state.
We can appreciate the problems inherent in developing a national,
interchangeable form, however practicality, public understanding and confidence,
and enhanced tracking and verification of wastes managed would far outweigh
the problems to be overcome.
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Regarding the manifest itself on page 58972 of the supplementary
information, it is mentioned that "the generator designates on the manifest the
address of one or more permitted facilities where the waste is to be delivered
and signs it." While we recognize the need for flexibility in designating multiple
permitted facilities, we suggest that one facility be designated as the primary
destination. EPA should require that the transporter deliver the wastes included
in the manifest to this facility unless the facility refuses to accept the waste or
is otherwise unavailable to accept the waste due to circumstances beyond the
transporter's or generator's control. The transporter must not be permitted to
seek an alternative facility unless (1) he has made a good faith effort to deliver
to the primary facility; (2) he has received authorization from the generator to
deliver to an alternative facility; and (3) the alternative facility likewise has a
valid permit under Section 3005 of RCRA. The generator must remain
responsible for insuring that the waste is delivered to a permitted facility and
must be required to verify delivery to the alternate facility and report this to the
EPA and/or the state. If the wastes are not delivered to the primary destination
then the generator should be immediately informed. We feel this will minimize
unwarranted confusion in the tracking of individual waste shipments while also
serving to minimize the probability of lost, unaccounted-for shipments by a
transporter.
Comment was specifically requested on the regulatory approach and
possible alternatives for addressing the indiscriminate disposal of waste oil. In
article 250.28(a) it is proposed that "If a generator of waste oil enters into an
Assumption of Duties Contract with a transporter governed by Subpart C...the
transporter...shall become independently liable for performance of the duties
assumed by him under this Subpart." We would support this option for small
waste oil generators, such as service stations, if it can be assured that the
transporter is able to be financially responsible and accountable for problems
which may result from unintentional or intentional actions. Since there are no
"financial responsibility" requirements for a transporter, many — which may have
created problems in the past -- would be allowed to continue "business as usual".
If waste oil generators are not capable of complying with these regulations
and/or the economic and administrative burden is too great, it would seem more
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appropriate to provide for the transfer of these responsibilities to a treatment
and/or disposal facility which is much more regulated than the transporter in
addition to being more financially capable of assuming this transfer of
responsibility.
We acknowledge that the objective of the Agency's hazardous waste
management program is to insure that hazardous wastes are identified and
competently controlled from the point of generation, through transportation, to
ultimate disposition at a permitted treatment, storage, or disposal facility. We
feel that this objective is attainable — for the general public, American industry,
and responsible governments demand no less than such assurances.
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Browning-Ferris Industries, Inc.
FANNIN BANK BLDG. • P.O. BOX 3161 • HOUSTON, TEXAS 77001 • (713)790-1611
Presentation
of
James R. Greco
Director
Government and Industry Affairs
Browning-Ferris Industries, Inc.
for the
Public Hearing
Proposed Hazardous Waste Regulations
U.S. Environmental Protection Agency
40 CFR Part 250
Subpart D
Section 300* Standards for Owners and Operators of
Hazardous Waste Treatment, Storage, and Disposal Facilitie
"The Siting Issue"
February 22, 1979
Washington, D.C.
pursuant to publication in the
December 18, 1979
Federal Register
Pages 5S982 - 59017
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It is cited in the supplementary information on page 58982 that the
"Section 3004 standards not only establish the levels of
environmental protection that hazardous waste treatment, storage,
and disposal facilities must achieve, they also are the criteria
against which EPA officials will measure applications for permits."
On page 589*8 particular mention is made of the requirement that generators of
hazardous waste must manage their waste in an environmentally sound manner —
which will create a large new demand for adequate hazardous waste management
capacity. Furthermore it is noted that:
"EPA must take into account the need for more hazardous waste
management capacity as it develops this regulatory program
because public health and the environment will not be well
protected if one of the results of the program is to shut down most
of the facilities currently available."
Hence we feel it important that the general public be made aware that these
3004 standards ~ levels of environmental protection required of permitted
facilities — can ensure the safe management of hazardous wastes. Such public
awareness and recognition is a necessary pre-requisite and building block for any
hazardous waste control program to be effective. However the public may not
be convinced unless the technical standards are sound, enforceable, and enforced.
In this vein we feel it imperative that EPA, state governments, and industry
increase their efforts to enhance public participation in the
rulemaking/permitting process and public education and awareness of the need
for and feasibility of hazardous waste management technology. The recently
announced "Waste Alert" and "Waste Watch" programs seem to be a step in this
direction and should focus, we hope, increased public attention on the 3004
standards as the "measuring mechanism" for the environmentally safe
management of hazardous waste.
It is stated by the Agency and consistent with the intent of Congress that
the 3004 standards are the criteria by which a facility shall be permitted. The
criteria — the 3004 standards — are to be applied to each hazardous waste
-------
management facility. Additionally, new facilities permit applications should be
carefully scrutinized by state agency programs. We feel the role of the states
looms most important. It is the most practicable and proper level of government
for implementing an effective hazardous waste management program. States
should establish and/or adopt technical criteria consistent with Federal standards
for hazardous waste management treatment, storage, and disposal facilities
regarding site location and operational performance. The criteria, rules, and
regulations should be strictly enforced and applied objectively- State
governments and their permitting agencies should be encouraged to exercise, as
necessary, pre-emptive powers to ensure action upon a permit application within
a reasonable period of time — for example, 90-days. However, we believe that
the EPA must establish the level of the highest (as well as lowest) performance
standards necessary to exercise these pre-emptive powers and protect public
health and the environment.
BFI is intimately familiar with the problems inherent in siting and
developing hazardous waste treatment, storage, and disposal facilities. As the
general citizenry becomes increasingly aware of the environmental and public
health hazards resulting from improper disposal of hazardous waste, the "siting
problem" becomes increasingly more difficult. However, we do not believe that
direct government involvement in the acquisition, development, and operation of
hazardous waste management facilities will alleviate this public concern or
eliminate the "siting problem". Those who advocate direct government
intervention in the "siting problem" or the exclusive use of public lands for
hazardous waste facilities seem to feel that it is possible to eliminate all public
opposition to hazardous waste management facilities. The crucial issue is not
whether or not it is possible to obtain unanimous local acceptance of the location
of a facility in a particular community or neighborhod, but whether or not the
greater public-at-large can be made to understand the necessity for proper waste
disposal.
^
In this respect we feel that governmental ownership — state or Federal —
of hazardous waste disposal sites is not desirable, would not likely be in the best
public interest, would not likely lead to the best designed sites, would not likely
-------
encourage R&D or improved practices, and may be less than effective regarding
self-regulation. Currently our company and other responsible firms are
developing additional facilities to meet the demand for hazardous waste
treatment and disposal. Such facilities can be developed where geologic
formations and terrain are conducive to the location for such facilities,
streamlined permit programs and procedures are in place, enforcement authority
exercised, and a demand within an economically viable market area exists. It is
in this type of business environment, where private enterprise competes for
business opportunities, where incentives for quality service persist and new
innovative practices and techniques may be derived, and where the public is most
efficiently served. Though it certainly is within the prerogatives of
governmental agencies to own and stimulate the development of hazardous waste
sites, it is not the answer to siting problems or to creation of expanded capacity.
If a state or the Federal government embarks on a program to establish
government-owned facilities we do not feel that such a program is one of the
better approaches. If a program and procedure for government-financed and
owned facilities is going to be established by a state or the Federal government,
then the same provisions, requirements, benefits, etc. should be accorded to
privately developed, financed, and owned facilities. The private sector should
not be precluded from siting and developing facilities. If government-owned
facilities can benefit from pre-emptive powers regarding siting, so too should
privately-developed facilities. All facilities should be required to follow the
same permit procedures and be regulated uniformly.
Earlier I mentioned the importance of the state's role in implementing an
effective national program for the proper management of hazardous waste.
