SW47P
TRANSCRIPT
Public Meeting
on Policy Guidance Memorandum
for Permits for Solid Waste Disposal
Facilities in Waters of the United States
December 11, 1978, Washington, D.C.
This meeting was sponsored by EPA, Office of Solid Waste,
and the proceedings (SW-47p) are reproduced entirely as transcribed
by the official reporter, with handwritten corrections.
U.S. ENVIRONMENTAL PROTECTION.AGENCY
1979
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
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Public Meeting
on
Policy Guidance Memorandum
for
NPDES Permits for Solid Waste Disposal Facilities
In Waters of the United States
Waterside Mall
400 7th Street, S.W.
Washington, D.C.
Monday
December 11, 1978
1:15 p.m.
Panel Members:
Jeffrey G. Miller, Chairman
Deputy Assistant Administrator
for Water Enforcement
Swep T. Davis
Deputy Assistant Administrator
for Water Planning and Standards
Steffen W. Plehn
Deputy Assistant Administrator
for Solid Waste
Scott L. Slesinger
Attorney, Office of Enforcement
Curtis Clark
U.S. Army Corps of Engineers
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CONTENTS
SPEAKER
PAGE NO.
James King
Utilities Solid Waste Advisory Group
Adam Jaffa
Environmental Defense Fund
Elizabeth Dollard
National Solid Wastes Management
Association (NSWMA)
James Greco
Browning-Ferris Industries, Inc.
William DeVille
Governor's Office, State of Louisiana
H. Lanier Hickman, Jr.
Government Refuse Collection and
Disposal Association (GRCDA)
Ruthanne Gordon
National Wildlife Federation
Johnny J. Swilley
Terrebonne Parish Police Jury
State of Louisiana
William Gilley
Health Department
Commonwealth of Virginia
Eulin Guidry
Terrebonne Parish Police Jury
State of Louisiana
Edward Giroir
Terrebonne Parish Police Jury
State of Louisiana
Donald Andres
Consulting Engineer
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1 PROCEEDINGS
2 CHAIRMAN MILLER: Why don't we get started? We
3 are waiting for Steffen Plehn, but he is tied up.
4 I am Jeffrey Miller. I am Deputy Assistant Admin-
5 istrator for Water Enforcement. On my immediate left is
6 Scott Slesinger. He works for our Permits Division. On his
7 left is Swep Davis, who is the Deputy Assistant Administrator
8 for Water Planning and Standards. On his left is Mr. Curtis
9 Clark from the U. S. Army Corps of Engineers.
10 Under the existing Corps of Engineer regulations,
11 the discharge of solid waste materials for the primary
12 purpose of waste disposal is to be regulated under the
13 NPDES program, under Section 402 of the Clean Water Act.
14 In the event that a levee or other type of contain-
15 ment structure must be placed in the navigable waters as
16 part of the overall waste disposal plan, the Corps will
17 process a Section 404 permit for dredge and fill. However,
18 it has been the Corps' policy — and it is so enunciated
19 in its regulations — that it will not process a Section 404
20 permit application until EPA or a delegated State has made a
21 decision on the NPDES permit request.
22 Further, the proposed Section 4004 criteria under
23 the Resource Conservation Recovery Act requires the obtaining
24 of an NPDES permit for solid waste disposal site in a wetland
25 area. Without such a permit, solid waste disposers in existin
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i sites would be violating RCRA criteria and their sites could
2 be classified as an "open dump," and consequently, shut down
3 within five years.
4 This would be the case even if the State had a
5 State-approved site and State-approved procedures. The
6 Section 4004 criteria contains a strong presumption against
7 the issuance of an NPDES permit for new solid waste disposal
8 in wetland areas.
9 Therefore, at the request of representatives of the
10 waste disposal industry, EPA has developed a draft policy
11 guidance memorandum on the procedures to be followed in
12 obtaining an- NPDES permit. This Draft Guidance, the subject
13 of today's meeting, has been prepared by the Office of
14 i Enforcement with participation by the Office of Solid Waste
is and the Office of Water Planning and Standards.
16 It has been distributed to the industry and to
i? state representatives and printed in the Environmental
is Reporter, and additional copies are available at the registra-
19 tion desk.
20 We feel guidance is necessary because of the numer-
21 ous and complex factors to be considered when there is a
22 proposed disposal of solid wastes into wetland areas.
23 In the majority of cases, NPDES permits are issued
24 to industrial and municipal waste treatment processes.
25 Effluent guidelines are written to give guidance to permit
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writers on the limitations that particular industries must
achieve. If guidelines don't exist, as in the case here for
solid waste, the Agency must use its best judgment under the
authority of Section 402(a)(1) of the Clean Water Act to
set limitations on a case-by-case basis.
To do that the Agency must consider the factors
listed in Section 304(b)(1)(B), and these include the
engineering aspects of the application of various types of
control technologies, process changes, non-water quality
environmental impacts, and such other factors as the
Administrator deems appropriate.
The significance of wetlands, of course, cannot be
understated. Historically, swamps and wetlands were once
considered wastelands, undesirable, offensive, and not at all
picturesque. Later we learned that swamps and wetlands serve
a vital role in nature. They are essential to our lakes and
streams for purification and natural flood control.
They are a valuable public resource whose destruc-
tion would affect drainage characteristics, sedimentation
patterns, salinity distribution and other environmental
characteristics.
Wetlands serve important biological functions
through which natural water filtration processes serve to
purify water, and they obviously serve as propagation grounds
for many of our water species.
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i The irreversibility of alterations and the con-
2 sequent destruction of wetlands in the 48 contiguous States
3 is serious, and it continues. In the 1950's there was
4 estimated to be 120 million acres of wetlands. By 1976 that
5 figure was estimated to have dropped to only 70 million
6 acres and is decreasing at the rate of 300,000 acres a year.
7 The disposal of solid waste in wetlands may
8 unnecessarily alter or destroy them. Such effects should be
9 discouraged as contrary to the public interest. Therefore,
10 the Agency, in this draft document, has adopted a presumption
n of "no discharge" based on the Section 304(b)(l)(B) criteria
12 I mentioned earlier.
is However, it is understood that in certain areas,
14 there exists no reasonable eilternatives for sanitary landfill
15 other than a wetland. Therefore, the guidance document,
16 based on Section 304(b)(l)(B) and our regulations that allow
17 us to consider additional information and requiring an
18 alternate study for all proposed disposal sites in wetlands.
19 Though many commenters question our authority to .
20 require such a study, we believe our statutory support is
21 sufficient and in the best interest of the disposal industry
22 and the ecology of the wetlands.
23 such an approach is consistent with the President's
24 Water Policy Statement of June 9, 1978, when he said that the
25 Federal] Government should not conduct, support, or allow
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1 actions in floodplains unless there are no practical alter-
2 natives.
3 It should be noted that if there is an existing
4 site, the Draft Guidance does not require an alternative
5 study if the area has significantly been converted to dry land
6 and the management practices the Office of Solid Waste
7 requires for such facilities to protect against leachate
8 are followed.
9 It should be emphasized, nevertheless, that the
10 Draft Guidance is only a proposal which has not yet been
11 adopted. We looked for help to your statements today and
12 your comments on our authority, our requirements and our
13 procedures so that we may improve the Guidance.
14 In response to several requests for an extension of
is time period to comment and the Opportunity for a public
16 hearing, we have extended the comment period 70 days beyond
17 the original date to December 22nd, and have arranged this
18 hearing.
19 I would like to briefly explain the ground rules
20 for this meeting. It is an informal discussion which is
21 open to the public. Any person wishing to make a statement
22 is encouraged to do so, and we will facilitate an orderly
23 process to assure that all who wish to speak may.
24 Written statements are welcome today and after
25 this meeting. They may be addressed to Scott Slesinger at
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i the address shown in the public notice of today's meeting,
2 copies of which are also available at the registration table.
3 Although this is not a formal hearing, a transcript is being
4 prepared of the entire session.
5 Registration cards have been provided at the
6 registration desk. Those who notified us before today that
7 they wish to make a statement will be called on first. Others
8 wishing to speak will be given an opportunity following the
9 first round of statements.
10 Because of the size of the group, it is requested
11 that there not be interruptions. Rather, please note your
12 comments as the meeting progresses and bring them up sub-
is sequently.
14 With regard to questions, there will be available
is throughout the day an EPA staff member, who has been working
16 on the memorandum, and will be able to give you any background
17 you desire. We will not be able to address specific cases
18 nor address very detailed situations in this forum.
19 We are most interested to hear your comments
20 especially with regard to the general directions you believe
21 the Guidance should take. We recognize that more detailed
22 situations often point to unexpected difficulties, and I
23 urge you to bring those to our attention in writing.
24 Before proceeding, let me introduce Mr. Steffen
25 Plehn, whom we have all been waiting for, who is the Deputy
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1 Assistant Administrator for Solid Waste.
2 The first comment is from Mr. James King from the
3 Utility Solid Waste Activities Group.
JAMES J. KING, FLORIDA POWER AND LIGHT COMPANY
4 MR. KING: My name is James J. King. I am an
5 Environmental Coordinator for Florida Power and Light Company
6 in Miami, Florida.
7 I am appearing today on behalf of the Utility Solid
8 Waste Activities Group, the Utility Water Act Group, the
9 Edison Electric Institute, and the National Rural Electric
10 Cooperative Association. For purposes of this statement, I
11 shall refer to these groups collectively as the "Electric
12 Utilities."
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13 Among other issues, Electric Utilities are concerned
14 with the development and implementation of EPA regulations,
15 guidelines and policies that might affect, the treatment,
16 disposal and recovery of utility wastes, such as scrubber
17 sludge, fly ash and bottom ash.
18 EPA's Draft Policy Guidance concerning the discharge
19 of solid waste into waters of the United States may have a
20 direct impact on the treatment and disposal of utility wastes
21 in ash ponds and similar facilities, where the wastes are
22 transported by truck or other vehicles.
23 Since Electric Utilities plan to submit written
24 comments on the Draft Policy Guidance, I shall confine my
25 remarks to the high points of our submission.
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l Electric Utilities have several concerns with the
2 jurisdictional authority asserted by EPA under the Draft
3 Policy Guidance. First, we do not necessarily agree that
4 trucks or transportation vehicles constitute "point sources"
5 within the meaning of the Clean Water Act.
6 Second, as discussed in recent comments on the
7 proposed NPDES rules, we believe that EPA's definition of
8 "waters of the United States" is overbroad.
9 Third, and most directly relevant to the Draft
10 Policy Guidance, we are concerned that EPA's sweeping defi-
11 .nition of "waters of the United States" may encompass utility
12 treatment and disposal facilities such as ash and scrubber
13 sludge settling ponds.
14 These facilities represent conventional NPDES
15 "end of pipe" technology, yet they sometimes have been or
16 must be constructed in wetlands or by impounding an "inter-
17 mittent" or "wet-weather" stream, or a dry swell or depression
18 that might be classified as such. As a result of the Draft
19 Policy Guidance, such a facility might be subject to regula-
20 tion at the point at which waste is received, rather than at
21 the point from which effluent is discharged.
22 However, we submit that it is the discharges from
23 such facilities that should be and already are regulated by
24 the NPDES system, not discharges into the facilities. The
25 legislative history shows that Congress did not intend EPA
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to become involved in direct regulation of treatment tech-
nology or internal plant processes.
We believe that under the Draft Policy Guidance's
definition of "solid waste," most utility wastes would be
exempted since when discharged into such facilities, they are
"adequately controlled through conventional NPDES 'end of
pipe' technology."
Nonetheless, the Draft Policy Guidance should make
it clear that neither the NPDES program nor the Section 404
program applies to the discharge of wastes into plant treat-
ment and disposal facilities.
Another major concern with the scope of authority
asserted in the Draft Guidance is the indication in Footnote
2 that existing disposal facilities which had not completely
converted waters of the United States by October 18, 1972,
are subject to the NPDES program.
Electric Utilities submit that the disposal of
solid wastes on areas that have been converted to dry land
does not constitute a discharge into waters of the United
States and thus should not be subject to the NPDES permit
program.
In those cases where regulation of solid wastes
may be appropriate under the Draft Policy Guidance, Electric
Utilities are concerned that solid waste discharges which
cause fill would require both NPDES permits from EPA and
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dredge and fill permits from the Corps of Engineers. Such
dual regulation conflicts with the structure and language of
the Clean Water Act, its legislative history, and EPA's own
prior interpretation and policy.
The Water Act expressly exempts discharges of
dredged or fill material from coverage under the NPDES permit
program. However, since discharges of dredged or fill mate-
rial may have significant environmental impacts, Congress
gave EPA an important oversight role in the Section 404
program.
These responsibilities would be redundant if dual
permits under Section 402 and 404 were required. Such dual
regulation would contravene the national policy that EPA
avoid "needless duplication and unnecessary delays" in its
implementation of the Clean Water Act.
EPA itself consistently has taken the position that
the Corps of Engineers' jurisdiction under Section 404 does
not overlap with EPA's NPDES authority. We urge EPA to main-
tain this position in its final Policy Guidance on solid waste
discharges.
The procedural and substantive requirements for
issuing NPDES permits to solid waste disposal facilities
under EPA's Draft Guidance pose several problems, which 1
will simply mention now but which will be analyzed at more
length in our written comments.
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First, Electric Utilities question EPA's requirement
that the owner or operator of a disposal facility, rather than
the point source involved, must obtain an NPDES permit.
Second, Electric Utilities question whether the
requirement that alternative sites be analyzed is an appro-
priate factor to be considered under Section 304. Even
assuming that it is appropriate, we question whether EPA can
impose on permit applicants the task of carrying out such a
study. Moreover, practical realities make it imperative that
EPA, at the minimum, limit the scope of the alternative sites
and technologies that must be analyzed.
Third, Electric Utilities have several concerns with
* the best management practices approach taken in the Draft
Policy Guidance. We question EPA's authority to impose BMPS
except where ancillary to discharges subject to effluent
limitations.
We also question whether BMPS may be imposed on
the disposal area located "downstream" of the "point source"
(the transportation vehicle) being regulated. Finally,
several of the BMPS are directed at controlling leachate
contamination of groundwater, as to which EPA and the Corps
lack authority under the Clean Water Act.
Fourth, the Draft Policy Guidance fails to auopt
the proper substantive test and to make clear that the permit
issuer must consider all of the factors applicable under
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i Section 304(B) of the Water Act, including energy requirements
2 and non-water quality environmental impact.
3 Fifth, we question whether EPA can properly create
4 a presumption that no NPDES permit will be issued authorizing
5 new discharges of solid waste into waters of the United
6 States. In the absence of a rulemaking record, the burden
7 should be on EPA to justify a zero discharge limitation in
8 each case.
9 Sixth, Electric Utilities question whether existing
10 disposal facilities should be regulated as stringently as
11 new disposal facilities.
12 - Seventh, Electric Utilities are concerned by the
13 meaning of the term "substantially converted" that is used
14 throughout the Draft Policy Guidance. While this term may
15 be understandable with respect to municipal landfills,
16 where "cells" of land are filled incrementally, its meaning
17 is unclear in the context of utility treatment facilities
is such as ash or scrubber sludge ponds. Specifically, we are
19 concerned that an ash pond, which has not been completely
20 filled, may be deemed "not substantially converted" and
21 thus subject to possible closure.
22 . Finally, Electric Utilities urge EPA to make clear
23 that existing disposal facilities operating with NPDES or
24 Section 404 permits are not subject to the Policy Guidance
25 prior to the expiration of their current permits.
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1 Electric Utilities appreciate the opportunity to
2 submit these comments today, and will continue to follow with
3 interest EPA's efforts to develop and implement policies
4 relating to the storage, treatment, and disposal of solid
5 wastes.
6 With me today are counsel for the Utility Group
7 and one of our Technical Committee Chairman.
8 Thank you.
9 CHAIRMAN MILLER: Thank you, Mr. King.
10 Would anybody like to ask any questions?
11 (No response.)
12 CHAIRMAN MILLER: Mr. Adam Jaffe from the Environ-
13 'mental Defense Fund?
ADAM JAFFE, ENVIRONMENTAL DEFENSE FUND
14 MR. JAFFE: Thank you. My name is Adam Jaffe, and
15 I represent the Environmental Defense Fund. EOF is a nation-
16 wide organization of 45,000 citizens dedicated to rational
17 and efficient management of our natural resources.
18 Ever since the passage of the Federal Water Pollutio^
19 Control Act Amendments of 1972, the discharge of solid wastes
20 into the waters of the United States, unless specifically
21 allowed by a permit granted under some section of that Act,
22 has been illegal.
23 Nevertheless, such discharges have continued. Now,
24 six years later, EPA proposes to regulate such discharges
25 comprehensively for the first time. Needless to say, EOF
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i strongly supports this effort. However, we are sorry to see
2 that even now, under the proposed Policy Guidance Memorandum,
3 the illegal dumping of solid wastes into the waters of the
4 United States will, in many cases, not be controlled, but
5 rather be sanctioned by EPA through the issuance of an NPDES
6 permit.
7 In our view, the portion of the waters of the
8 United States which are of utmost concern with respect to
g disposal of solid wastes are wetlands and the associated
10 shallow areas of rivers, estuaries, and bays.
n While we are obviously not happy about the dumping
12 of solid wastes into deeper waters, wetlands and shallow
13 -areas are of particular ecological significance, and the
14 disposal of solid wastes in these areas not only pollutes
is them, but may destroy completely their biological functions
16 and will eventually lead to their complete removal as a part
17 of the overall aquatic ecosystem.
18 The particular significance of these areas has been
19 recognized in law and in public policy by EPA's 1973 wetlands
20 policy, the EPA and Corps of Engineers regulations under
21 Section 404 of the Act, and President Carter's Wetlands
22 Executive Order.
23 Our primary concern with the Draft Policy Memorandum
24 is that it appears to enunciaite a policy with respect to the
25 disposal of solid waste in wetlands which is less protective
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1 than the existing regulatory framework affecting other
2 activities in wetlands. If this memorandum becomes EPA
3 policy, EPA will be condoning destruction of wetlands through
4 disposal of solid wastes to a degree that would be considered
5 unacceptable and illegal if the destruction were to be
6 carried out for some other purpose.
7 We do not quarrel with the decision that disposal
8 of solid waste in the waters of the United States should be
9 regulated under Section 402 rather than Section 404 of the
10 Act. However, the environmental resource to be protected is
11 the same regardless of the regulatory mechanism to be
12 employed; therefore, the same substantive policy standard
13 must be applied with respect to the destruction of wetlands
14 as would be applied under Section 404.
15 in other words, there is no legal or substantive
16 reason why, on the one hand, we should prohibit the discharge
17 of fill material in wetlands unless the associated activity is
18 one, water dependent, and, two, there is no permanent unac-
19 ceptable disruption to the affected aquatic ecosystem, unless
20 we intend to apply the same standard to disposal of solid
21 waste in wetlands.
22 In our view, the application of this substantive
23 standard would lead to a clear EPA policy prohibiting t^e
24 permitting of disposal of solid wastes in wetlands.
25 The Draft Guidance Memorandum makes a distinction
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i between waters of the United States "which have already been
2 converted or substantially converted into a dry area" and
3 all other waters.
4 We would agree that if a wetland area has been
5 filled with garbage to the extent that a functioning aquatic
6 ecosystem is no longer present, then continued disposal of
7 solid wastes should be permitted, so long as it does not
8 encroach further on the aquatic ecosystem, and does not
9 adversely impact water quality.
10 However, we would point out that, to the extent
11 that the waters have been "converted" since 1972, such con-
12 version was blatantly illegal.
13 As a practical matter, we recognizes that redress
14 of this wrong is probably not possible. However, to prevent
15 continued encroachment on the waters of the United States
16 (which might in fact be encouraged by the knowledge that
17 continued disposal will soon be permitted only in areas that
18 have been already "converted"), we would urge EPA to allow
19 continued disposal of solid waste only in those wetlands
20 which have been "converted" as of August 23, 1978, when the
21 Draft Memorandum was published.
22 In place of the interim and final permit mechanisms
23 suggested by the memorandum, we would suggest the following.
24 EPA should declare publicly, effective immediately, that any
25 continued discharge of solid waste into wetlands which
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currently function in any way as an aquatic ecosystem is
illegal and will be subject to the enforcement provisions of
the Act. We would note that this is nothing new, and should
have been the case since 1972.
Facilities which are discharging solid waste into
areas which were substantially converted to dry land (and
therefore do not support an aquatic ecosystem) on or before
August 23rd may apply for, and should be issued, NPDES permits
which will allow the continued discharge into these converted
areas, so long as no adverse water quality impacts result.
In our view, the requirement for the alternatives
study is not necessary, because continued discharge into
previously converted areas should be permitted, subject to
conditions, and discharge into functioning wetlands should
not be permitted.
If some party, either the operator of an existing
facility or someone contemplating a new facility, can demon-
strate in a specific case that a proposed disposal into a
functioning wetland area would meet the requirements of
the existing substantive wetlands policy, that is, there is
no alternative to wetlands disposal and no permanent un-
acceptable disruption of the affected aquatic ecosystem
will result, they could apply to EPA for a 402 permit fr „- this
discharge.
The burden of proof should be squarely on the
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i applicant to prove that violation of this wetlands policy
2 would not result.
3 Given the existence of previously converted areas,
4 upland areas, and proven technologies for recycling and
5 resource recovery with respect to solid wastes, and the fact
6 that disposal of solid wastes in a wetland system would
7 almost inevitably result in adverse ecological impacts, EPA
8 should make it very clear that it is unlikely that this
9 burden of proof would ever be carried satisfactorily.
10 If this approach is properly implemented, disposal
11 of solid waste will belatedly be subject to the same restric-
12 tions on ecological destruction as have been implemented for
is other activities. However, we should not kid ourselves that
n the regulation of "facilities" will end the unregulated
15 disposal of solid waste in the wetlands.
16 As often as not, such disposal is not at a
17 "facility," but consists instead of a truck going off the
is road in a swampy area and unloading, with or without the
19 tacit consent of the owner of the land. Such an action is
20 already illegal, but that does not mean that it does not
21 occur.
22 if EPA is serious about controlling the discharge
23 of solid waste into wetlands, a strong enforcement progrrm
24 capable of impacting this type of activity will be needed.
25 The legal mechanisms to carry out such a program exist; all
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i that is needed is the effort and commitment.
2 In summary, the basic issue before us today is
3 whether or not to continue to condone the destruction of
4 wetlands via solid waste disposal in spite of our knowledge
5 of their tremendous ecological importance and the existence
6 of a legal mechanism to control it. I believe that the people
7 of this country are ready to halt this destruction, and I
8 urge EPA to act swiftly to do so.
9 Thank you for the opportunity to speak, and I
10 would be happy to answer any questions.
11 CHAIRMAN MILLER: Do we have any questions?
12 (No response.)
13 CHAIRMAN MILLER: Thank you.
14 Ms. Libby Dollard from the National Solid Wastes
15 Management Association?
ELIZABETH DOLLARD, NATIONAL SOLID WASTES MANAGEMENT ASSOCIATIO]
16 MS. DOLLARD: Good afternoon. I am Elizabeth
17 Dollard with the National Solid Wastes Management Association.
18 We are here today to discuss a Policy Guidance
19 Memorandum drafted by the U. S. Environmental Protection
20 Agency advising operators of sanitary landfills in wetland
21 areas how they can comply with the requirement that they
22 obtain an NPDES permit under Section 402 of the Clean Water
23 Act.
24 Before we comment on this Policy Guidance Memo-
25 randum, we would like to review the sequence of events that
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1 led to the drafting of this document. In February 1977, in
2 response to an inquiry from the Environmental Defense Fund,
3 the General Counsel at EPA indicated that: "The disposal
4 from a vehicle of solid wasste such as garbage into wetlands
5 or other waters of the United States constitutes a discharge
6 of pollutants from a point source."
7 The letter indicated that the truck was a "point
8 source" within the meaning of the Clean Water Act and that
9 wetlands are included in the definition of waters of the
10 United States. The practice of discharging garbage from a
11 truck into a wetland would, thus, require an NPDES permit
12 ^under Section 402.
13 The letter also noted that: "The process of fill-
14 ing wetlands with dredged or fill materials or with other
15 solid waste may remove such areas from jurisdiction under
16 the Federal Water Pollution Control Act. A wetland that has
17 been filled may thereby become an upland area, and no
18 longer be considered waters of the United States, although
19 the time in which this takes? place will depend on the circum-
20 stances of the particular Ccise."
21 Further, it was stated that, to the extent that
22 landfilling creates a fastland, the fill may be required to
23 obtain-a 404 permit from the Corps.
24 in July of 1977, a memorandum from the Deputy
25 Assistant Administrator for Water Enforcement of the U. S.
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i EPA reiterated the point made by the General Counsel back
2 in February: "The disposal of solid waste such as garbage
3 into wetlands or other waters of the United States is an
4 unlawful discharge of pollutants unless permitted under
5 Section 402."
6 Further, a landfill in a wetland would likely be
7 required to obtain a 404 permit for the construction of
8 containment structures in the wetland.
9 In July of 1977, the U. S. Army Corps of Engineers
10 issued final regulations which related in part to permits
n under Section 404 for dredge and fill activities. That
12 document made official regulation the policy outlined by the
13 memoranda issued earlier by officials of EPA.
14 In the supplementary information section of those
15 regulations, the Corps noted: "During the two years of
16 experience with the Section 404 program, several industrial
17 and municipal discharges of solid waste materials have been
is brought to our attention whicii technically fit within our
19 definition of 'fill material' but which were intended to be
20 regulated under the NPDES program. These include the disposal
21 of waste materials such as sludge, garbage, trash, and debris
22 into water."
23 The Corps notes that when the primary purpose of
24 the discharge is waste disposal, the discharge should be
2f> regulated through the NPDES program. The Corps thereby
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i excluded solid waste or garbage from its definition of fill
2 material. They note, however, that Section 404 permits
3 would still be required foir the containment structures.
4 Finally, no action would be taken on the 404 permit
5 'until "a decision on the NPDES permit has been made."
6 In August of 1978, EPA proposed revisions to its
7 NPDES program, which in part would revise its program to
8 conform to the policy articulated by the Corps in July of
9 1977.
10 . Meanwhile, in compliance with the Resource Con-
11 servation and Recovery Act of 1976, Section 4004, the Office
12 of Solid Waste at EPA was developing criteria for classifica-
13 tion of land disposal facilities and elected to address in
14 the criteria certain kinds of "environmentally sensitive
15 areas."
16 Wetlands were chosen as one such environmentally
17 sensitive area because "EPA feels these areas are natural
18 assets (have beneficial qualities) which are not adequately
19 protected by the six other criteria."
20 Consequently, in those criteria, EPA states that a
21 sanitary landfill should not be located in a wetland unless:
22 First, the facility obtains an NPDES permit; and, secondly,
23 if there is a containment structure, that it obtain a pernit
24 under Section 404.
25 In August 1978, the EPA Enforcement Office drafted
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a Policy Guidance document explaining how a landfill operator
can apply for an NPDES permit for a landfill in a wetland.
This Policy Guidance was developed in response to requests
from several groups, including the National Solid Wastes
Management Association, who were critical that although
landfill operators were required to get a 402 permit, there
was no procedure by which these permits could be obtained,
and further, it was not clear to landfill operators where
the point source is in a landfill.
In this Policy Guidance Memorandum, however, EPA
did not seem to be primarily addressing the question of the
discharge of pollutants into the water. They stated that
"Solid waste is not susceptible to the same kind of treatment
technology traditionally applied to industrial effluent waste
streams. We are not dealing with a waste stream that can be
treated to reduce the amount of pollution entering the waters
of the U. S. A decision to allow a discharge of solid waste
would have an irreversible adverse effect on the waters of
the U. S., i.e., the elimination of these waters."
In other words, what EPA is regulating here is not
the transmission of polluted materials into the waters but
the protection of wetlands. The NPDES permit, then, is being
used to prevent the filling of wetlands.
It should be recognized that a responsible landfill
operator is not likely to site a new sanitary landfill in a
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1 wetland unless there is no economically feasible alternative
2 in accordance with Section 4004 of RCRA,.
3 In reviewing this brief history of this issue, it
4 appears that what may have: been an attempt to achieve con-
5 sistency in regulations between the Permits Division at EPA
6 with the Office of Solid Waste at EPA and the U. S. Army
7 Corps of Engineers has instead resulted in the evolution of
8 a policy that runs far afield of the original problem.
9 The development of this policy is akin to a doctor
10 treating a sprained wrist with a cast and then adding succes-
11 sive layers of plaster long after the sprain has healed.
12 We should all reexamine the purpose of the wetlands
13 policy. If we go back to the beginning and look at the state-
14 ment made by the General Counsel, it appears that an attempt
15 was made by the environmental agency to protect wetlands
16 from the promiscuous and uncontrolled dumping of garbage
17 directly into waters or wetlands.