Many states are now assuming the responsibilities associated with this paramount
role. Others, we feel, should likewise be encouraged to do so. However to
whatever extent the mandates of Subtitle C of Public Law 9^-580 are
implemented, hazardous waste management facilities are needed. That need, of
course, can only be fulfilled if treatment, storage, and disposal facilities are
located, designed, and operated so as to protect public health and the
environment. Hence, the crux of whether or not such facilities are established
and permitted is a responsibility not necessarily best — or even better — fulfilled
by government ownership of such facilities or political pressure "to locate
-------
eJsewhere" such facilities. Though these are ready remedies and seemingly
publicly-popular solutions, these approaches will not, in our opinion, foster
fulfillment of the law's objectives.
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Browning-Ferris Industries, Inc.
FANNIN BANK BLDG. • PO BOX 3)51 • HOUSTON, TEXAS 77001 • (7131790-1611
Presentation
of
James R. Greco
Director
Government and Industry Affairs
Browning-Ferris Industries, Inc.
for the
Public Hearing
Proposed Hazardous Waste Regulations
U.S. Environmental Protection Agency
*0 CFR Part 250
Subpart D
Section 300* Standards for Owners and Operators of
Hazardous Waste Treatment, Storage, and Disposal Facilities
"Financial Responsibility and Other Requirements"
on
February 23, 1979
in
Washington, D.C.
pursuant to publication in the
December IS, 1978
Federal Register
Pages 58982- 59017
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Frequently the question arises as to what guarantees can be made
regarding the ultimate management of hazardous wastes. Legitimately, the
public — becoming more alarmed when hearing of hazardous waste disposal
problems — becomes more skeptical of government and industry initiatives to
properly manage these wastes. Throughout our testimony at these hearings and
at prior public meetings, we have stated that we feel that hazardous wastes can
be managed safely so as to protect human health and the environment. Where
such wastes can be treated and rendered non-hazardous or less hazardous within
reasonable economic impacts, they should be. Where such wastes are disposed
into or upon the land — whether trapped in deep geologic formations, secured
within surface containment/disposal facilities, or mixed into soils, certain land
naturally lends itself for the location of these facilities. Additionally such
facilities can and should incorporate design and operating safeguards engineered
and constructed for environmental protection.
A key issue addressed in the proposed 300* rules — and prompted by
Congressional concern — is the extent of financial responsibility to be required,
as may be necessary or desirable, of hazardous waste management facility
owners and operators for continuity of facility operation, proper closure of a
facility, post-closure monitoring and maintenance, and assurrances in perpetuity
lor remedying any problem and compensating any damaged parties, in the event
an incident may occur. In the supplementary information presented on page
58987 of the proposed rules, it is cited that:
"Because of the uncertainties associated with long-term disposal of
hazardous waste and the unavailability of post-closure non-sudden liability
coverage from the private sector, EPA is considering seeking legislative
authority to create a Federally administered fund to provide such
protection. The fund would be available to satisfy legitimate claims for
damage when damage occurs after a hazardous waste disposal facility has
closed, but would be established in such a way as to encourage responsible
waste management by the owner/operator during facility operation."
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We support the creation of a self-sustaining national fund and request that
serious consideration be given to the approach proposed by NSWMA referred to
as the "Hazardous Waste Insurance Act".
One of the questions posed by EPA in the proposed regulations and for
which comment is solicited is:
"Is a Federal fund for post-closure financial responsibility for hazardous
waste disposal sites desirable and if so how should it operate?"
We feel that such a fund is not only desirable but necessary. In a December 19,
1978 GAO report — "How To Dispose of Hazardous Waste — A Serious Question
That Needs to be Resolved" — reference is made to a December 29, 1977 letter
authored by the NSWMA which states that:
"Private firms must have some means to project and manage the risks and
costs of potential liability flowing from hazardous waste management
operations. Whereas liability under current legal doctrines is open-ended
as to amount and time, traditional insurance, bonding or other
arrangements are not adequate. The public cannot assume that any
company, surety or insurer will maintain in perpetuity the financial ability
to cover this potential risk; nor can any private corporation reasonably be
expected to create the needed new facilities if it must encumber its
balance sheet with perpetual and infinite contingent liabilities for closed
facilities."
From our perspective, BFI can meet the financial responsibility
requirements proposed for site life operation. Regarding post closure financial
responsibility and liability, however, we, as other larger corporations, may be- it«JL IT
unable to meet, or will find it to be too great a business risk to assume, post
closure potential risks. Understandably, many may question the need for a
private enterprise to have limited liability and feel it politically unpalatable or
Contrary to our nation's competitive business ethic. A key consideration,
however, regarding this issue is that with respect to post-closure liabilities of
prior business operations, there exists no assured mechanism for deriving funds to
closure
P*
plnnning hniorohnnd in anticipation of puUjilttAl OLiuuem.ut» The concept
-------
of a national ;und supported by fees assessed on hazardous wastes disposed is
becoming more widely discussed and accepted. However, we feel that in order to
encourage the continued development of hazardous waste management facilities
by private enterprise, such a fund necessarily must be conditioned upon a
limitation and ultimate termination of liability — so long as properly permitted
facilities and practices ongoing during site operation conform or exceed all
applicable regulations and are certified thereof by appropriate regulatory
authorities.
We respectfully request that the proposed NSWMA approach and the GAO
report noted earlier be included as part of the public record of these hearings and
stimulate further deliberation on the issue of financial responsibility.
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LEGISLATION PROPOSED IN PARTIAL SATISFACTION OF
SECTION 300»(6)
OF THE RESOURCE CONSERVATION RECOVERY ACT OF 1976
HAZARDOUS WASTE INSURANCE ACT
CHEMICAL WASTE COMMITTEE
INSTITUTE OF WASTE TECHNOLOGY
NATIONAL SOLID WASTE MANAGEMENT ASSOCIATION
December 12, 197S
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To establish a privately funded and government administered insurance
program to provide compensation for claims arising from discharges
from hazardous waste management facilities and other purposes.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled.
TITLE 1 - GENERAL PROVISIONS
SHORT TITLE AND TABLE OF CONTENTS
Section 101. This Act, along with the following table of contents,
may be cited as the "Hazardous Waste Insurance Act".
Title I - General Provisions
Section 101. Short title and table of contents.
Section 102. Congressional findings.
Section 103. Objectives.
Section 104. Definitions.
Section 105. Preemption.
Title II - Fund Establishment,
Financing, and Administration
Section 201. Fund Establishment and Method of Financing.
Section 202. Damages Compensable by Fund.
Section 203. Financial Responsibility.
Section 204. Notification.
Section 205. Liability of the Fund and Processing of Claims.
Section 206. Jurisdiction and Venue.
Section 207. Certification of Proper Closure and Closure Fund.
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CONGRESSIONAL FINDINGS
Section 102. (To be added)
OBJECTIVES
Section 103. The objectives of this Act shall be to:
(a) Foster and promote the development of hazardous waste
management facilities which are designed, constructed,
operated, closed and maintained in an environmentally
sound manner.
(b) Establish an insurance program, privately funded and
government administered, which will compensate any
person establishing a claim arising from any discharge
of hazardous wastes from a hazardous waste management
facility.
DEFINITIONS
Section 104. For the purposes of the Act, the term—
(a) "insurance fund" means the fund established by Section
201;
(b) "person" means an individual, firm, corporation, associa-
tion, partnership, Joint venture, or governmental
entity;
(c) "Secretary" means the Secretary of the Treasury.
(d) "Administrator" means the Administrator of the Environ-
mental Protection Agency;
(e) "hazardous waste incident" means any occurrence or
series of occurrences, which results in the discharge
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of hazardous wastes from a hazardous waste management
facility injurious to, or creating an imminent threat
of injury to, any person or property;
(f) "hazardous wastes" means any solid waste which meets
the criteria established by or is listed by the
Administrator pursuant to Section 3001 of the Solid
Waste Disposal Act, as amended, 42 U.S.C. 6901 £t
seq., or any solid waste, or combination of solid waste,
which because of its quantity, concentration or
physical, chemical, or infection characteristics
may—
(A) cause, or significantly contribute, to an
increase in mortality or an increase in serious
irreversible, or incapacitating reversible, illness;
or
(B) pose a substantial present or potential
hazard to human health or the environment when improperly
treated, stored, transported, or disposed of, or
otherwise managed.
(g) "claimant" means any person or the Governemtn of the
United States or any agency thereof, or the government
of a state or a political subdivision thereof, who
asserts a claim under this Act:
(h) "hazardous waste management facility" means any facility
which stores, treats, or disposes of hazardous wastes
pursuant to a permit issued under Section 3005 of the
Solid Waste Disposal Act, 42 U.S.C. 6901, et seq. or
has been certified as properly closed pursuant to
Section 207.
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(i) "person in charge" — means the individual immediately
responsible for the operation of a hazardous waste
management facility.
(j) "gurantor" — means the person, other than the owner
of operator, who provides evidence of financial
responsibility for an owner or operator of a hazardous
waste management facility.
(fc) "discharge" means any emission from a hazardous waste
management facility and includes any releasing, spilling,
leaking, seeping, pouring, emitting, emptying, or
dumping.
(1) The term "solid waste" means any garbage, refuse, sludge
from a waste treatment plant, water supply treatment
plant, or air pollution control facility or other
discarded material, including solid, liquid, semisolid,
or contained gaseous material resulting from industrial,
commercial, mining, and agricultural operations, and
from community activities, but does not include solid
or dissolved material in domestic sewage, or solid or
dissolved material in irrigation return flows or
industrial discharges which are point sources subject
to permits under section 402 of the Federal Water
Pollution Control Act, as amended (86 stat. 880), or
source, special nuclear, bor byproduct material as
defined by the Atomic Energy Act of 1954, as amended
(68 Stat. 923).
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(m) The term "storage", when used in connection with haz-
ardous waste, means the containment of hazardous waste,
either on a temporary basis or for a period of years,
in such a manner as not to constitute disposal of such
hazardous waste.
(n) The term "treatment", when used in connection with
hazardous waste, means any method, technique, or
process, including neutralization, designed to change
the physical, chemical, or biological character or
composition of any hazardous waste so as to neutralize
such waste or so as to render such waste nonhazardoiis,
safer for transport, amenable for recovery, amenable
for storage, or reduced in volume. Such term includes
any activity or processing designed to change the
physical form or chemical composition of hazardous
waste so as to render it nonhazardous.
(o) The term "disposal" means the discharge, deposit,
injection, dumping, spilling, leaking, or placing of
any solid waste or hazardous waste into or on any
land or water so that such solid waste or hazardous
waste or any constituent thereof may enter the
environment or be emitted into the air or discharged
into any waters, including ground waters.
(p) "damages" means any monetary sum representing any loss
sustained by a claimant to which he is entitled to
reimbursement for under this Act, and shall also in-
clude any cost relating to compliance with any in-
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junctive relief awarded pursuant to state or federal
common law, statute! or constitution.
PREEMPTION
Section 105. Except as provided in this Act—
(1) No action may be brought in any court of the United
States, or of any state or political subdivision thereof
for any damages arising from a hazardous waste incident,
and
(2) No person may be required to contribute to any insurance
fund or any other fund the purpose of which is to
provide compensation to any person or for any claims
which are subject to compensation hereunder.
TITLE - INSURANCE FUND
ESTABLISHMENT, FINANCING, AND ADMINISTRATION
Section 201.
(a) There is hereby established in the Treasury of the
United States a Hazardous Waste Insurance Fund, not
to exceed . The insurance fund shall be
available to satisfy any claim asserted under this
Act and shall be administered by the Secretary as
specified in this title. The Secretary may sue or
be sued on behalf of the fund.
Cb) The fund shall be constituted from the premiums
collected by Secretary pursuant to subsection (c);
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(c) (1) "The Secretary shall set and collect from the
operator of a hazardous waste management facility
an annual nationally uniform premium based upon
the amount of hazardous wastes received for..
storage, treatment, transporting or disposal in
the hazardous waste management facility, provided
that wastes for which a premium has already been
collected shall be exempt from subsequent
premiums.
(2) The Secretary may promulgate reasonable rules and
regulations relating to the collection of the
premium authorized by paragraph (1) and, from
time to time, the modification thereof. Modifi-
cations shall become effective on the date
specified therein, but no earlier than the
nintieth day following the state the modifying
regulation is published in the Federal Register.
Any modification of the premium shall be designed
to insure that the insurance fund is maintained
at a level not less than and not more
than . No regulation that modifies
premiums, nor any modification of such a regu-
lation, whether or not in effect, may be stayed
by any court completion of judicial review of
that regulation or modification.
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(3) (A) Any person who fails to pay the premium
as required by the regulations promulgated under
paragraph (2) shall be liable for the payment
thereof and the Secretary is hereby authorized
to bring suit in any court of the U.S. to collect
such premiums and may, in addition thereto be
awarded interest and costs. Until such premiums
are paid in full, such person shall be deemed
to have failed to establish financial responsi-
bility as required by this Act and Section 3004
of the Solid Waste Disposal Act, as amended,
42 U.S.C. 6901 et seq.
(B) Any person who falsifies records or documents
required to be maintained under any regulation
promulgated under this subsection shall be
subject to prosecution pursuant to section
3008(d) of the Solid Waste Disposal Act, as
amended, 42 U.S.C. 6901 et seq.
(4) The Secretary may, by regulation, designate the
reasonably necessary records and documents to
be kept by persons from whom fees are to be
collected pursuant to paragraph (1) of this
subsection, and the Secretary and the Comptroller
General of the United States shall have access
to such required material for the purpose of
audit and examination.
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(d) (1) The Secretary shall determine the level of cash
fund required in order to meet current probable
obligations of the fund.
(2) The Secretary may invest and reinvest any excess
in the insurance fund, above the level determined
under paragraph (1), in interest-bearing special
obligations of the United States. Such special
obligations may be redeemed at any time in accordance
with the terms of the special issue and pursuant to
regulations promulgated by the Secretary of the
Treasury. The interest on, and the proceeds from
the sale of, any obligations held in the insurance
fund shall be credited to and become a part of the
fund.
(e) If at any time the moneys available in the insurance
fund are insufficient to meet the obligations of the
insurance fund, the Secretary shall issue notes or
other obligations in the forms and denominations,
bearing the interest rates and maturities and subject
to such terms and conditions as nay be prescribed
by the Secretary, Redemption of these notes or
obligations shall be made by the Secretary from moneys
in the insurance fund. These notes or other obliga-
tions shall bear interest at a rate determined by
the Secretary, taking into consideration the average
market yield on outstanding marketable obligations
or comparable maturity. The Secretary shall
purchase any notes or other obligations issued here-
under and, for that purpose, he is authorized to use
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as a public debt transaction the proceeds from the
sale of any securities issued under the Second Liberty
Bond Act. The purposes for which securities may be
issued under that Act are extended to include any
purchase of these notes or obligations. The Secretary
of the Treasury may at any time sell any of the notes
or other obligations acquired by him under this
Subsection. All redemptions, purchases, and sales
by the Secretary of the Treasury of these notes or
other obligations shall be treated as public
transactions of the United States.
DAMAGES COMPENSABLE BY THE FEDERAL
INSURANCE FUND
Section 202.
(a) Claims for damages arising out of a hazardous waste
incident which asserted under federal or state common
law, statute, or constitution shall only be asserted
under this Act subject to whatever defenses may be
available under such law or laws.