18 Control of such a. practice through the NPDES
19 program has a certain logic? a truck is a point source when
20 it is dumping garbage, which contains pollutants, directly
21 into a wetland which is a water of the United States.
22 And yet somehow from this rather singular concern
23 /has mushroomed a federal policy which makes a presumptio-<
24 against any kind of a landfilling operation in a wetland
25 regardless of the actual transmission of pollutants to the
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1 water. This purpose seems contrary to what we perceive as
2 the purpose of the NPDES program, namely the prevention of
3 discharge of pollutants into the water.
4 It is certainly more cost effective for the land-
5 fill operator to establish a site in an area that is already
6 dry. However, as you know, in some parts of the country,
7 notably the Southeastern United States, much of the land area
8 is wetland, and there may, in fact, be no alternative to a
9 wetland as a landfill site.
10 Also, we recognize that many years ago before the
il environmental value of wetlands was recognized, landfills
12 ^were established in wetland areas, and today some of these
13 old facilities are still being operated.
14 In good operating practice, the developer of a
15 landfill in a wetland, as his first step, will build a con-
16 tainment structure or dike and dewater the area. Such
17 structures require a 404 permit. It is only after the area
18 I has been filled in with dirt or made dry that the operator
19 will begin to put garbage in the site.
20 In other words, he is not putting garbage in the
21 water; he is putting it in a land area that may have at one
22 time met the definition of a wetland but is no longer wet.
23 It should be noted that, in his February 9th letter,
24 the General Counsel of EPA stated that the process of filling
25 wetlands with materials such as solid waste may make the
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i wetland into a fastland and thus remove the area from juris-
2 diction under the Water Act.
3 It is our contention that in a situation such as
4 this/ when dewatering takes place, the 404 permit may be
5 applicable, but once the nature of the land is changed,
6 the NPDES is no longer applicable.
7 In simple language, it is difficult to design a
a permit which will prevent the pollution of water where there
9 is no water. In those landfills designed with a leachate
10 treatment and collection system, where there would be a
11 discrete point discharge into a stream, we would certainly
12 agree that the NPDES permit would be applicable for that
13 point source.
14 However, it should not be assumed that all landfills
15 in wetlands have a point source discharge. Furthermore, it
16 should be clear that the nescessary permits should be applied
17 for and issued in a logical sequence, which is the reverse of
18 the procedure required by the Corps.
19 We believe, in other words, that the 404 permit
20 should be required for the preliminary construction activity;
21 once the facility is built and a discrete point discharge
22 has been identified, then, and only then,, would the 402 permit
23 be required.
24 In the Policy Guidance Memorandum, EPA has switched
25 the focus of the NPDES program from the prevention of water
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i pollution to the protection of wetlands. We contend that the
2 Agency has no statutory authority for such an action.
3 While the indiscriminate destruction of wetlands
4 is certainly a practice to be avoided, wetlands are not the
5 only environmental resource, and who is to say that they are
6 the primary environmental resource to be protected?
7 A key point which seems to have been lost in this
8 entire procedure is that sanitary landfills should not
9 automatically be placed in a class with industrial dischargers
10 Sanitary landfills provide an invaluable environmental service
11 Properly operated, they provide disposal of the waste in an
12 environmentally sound manner so that the public is protected
13 from exposure to pollutants.
14 The sanitary landfill criteria currently being
15 developed by EPA establish strict standards for the prevention
16 of pollution of ground water, surface water, and air, and
17 for protection against fires, explosive gases, and disease
is vectors.
19 Every state, in order to have a program which is
20 approved by EPA, must adopt standards at least as strict.
21 Additionally, states currently have regulations specifying
22 operational standards for sanitary landfills. And, further-
23 more, where there is a discrete point discharge into surface
24 water, the federal NPDES permit is applicable.
25 In other words, there is adequate authority to
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i assure that all sanitary landfills,including those in wet-
2 lands, are not a threat to public health or the environment.
3 What is in question here is whether EPA has the authority to
4 use the NPDES program as a protection of the wetlands, and
5 we contend it does not.
6 NSWMA urges the EPA to stop the issuance of a
7 final Policy Guidance Memorandum until there is a resolution
8 of the central issue of whether the 402 permit is required.
9 We believe the Corps of Engineers should reevaluate their
10 position on requiring a 402 permit for a landfill in a wet-
11 land prior to their consideration of the 404 permit.
12 We see no justification for the Corps of Engineers
»
13 to exclude solid waste as one of the fill materials they
14 regulate. We think that regardless of the purpose of filling
15 in a wetland, the, net result is the same. It should not be
16 assumed, in other words, that solid waste is necessarily more
17 polluted than other materials put into a wetland. For example
18 materials dredged from the bottom of a polluted river and
19 dumped into a wetland could contain materials far more toxic
20 than municipal refuse.
21 We are supportive of the provision in the 1977
22 Clean Water Act Amendments, which enables states to take over
23 the 404 permit process from the Corps, with the approval of
24 EPA. We encourage EPA to establish procedures for transfer-
25 ring 404 permit authority to the states; we will encourage
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1 states to seek this authority. The:integration of the permit
2 process, preferably at the state level, will help to assure
3 both that the environment will be protected and that permits
4 can be issued expeditiously.
5 Further, we feel that the sanitary landfill criteria
6 under Section 4004 of RCRA should not require a 402 permit
7 for every landfill in a wetland. 402 permits should be
8 required for all landfills with a point source discharge,
9 but the location of the landfill in a wetland is not relevant
10 there.
11 NSWMA appreciates the opportunity to address the
12 EPA and the Corps today regarding the proposed NPDES process
13 "for landfills in wetlands. We recognize that this issue is
14 extremely complex and has far-reaching impacts.
15 We urge you to take the time to seek a solution
16 which is consistent with the mandate of existing environmental
17 legislation. We want to assure that the environment is
18 protected, and that concern for one segment of the ecosystem,
19 such as wetlands, doesn't cloud our perspective on all other
20 aspects of environmental protection.
21 CHAIRMAN MILLER; Are there questions?
22 MR. DAVIS: I have two short questions just for
23 clarification.
In your comments, at a couple different points, you
(JC
made mention of the fact that it generally is or would be
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1 more cost effective to create a landfill in an upland or
2 fastland area as opposed to a wetland, but also indicated in
3 a few sentences later that there would be the concern that,
4 in some cases, this alternative simply doesn't exist in
5 areas where there may not be any fastlands or dry lands
6 available.
7 The implication from that is that your concern is
8 not so much with the fact that there may be a consideration
9 of alternatives in evaluating whether a landfill should be
10 established in a wetland area, but rather whether or not that
11 consideration recognizes the fact that sometimes the wetland
12 is the only alternative; and, secondly, more of a question of
is under which authority should this consideration take place,
14 402 or 404.
15 Is that a correct interpretation of what you are
16 saying?
17 MS. DOLLARD: Our concern is that the process of
18 filling in a wetland for solid waste should be regulated under
19 404. I am not sure I understand exactly what you are asking
20 me in the first part of the question.
21 MR. DAVIS: Well, you implied that it is not so
22 much that you are concerned that we consider the alternative
23 of a dry land as opposed to a wetland disposal area.
24 MS. DOLLARD: It seems logical that you would ask
25 to look at alternatives. Landfill operators certainly would
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i be evaluating those alternatives. What we take issue with is
2 the use of the 402 permit.
3 MR. DAVIS: As opposed to 404?
4 MS. DOLLARD: That is correct.
5 MR. DAVIS: Okay. The other question has to do
6 with you used the word "pollution" several times throughout
7 your comments. Can you give a definition of what you mean by
8 "pollution?" Are you taking the definition straight from the
9 Act, from the Clean Water Act, or are you using some other
10 definition?
11 MS. DOLLARD: I would hope I am using the same one
12 ^that is in the Clean Water Act.
13 MR. DAVIS: Okay.
14 CHAIRMAN MILLER: Thank you.
15 Mr. James Greco, Director of Government and Industry)
16 Affairs, Browning-Ferris Industries? 1
JAMES GRECO, BROWNING_FERRIS INDUSTRIES !
17 MR. GRECO: My name is Jim Greco. I am with
18 Browning-Ferris Industries. My responsibility with Browning- j
19 Ferris is to direct what we call our Government and Industry
20 Affairs Department, which is responsible for trying to under-
21 stand and reviewing the federal and state legislation regula-
22 tions.
23 in late August/early September, an August 23rd
24 Draft Policy Memorandum regarding the "applicability of the
25 NPDES program to facility operators who dispose of solid
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i waste in wetlands and other waters of the United States" was
2 distributed for review and comment to a limited number of
3 interested parties.
4 On October 16th, comments prepared by Browning-
5 Ferris Industries were forwarded to the U. S. EPA. In the
6 November 16th Federal Register issue, EPA announced that it
7 would hold this public meeting. We feel it important and
8 noteworthy to recognize the Agency's decision to solicit
9 greater public participation and input regarding the Draft
10 Police Memorandum and alternative approaches for permitting
11 solid waste disposal facilities located or planned to be
12 located in wetland areas.
13 . Such public participation — even when not statu-
14 torily required and also when outside of the formal rule-
15 making process — can only enhance, in our opinion, sounder
16 Agency decision-making, more practical policy formulation,
17 and increased public understanding for the environmental
18 protection of our nation's waters, land, and public health.
19 We acknowledge the Agency's mandate pursuant to
20 the Clean Water Act and its amendments to restore and main-
21 tain the chemical, physical, and biological integrity of the
22 nation's waters.
23 We also recognize the objective of the Resource
24 Conservation and Recovery Act of 1976 to prohibit future open
25 dumps on the land and to require the conversion of existing
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open dumps to facilities which do not pose a danger to the
environment or to health.
It is our understanding that regulations to be
promulgated under Section 4004(a) of Public Law 94-580 will
establish criteria for determining which solid waste disposal
facilities shall be classified as sanitary landfills and which
shall be classified as open dumps.
As you are likely aware, we have commented exten-
sively on, and expressed concern about, the proposed 4004(a)
criteria, particularly with respect to locating facilities
in environmentally sensitive areas, and the requirement that
•a facility obtain an NPDES permit under Section 402 of the
Federal Water Pollution Control Act Amendments of 1972 or
otherwise be classified as an "open dump."
We have previously questioned both the legality
and the practicality of this requirement and continue to do
so. Again, as in our past comments, reference is made to the
Prick letter of February 9, 1977, wherein it is noted that an
NPDES permit is not required unless it can be shown that there
will be garbage actually deposited on "wetlands" or a dis-
charge of leachate from the site into "wetlands."
If garbage is actually deposited or leachate
actually discharged into waters of the U. S., we feel me iy
would concur that these practices would and should constitute
"open dumping," be prohibited via the 4004(a) criteria, j
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i and/or require an NPDES permit for these practices.
2 We suspect that in presenting these viewpoints,
3 it is important that you recognize that we feel that a
4 "wetlands area" is not always a "wetlands area." In other
5 words, there may be an occasion when needs dictate the
6 development of a new sanitary landfill in what was formerly
7 a wetlands area periodically inundated with water, for
8 example, in southeastern Louisiana.
9 However, we feel that an appropriate site develop-
10 ment plan should require that the disposal area be first
n converted from a "wetland" into a "dry land" or "fastland,"
12 then constructed as a solid waste disposal facility with
13 appropriate design features and best management practices so
14 as to preclude any discharge of pollutants from the site
15 directly into waters of the U. S. and adjoining property not
16 converted into "fastlands."
17 In this example, it would be logical to require:
18 one, a 404 permit for "filling" the wetland, thus making the
19 area no longer a "wetland" — I am not referring to filling
20 by solid waste either — and, two, a state solid waste
21 disposal permit incorporating the federal "sanitary landfill"
22 criteria.
23 Thus, it is our- opinion that the current August 23rd
24 Draft Policy Memorandum, while appropriate and applicable
25 for controlling discharges of solid wastes into waters of the
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U. S., is neither appropriate nor practicable for locating
sanitary landfills in former wetlands areas after those areas
have been converted into fastlands.
As an alternative approach, the Agency might consid-
er the following: One, for open dumps: Renaming, rewording,
and then applying the August 23rd Draft Policy Memorandum
"NPDES Permits for Open Dumps in Waters of the United States,1
thereby assuring a process for the protection against the
discharge of pollutants into waters of the U. S. until the
effective application of the 4004(a) criteria, complete clas-
sification of solid waste disposal facilities, and the
prohibition of open dumping.
Secondly,for sanitary landfills: To be located in
wetlands areas, utilize the 404 permit process for converting
the area into a fastland, then employing the appropriate
state agency permit process for the design, construction,
operation, monitoring, and maintenance of solid waste
disposal facilities. With this procedure, we feel it impor-
tant that the most appropriate state agency be the "lead
agency" regarding permit application for the entire process.
Commensurate with these suggestions, but necessarily
part of another rulemaking process, we again reiterate our
concerns regarding Section 257.3-1 (a) (1) of the propose;.
4004(a) criteria, and recommend deletion of the requirement
for a facility to obtain a 402 NPDES permit.
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1 We sincerely fe«l these recommendations warrant
2 consideration and that thesy are within the Agency's legal
3 authority, consistent with Congressional mandates, and in
4 pursuit of our nation's environmental goals.
5 As in any decision-making process, questions may
6 arise regarding the interpretations and understandings as
7 perhaps I see them or we see them, and I would be happy to
8 answer questions at this forum or at another, or respond
9 further to any comments.
10 CHAIRMAN MILLER: Are there questions?
11 (No response.)
12 CHAIRMAN MILLER: Thank you, Mr. Greco.
13 Mr. William DeVille from Governor Edwards' Office,
14 Louisiana?
WILLIAM DE VILLE, STATE OF LOUISIANA
15 MR. DE VILLE: Thank you. Forgive me, I am going
16 to start out a bit bluntly. From Louisiana's perspective,
17 we must wonder if EPA understands very much about either
18 solid waste or wetlands, or whether we are engaged in a
19 semantic exercise without any very clear analysis of the
20 subject or the purpose of the proposed Policy Guidance.
21 We question the premise for the requirement of
22 NPDES permits on solid waste facilities in wetlands and,
23 therefore, for the regulatory proposal in the first instance,
24 We would question the apparent continuation of that intent
25 in both the February 6th proposal of the federal criteria
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for the classification of solid waste disposal facilities
and the Policy Guidance Memorandum.
I would like to ask that the comments previously
submitted by the State of Louisiana on the criteria and on
the Policy Guidance Memorandum be entered into this record.
We find the NPDES permit requirement problematic
and a cause of serious concern for the following reasons:
First of all, we believe it is unnecessary. Other federal
and state laws, including RCRA and including the Coastal
Zone Management Act which has been enacted at the state
level by my own state this year, provide a better basis, we
believe, for the actual decision making which should be
conducted as to siting and land use decisions.