(b) During the operation of a hazardous waste management
facility and prior to certification of proper closure
pursuant to Section 207, the insurance fund shall
be available to satisfy the amount of a claim which
is or may be asserted against an owner, operator,
or guarantor pursuant to subsection (a) and exceeds
the limitations on financial responsibility set
forth in Section 203 provided that, in the event that
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it can be established that the damages were 'caused
solely by a knowing or willful violation of any
Federal, State or local standard or permit condition
designed to protect the environment or public health,
the fund may sue and collect from the owner or
operator any sums distributed by it pursuant to this
Act.
(c) After the operation of a hazardous waste management
facility has ceased and following certification of
proper closure pursuant to Section 207, the insurance
fund shall be available to satisfy any amount of a
claim which is or may be asserted against an owner,
operator, or guarantor pursuant to subsection (a)
provided that, in the event that it can be established
that the damages were caused solely by any knowing
or willful violation of any term or condition of
a certification of closure issued pursuant to Section
207, the fund may sue and collect from the owner or
operator any sums distributed by it.
FINANCIAL RESPONSIBILITY
Section 203. During the operation of a hazardous waste management
facility and until certification of closure pursuant to Section 207,
the operator of a hazardous waste management facility shall, in accord-
dance with regulations promulgated by the Administrator establish and
maintain financial responsibility sufficient to satisfy claims for
damages arising from hazardous waste incidents cumulative up to
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$5,000,000.00. Financial responsibility may be established by any
one, or any combination of the following methods: evidence of in-
surance, guarantee, surety bond, or qualification as a self-insurer.
Any surety bond filed shall be issued by a. bonding company authorized
to do business in the United States.
NOTIFICATION
Section 204. In addition to any other notice requirement provided
by law, any person in charge of a hazardous waste management facility
which is involved in a hazardous waste incident, shall immediately
notify the Administrator and the Secretary of the incident, as soon
as he has knowledge thereof. Notification received pursuant to this
subsection or information obtained by the exploitation of such
notification shall not be used against any such person or his employer
in any criminal case, other than a case involving prosecution for
perjury or for giving a false statement.
LIABILITY OF THE FUND AND PROCESSING OF CLAIMS
Section 205.
(1) The Secretary shall promulgate regulations establishing
procedures and standards for the appraisal of the
merits of any claim against the insurance fund. Such
standards to the degree practicable, shall incorporate
those principles for determining the degree of
culpability necessary to substantiate the claim,
the persons entitled to damages, and the calculation
of the amount of damages all of which have been
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established under appropriate common law, statute,
or constitution.
(2) Prior to the certification of proper closure pursuant
to Section 207, the fund shall be liable only for
damages claimed in excess of the limitations on
financial responsibility set forth in Section 203.
In order to establish the liability of the fund, it
shall be necessary for any claimant to:
(a) Either (i) obtain a final judgment against the
owner, operator, or guarantor of such facility or
(ii) accept any good faith offer of settlement made
by such owner, operator, or guarantor up to the
maximum limitations of his financial responsibility
required under Section 203.
(b) In any lawsuit filed against an owner, operator,
or guarantor:
(i) Both the plaintiff and defendant shall serve
the Secretary with all papers filed in the case
including pleadings, motions, and briefs.
(ii) Either party may interplede the insurance
fund and the insurance fund may intervene in the
action as a matter of right.
(iii) If the parties have properly notified the
Secretary of the commencement of any such lawsuit,
the insurance fund shall be liable for any amount
of any judgment in excess of the maximum amount of
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-financial responsibility required by Section 203,
regardless whether the insurance fund was made a
party to the lawsuit or not. In the event of any
proposed settlement between the claimant and the
owner, operator, or guarantor up to the maximum
limitations of financial responsibility required
under Section 203, the fund shall not be liable for
any amount of damages claimed in excess thereof
unless the fund (whether or not it has been made
a party to any lawsuit) has been notified of the
offer of settlement by both the claimant and the
owner, operator, or guarantor making the settlement
offer and the fund has concurred with the settlement.
(3) Following certification of proper closure pursuant to
Section 207, the fund shall be directly liable for any
claim for any amount of damages compensable under
this Act, whether or not a claim for such damages is
first filed with the owner, operator, or guarantor
of the hazardous waste management facility involved
in the hazardous waste incident. Suit may be brought
in the proper court directly against the insurance
fund, provided that the owner, operator, or guarantor
of the hazardous waste management facility involved
may intervene as a matter of right.
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JURISDICTION AND VENUE
•Section 206.
(a) Jurisdiction: The District Courts of the United States
have exclusive jurisdiction regardless of the amount of controversy
for any action brought under this Act against the insurance
fund, any owner, operator, or guarantor of any hazardous waste
management facility for damages arising from any hazardous waste
incident.
(b) Venue: Actions brought against an owner, operator,
or guarantor of aa affected hazardous waste facility shall be
brought in the U.S. Court for the judicial district in which
such owner, operator, or guarantor shall have its principal
place of business or where the hazardous waste incident giving
rise the claim occurred.
CERTIFICATION OF PROPER CLOSURE
AND CLOSURE FUND
Section 207.
(a) The Administrator shall promulgate regulations requiring
each owner or operator of a hazardous waste management facility
to establish and maintain a fund sufficient to cover any costs
incurred in the proper closure of the facility and any post
closure maintenance, clean up, or monitoring necessary to insure
that no hazardous waste incident occurs at that facility.
(b) Prior to the permanent closure of a hazardous waste
management facility, the owner or operator shall notify the
Administrator. At any time after the recei'pt of the notice of
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closure, but prior to the year following closure, the
Administrator shall inspect the hazardous waste management
facility and should he determine that the facility has been
closed in compliance with the Solid Waste Disposal Act and that
there is no substantial risk of a hazardous waste incident
occurring at the facility, he shall certify that the facility
has been properly closed. The certification may contain what-
ever conditions the Administrator considers reasonably necessary
to protect human health and environment including but not
limited to restrictions upon the future use of the real property
upon which the hazardous waste facility is located. Should
these conditions or restrictions be violated by misconduct
within the privity of knowledge of the owner or operator or
where the owner or operator fails or refuse to provide all
reasonable cooperation and assistance requested by a responsible
Federal official, including access to the property for clean up
and removal of any hazardous waste incident, -he shall be liable
for any claims under this Act without any limitation.
(c) Any such certification or denial therof shall become
final unless, no later than 15 days after the certification or
denial the owner or operator, or any Interested party files a
request for a hearing pursuant to Section s 556 and 557 of Title
5 of the United States Code. Final decisions of the Administrator
made under this subsection shall be reviewable pursuant to
Section 702 of Title 5 of the United States Code, in the district
courts of the United States.
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EPA Hearing on Proposed Hazardous Waste Regulations
February 21, 1979 SECTION 3002, 3003
Statement by Arnold Schiffman
Maryland Water Resources Administration
I will relate my comments today on the generator and transporter
requirements to the overall theme that these proposed regulations are both
too stringent to work and inadequate to protect the public health and the
environment. The basic problem is EPA's policy to reject the approach of
varying the degree of regulation to the degree of a waste hazard. As a
result, major parts of these regulations are technically indefensible and
unworkable. The following are examples of these problems.
EPA proposes to exempt persons from the generator requirements who
produce less than 100 kg of any hazardous waste per month. Therefore,
100 kg of dioxin is regulated in the same manner as 100 kg of waste oil.
In addition, since it is not a hazardous waste, the regulations blithely
state that these so-called "small quantities" of wastes nay be disposed of
safely at, for example, any landfills meeting Subtitle D ECRA criteria,
without manifest or generator requirements. This is a head—in—the-sand
approach, since there is no way to assure that extremely hazardous wastes
are delivered to an appropriate facility.
There are four issues concerning the quantity exemption that I find
fascinating. First, the reason for the exemption is the onerous- cost that
small generators will incur in complying with the regulations. This cost
is, in turn, a direct function of the way the regulations are written.
Second, there is a basic inconsistency between the concept of testing
whether or not a waste is hazardous and the concept of a quantity exemption.