Indeed, clearly we have at the core of the concern
here a question of land use decision making and the rules for
it, as well as the purpose for it. In that light, we think
that EPA's own role in the regulatory reform implementation
should involve a careful consideration as to the need for the
NPDES permit implementation, and we would argue that it is
not necessary.
Again, we find that it is ambiguous so far as we
can determine in looking at the definition of "wetlands."
Our problem is what are the boundaries, if any, of the
definition? Where, in short, in Louisiana are not the wet-
lands but the fastlands, because the potential application
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i of the definition, as proposed in the Policy Guidance Memo-
2 random, is extremely open-ended from our perspective. It
3 covers, we think, potentially in excess of 75 percent of our
4 state's land area in which we live and conduct our affairs,
5 and, therefore, must make waste management decisions.
6 We think it contains no rational or practical basis
7 for the management of wetlands, and, hence, no basis for
8 decision-making, and, again, that is the core of concern.
9 It doesn't seem to be a pollution control measure, but a
10 wetlands protection or land use premise.
11 Again, we find that the premise doesn't seem to
12 have any explicit analysis or development. We find that it
13 would tend to preempt state and public decisions, which are
14 clearly necessary for the implementation of RCRA in Louisiana.
15 The heart of that implementation obviously is the siting
16 question.
17 We are concerned ctbout, in that light, some un-
18 fortunate effects. We think if this Policy Memorandum were
19 to be effectuated, that the impact in many areas of our state
20 would be to make it far more difficult to improve solid
21 waste management decisions, and particularly siting decisions,
22 while placing a premium on the maintenance of open dumps
23 already in existence and very hard to close, if no good
24 alternatives, which may have to be in wetlands'., can be
25 developed in any realistic time frame.
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We see no reason for a federal NPDES permit. If,
however, any permit is required under 92-500 — and we think
this is appropriate — surely, the 404 permit alone could
provide for the purposes of wetlands protection so far as
they are spelled out and readily understandable to all
6 parties.
7 We question EPA's information about our understand-
ing of wetlands1 management needs in Louisiana. I must
emphasize this. We have repeatedly observed to EPA that
10 II there are various types of wetlands with quite differing
n II values, uses, and productivities, and, therefore, quite vary-
12 || ing and different fragilities and management needs.
13 II * We don't think the generic term "wetlands," partic-
14 || ularly as ambiguously as it is proposed here, is particularly
15 II enlightening as to how we should operate our affairs or how
16 j| anyone can make decisions.
The State of Louisiana does give significant atten-
18 II tion to the management of the wetlands in which we live, and
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we have, in fact, acquired or placed under management many
thousands of acres of wetlands as wildlife habitat. We do
support the provision of guidance supportive of state con-
sideration of wetlands1 management needs in the RCRA 4004
criteria, but we repeat the statement that we are opposed
to the NPDES permit requirement as stipulated in the
proposed 4004 criteria or the Policy Guidance Memorandum.
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i One of our concerns is that we hear that EPA has
2 no capability and, indeed, no resources sufficient to make
3 the kind of case-by-case decisions presupposed in the
4 Policy Guidance Memorandum, nor do we think the processes
5 that are set forth in the memorandum do generate a proper
6 basis for decision-making.
7 The requirement which may, indeed, be rather
8 onerous and costly on the permit applicant to generate
9 alternative studies and still more alternative studies may
10 be a mere paperwork ritualism in the context of many land
11 areas in the state of Louissiana where local government has
12 no options outside of a general wetlands area for disposal.
is We were pleased to see the Policy Guidance Memo-
14 randum recognize the fact that there are areas of the
15 country, including Louisiana, which have very large areas
16 of wetlands. We find it difficult to understand why the
17 processes for decision-making set forth totally ignored
is state government or local government, and why the RCRA
19 planning process was totally ignored, and, finally, why the
20 Coastal Zone Management Act, which is intended to support
21 a program and rationale for land use decisions in coastal
22 areas, was also ignored.
23 in short, I will repeat the NPDES permit requi^.3-
24 ment, we think is not justifiable, nor does it serve the
25 purpose of encouraging either protection of the wetlands
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l or improved solid waste management, particularly in areas
2 such as the State of Louisiana.
3 Thank you.
4 MR. DAVIS: I would like to clarify one or two
5 things you were saying in regard to the coastal zone manage-
6 ment plans and their relationship to this problem. Is it
7 your position that in the case where a coastal zone manage-
g ment plan exists, which addresses the siting of dumps for
9 disposal of solid waste, that any policy that did exist or
10 does exist regarding either 402 — not to prejudge the
11 outcome of this Guidance — but let's just assume either
12 case, either the use of 402 or 404 permits to deal with
13 those situations, that one aspect of that policy should be
14 that that policy should be consistent with the CZM plan?
15 MR. DE VILLE: I think that would be the require-
16 ment of the law, yes.
17 MR. DAVIS: Is the contrary also true, do you think?
18 MR. DE VILLE: I do not think it is true on the
19 contrary.
20 MR. DAVIS: In the sense that a CZM plan should not
21 be in conflict with other legislation?
22 MR. DE VILLE: I think that we are going to find
23 a lot of interesting cases because of the complexity of
24 existing regulations and statutory authorities, federal and
25 state.
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MR. DAVIS: You don't have a written text, so I
may have not understood one point you made. But you did
indicate, I thought, at least some feeling that the 404 permit
was the more appropriate mechanism for dealing with this
as opposed to the 402 permit, is that correct?
MR. DE VILLE: That is correct. For one thing,
the 404 permit decision process in wetlands is in place.
That is not the case with regard to EPA's development of this
new area of decision-making.
MR. DAVIS: A final question is how would you, in
a case where a 404 permit decision were to be reached that
would, say, deny the specification of a given area for pur-
poses of a dump, how would you reconcile that with some later
development of, say, a CZM plan which might have indicated
that was a preferred area for a dump location?
MR. DE VILLE: I think the CZM plan really should,
in the final analysis, be the more powerful decision-making
tool. I believe that was the intent of the Congress in
involving both state and local government.
MR. DAVIS: How would you reconcile that with the
language which is in the Coastal Zone Management Act, which
implies that CZM plans should, in fact, not be in conflict
with other legislation?
MR. DE VILLE: I think that is no particular problem
We are going to, as I say, find that the complexities are
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i going to cause a very interesting decision to be made. I
2 think in terms of management and sound decision-making, we
3 are going to have to cut the Gordian knot every now and then
4 on this sort of thing. Therefore, there may be a strict
5 legalistic requirement for the NPDES. I think that is debat-
6 able, and I would argue against it. But I think we have to
7 get down to the premise of good judgment.
8 MR. DAVIS: Just one last point if you have a
9 comment on this. My concern or my interest is in many cases,
10 the Coastal Zone Management Plan may not get down to the
11 specificity of individual sites, of evaluations of the values
12 of a given wetland area.
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13 MR. DE VILLE: I don't think it should.
H MR. DAVIS: Well, in that case, then, how would you
15 round out the analysis needed to make a sound decision on
16 a disposal site location?
I? MR. DE VILLE: I would argue for an interface
18 between the RCRA plan development and the kind of siting
19 decisions which must be made there, and the CZM general
20 decisions on land use.
21 MR. DAVIS: How would the 404 evaluation, if you
22 preferred that over 402, how would that fit into that situa-
23 tion?
24 MR. DE VILLE: That is going to be a complexity,
25 but we do recognize its need.
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1 MR. DAVIS: Okay.
2 CHAIRMAN MILLER: Thank you, Mr. DeVille.
3 Mr. Lanier Hickman, Jr., Executive Director of
4 Government Refuse Collection and Disposal Association?
LANIER HICKMAN, JR., GRCDA
5 MR. HICKMANi GRCDA is pleased to have an oppor-
6 tunity to comment on EPA's proposed policy relative to the
7 Clean Water Act NPDES program of solid waste disposal
8 facilities,
9 We are vitally concerned with the form of this
10 policy because it will have a direct impact on the membership
11 of GRCDA and the millions of Americans that our membership
12 serves. The majority of the membership of GRCDA are line
13 'managers of solid waste management systems. They face a
w daily challenge of collection and disposal, an increasingly
15 complex problem of trying to find places to dispose of our
16 solid waste.
17 Consequently, actions taken by EPA, which impact
18 on the acquisition and operation of solid waste disposal
19 .facilities, are of grave concern to us. Henca, our comments
20 are based on a recognition that the environment must be
21 protected, but disposal is an essential need in solid waste
22 management and will not go away.
23 The following is the position of GRCDA, therefo -*.,
24 relative to the EPA Draft Policy Guidance Memorandum being
25 considered today.
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1 One: The GRCDA supports the position stated in the
2 Draft Guidance Memorandum relative to the requirements that
3 a solid waste disposal facility sited in the waters of the
4 U. S. should comply with the provisions of the Corps of
5 Engineers, Section 404 permit program.
6 Two: GRCDA opposes the position policy, as stated,
7 requiring solid waste disposal facilities sited in the waters
8 of the U. S. to comply with the NPDES requirements of Section
9 402 of the Clean Water Act.
10 While we can appreciate that discrete point source
n discharges from solid waste disposal facilities should comply
12 with the provisions of the Clean Water Act, Section 402,
13 -we find it hard to comprehend that a facility per se is
U considered a point source.
15 Further, once a facility is in compliance with
16 Section 404 and has reached the stage of construction where
17 it is dewatered and therefore dry, we find it difficult to
is comprehend and consider that a site is still a wetland or
19 water.
20 We suggest, therefore, that EPA has misinterpreted
21 the definition of "wetland" and "water," and are attempting
22 t6 extend authorities of the Clean Water Act beyond both
23 the statutory limits and Congressional intent.
24 However, where a solid waste disposal facility
25 generates pollutants which are collected for the purposes
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1 of treatment on-site, and which could result in a point
2 discharge to the waters of the U. S., we are supportive of
3 the need for an NPDES permit. It must be recognized, however,
4 that EPA has not issued standards for such discharges and
5 plans to leave it to the best engineering judgment of EPA's
6 Regional Office staff.
7 While there is little track record to indicate what
8 might be EPA's best engineering judgment, we are concerned
9 that such judgment be long in forthcoming. We suggest,
10 therefore, that if EPA requires a 402 permit for point source
11 discharges for solid waste disposal facilities, in the absence
12 of such standards for such discharges, EPA must issue to its
13 Regional Offices and other parts of the Agency guidance
14 relative to what is best engineering judgment.
is Further, EPA should set a time limit by which such
16 permits should be considered and a decision rendered. We
17 suggest 60 days is sufficient time to consider and make such
18 a judgment.
19 We are aware that EPA is preparing to start the
20 next round of NPDES permit approvals. We are also aware that
21 EPA plans to fold the retrosection 3005, 3006, hazardous
22 waste facility permit programs and state hazeirdous waste
23 programs into the NPDES permit program.
24 We are concerned, therefore, that the addition also
25 of solid waste disposal facility permit requirements will
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i overburden the limited permitting staff of the EPA Regional
2 Offices. Consequently, we are concerned that permit applica-
3 tions cannot be handled in an expeditious and timely manner.
4 Recognizing that we are in tight budget times at
5 all levels of government and we are not optimistic that
6 new positions will be made available for EPA, we suggest that
7 EPA consider seriously if there are adequate resources to
8 assume this additional burden when it appears that the
9 policy is an attempt to federalize state and local government
10 authority and is not a legislative mandate.
11 There is a portion of RCRA which, v/hen implemented,
12 will assure that the intent of the Draft Policy Guidance
13 Memorandum will be met. This portion for the nonhazardous
14 waste part of our solid waste management stream is Section
15 4004, criteria for sanitary landfills.
16 While we object to the 402 provision in this
17 criteria, we submit that the solid waste disposal facilities,
18 that comply with the provisions of this criteria, and also
19 meet the requirements of the Corps of Engineers' 404 permit
20 program, except for that portion related to 402, will achieve
21 the well-intended provisions of the subject Draft Policy
22 Guidance Memorandum.
23 Further, utilization of the Section 4004 prov sions
24 of RCRA will assure that the capability of state government
25 in solid waste management and disposal will be utilized to
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1 the maximum extent possible. Utilization of state government
2 will also offer opportunities for the EPA to help meet the
3 budget plans of the President.
4 RCRA is designed, through technical and financial
5 assistance, to build strong state hazardous waste land
6 disposal and resource recovery programs consistent with
7 national environmental goals. To federalize land disposal,
8 as proposed in the Draft Policy Guidance Memorandum, is not
9 consistent with the Congressional intent of RCRA to keep the
10 federal involvement in solid waste management at a minimum.
11 We suggest, therefore, that the Policy recognize
12 Section 4004 and its supportive state program building
is provisions, and not attempt to bring Section 402 into the
14 day-to-day development of solid waste disposal facilities.
15 Rather, limit the scope of 402 to what it was really intended
16 for, the permitting of discharges, actual discharges of
17 pollutants into the actual waters of the U. S.
is Thank you.
19 CHAIRMAN MILLER: Thank you, Mr. Hickman.
20 Ruthanne Gordon from the National Wildlife
21 Federation?
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1 RUTHANNE GORDON, NATIONAL WILDLIFE FEDERATION
2 j MS. GORDON: I am Ruthanne Gordon. I am appearing
3 here today on behalf of the National Wildlife Federation
4 and its counsel, Patrick Paranteau and Kenneth Kamlett,
5 who are unable to attend today's hearing.
6 The Federation strongly supports the regulation
7 of solid wastes disposal into wetlands under the NPDES
8 program of the Clean Water Act.
9 I am submitting written comments on behalf of the
10 Federation in which we contend that EPA must establish
11 effluent limitations guidelines and issue NPDES permits for
12 these disposal activities.
13 The Federation stands ready to assist EPA in this
14 endeavor in any way possible. Thank you.
15 CHAIRMAN MILLER: Thank you.
16 Are there other comments?
17 JOHNNY J. SWILLEY, TERREBONNE PARISH POLICE JURY
is MR. SWILLEY: I was sent here by the Terrebonne
19 Parish Police Jury, which is the local governing agency in
20 south Louisiana, to gather information from this thing.
21 The comments that I am about to make are not from
22 Terrebonne Parish Police Jury. They are personal opinion of
23 the public from Terrebonne Parish, as a citizen living in
24 that area.
25 Some of the questions that I have jotted down to
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ask have been answered. I would like to reiteirate some of
them. One of them is why duplicate a permit. If you get
a Section 4004 permit, why would you have to get a 4002
permit.