-------
For example, under the extraction procedure test for toxicity, sample (x)
of a waste gives an extract just exceeding the limit of 0.1 mg/1 cadmium while
sample (y) of another waste yields an extract with ten times this value for
cadmium. Thus, a 100 kg sample of waste y is really the equivalent of a
1000 kg sample of waste x - one exempt, the other, not exempt. In addition,
the testing procedure essentially excludes the water fraction of sludges.
However, it is unclear whether or not the 100 kg exemption is also on a dry
weight basis. Is a 100 kg of a 10% hazardous sludge the same as 100 kg of a
20* sludge?
Third, the 100 kg exemption combined with the 90-day exemption for storage
will encourage the small hazardous waste generator to do exactly the wrong
thing - get rid of his waste in dribs and drabs. A more sensible approach
would be to hold the waste and safely store it until a sufficient quantity
has been accumulated to make it worthwhile for a waste hauler to pick it up
and transport it to a proper disposal facility. His "reward" for doing the
sensible thing is to become a generator with all the attendant paperwork.
In addition, he must qualify as a storage facility vith all the permit and
regulatory requirements.
Lastly, the reason for rejecting classification of waste by degree
of hazard is that EPA "lacks sufficient data to distinguish among the
degrees of hazard of various waste on the basis of its potential to cause
health or environmental harm". It's true that there is a lack of information.
But,where it is written that we have to make these distinctions for all
wastes? Where we know of great risk - allow little or no quantity exemption;
where we do not know - allow a substantial quantity exemption. EPA has
structured the regulations in a manner that creates problems and then
-------
proceeds Co discuss alternatives for dealing with them, thus further com-
pounding the problem. No wonder the economic analyses projects plane
closures.
The requirements for gasoline stations and waste oil are incredible.
These requirements may severely damage Maryland's waste oil recycling program.
It has been enough of a challenge in Maryland to convince gasoline stations
to install waste oil storage tanks in order for the public to have a place to
bring their waste oil for collection and recycling. The requirements of this
regulation will come as an unpleasant surprise in spite of the friendly neigh~
borhood waste oil transporter who will solve the gasoline station operator's
problem (for a price!). What previously was a public service will now be
viewed as a serious liability resulting in a refusal to accept the waste oil.
Another serious problem under the EPA proposal for gasoline stations is
the question of whether or not such a station will be responsible for storage
requirements under subparts I) and E of these regulations, including permits,
monitoring, security, contingency plans, bonding and financial and closure
requirements. It appears that they will. Gasoline stations that accumulate
>
waste oil for recycling and reuse under approved programs should be
completely exempt from hazardous waste regulations, as should waste oil
haulers and persons who treat the waste oil and turn it into a usable produce.
Recycling is encouraged by l.ess_» not more regulation.
The manifest requirements allow some other document such as a shipping
paper to substitute for the hazardous waste manifest. Although it's nice
to see EPA cooperating with DOT, there seems to be confusion as to the
-------
objectives of the two programs. The main objective of the hazardous waste
manifest is to track the waste; the main purpose of DOT requirements are to
deal with accidents. DOT regulates transport of products. There 1$ a
built-in tracking system as the shipper gets paid when his product is
received and the customer needs the product. This is not the case for wastes
and is the reason the manifest is needed. Thus, a hazardous waste manifest
can substitute for a shipping paper or bill of ladding — not the other way
around.
A far more serious problem is the generator reporting requirements.
As with many other parts of the hazardous waste regulations, here we have
a good idea that is misapplied. True, the generator is a focal point of the
program. However, it is absurd to attempt to make a generator reporting
system the prime mechanism for tracking hazardous wastes. First, such a
system is inadequate for tracking. Yearly or quarterly reports are not
frequent enough to detect problems and solve them. The manifest system has
to operate on a daily or weekly basis. Second, these burdensome requirements
on industry provide ammunition and a firm basis for people to justifiably
complain about the high cost of regulation.
I understand EPA proposing these generator requirements if EPA has to
operate the program. I understand that the Federal law may not be adequate
for haulers. 1 understand that some hazardous waste generators have acted
irresponsibly in the past. I don't understand how a basically simple
concept as the manifest can be made so complicated. I don't understand why
EPA does not recognize that these regulatory controls are not necessary for
all hazardous wastes. I don't understand how EPA could ignore the fact that
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the states have a vested interest in tracking hazardous wastes generated
or disposed of within their boundaries. The State of Maryland has the
beginnings of an operating manifest system and expects only one thing from
generators of hazardous waste. That is to religiously and accurately fill
out the manifest form and mail the State a copy on the same day the waste
is shipped. In the case of a generator who disposes cm-site, or at an
off-site disposal area he owns, the disposal facility permit is the
controlling mechanism. The State of Maryland has taken the responsibility
of tracking wastes generated and disposed of within her borders. We will
share the burden of managing hazardous wastes with our industry. This is
the field reality as contrasted with the office fantasy of EPA.
I will continue tomorrow on the same thema - that the decision to have
relatively uniform requirements for all hazardous wastes, regardless of
degree of risk, causes more problems than it actually solves.
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Attendees—Public Hearing
on Proposed Hazardous Haste Regulations
February 22-23, 1979
Oscar J. Ackelsberg
Asst. Vice President
W.R. Grace and Co.
1114 Avenue of the Americas
New York, New York 10036
Killy Adams
904 N. Overlook Drive
Alexandria, Va 22305
Carl M. Adema
Mech. Engineer, Code 2861
Naval Ship R&D Center
Annapolis, Maryland 21402
Dr. Richard A. Ahlbeck
Vice Pres., Sci./Tech.
2201 Albion Street
Toledo, Ohio - 43606
Thomas D. Alfano, Jr.
Resident Vice-President
Wohlreich & Anderson, Ltd.
Suite 315, Teachers Building
Columbia, Maryland 21044
Toni K. Allen
Wald, Harkrader & Ross
on behalf of USWAG
1320 19th St, N.W.
Washington, D.C. 20036
John D. Austin, Jr.,Counsel
American Mining Congress
1200 18th Street, N.W.
Washington, D.C. 20036
Samuel B. Balamoun
Senior Engineer-Energy and Environmental
Affairs, 900 First Avenue
King of Prussia, PA 19406
Carl Banks
Senior Distribution Engineer
PPG Industries
One Gateway Center
Pittsburgh, Pa 15222
Joe Barta
Chemical Project Leader
Huntington.Alloys Inc.
P.O. Box 1958
Huntington, W. Va 25720
Robert A. Beck
Biologist, Licensing and
Environmental Affairs Dept.
The Cincinnati Gas & Electric Co.
139 East Fourth Street
Cincinnati, Ohio 45202
Sy Bensky
Manager Regulatory Assessments
Occidental Chemical
P.O. Box 1185
Houston, Texas 77001
Eugene Berman
Legal Department
E.I. DuPont de Nemours & Co.
Wilmington, Del. 19898
Harold Bernard
Hazardous Materials Control
Research Institute
Executive Director
4843 Broadbrook Drive
Bethesda, Maryland 20014
W.S. Bielski
ERGO Industries Limited
Assistant Secretary
2 Gibbs Road
Islington, Ontario, Canada
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Audrey Binder
Technical Staff
Mitre Corporation
Westgate Research Park
McLean, Va
Henry D. Black
Air Quality Manager
PEPCO
1900 Pennsylvania Avenue
Washington, D.C. 20065
John Blakenhorn
Environmental Control Specialist
St. Joe Minerals Corporation
7733 Forsyth Blvd., Rm. 500
Clayton, Mo. 63105
John Boschuk, Jr. P.E.