On page 4 in the draft guidelines that we received,
it said that trucks might be considered a point source. If
they were, would this mean that each and every garbage truck
that you got would have to get a permit?
And you go on to say that .logically they would not.
As a personal opinion, I'd like to know since when logic
has been used in promulgating Federal guidelines. (Laughter)
In this case, I do agree with you, though. I do
.follow the logic and agree with it.
On page 6, you start telling us what needs to be
done for new facilities. You mention extraordinary circum-
stances as the only way that you can get them. You have
to study the alternatives.
Reasonable and feasible, we'd like to know whose
opinion reasonable and feasible would be. What's reasonable
to you and what is reasonable to the Environmental Protection
Agency might even be two different things.
And what is reasonable to the man who is living
down on the bayou in Terrebonne Parish is definitely going
to be different.
You say on page 15 that the objective is to
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l eliminate this disposal in the waters, or the whole thing.
2 My question is why go through 8 or 10 pages of telling how
3 to apply for it if the objective is to eliminate it.
4 The interim permit for our present. In Terrebonne
5 Parish we have five open dumps, and we are present in the
6 process of constructing a sanitary landfill to eliminate
7 these open dumps.
3 We have already been told that we've got to close
9 them down, from an air pollution standpoint, from health
10 hazard standpoints and from other standpoints. They are
n just not feasible to keep operating them.
12 Since we are already in the process of eliminating
13 them, now will we have to divert some of our resources to
14 filling out permits for them to keep them open until we get
15 it constructed rather than going ahead with the construction
16 of our sanitary landfill.
17 On page 9,you mentioned that you might even require
18 restoration. One of the people up here said that the
19 effective date of this was 1972, and then again you mention
20 the date of this memorandum.
21 Well, which date would govern the restoration?
22 And who would have to pay for that restoration? I tell you
23 that the public will have to pay for it, the people.
24 In our sanitary landfill, we will have to apply,
25 and have applied, for a permit for the treatment of our
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1 leachate. How long will it be before we get this permit?
2 As I understand it, and am told by sources that
3 are, I am sure, just as qualified as any I could hear from,
4 that the Environmental Protection Agency has a backlog of
5 NPDES permits for two or three years now.
6 How are you going to handle new permits if you
7 can't handle the ones we already applied for?
8 One good point in your favor, you do consider on
9 page 16 the total cost of collection and transportation and
10 deposit at a sanitary landfill, and I submit to you gentlemen
11 that that cost is tremendous and that the local governments
12 have to bear this burden through the taxes that they collect
13 from the people.
14 So any other costs, any other permits costs,
15 administrative costs for permits is just going to add to
16 the tax burden.
17 One final point that I would like to make that I
18 think other people have made, the definition in this
19 memorandum of wetlands would not — I am sure that Mr.
20 DeVille is right about 75 percent of Louisiana.
21 But I submit it would be 95 to 100 percent of
22 Terrebonne Parish. So we wouldn't have any place to go.
23 Thank you.
24 CHAIRMAN MILLER: Would you state your name for
25 the record?
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So one course of action for the citizens in this
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MR. SWILLEY: John Swilley.
CHAIRMAN MILLER; Thank you, Mr. Swilley.
Are there other .comments?
WILLIAM G1LLEY., VIRGINIA STATE HEALTH DEPARTMENT
MR. GILLBYs I am William Gilley. I am with the
State Health Department in Virginia. I have several concerns, «
or two concerns, with this particular proposed memorandum.
One? I believe by the definitions included in it
where you define "waters of the U.S." and define "wetlands",
a major portion of Virginia, if not all of it, will classify
under one of these definitions, in which case it will become
very difficult —- and it is very difficult right now — to
site new or expanded landfills or sites that can be suitably
used for landfills*
In one case, I have recently have been working on
the elimination of an open dump, and under this particular
guideline, the alternative will be in an area that could,
under your definition, classify as a wetland, and it would
become impossible to develop an alternative for that op^-n
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to public health and at further risk to some of the environ-
mental areas around it.
I think what's happening with this particular
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i guideline is that we are beginning to superimpose a second
2 and third level of permitting and restrictions where we are
3 trying, under the Resource Conservation Recovery Act, to
4 develop a system that will, in fact, provide a single,
5 all encompassing permit system for sanitary landfills.
6 I think that what we are doing is adding still
7 further difficulty by this administrative overhead, so to
8 speak, in obtaining new sites. You are going to compound
9 the cost for the public.
10 You are going to compound the difficulty in many
11 areas in the state, or in the states, in obtaining new land-
12 fill sites.
13 - CHAIRMAN MILLER: Thank you.
14 EULIN GUIDRY, TERREBONNE PARISH POLICE JURY
15 MR. GUIDRY: Gentlemen, I'm glad you all have had
16 a chance to see me today. It is not often that a Cajun
17 comes up to Washington.
is I am here representing Terrebonne Parish Police
19 Jury as is Mr. John Swilley. I have with me here Mr. Edward
20 Giroir, who is a local official of the Policy Jury, and
21 our consultant Mr. Horace Tibadeau.
22 CHAIRMAN MILLER: Could you state your name, please?
23 MR. GUIDRY: Eulin Guidry.
24 Gentlemen, in Terrebonne Parish, as was stated by
25 Mr. Swilley, we have about 95 percent of our land mass that
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i is wetlands, and according to some definitions, maybe 100
2 percent, depending on who is defining wetlands.
3 We are concerned in Terrebonne Parish not so much
4 because of the requirements of NPDES permits but because of
5 what is really happening as far as on my perspective and
6 the perspective of the local Police Jury.
7 We see this action by EPA not one of trying to
8 reduce pollution in our streams and in our waters of the
9 United States but as an action to try to get into the land
10 use game.
11 Recently in the State of Louisiana, two years ago,
12 I was on the opposing side of a Coastal Zone Management Plan,
13 because, at that time, we believed, and we still believe,
14 that coastal zone management is a land use program, and most
15 Americans are against land use programs as we all know.
16 Congress has tried many, many times through the
17 door to impose land use programs and they have failed. So
18 we come through the back door with Coastal Zone Management
19 Plans, Rocky Mountain Management Plans or whatever the
20 situation might be.
21 We believe in Terrebonne Parish that EPA is
22 trying to get into this game. Now, if they want to impose
23 NPDES permits on point source discharges, we have had some
24 problems adjusting to that, but we have accepted that.
25 And then we're coming back again with 4002 permittinc
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1 for permitting garbage trucks. It doesn't seem logical to
2 do that.
3 We, living in Terrebonne Parish, feel that we
4 are the best judge of our land use, because we have to live
5 there and we have to make our livelihood there.
6 And we produce a lot of the foods, a lot of the
7 oil and gas that serves the rest of the nation, and we
8 believe that we should be the judge.
9 That is why we have agreed in this past year to
10 a Coastal Zone Management Plan, because we were promised
11 that we would have some voice in those decisions on the local
12 level.
13 • Now, it seems that the Environmental Protection
14 Agency wants to get in on the game, and we can't understand
15 why. Gentlemen, I think that the 4004 permitting process
16 by the Corps of Engineers is sufficient to regulate in
17 the wetlands of Terrebonne Parish.
18 And I think with the proper Coastal Zone Management
19 Plan that we are in the process of adopting now, both on
20 the state level and on the local level, which I am chairman
21 of the Coastal Zone Management Committee in my parish, will
22 do the job.
23 And honestly, we resent EPA getting in there and
24 trying to do it for us. I think we can handle it. That
25 is all I have to say.
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1 MR. DAVIS: I appreciate your comments about
2 trying to reconcile some of these possibly overlapping
3 legislative authorities. It is true not only within the
4 Clean Water Act, as you pointed out, but even between the
5 Clean Water Act, CZM, and numerous other legislations.
6 There is a point, and I asked this line of question-
7 ing earlier, and I am still trying to add some clarification
8 to it, that in CZM plans as well as numerous other planning
9 activities, even under the Clean Water Act there are planning
10 activities that could do similar things to CZM planning,
11 they may not, in all cases, get to the level of detail that
12 would be needed to resolve a question of where a landfill
13 might be sited. That's one point.
14 And the other point is that, as you indicated in
15 your comments, that the 4004 process which could play a role
16 here as in your case recommending that in lieu of the 4002
17 program — the question in my mind is do you see that the
18 4004 process, in indicating some preference for it, is a
19 way of getting more case specific and coming in and getting
20 into a greater level of detail in a case where the CZM plan
21 did not address that level of detail?
22 In other words, to the extent you expressed some
23 preference for 4004, do you see it as being one way or
24 rounding out a CZM plan in the case where it did not get
25 into the level of detail that might be needed in a case
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i like this?
2 MR. GUIDRY: Well, let me say a bunch of things
3 in answer to that. First of all, it all depends an where
if
4 you are going. If EPA wants to get into the protection of
5 the wetlands, then I think they should, by all means, come
6 up with the 4002 permitting process for protection of the
7 wetlands and should so state that, if that is what they
8 want to implement.
9 If EPA wants to control and protect our streams
10 and waters of the United States, then I think they are
11 pushing it the wrong way. They should, maybe, develope
12 more stringent guidelines on discharge permits.
13 . To say that dumping garbage in wetland is a dis-
14 charge, you know, you are getting kind of broad. The other
15 answer that I would have as far as the 4004 permitting
16 process, I think, as we develop Coastal Zone Management Plans
17 in the State of Louisiana, and particularly in my concern
18 in Terrebonne Parish, that we would develop a set of guide-
19 lines that would be consistent with the Federal Act and
20 the state act and, of course, utilizing the help from the
21 Corps of Engineers and their 4004 permitting process.
22 I think the whole thing has got to be looked at
23 at one time, not taking parts of it. The only objection
24 that we have in Terrebonne Parish, and that I have
25 particularly, is the fact that it seems like EPA is coming
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1 in at this time and instead of trying to control pollution
2 in the waters of the United States, they want to get into the
3 land management game, the land use game.
4 MR. DAVIS: Let me just follow that point up for
5 just a moment, if you don't mind, because I am trying to
6 explore this idea of 4004 to the extent that has been put
7 forth by a number of people as an alternative to 4002 in
8 this case.
9 I am trying to be sure that we don't have some
10 problems there that we haven't thought about and find out
11 that that doesn't work either.
12 You were getting close to what I was interested in.
13 1 think you are saying that the CZM planning and the 4004
14 permitting process, in the most desirable case, is that it
15 be done currently so that one doesn't come out with one
16 answer and then another one has to come along later and
17 conflict with it.
18 And I agree with that. That would be, by far, the
19 preferable way to do it, but one of the problems I see,
20 though, is that CZM planning is —
21 MR. GUIDRY: By getting more specific in specific
22 area, is that what you are trying to —
23 MR. DAVIS: Well, that is the concern. CZM planning
24 tends to be a one-time operation. It doesn't mean that you
25 don't revise a CZM plan, but it is done, and it may take
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1 several years to do it once, and it may takes several years
2 to revise it, whereas 4004 permit applications may be coming
3 in on a monthly basis for different sites.
4 MR. GUIDRY: Maybe you are overlooking what a
5 CZM plan is. Of course, not too many people know what CZM
6 is all about yet.
7 MR. DAVIS: That is true.
8 MR. GUIDRY: As I envision a Coastal Zone Manage-
9 ment Plan in our Parish would be to look at all the various
10 permitting processes that we have now, look at all the
n various ordinances that we have, putting that together
12 and then issuing permits, what the Corps is doing now,
13 probably in a lot of cases issuing the 4004 permit on the
14 parish level, and in a lot of cases, maybe helping the Corps
15 out with those things.
16 I think it would be a constant watch on all of
17 the permits we're issuing, especially when it comes to
18 destroying some of the wetlands that we have to make a
19 living in.
20 So who is going to be closest to it?
21 MR. DAVIS: I understand. So what you are saying,
22 then, is in the case where the CZM plan goes into the same
23 level of detail, which might, in fact, be the case in sore
24 areas —
25 MR. GUIDRY: Probably more details.
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MR. DAVIS: — and preferably would go into the
same level of detail or more than would be in the 4004
process and then it would be simply a matter of picking up
that information in almost a pro forma, rubber stamp process,
yoing to the 4004 permit.
In a case where the CZM plan did not go into that
detail, the 4004 process could take the point where it stopped
and then continue with whatever is left to be done at that
point.
I want to understand if that how you — because
you see this question of alternatives comes up, and in some
cases, the CZM plan might have looked at a given area and
raidy "Well, are there any alternatives?"
And your answer in your case may be no. But what
.if that question was not asked in a CZM Plan, would you
nink it appropriate for the 4004 permit process to ask
hhat question in that case?
MR. GUIDRY: I think the 4004 permit already asks
tliat question, and I think the local CZM Plan would definitely
ask that question, because this is really what I think we
are going to be doing.
I think right now, Horace, if I am right, that
in the solid waste disposal plan that we are putting together,
the sanitary landfill operation, we did look at alternatives,
and, in fact, found an alternative to disposing in the wetland.
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i And this is what we are going. Gentlemen, you
2 got to realize we live there, not you. Thank you.
3 MR. DAVIS: Thank you.
4 MR. DE VILLE: Dp you mind if I comment on the
5 line of questioning you were raising?
6 MR. DAVIS: So long as I can ask another question.
7 MR. DE VILLE: I wasn't contemplating having 4004
8 get into tight decisions about how to site a solid waste
9 disposal facility, what kinds of operations, requirements
10 should be made, et cetera.
11 That's the purpose, in the state, under the RCRA
12 Plan and the state solid waste permit process. That is
13 where you get specificity.
14 Let's look at overlaps. We are going to have
15 public participation under RCRA in state permit decisions.
16 There is the highly specific route to questions about
17 specific sites and alternatives.
18 4004 I think has a genuine value. It is the place
19 where we look at a lot of the impacts of an action which
20 is proposed, impacts on sheet flows, habitat.
21 This is the place where we get everybody's comments
22 fed into the record, Federal and state. And specificity
23 has got to go back not to 4004, not to NPDES but to RCRA on
24 management and specific site decisions.
25 And coastal zone management, I think, gets us into
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i the area of conscious decisions about just this kind of
2 question, wetlands management.
3 MR. DAVIS: The thing I was trying to clarify,
4 and I would appreciate your reaction to this concept, because
5 I am trying to clarify in my own mind how this would work —
6 I hear you saying in the case where the CZM Plan — that
7 the CZM Plan should go into this level of detail, it should
8 be a process where the local decisionmakers look at their
9 available resources, decide where they want to put a landfill
10 in this case, ask the question of is there an alternative
n to doing it outside the wetlands, and making some final
12 recommendation or conclusion on that.