Senior Project Engineer
Woodward-Clyde Consultants
5120 Butler Pike
Plymouth Meeting, Pa 18972
Larry Bowles
Texas Instruments
Richard C. Boynton
EPA Region 1, Enviromental Engineer
JFK Federal Building
Boston, Mass 02359
Thomas L. Brown
Project Engineer
Woodward-Clyde Consultants
1300 Piccard Drive
Rockvllle, Maryland
Dan Cannon
Director of Environmental Affairs
National Association of Manufacturers
1776 F. Street, N.W.
Washington, D.C. 20006
Bennle J. Caramel!a
Design Engineer
Purex Corporation
10702 46th Street
Tampa, Florida 33617
David Carroll
Assistant General Counsel
Manufacturing Chemists Associatiot
1825 Connecticut Avenue, N.W.
Washington, D.C. 20090
Rich Cauagnero
Sanitary Engineer
EPA, JFK Federal Building
Boston, Mass 02203
Dr. Scott Clark
Associate Professor of
Environmental Health
University of Cinclnniti
3223 Eden Avenue
Cincinnlci, Ohio 45267
Anne Cohn
Congressman Albert Gore, Jr.
1417 Longworth H.O.B.
Washington, D.C. 20515
Connie Collins
National Wildlife Federation
1430 Rhode Island Ave., #916
Washington, D.C. 20005
John P. Coffin
Manager of Safety
Thiokol/Executlve Offices
Newton, PA 18940
Robin Conrad
Catholic University Law School
1752 Shepherd St., N.W.
Washington, D.C. 20011
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G. Cox
MCA, Vice President, Technical Director
1825 Conn. Avenue
Washington, D.C. 20009
Robert W. Crolius
Executive Asst-Goverment Liaison
Portland Cement Association
Suite 700, 1739 Rhode Island Ave., N.W.
Washington, D.C.
Barbara Curtis
Chemical Health and Safety Assistant
Matthey Bishop, Inc.
Malvern, Pa 19355
Leslie Dach
Science Assiciate-EDJ
1525 18th Street, N.W.
Washington, D.C. 20036
Major Peter S. Daley
Director of Environmental Health
and Occupational Safety
Uniformed Services University of the Health
Sciences, 4301 Jones Bridge Road
Bethesda, Maryland 20014
Dr. Stancy L. Daniels
Dow Chemical U.S.A.
Environmental Sciences 1702 Bldg.
Midland, Mi 48640
Dana Davoli
Staff Scientist
Citizens for a Better Environment
Chicago, 111 60005
Janet De Biasio
Environmentalist, U.S.EPA
Region I Office
Boston, Mass 02203
Wells Denyes
Washington Representative
Eastman Chemical Products, Inc.
500 12th Street, S.W.
Washington, D.C. 20024
Robert Drake
Technical Director
Glass Packaging Institute
1800 K Street
Washington, D.C. 20000
Ward Duel
Assistant Director of Environmental
Health, American Medical Association
535 North Dearborn
Chicago, 111 60610
John Dunlap, Jr.
Corrdinator for Transportation
Babcock and Wilcox Co.
20 S. Van Buren Ave
Barberton, Ohio 44203
R.C. Dwivedy
Environmental Engineer
Delmariva Power and Light Co.
800 Kip
Wilmington, D.C. 19899
Robert Dyer
Staff Assistant/Energy
1610 Longworth
House Office Building
Washington, D.C. 20515
Phoebe Elioponlos
Environment Reporter
Bureau of National Affairs
1231 25th Street, N.W.
Washington, D.C. 20037
Paul Emler
Senior Environmental Advisor
Allegheny Power Service Corporation
800 Chain Hill Drive
Greensburg, Pa 15601
Leyla Erk
Research Assistant
Rubber Manufacturers Association
1901 Penn. Ave, N.W.
Washington, D.C. 20006
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Michael Evelsizer
Hazardous Materials Specialist
The Goodyear Tire and Rubber Co.
1144 E. Market Street
Akron, Ohio 44221
John Faber
Executive Vice President
1819 h Street
Washington, D.C.
Anthony L. Fala
Environmental Engineer
Kawecki Berylco Industries, Inc.
P.O. Box 1462
Reading, Pa 19603
Alan M. Feldbaum
Graduate Student
Duke University
1804 Bivins Street
Durham, N.C. 27707
Donald G. Fobs
Chief Soils and Exploratory
Techniques Group
Federal Highway Administration, DOT
400 7th St. S.W.
Washington, D.C. 20590
E. Fredericks
Executive Assistance
70 Wood Avenue South
Iselin, New Jersey 08830
Ellen S. Friedell
Attorney, Rohm and Haas
Independence Mall
Philadelphia, Pa 19105
Kathleen Gallagher
Paralegal, Wald, Harkrader & Ross
1320 19th Street., N.W.
Washington, D.C.
Robert G. Gallagher
President
Applied Health Physics, Inc.
2986 Industrial Blvd
Bethel Park, Pa 15102
B.V. Galloway
Environmental Manager
Borden, Inc.
P.O. Box 790
Plant City, Florida 33566
James J. Gannon
Environmental Engineer
Goodyear Tire and Rubber Co.
1144 East Market Street
Akron, Ohio 44316
Kevin Gaynor
Attorney, Nixon-Aargrove
1666 K Street, N.W.
Washington, D.C. 20006
Pam Germas
Administrative Assistant
SOCMA
1250 Conn. Ave, N.W.
Washington, D.C. 20036
William F. Gilley
Director, Division of Solid and Hazardous
Waste Management, Va. Dept. of Health
109 Gorvernor Street
Richmond, Va 23219
Glenn Gilmore
Supervisory Sanitary Engineer
Mass. Division of Water Pollution Control
110 Tremont Street
Boston, Mass 02108
Greg Glass
Manager, Environmental Regs.
Dames and Moore
7101 Wisconsin Avenue
Washington, D.C. 20014
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Gene Goldenstein
Veterans Administration
Building Management Officer
50 Irvins Street
Washington, D.C. 20422
W.E. Goode
Environmentalist
DOE/NPOSR
12th and Pa.
Washington, D.C.
Congressman Albert Gore, Jr.
U.S. Congress
1417 Longworth H.O.B.
Washington, D.C.
J.T. Gray, Jr.
Assistant to the Pres./R&D
Thorkal Corporation
Box 1000
Newtown, Pa 18940
Jim Greco
Director, Government and Industry
Affairs, BFI
P.O. Box 3151
Houston, Texas 77001
Mark N. Griffiths
Environmental Affairs Analyst
Resources arid Technology Department
National Association of Manufacturers
1776 F Street, N.W.
Washington, D.C. 20006
W. Gulevich
Department of Health, Virginia
109 Governor Street
Richmond, Va 23227
David Gump
Associate Publisher
Coal Outlook
653 National Press Building
Washington, D.C. 20045
Kamlesh C. Gupta
Chemical/Environmental Engineering
Data Systems Division
IBM, East Fishkill Route 2
Hopewell Junction, New York 12533
Susan Guthrie
Kimberly Clark Corporation
Legal Assistant.
1730 Penn. Ave, N.W.
Washington, D.C. 20006
T. Hadzi-Antich
Attorney
Dechest, Price and Rhoads
888 17th Street, N.W.
Washington, D.C. 20006
George J. Hanks, Jr.
Manufacturing Chemists Association
1825 Connecticut Ave
Washington, D.C.
Dan Harris
Legal Assistant
One Farragut Square, South
Washington, D.C. 20006
Clark D. Harrison
Supervisor
Pa. Power and Light
2 North Ninth Street
Allentown, Pa 18101
Denise A. Hartman
Environmental Engineer/Planning Departmi
Allegheny County Planning Department
429 Forbes Avenue
Pittsburgh, Pa 15219
Frances Helminski
Air Quality Scientist
5265 Hohman Avenue
Hammond, Ind. 46325
David S. Henzel
Development Engineer
Dravo Lime Company
659 Smithfield Street
Pittsburgh, Pa 15222
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John L. Hesse
Chief, Office of Toxic Materials Control
Michigan Department of Natural Resources
Box 30028
Lansing, Mich. 48909
Thomas Hinch
Chief, Hazardous Waste Management
Term. Department of Public Health
Division of Solid Waste Management
320 Capitol Hill Building, 301 Seventh Ave.
Nashville, Tena . 37219
V.E. Hochstetler
Pollution Control Energy
Bethlehem Steel Corporation
Bethlehem, Pa. 18016
Richard Holberger
Technical Staff
MITRE
1820 Dolley Madison Bird
McLean, Va. 22102
James B. Howard
Sergeant State Police
Louisiana Department of Public Safety
265 S. Foster Drive
Baton Rouge, La. 70806
Edwin R. Humburg
Regulation/Labeling Specialist
The Dow Chemical Company
Abbott Road
Midland, Mich.48640
Tod Hutchins
Legal Assistant
Jones, Day, Reavis and Pogue
1100 Conn. Ave., N.W.
Washington, D.C. 20036
Frances Irwin
Associate, The Conservation Foundation
1717 Massachusetts Avenue, N.W.
Washington, D.C. 20036
Lee Jackson
Safety Specialist
MTMA
Arlington, Va 22041
S. Jerabek
Waste Project Director
National Wildlife Federation
1412 16th St., N.W.
Washington, D.C. 20036
Dr. Charles A. Johnson
Technical Director
National Solid Wastes Management Associat
1120 Connecticut Avenue, N.W.
Washington, D.C. 20036
Karl Johnson
Vice President/Member Services
Bertilizer Institute
1015 18th Street
Washington, D.C. 20036
i D . Johnson
Manager, Environmental Control Department
Rohm and Haas Company
Box 584, Bristol, Pa 19007
Martha E. Jones
Public Relations Manager
Florida Phosphate Council
Box 5530
Lakeland, Florida 33803
N. Mason Joye
Environmental Coordinator
Occidental Chemical Company
P.O. Box 300
White Springs, Florida 32096
Harold Judd
Manager-Environmental Engineering
Champion International Corporation
Knightsbridge, Hamilton, Ohio 45020
Alfred S. Kidwell
Director Governmental and Environmental
Affairs, Inmont Corporation
1255 Broad Street, Clifton, N.J. 07015
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Dennis Kinder
Ash Research and Utilization Engineer
AEP Ser. Corporation
301 Virginia Street
Charlestown, W. Va. 25327
Joseph A. King
Coordinator Special Projects
Firestone Plastics Company
Box 699
Pottstown, Pa. 19464
K.S. Komoroski
Environmental Engineer
PPG Industries, Inc.
One Gateway Center
Pittsburgh, Pa 15222
Gary Knox
Central Research and Development Department
E.I. DuPont de Nemours & Company
Wilmington, Del 19898
Kenneth G. Laden
Urban Planner
Resource Conservation and Recovery
D.C. Department of Environmental
Services, 415 12th Street, N.W.
Washington, D.C. 20004
B. Lafferty
Governmental Controls Chemist
W.R. Grace & Co.
55 Hayden Ave.
Lexington, Mass 02174
Chris Legg
Writer, ESC
3334 House Annex #2
Washington, D.C. 20515
Paul E. Lytle
Eastman Kodak Company
Environmental Engineer
Kodak Park
Rochester, N.Y. 14650
Ronald Mace
Environmental Control Engineer
W.R. Grace
P.O. Box 2117
Balto, Maryland 21203
Scott D. Machol
Junior Environmental Engineer
Cleveland Electric Illuminating
55 Public Square
Cleveland, Ohio 44114
B. Charles Malloy
Engineering Science
Central and Lancaster Avenue
Berwyn, Pennsylvania 19312
Nancy Malone
14980 Alaska Road
Woodbridge, Va 22191
Kathy Malone
Pontiac Motor
One Pontiac Plaza
Pontiac, Michigan 48053
J.C. Malone
Public Technology Inc.
1140 Conn. Avenue, N.W.
Washington, D.C. 20036
Richard H. Manning
Reporter
Louisville Times
1265 National Press Building
Washington, D.C.
Don McCombs
Manager, Engineering
WAPORA, Inc.
3301 Buckeye Road, N.E.
Atlanta, Ga 30341
Mary McGrane
Paralegal
Baker and Hostetler
818 Conn Avenue, N.W.
Washington, D.C. 20006
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Thomas Meichtry
IT Environmental Corporation
Senior Enviromental Engineer
4575 Pachelo Blvd
Martinez, California 94553
Richard P. Moffa
Ohio EPA
Policy Analyst
361 E. Broad Street
Cols, Ohio 43216
Daniel Moon
Corporate Development
Rollind Environmental
Services, Inc.
One Rollins Plaza,
Wilmington, Del. 19899
Joyce D. Morles
Hillsborough County Environmental
Protection Commission
Environmental Specialist II
1900 9th Avenue
Tampa, Florida 33605
ra P. Morelli
Ohio River Company
Staff Counsel
1400 580 Bldg.
Cincinniti, Ohio 45202
R . E . Mo r r i 3 o n
AEP Service Corporation
Head-Ash Utilization & Research
301 Va. Street, East
Charleston, West Virginia 25324
William Morrison
PO Corporation
Market Development Specialist
P.O. Box 840
Valley Forge, Pa 19482
Richard Moss
Manager Standards Liaison
Procelain Enamel Institute
1911 N. Fort Myer Drive
Rosslyn, Va 22209
Hugh Mullen
Director Government Relations
10 Conversion Systems, Inc.
115 Gibraltar Road
Horsham, Pa 19044
V. Munley
Counsel on Wage and Price
Stability
Erconomis t
726 Jackson Place, N.W.
Washington, D.C. 20506
Edward G. Murphy
M-NCPPC
Planner
8787 Georgia Avenue
Silver Spring, Maryland 20907
Richard L. Nace
State of Maryland, Department
of Health and Mental Hygiene
201 Best Preston Street
Baltimore, Maryland 21201
Walter and Peggy Neal
President
Industrial Chemical Company, Inc.
P.O. Box 2664
Rock Hill, S.C. 29730
Milt Neighbors
President
Milt Neighbors, Inc.
919 18th Street, N.W.
Washington, D.C. 20006
Robert Nelson
NPCA
1500 Rhode Island Avenue
Washington, D.C.
Lawrence Norton
Manager of Regulatory Affair-
National Agricultural Chemical
Association, 1155 15th St., N.W.
Washington, D.C. 20005
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Karen Norvlg
Research Associate
Environmental Management
Pennsylvania Power & Light Co.
Two North Ninth Street
Allentown, Pa 18101
Kathleen O'Haiioran
OMB, Budget Examiner
17th Street, N.W.
Washington, D.C.
Gordon F. Palm
Florida Phosphate Council
Consultant-Gordon F. Palm Assoc.
602 Schoolhouse Road
Lakeland, Florida 33803
Allen C. Palmer
Program Manager, Technical Service
IBM, 1000 Westchester Ave
White Plains, New York 10604
Harrison T. Pannella
Technical Services Director
American Coke & Chemical Institute
300 N. ee St. Suite 306
Alexandria, Va 22314
Bobert W. Pease
Technical Staff
Hazardous Hastes Program
The Mitre Corporation
P.O. Box Box 208
Bedford, Mass 01730
Mike Pelensky
PA-Region III
,cal Engii
Cheml
Phil., Pa
.neer
19115
Ronald Penny
E.I. DuPont
Attorney
E.I. DuPont De Nemours &Co.
Wilmington, Delaware 19898
Lynn Phillips
Graduate Assistant
University of Tenn.
Knoxville, Tenn 37920
Michael Pidatella
Stablex-Reutter, Inc.
Chemist
Nintlt and Cooper Streets
Camden, N.J. 08101
Lawrence Pittman, Jr.
Washington Manager for Marketing
Bermite Division Whittaker Corporation
Arlington, Va 22090
John Pizzella
Superintendent, PEPCO
1900 Penn. Avenue
Washington, D.C.
Bryan Porter
Staff Assistant
Congressman Paul Findley
2113 Rayburn Buidling
Washington, D.C. 20515
Roland Powell
Buffalo News
1286 National Press Building
Washington, D.C.