13 My question, though, is what happens in a case
14 where in the CZM planning process they did not go into that
15 level of detail.
16 MR. DE VILLE: I don't think they need to
17 necessarily. I think many times it will happen. Again,
is there is no need multiplying the decision process, j
19 Suppose CZM doesn't go into but sets a policy,
20 then the RCRA plan is going to have to be captured and will
21 be captured in place that has both RCRA implementation and
22 CZM implementation under state law and local regulations
23 as well.
24 MR. DAVIS: But the point you still haven't clarifie
25 for me is that you seem to be implying that it is appropriate
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1 to ask these questions about whether it's possible to find
2 an alternative outside of wetlands.
3 MR. DE VILLE: But that is at the state and local
4 area.
5 MR. DAVIS: But it is appropriate to ask the
8 question, I guess is what 1 am trying to clarify?
7 MR. DE VILLE: Yes. State and local preferably.
8 CHAIRMAN MILLER: Other comments?
9 EDWARD GIROIR, TERREBONNE PARISH POLICY JURY
10 MR. GIROIR: I am Edward Giroir. I am a Police
11 Juror from Terrebonne Pariah. I am Chairman of the Solid
12 Waste and Litter Committee.
13 I was told that Terrebonne Parish has been studying
14 this problem for 12 years, and I think that a lot of it is
15 because of indecision on permitting and different things.
16 So we finally embarked on this solid waste landfill,
17 and, gentlemen, we are still trying to get permits, and we
18 don't know whether we are doing the right thing now.
19 So I think the deeper we get into all this permittin
20 and stuff, why, I think instead of correcting the ills that
21 we have, I think that they are just getting worse.
22 I think we need to simplify everything really.
23 DONALD ANDRES, CONSULTING ENGINEER
24 MR. ANDRES: Genltemen, my name is Donald Andre_.
25 I am a consulting engineer. I'd like to raise some issues
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1 that have occurred in attempting to obtain 4002 permits
2 and 4004 permits in today's world.
3 I am concerned how the draft policy would relate
4 to such circumstances, particularly for existing disposal
5 sites. I have represented several clients who are in the
6 business of disposing of solid wastes and who, in the last
7 several years, have received letters from the Unites States
8 Corps of Engineers indicating that they must cease and desist
9 immediately their operations.
10 || Any continued discharge of that waste beyond the
11 date of receipt of that registered letter is subject to
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12 removal of any wastes placed from that date forward.
13 One does not immediately relocate a solid waste
14 disposal facility, particularly when it has been in use for
15 a long period of time, and you are in a fairly urbanized
16 area.
17 The problem comes in attempting to comply with
18 the permit provisions. In this situation, the solid waste
19 disposal sites have been decreed as nonpoint sources,
20 II have been regulated by the state water quality agency for
21 some extended period of time, and, in fact, did not allow
22 a discharge to waters of the state.
23 In fact, the requirements state, "There shall be
24 no discharge to any water, either ground or surface water,
25 || from the disposal facility."
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1 One of the problems is that they have asked for
2 dikes and protection around those facilities to protect
3 against greater than a 100-year storm flow.
4 Those dikes and other facilities fall within the
5 jurisdiction of the Corps of Engineers, and it is impossible,
6 then, to get a 4002 permit to construct the facility that
7 is required to provide water quality protection.
8 The deposition of this waste in lands that we
9 always thought were fast is in jeopardy. The question arises
10 as to whether it is fast or not. It's been decreed a
11 wetland because there is a predominance of wet vegetation
12 that's supported by saturated soil conditions.
13 These saturated soil conditions are caused by
14 several factors. The predominant one of which is the
15 tight clay soils underlying the site which prevent the
16 migration of any pollutants from the solid waste offsite
17 but at the same time cause water to be perched and make
18 this a wetland.
19 In fact, part of the water perching on this is a
20 discharge from a waste water treatment plant. That water
21 enters the property under and NPDES permit and subsequently
22 then is discharged to the water.
23 I'm finding great difficulty in explaining to
24 my clients why, until the solid waste disposal site is
25 extended in this area, that we can run cattle out there.
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1 They seem to think a cow is a point source if a
2 truck is, and that the cattle ought to be regulated in the
3 same manner, because they are, in fact, putting out a semi-
4 solid waste and that adjoining two of these facilities are
5 sludge lagoons which are not receiving any permits. Now,
6 those are also solid waste facilities.
7 Now, maybe an expansion of those under today's
8 world would not allow or they would not be allowed to expand
9 under today's permits.
10 We have strong concerns where solid waste facilities
11 have gone into operations, where they are not in direct
12 continuity with water, where local water pollution regulations
13 prohibit the discharge to water, that we cannot now get
14 the required Federal permits.
is And whether they come through with 4004 or 4002
16 first seems to matter little if there is a strong presumption
17 against getting those permits and if the economic viability
18 of any continued operation has to be amortized in five years.
19 In the general marketplace, financing is not
20 available on that short a duration. So the proposed
21 regulations would severely restrict and, in fact, encumber
22 and confiscate many of the existing facilities that I have
23 had the privilege of being associated with.
24 MR. CLARK: Could I ask you one question, please?
25 You said the Corps issued a cease and desist order?
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70
1 MR. ANDRES: Correct.
2 MR. CLARK: Was it for the dike itself or for the
3 land disposal of the solid, waste? What was the basis of
4 the cease and desist order?
5 MR. ANDRES: Section 9 and Section 10 of the Rivers
6 and Harbors Act, Section 4002 and 4004. The attorneys
7 have not let the thing out.
8 In fact, I raised the issue that the dike was
9 constructed prior to 1967, and therefore, received a
10 national permit. However, the dike had to be raised to a
11 higher elevation, and that could not be raised.
12 And if, in fact, we were allowed to get that in,
13 it was suggested by a Corps representative that digging
14 cover material on the site would be subject to a dredging
15 permit, and that we would have to go through the whole
16 thing to get the permit to dredge on the dry land.
17 MR. CLARK: Was this West Coast?
18 MR. ANDRES: It certainly is.
19 MR. CLARK: I was just wondering. That is what
20 I figured. (Laughter.)
21 CHAIRMAN MILLER: Thank you.
22 Any further comments?
23 (No response.)
24 CHAIRMAN MILLER: The meeting is over.
25 (Whereupon, at 3:00 p.m., the proceedings closed.)
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71
REPORTER'S CERTIFICATE
4 DOCKET NUMBER:
5 CASE TITLE: Public Meeting
C
HEARING DATE: December 11, 1978
7
LOCATION: Washington,B.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
Environmental Protection Agency
12
and that this is a true and correct transcript of the same,
lo
Date: December 28, 1978
15
16
Official Reporter
i/
Acme Reporting Company
1411 K Street N.W,
Washington, D.C. 20005
20
21
99
23
24
25
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STATEMENT OF JAMES J. KING ON BEHALF OF
THE UTILITY SOLID WASTE ACTIVITIES GROUP,
THE UTILITY WATER ACT GROUP, THE EDISON
ELECTRIC INSTITUTE, AND THE NATIONAL
RURAL ELECTRIC COOPERATIVE ASSOCIATION
AT U.S. ENVIRONMENTAL PROTECTION AGENCY
PUBLIC MEETING ON SOLID WASTE DISPOSAL
FACILITIES IN WATERS OF THE UNITED STATES
Washington, D.C.
December 11, 1978
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MY NAME IS JAMES J. KING. I AM ENVIRONMENTAL COOR-
DINATOR FOR FLORIDA POWER AND LIGHT COMPANY IN MIAMI, FLORIDA.
I AM APPEARING TODAY ON BEHALF OF THE UTILITY SOLID WASTE ACTI-
VITIES GROUP (USWAG), THE UTILITY WATER ACT GROUP (UWAG), THE
EDISON ELECTRIC INSTITUTE (EEI), AND THE NATIONAL RURAL ELEC-
!/
RIC COOPERATIVE ASSOCIATION (NRECA). FOR PURPOSES OF THIS
STATEMENT, I SHALL REFER TO THESE GROUPS COLLECTIVELY AS "ELEC-
TRIC UTILITIES."
AMONG OTHER ISSUES, ELECTRIC UTILITIES ARE CONCERNED
WITH THE DEVELOPMENT AND IMPLEMENTATION OF EPA REGULATIONS,
GUIDELINES AND POLICIES THAT MIGHT AFFECT THE TREATMENT, DIS-
POSAL AND RECOVERY OF UTILITY WASTES, SUCH AS SCRUBBER SLUDGE,
FLY ASH AND BOTTOM ASH. EPA'S DRAFT POLICY GUIDANCE CONCERNING
THE DISCHARGE OF SOLID WASTE INTO WATERS OF THE UNITED STATES
MAY HAVE A DIRECT IMPACT ON THE TREATMENT AND DISPOSAL OF UTI-
LITY WASTES IN ASH PONDS AND SIMILAR FACILITIES, WHERE THE WASTES
ARE TRANSPORTED BY TRUCK OR OTHER VEHICLES. SINCE ELECTRIC UTILI-
TIES PLAN TO SUBMIT WRITTEN COMMENTS ON THE DRAFT POLICY GUIDANCE,
I SHALL CONFINE MY REMARKS TO THE HIGH POINTS OF OUR SUBMISSION.
I/ USWAG is a coalition of approximately 45 electric power
companies, while UWAG consists of approximately 68 elec-
tric power companies. EEI is the principal national
association of investor-owned electric light and power
companies. NRECA is the principal national association
of rural electric cooperatives. Lists of USWAG1s and
UWAG's members are attached.
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_ 2 — -
A. SCOPE OF JURISDICTION.
1. "WATERS OF THE UNITED STATES."
ELECTRIC UTILITIES HAVE SEVERAL CONCERNS WITH THE
JURISDICTIONAL AUTHORITY ASSERTED BY EPA UNDER.THE DRAFT POLICY
GUIDANCE. FIRST, WE DO NOT NECESSARILY AGREE THAT TRUCKS OR TRANS-
PORTATION VEHICLES CONSTITUTE "POINT SOURCES" WITHIN THE MEANING
OF THE CLEAN WATER ACT. SECOND, AS DISCUSSED IN RECENT COMMENTS
ON THE PROPOSED NPDES RULES, WE BELIEVE THAT EPA'S DEFINITION
2/
OF "WATERS OF THE UNITED STATES" IS OVERBROAD.
THIRD, AND MOST DIRECTLY RELEVANT TO THE DRAFT POLICY ,
GUIDANCE, WE ARE CONCERNED THAT EPA'S SWEEPING DEFINITION OF
"WATERS OF THE UNITED STATES" MAY ENCOMPASS UTILITY TREATMENT
AND DISPOSAL FACILITIES SUCH AS ASH AND SCRUBBER SLUDGE SET-
TLING PONDS. THESE FACILITIES REPRESENT CONVENTIONAL NPDES
"END OF PIPE" TECHNOLOGY, YET THEY SOMETIMES HAVE BEEN OR MUST
BE CONSTRUCTED IN WETLANDS OR BY IMPOUNDING AN "INTERMITTENT"
OR "WET-WEATHER" STREAM (OR A DRY SWALE OR DEPRESSION THAT
MIGHT BE CLASSIFIED AS SUCH). AS A RESULT OF THE DRAFT POLICY
GUIDANCE, SUCH A FACILITY MIGHT BE SUBJECT TO REGULATION AT
THE POINT AT WHICH WASTE IS RECEIVED, RATHER THAN AT THE POINT
FROM WHICH EFFLUENT IS DISCHARGED.
2/ Comments on Proposed Revisions to the National Pollutant
~~ Discharge Elimination System, submitted on behalf of UWAG,
EEI, and NRECA, November 20, 1978, pp. 68-73.
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- 3 -
HOWEVER, WE SUBMIT THAT IT IS THE DISCHARGES FROM SUCH
FACILITIES THAT SHOULD BF AND ALREADY ARE REGULATED BY THE NPDES
SYSTEM, NOT DISCHARGES INTO THE FACILITIES, THE LEGISLATIVE
HISTORY SHOWS THAT CONGRESS DID NOT INTEND EPA TO BECOME INVOLVED
IN DIRECT REGULATION OF TREATMENT TECHNOLOGY OR INTERNAL PLANT
I/
PROCESSES.
WE BELIEVE THAT UNDER THE DRAFT POLICY GUIDANCE'S
DEFINITION OF "SOLID WASTE", MOST UTILITY WASTES WOULD BE EX-
EMPTED SINCE WHEN DISCHARGED INTO SUCH FACILITIES, THEY ARE
"ADEQUATELY CONTROLLED THROUGH CONVENTIONAL NPDES 'END OF
PIPE' TECHNOLOGY." (APPENDIX A, PAGE 2). NONETHELESS, THE
DRAFT POLICY GUIDANCE SHOULD MAKE IT CLEAR THAT NEITHER THE
NPDES PROGRAM NOR THE SECTION 404 PROGRAM APPLIES TO THE DIS-
CHARGE OF WASTES INTO PLANT TREATMENT AND DISPOSAL FACILITIES.
2. APPLICATION OF NPDES PROGRAM TO DRY AREAS.
ANOTHER MAJOR CONCERN WITH THE SCOPE OF AUTHORITY
ASSERTED IN THE DRAFT GUIDANCE IS THE INDICATION IN FOOTNOTE
2 THAT EXISTING DISPOSAL FACILITIES WHICH HAD NOT COMPLETELY
CONVERTED WATERS OF THE UNITED STATES BY OCTOBER 18, 1972
ARE SUBJECT TO THE NPDES PROGRAM. ELECTRIC UTILITIES SUBMIT
V See, e. g. , 2 Leg. Hist. 1391 (Senator Muskie's statement);
~ T~Leg. Hist. 1477 (Senate Committee Report).
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- 4 -
THAT THE DISPOSAL OF SOLID WASTES ON AREAS THAT HAVE BEEN CON-
VERTED TO DRY LAND DOES NOT CONSTITUTE A DISCHARGE .INTO WATERS
OF THE UNITE? STATES AND THUS SHOULD NOT BBS SUBJECT TO THE
NPDES PERMIT PROGRAM.
B• UNNECESSARY DUAL REGULATION.
IN THOSE CASES WHERE REGULATION OF SOLID WASTES MAY
BE APPROPRIATE UNDER THE DRAFT POLICY GUIDANCE, ELECTRIC UTILI-
TIES ARE CONCERNED THAT SOLID WASTE DISCHARGES WHICH CAUSE FILL
WOULD REQUIRE BOTH NPDES PERMITS FROM EPA AND DREDGE AND FILL
PERMITS FROM THE CORPS OF ENGINEERS. SUCH DUAL REGULATION CON-
FLICTS WITH THE STRUCTURE AND LANGUAGE OF THE CLEAN WATER ACT,
ITS LEGISLATIVE HISTORY, AND EPA'S OWN PRIOR INTERPRETATION
AND POLICY.