Gloria C. Rains
President
Environmental Confederation of
Southwest Florida
5314 Bay State Road
Palnetto, Florida 33561
Robert L. Rhodes, Jr.
Associate General Counsel
Holland and Knight Florida Phosphate
Council, P.O. Drawer BW
Lakeland, Florida 33802
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William F. Boeder
Ch±a£ Waste Disposal
E.P. Montgomery County
3413 Greentree Drive
Falls Church, Virginia 22041
C.F. Rolle
Program Consultant
DuPont Co., CR&D Dept.
D-6148, Wilmington, Del 19898
Weslie Hope Rosen
Director of Environmental Conservation
Task Force on Toxic Substances
New York Assembly
Legislative Office Building
Albany, N.Y. 12248
Wade Ruesell
Researcher
Congressman Bob Eckhardt
1741 HOB
Washington, D.C.
Frederic Sacks
Public Health Engineer
Department of Health and Mental
Hygiene, Environmental Health
Administration, 201 W. Preston Street.
Baltimore, Maryland 21201
E.W. Sanders
Environmental Engineer
Freeport Sulphur Company
115 Olympla Drive
Slidell, La 20458
Gary S. Santini
Allied Chemical
P.O. Box 1139R
Morristown, N.J. 07960
J.H. Sargent
Attorney
Thompson, Mann & Hutson
3430 1st National Bank Tower
Atlanta, Ga 30303
Keith Schiager
Consultant
Florida Phosphate Council
P.O. Box 860,
Lyons, Colo. 80540
Arnold Schiffman
Program Director
Maryland Water Resources Administratiot
Annapolis, Maryland 11401
John Serrell
Manager Planning: Development
Liqwacon Corporation
Norristown and Narcissa Road
BlueBell, Pa 19422
J.K. Shiver
Washington Representative
Diamond Shamrock Corporation
1629 K Street, N.W. Suite 600
Washington, D.C. 20006
Richard Shumaker
President, LICKE
400 Broad Street
Plainwell, Michigan 49080
Anne Sidbury
Project Coordinator
National Wildlife Federation
Project Coordinator
1412 16th Street, N.W.
Washington, D.C. 20036
Donald Simmons
Engineer-Environmental Control
National Steel Corporation
2800 Grant Building
Pittsburgh, Penn. 15219
Richard Singley
Supervising Engineer, Management
Services Division
Eastman Kodak
1669 Lake Avenue
Rochester, N.Y. 14560
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Michael Smith
Environmental Coordinator
The Goodyear Tire & Rubber Co.
1144 E. Market Street
Akron, Ohio 44315
T.G. Smith
Vice President
Southern Industries
P.O. Box 5108
Lakeland, Florida 33803
Warren N. Smith
Supervisor of Planning
Hillsborough Co.(Fla.)
P.O. Box 1110
Tampa, Florida 33601
Richard Sobel
Director , Environmental Services
Allied Chemical
Manufacturing Chemists Association
P.O. Box 1087R
Morristoen, N.J. 07960
Edward Snyder
Economist
Department of Justice
Washington, D.C. 20530
J.W. Spears, Sr.
Director, Liquid and Special Waste
Division, 900 Forie Blvd.
Oak Brook, 111 60521
William A. Speary
Environmental Consel
Browning-ferris Ind
P.O. Box 3151
Houston, Texas 77001
Vicky Stamas
Reporter
McGraw-Hill
441 National Press Building
Washington, D.C.
Carey Stark
Project Manager
Mississippi Chemical Corporation
P.O. Box 1517
Wauchula, Florida 33873
Sharon L. Steen
Attorney at Law
Debevoise & Liberman
1200 Seventeenth Street, N.W.
Washington, D.C. 20036
Walt C Studabaker, F.E.
Environmental Engineer
Association of American Railroads
1920 L. STreet, N.W.
Washington, D.C. 22308
Paul Susca
EPAPolicy Planning
Student Assistant
PM-221
401 m Street, S.W.
Washington, D.C. 20406
Robert Suzuki
Senior Environmental Specialist
Mobay Chemical Corporation
Penn Lincoln Parkway West
Pittsburgh, Pa 15205
David Tannozzinl
Traffic Engineer
City of Newton
1000 Commonwealth Ave
Newton, Mass 02162
Brain Taranto
Exxon Chemical Company
Florhan Park , New JErsey
07932
Elizabeth Tennant
Project Coordinator, Solid Waste Project
Environmental Action Foundation
724 Dupont Circle Building
Washington, D.C. 20036
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Carol W. Teuepaugh
Research Associace
OakRldge National Lab
Union Carbide Ornl., Bldg 4500-N
Oak Ridge, Tenn 37830
John Tonkovich
President & Treasurer
P.O. Box 208
Shadyside, Ohio 43947
Cynthia M. Traina
Research Planning Associates,
1901 L. Street, N.W.
Washington, D.C. 22036
Inc.
H. Neal Troy
Chairman, Solid Waste Task Force
National Association of Manufacturers
1776 F Street
Washington, D.C. 20006
James Vlllaume
Geologist/Geochemist
Environmental Management Section
Pennsylvania Power & Light Co.
Two North Ninth Street
Allentown, Pa. 18101
S. Daniel Ward
Staff Engineer
Radian Corporation
7923 Janes Branch Drive
McLean, Va 22102
William J. Way
General Motors
1660 L Street, N.W.
Washington, D.C. 20036
William C. Webster
3008 Potshop Road
Norristown, Pa 19403
Janet Weller
Attorney
Society of Organic Chemical
Manufacturers Association
Kleary, Gotlich, Steen and Hamilton
1250 Connecticut Ave
Washington, D.C. 20036
Timothy A Westerdale
President
General Oil Company, Inc.
12680 Beech Daly Road
Detroit, Michigan 48239
Ralph Weston
Partner, Dyer & Redford
1031 Petroleum Tower
Corpus Christ!, Texas 78474
J.C. White
Superintendent-Biological Operations
VEPCO
P.O. Box 26666
Richmond, Va 23261
H. B Williams, Jr.
Mission Manager, Water Quality and
Waste Mgt. T.F.
National Paint and Coating Association
P.O. Box 6021 1106M
Cleveland, Ohio 44101
Robert Wood
Assistant to Chief, AIG
U.S. NRC
Washington, D.C. 20555
John Woolsey
Research Chemist
International Fabricare Institute
12251 Tech Road
Silver Springs, Maryland 20904
PCJ 1809b
Drder No. 747
ft U S GOVERNMENT PRINTING OFFICE • 1979 291-603/6170
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EPA REGIONS
U.S. EPA, Region 1
Solid Waste Program
John F. Kennedy Bidg.
Boston, MA 02203
617-223-5775
U.S. EPA, Region 2
Solid Waste Section
26 Federal Plaza
New York, NY 10007
212-264-0503
U.S. EPA, Region 3
Solid Waste Program
6th and Walnut Sts.
Philadelphia, PA 19106
215-597-9377
U.S. EPA, Region 4
Solid Waste Program
345 Courtland St., N.E.
Altanta, GA 30308
404-881-3016
U.S. EPA, Region 5
Solid Waste Program
230 South Dearborn St.
Chicago, IL 60604
312-353-2197
U.S. EPA, Region 6
Solid Waste Section
1201 Elm St.
Dallas, TX 75270
214-767-2734
U.S. EPA, Region 7
Solid Waste Section
1735 Baltimore Ave.
Kansas City, MO 64108
816-3743307
•' oOGP,-"
2 »
U.S. EPA, Region 8
Solid Waste Section
1860 Lincoln St.
Denver, CO 80295
303-837-2221
U.S. EPA, Region 9
Solid Waste Program
215 Fremont St.
San Francisco, CA 94105
415-556-4606
U.S. EPA, Region 10
Solid Waste Program
1200 6th Ave.
Seattle, WA 98101
206-442-1260
1
Straat
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