THE WATER ACT EXPRESSLY EXEMPTS DISCHARGES OF DREDGED
V
OR FILL MATERIAL FROM COVERAGE UNDER THE NPDES PERMIT PROGRAM.
HOWEVER, SINCE DISCHARGES OF DREDGED OR FILL MATERIAL MAY HAVE
SIGNIFICANT ENVIRONMENTAL IMPACTS, CONGRESS GAVE EPA AN IMPOR-
TANT OVERSIGHT ROLE IN THE SECTION 404 PROGRAM. (SECTIONS 404
(B)(l); 404(C)). THESE RESPONSIBILITIES WOULD BE REDUNDANT IF
DUAL PERMITS UNDER SECTIONS 402 AND 404 WERE REQUIRED. SUCH
4/ Section 402(a)(l) provides that "Except as provided in Sections
318 and 404 of this Act, the Administrator may . . . issue a
[Section 402] permit . . . ." And the Section 301(a) prohibi-
tion, which is the sole cause for need of either a Section 402
or a Section 404 permit, is satisfied by the issuance of either
Sections 402(k); 404(p).
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- 5 -
DUAL REGULATION WOULD CONTRAVENE THE NATIONAL POLICY THAT EPA
AVOID "NEEDLESS DUPLICATION AND UNNECESSARY DELAYS" IN ITS
IMPLEMENTATION OF THE CLEAN WATER ACT. (SECTION 101(F)).
EPA ITSELF CONSISTENTLY HAS TAKEN THE POSITION THAT
THE CORPS OF ENGINEERS' JURISDICTION UNDER SECTION 404 DOES
V
NOT OVERLAP WITH EPA'S NPDES AUTHORITY. WE URGE EPA TO MAIN-
TAIN THIS POSITION IN ITS FINAL POLICY GUIDANCE ON SOLID WASTE
DISCHARGES.
C. OBTAINING PERMITS___F_OR_ SOLID V^AS_TE_JDISPpSAL
F"ACIL_I_TI_ES~
THE PROCEDURAL AND SUBSTANTIVE REQUIREMENTS FOR IS-
SUING NPDES PERMITS TO SOLID WASTE DISPOSAL FACILITIES UNDER
EPA'S DRAFT GUIDANCE POSE SEVERAL PROBLEMS, WHICH I WILL SIM-
PLY MENTION NOW BUT WHICH WILL BE ANALYZED AT MORE LENGTH IN
OUR WRITTEN COMMENTS.
FIRST, ELECTRIC UTILITIES QUESTION EPA'S REQUIREMENT
THAT THE OWNER OR OPERATOR OF A DISPOSAL FACILITY, RATHER THAN
THE POINT SOURCE INVOLVED, MUST OBTAIN AN NPDES PERMIT.
SECOND, ELECTRIC UTILITIES QUESTION WHETHER THE RE-
QUIREMENT THAT ALTERNATIVE SITES BE ANALYZED IS AN APPROPRIATE
FACTOR TO BE CONSIDERED UNDER SECTION 304. EVEN ASSUMING THAT
IT IS APPROPRIATE, WE QUESTION WHETHER EPA CAN IMPOSE ON PERMIT
APPLICANTS THE TASK OF CARRYING OUT SUCH A STUDY. MOREOVER,
5/ £§®' ®_'9L'' Proposed Revision to NPDES, 43 Fed. Reg. 37079
37091 (Aug. 21, 1978).
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- 6 -
PRACTICAL REALITIES MAKE IT IMPERATIVE THAT EPA, AT THE MINIMUM,
LIMIT THE SCOPE OF THE ALTERNATIVE SITES AND TECHNOLOGIES THAT
MUST BE ANALYZED.
THIRD, ELECTRIC UTILITIES. HAVE SEVERAL CONCERNS WITH
THE BEST MANAGEMENT PRACTICES (BMPS) APPROACH TAKEN IN THE DRAFT
POLICY GUIDANCE. WE QUESTION EPA'S AUTHORITY TO IMPOSE BMPS EX-
CEPT WHERE ANCILLARY TO DISCHARGES SUBJECT TO EFFLUENT LIMITA-
TIONS. WE ALSO QUESTION WHETHER BMPS MAY BE IMPOSED ON THE DIS-
POSAL AREA LOCATED "DOWNSTREAM" OF THE "POINT SOURCE" (THE TRANS-
PORTATION VEHICLE) BEING REGULATED. FINALLY, SEVERAL OF THE
BMPS ARE DIRECTED AT CONTROLLING LEACHATE CONTAMINATION OF GROUND-
WATER, AS 'TO WHICH EPA AND THE CORPS LACK AUTHORITY UNDER THE
CLEAN WATER ACT.
FOURTH, THE DRAFT POLICY GUIDANCE FAILS TO ADOPT THE
PROPER SUBSTANTIVE TEST AND TO MAKE CLEAR THAT THE PERMIT ISSUER
MUST CONSIDER ALL OF THE FACTORS APPLICABLE UNDER SECTION 304(B)
OF THE WATER ACT, INCLUDING ENERGY REQUIREMENTS AND NON-WATER
QUALITY ENVIRONMENTAL IMPACT.
FIFTH, WE QUESTION WHETHER EPA CAN PROPERLY CREATE
A PRESUMPTION THAT NO NPDES PERMIT WILL BE ISSUED AUTHORIZING
NEW DISCHARGES OF SOLID WASTE INTO WATERS OF THE UNITED STATES.
IN-THE ABSENCE OF A RULEMAKING RECORD, THE BURDEN SHOULD BE
ON EPA TO JUSTIFY A ZERO DISCHARGE LIMITATION IN EACH CASE.
SIXTH, ELECTRIC UTILITIES QUESTION WHETHER EXISTING
DISPOSAL FACILITIES SHOULD BE REGULATED AS STRINGENTLY AS NEW
DISPOSAL FACILITIES.
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- 7 -
SEVENTH, ELECTRIC UTILITIES ARE CONCERNED BY THE MEAN-
ING OF THE TERM "SUBSTANTIALLY CONVERTED" THAT IS USED THROUGHOUT
THE DRAFT POLICY GUIDANCE. WHILE THIS TERM MAY BE UNDERSTANDABLE
WITH RESPECT TO MUNICIPAL LANDFILLS, WHERE "CELLS" OF LAND ARE
FILLED INCREMENTALLY, ITS MEANING IS UNCLEAR IN THE CONTEXT OF
UTILITY TREATMENT FACILITIES SUCH AS ASH OR SCRUBBER SLUDGE PONDS.
SPECIFICALLY, WE ARE CONCERNED THAT AN ASH POND WHICH HAS NOT BEEN
COMPLETELY FILLED MAY BE DEEMED "NOT SUBSTANTIALLY CONVERTED" AND
THUS SUBJECT TO POSSIBLE CLOSURE.
FINALLY, ELECTRIC UTILITIES URGE EPA TO MAKE CLEAR THAT
EXISTING DISPOSAL FACILITIES OPERATING WITH NPDES OR SECTION 404
PERMITS ARE NOT SUBJECT TO THE POLICY GUIDANCE PRIOR TO THE EXPIRA-
TION OF THEIR CURRENT PERMITS.
ELECTRIC UTILITIES APPRECIATE THE OPPORTUNITY TO SUBMIT
THESE COMMENTS TODAY, AND WILL CONTINUE TO FOLLOW WITH INTEREST
EPA'S EFFORTS TO DEVELOP AND IMPLEMENT POLICIES RELATING TO THE
STORAGE, TREATMENT, AND DISPOSAL OF SOLID WASTES.
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MEMBERS OF UTILITY SOLID JWASTE^ACTIVIT^IES GROUP,
Appalachian Power Company
Atlantic City Electric Company
Baltimore Gas & Electric Company
Central Hudson Gas & Electric Corporation
Central Illinois Light Company
Central Illinois Public Service Company
Central & South West Corporation
Central Power and Light Company
Public Service Company oE Oklahoma
Southwestern Electric Power Company
West Texas Utilities Company
Columbus & Southern Ohio Electric Company
Commonwealth Edison Company
Consolidated Edison Company of New York, Inc.
Duke Power Company
Duquesne Light Company
Edison Electric Institute
Florida Power & Light Company
Houston Lighting & Power Company
Illinois Power Company
Indiana and Michigan Power Company
Indianapolis Power & Light Company
Iowa-Illinois Gas & Electric Company
Iowa Power & Light Company
Kentucky Power Company
Los Angeles Department of Vlater and Power
Middle South Utilities, Inc.
Monongahela Power Company
Montana Power Company
New England Electric System
Niagara Mohawk Power Corporation
Northern Indiana Public Service Company
Northern States Power Company
Ohio Power Company
Pacific Gas & Electric Company
Pennsylvania Power & Light Company
Philadelphia Electric Company
Potomac Electric Power Company
Public Service Electric & Gas Company
Public Service Company of Indiana, Inc.
Southern California Edison Company
Southern Company Services, Inc.
Alabama Power Company
Georgia Power Company
Gulf Power Company
Mississippi Power Company
Texas Utilities Generating Company
The Detroit Edison Company
The Potomac Edison Company
Union Electric Company
Virginia Electric & Power Company
West Penn Power Company
Wisconsin Electric Power Company .
Wisconsin Power & Light Company
Wisconsin Public Service Corporation
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UWAG Members
Allegheny Power Company, for
Monongahela Power Company
Potomac Edison Company
West Penn Power Company
American Electric Power Company, for
Appalachain Power Company
Indiana & Michigan Electric Company
Kentucky Power Company
Ohio Power Company
Baltimore Gas & Electric Company
Boston Edison Company
Carolina Power & Light Company
Central Illinois Light Company
Central Illinois Public Service
Cincinnati Gas & Electric Company
Cleveland Electric Illuminating Company
Columbus 6c Southern Ohio Electric Company
Commonwealth Edison Company
Consolidated Edison Company
Dayton Power & Light Company
Detroit Edison Company
Duke Power Company
Edison Electric Institute
Florida Power & Light Company
Houston Lighting & Power Company
Illinois Power Company
Iowa Public Service Company
Kansas City Power & Light Company
Long Island Lighting Company
Los Angeles Department of Water & Power
Madison Gas & Electric Company
Middle South Utilities, Inc., for
Arkansas Power & Light Company
Arkansas-Missouri Light Company
Louisiana Power & Light Company
Mississippi Power & Light Company
New Orleans Public Service, Inc.
Montaup Electric Company
National Rural Electric Cooperative Association
New England Power Company
New York State Electric & Gas
Niagara Mohawk Power Corporation
Northeast Utilities, for
Holyoke Water Power Company
Connecticut Light & Power Company
Hartford Electric Light Company
Western Massachusetts Electric Company
Northern States Power Company
Ohio Edison Company
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Ohio Valley Electric Corporation
Oklahoma Gas and Electric Company
Pacific Gas and Electric Company
Pennsylvania Power & Light Company
Philadelphia Electric Company
Potomac Electric Power Company
Public Service Electric & Gas Company
Public Service of New Hampshire
Public Service Indiana
San Diego Gas & Electric Company
South Carolina Electric & Gas Company
Southern California Edison Company
Southern Company Services,Inc., for
Alabama Power Company
Georgia Power Company
Gulf Power Company
Mississippi Power Company
Tampa Electric Company
Texas Utilities Services, Inc.
Toledo Edison Company
Union Electric Company
Virginia Electric and Power Company
Wisconsin Electric Power Company
Wisconsin Power and Light Company
Wisconsin Public Service Corporation
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STATEMENT OF THE ENVIRONMENTAL DEFENSE FUND ON THE EPA
DRAFT POLICY GUIDANCE MEMORANDUM REGARDING NPDES
PERMITS FOR SOLID WASTE DISPOSAL FACILITIES IN WATERS
OF THE UNITED STATES
Washington, D. C.
December 11, 1978
by: Adam B. Jaffe
Science Associate
Ever since the passage of the Federal Water Pollution Control
Act Amendments of 1972 (P.L. 92-500), the discharge of solid wastes
into the waters of the United States, unless specifically allowed
by permit granted under the Act, has been illegal. Nevertheless,
such discharges have continued. Now, six years later, EPA proposes
to regulate such discharges comprehensively for the first time.
Needless to say, the Environmental Defense Fund ("EDF") strongly
supports this effort. However, we are sorry to see that even now,
under the proposed Policy Guidance Memorandum,the illegal dumping
of solid wastes into the waters of the United States vill, in many
cases, not be controlled, but rather be sanctioned by FPA through
the issuance of an NPDES permit.
In our view, the portion of the waters of the United States
which are of utmost concern with respect to disposal of solid
wastes are wetlands and the associated shallow areas of rivers,
Environmental Defense Fund, 475 Park Avenue South, New York, NY 10016 (212) 686-4191
OFFICES IN: NEW YORK, NY (NATIONAL HEADQUARTERS),- WASHINGTON, DC, BERKELEY, CA; DENVER CO
-------
estuaries, and bays. While we are obviously not happy about the
dumping of solid wastes into deeper waters, wetlands and shallow
areas are of particular ecological significance, and the disposal
of solid wastes in these areas not only pollutes them, but may
destroy completely their biological functions and will eventually
lead to their complete removal as a part of the overall aquatic
ecosystem. The particular significance of these areas has been
recognized in law and in public policy by EPA's 1973 wetlands policy,
EPA and the Corps of Engineers regulations under Section 404 of the
Act, and President Carter's Wetlands Executive Order. Our primary
concern with the Draft Policy Memorandum is that it appears to
enunciate a policy with respect to the disposal of solid waste in
wetlands which is less protective than the existing regulatory frame-
work affecting other activities in wetlands. If this memorandum
becomes EPA policy, EPA will be condoning destruction of wetlands
through disposal of solid wastes to a degree that would be con-
sidered unacceptable and illegal if the destruction were to be
carried out for some other purpose.
We do not quarrel with the> decision that disposal of solid
waste in the waters of the United States should be regulated under
Section 402 rather than Section 404 of the Act. However, the
environmental resource to be protected is the same regardless of
the regulatory mechanism to be employed; therefore, the same
substantive policy standard must be applied with respect to the
destruction of wetlands as would be applied under Section 404. In
other words, there is no legal or substantive reason why we should
prohibit the discharge of fill material in wetlands unless the
associated activity is water dependent and unless no permanent
-------
unacceptable disruption to the affected aquatic ecosystem will
result, unless we intend to apply the same standard to disposal of
solid waste in wetlands. In our view, the application of this
substantive standard would lead to a clear EPA policy prohibiting
i
the permitting of disposal of solid wastes in wetlands.
The Draft Guidance Memorandum makes a distinction between
waters of the United States "which have already been converted or
substantially converted into a dry area" and all other waters. We
would agree that if a wetland area has been filled with garbage to
the extent that a functioning aquatic ecosystem is no longer present,
then continued disposal of solid waste should be permitted, so long
as it does not encroach further on the aquatic ecosystem, and does
not adversely impact water quality. However, we would point out
that, to the extent that the waters have been "converted" since
1972, such conversion was blatently illegal. As a practical matter,
we recognize that redress of this wrong is probably not possible.
However, to prevent continued encroachment on the waters of the
United States (which might in fact be encouraged by the knowledge
that continued disposal will soon be permitted only in areas that
have already been "converted"), we would urge EPA to allow continued
disposal of solid waste only in those wetlands which have been
"converted" as of August 23, 1978, the date of the Draft Memorandum.
In place of the interim and final permit mechanisms suggested
in the Memorandum,we would suggest the following. EPA should
declare publicly, effective immediately, that any continued discharge
of solid waste into wetlands which currently function in any way as
-------
4
aquatic ecosystems is illegal and will be subject to the enforcement
provisions of the Act. We would note that this is nothing new,
and should have been the case since 1972. Facilities which are
discharging solid waste into areas which were substantially con-
verted to dry land (and therefore do not support an aquatic ecosystem)
on or before August 23 may apply for and will be issued NPDES permits
which will allow the continued discharge into these converted areas,
so long as no adverse water quality impacts result. In our view,
the alternatives study is unnecessary, because continued discharge
into previously converted areas will be permitted, subject to con-
ditions, and discharge into functioning wetlands will not be
permitted.
If some party, either the operator of an existing facility or
someone contemplating a new facility, can demonstrate in a specific
case that a proposed disposal into a functioning wetland area would
meet the requirements of existing substantive wetlands policy, i.e.,
there is no alternative to wetlands disposal and no permanent un-
acceptable disruption of the affected aquatic ecosystem will result,
they could apply to EPA for a 402 permit for this discharge. The
burden of proof should be squarely on the applicant to prove that
violation of this wetlands policy would not result. Given the
existence of previously converted areas, upland areas, and proven
technologies for recycling and resource recovery, and the fact that
disposal of solid waste in a wetland system would inevitably result
in adverse impacts, EPA should make it very clear that it is un-
likely that this burden of proof would ever be carried satisfactorily.
-------
We would also like to make some comments on the conditions
to be included in final permits. Generally, the conditions
described in the Draft Memorandum are excellent, including specific
boundary limits (limited to "converted" areas), the requirement for
404 permits for dikes, levee??, etc., and terms and conditions
necessary to insure compliance with 307, 311 and 405. In the
context of the latter requirement, we note that the Draft Memorandum
says that "means necessary to prevent toxic and hazardous substances
from entering the environment outside of the disposal site" may
be included among the required technologies and management practices.
This should be a "shall," not a "may." Also the permit should
include terms and conditions necessary to insure compliance with
all applicable water quality standards.
If this approach is promptly implemented, disposal of solid
waste will belatedly be subject to the same restrictions on
ecological destruction as have been implemented for other activities.
However, we should not kid ourselves that the regulation of
"facilities" will end the unregulated disposal of solid waste in
wetlands. More often than not, such disposal is not at a "facility,"
but consists instead of a truck pulling off the road in a swampy
area and unloading, with or without the tacit consent of the owner
of the land. Such an action is already illegal, but that does not
mean that it doesn't occur. If EPA is serious about controlling
the discharge of solid waste into wetlands, a strong enforcement
program capable of impacting this type of activity will be needed.
The legal mechanisms to carry out such a program exist; all that
is needed is the effort and commitment.
-------
In summary, the basic issue before us today is whether or
not to continue to condone the destruction of wetlands via solid
waste disposal in spite of our knowledge of their tremendous
ecological importance and the existence of a legal mechanism to
control it. I believe that the people of this country are ready
to halt this destruction, and I urge EPA to act swiftly to do so.
Thank you for the opportunity to speak todciy.
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So&d Pastes ^Management Association
1 120 CONNECTICUT AVENUE, NW • SUITE 930 • WASHINGTON, D C 20036
TELEPHONE (202) 659-4613
EUGENE J WINGERTER
EXECUTIVE DIRECTOR
Statement
of
Elizabeth M. Bollard
Policy Research Director
National Solid Wastes Management Association
1120 Connecticut Avenue, N.W., Suite 930
Washington, D. C. 20036
to the ;
United States Environmental Protection Agency
Regarding the
Draft Policy Guidance Memorandum
For
Permits for Solid Waste Disposal Facilities
in Waters of the United States
Public Meeting
December 11, 1978
Washington, D. C.
• INSTITUTE OF WASTE TECHNOLOGY
• CHEMICAL WASTE COMMITTEE
• NATIONAL SANITARY LANDFILL COMMITTEE
• RESOURCE RECOVERY COMMITTEE
• WASTE EQUIPMENT MANUFACTURERS INSTITUTE
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We are here today to discuss a policy guidance memorandum drafted by
the United States Environmental Protection Agency advising operators of
sanitary landfills in wetland areas how they can comply with the require-
ment that they obtain an NPDES permit under Section 402 of the Clean
Water Act. Before we comment on this policy guidance memorandum, we
would like to review the sequence of events that led to the drafting of
this document. In February 1977, in response to an inquiry from the
Environmental Defense Fund, the General Counsel at EPA indicated that:
the disposal from a vehicle of solid waste such
as garbage into wetlands or other waters of the
United States constitutes a discharge of pollutants
from a point source ....
The letter indicated that the truck was a "point source" within the
meaning of the Clean Water Act and that wetlands are included in the
definition of waters of the United States. The practice of discharging
garbage from a truck into a wetland would, thus, require an NPDES permit
under Section 402. The letter also noted that:
the process of filling wetlands with dredged or fill
materials or with other solid waste may remove such
areas from jurisdiction under the FWPCA. A wetland
that has been filled may thereby become a upland
area, and no more longer be- considered waters of
the United States, although the time in which this
takes place will depend on the circumstances of
the particular case.
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-2-
Further, it was stated that, to the extent that landfilling creates a
fastland, the fill may be required to contain a 404 permit from the
*.
Corps.
In July of 1977 a memorandum from the Deputy Assistant Administrator for
Water Enforcement of the U.S. EPA reiterated the point made by the
General Counsel back in February:
...the disposal of solid waste such as garbage
into wetlands or other waters of the United
States is an unlawful discharge of pollutants
unless permitted under Section 402 ...
Also, a landfill in a wetland would likely be required to obtain a 404
permit for the construction of containment structures in the wetland.
In July of 1977 the U.S. Army Corps of Engineers issued final regulations
which related in part to permits under Section 404 for dredge and fill
activities. That document made official regulation the policy outlined
by the memoranda issued earlier by officials at EPA. In the supplemen-
tary information section of the regulations, the Corps notes that:
during the two years of experience with the Section
404 program, several industrial and municipal dis-
charges of solid waste materials have been brought
to our attention which technically fit within our
definition of "fill material" but which were intended
to be regulated under the NPDES program. These
include the disposal of waste materials such as
sludge, garbage, trash, and debris into water. (Federal
Register, July 19, 1977, page 37130)
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-3-
The Corps notes that when the primary purpose of the discharge is waste
disposal, the discharge should be regulated through the NPDES program.
The Corps thereby excluded solid waste or garbage from its definition of
fill material. They note however that Section 404 permits would be
still required for the containment structures which would be "placed in
the water as part of the overall disposal plan." Finally, no action
would be taken on the 404 permit until "a decision on the NPDES permit
has been made."
In August of 1978, EPA proposed revisions to its NPDES program, which in
part would revise its program to conform to the policy articulated by
the Corps in July, 1977:
Consistant with regulations promulgated by the U.S.
Army Corps of Engineers to govern the Section 404
permit program, these discharges are subject to the
NPDES program if their primary purpose is the
disposal of waste materials rather than changing
the bottom elevation of a water body. (Federal
Register, August 21, 1978, page 37079)
Meanwhile, in compliance with the Resource Conservation and Recovery Act
of 1976, Section 4004, the Office of Solid Waste at EPA was developing
criteria for classification of land disposal facilities and elected to
address in the criteria certain kinds of "environmentally sensitive
areas." Wetlands were chosen as one such environmentally sensitive area
because "EPA feels these areas are natural assets (have beneficial
qualities) which are not adequately protected by the six other criteria."
(Federal Register, February 6, 1978, page 4945). Consequently in
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Bi-
section 257.3-1(a) EPA states that a sanitary landfill should not be
located in a wetland unless:
(1) the facility obtains an NPDES' permit under
Section 402 of the Federal Water Pollution
Control Act Amendments of 1972 and
(2) if ... a type of containment structure is
to be placed in the water as part of the
disposal activity, the facility obtains the
permit issued under ... Section 404.
In August 1978 the EPA Enforcement Office drafted a policy guidance
document explaining how a landfill operator can apply for an NPDES
permit for a landfill in a wetland. This policy guidance was developed
in response to requests from several groups including the NSWMA who
were critical that although landfill operators were required to get a
402 permit, there was no procedure by which these permits could be
obtained, and further it was not clear to landfill operators where the
point source is in a landfill.
In this policy guidance memorandum, however, EPA did not seem to be
primarily addressing the question of the discharge of pollutants into
the water. EPA stated (on page 8) that
solid waste is not susceptible to the same kind
of treatment technology traditionally applied to
industrial effluent waste streams. We are not
dealing with a waste stream that can be treated
to reduce the amount of pollution entering the
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waters of the U.S. A decision to allow a discharge
of solid waste would have an irreversible adverse
effect on waters of the U.S., i.e., the elimination
of these waters.
In other words what EPA is regulating here is not the transmission of
polluted materials into the waters but the protection of wetlands. The
NPDES permit, then, is being used to prevent the filling of wetlands.
It should be recognized that a responsible landfill operator is not
likely to site a new sanitary landfill in a wetland, unless if there is
no economically feasible alternative in accordance with Section 4004
of RCRA. -
In reviewing this brief history of this issue, it appears that what may
have been an attempt to achieve consistency in regulations between the
Permits Division at EPA with the Office of Solid Waste at EPA and the
U.S. Army Corps of Engineers has instead resulted in the evolution of a
policy that runs far afield of the original problem. The development of
this policy is akin to a doctor treating a sprained wrist with a cast -
and then adding successive layers of plaster long after the sprain has
healed. We should all reexamine the purpose of this wetlands policy.
If we go back to the beginning and look at the statement made by the
General Counsel at EPA, it appears that an attempt was made by the
environmental agency to protect wetlands from promiscuous and uncontrolled
dumping of garbage directly into waters or wetlands of the United States.
Control of such a practice through the NPDES program has a certain
logic; a truck is a point source when it is dumping garbage which contains
pollutants directly into a wetland which is a water of the United States.
And yet somehow from this rather singular concern has mushroomed a
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-6--
federal policy which makes a presumption against any kind of a land-
filling operation in a wetland regardless of the actual transmission of
pollutants to the water. This purpose seems contrary to what we perceive
as the purpose of the NPDES program, namely the prevention of discharge
of pollutants into water.
It is certainly more cost effective for Llie landfill operator to
establish a site in an area that is already dry. However, as you know,
in some parts of the country, notably the Southeastern United States,
much of the land area is wetland and there may be in fact no alternative
to a wetland as a landfill site. Also, we recognize that many years ago
before the environmental value of wetlands was recognized, landfills
were established in wetlands areas and today some of those old facilities
are still being operated. In good operating practice, the developer of
a landfill in a wetland, as his first step, will build a containment
structure or dike and dewater the a.rea. Such structures require a 404
permit. It is only after the area has been filled in with dirt or made
dry that the operator will begin to put garbage in the site. In other
words, he is not putting garbage in the water; he is putting it in a
land area that may have at one time met the definition of a wetland but
is no longer wet. It should be noted that, in the February 9 letter,
the General Counsel of EPA stated that the process of filling wetlands
with materials such as solid waste may make the wetland into a fastland
and thus remove the area from jurisdiction under the Water Act. It is
our contention that in a situation such as this when dewatering takes
place the 404 permit may be applicable but that once the nature of the
land has been changed, the NPDES permit is no longer applicable. In
simple language, it is difficult to design a permit which will prevent
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-7-
the pollution of water where there is no water. In those landfills
designed with a leachate treatment and collection system where there
would be a discrete point discharge into a stream, we would certainly
agree that the NPDES permit would be applicable for that point source.
However, it should not be assumed that all landfills in wetlands have a
point source discharge. Furthermore it should be clear that the
necessary permits should be applied for and issued in a logical sequence,
which is the reverse of the procedure required by the Corps. We believe,
in other words, that the 404 permit should be required for the preliminary
construction activity; once the facility is built and a discrete point
source discharge has been identified, then, and only then, would the 402
permit b"e required.
In the policy guidance memorandum, EPA has switched the focus of the
NPDES program from the prevention of water pollution toward the protect-
tion of wetlands. We contend that the agency has no statutory authority
for such an action. While the indiscriminate destruction of wetlands is
certainly a practice to be avoided, wetlands are not the only environ-
mental resource, and who is to say that they are the primary environmental
resource to be protected? A key point which seems to have been lost in
this entire procedure is that sanitary landfills should not automatically
be placed in a class with industrial dischargers. Sanitary landfills
provide an invaluable environmental service. Properly operated, they
provide disposal of the waste in an environmentally sound manner so that
the public is protected from exposure to pollutants. The sanitary
landfill criteria currently being developed by EPA establish strict
standards for the prevention of pollution of ground water, surface
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-8-
water, and air and for protection against fires, explosive gases, and
disease vectors. Every state, in order to have a. program which is
approved by EPA, must adopt standards at least as strict. Additionally,
states currently have regulations specifying operational standards for
sanitary landfills. And furthermore, where there is a discrete point
discharge into surface water, the federal NPDES permit is applicable.
In other words, there is adequate authority to assure that all sanitary
landfills (including those in wetlands) are not a threat to public
health or the environment. What is in question here is whether EPA has
the authority to use the NPDES program as a protection of the wetlands
and we contend it does not.
NSWMA urges the EPA to stop the issuance of a final Policy Guidance
Memorandum until there is a resolution to the central issue of whether
the 402 permit is required. We believe the Corps of Engineers should
reevaluate their position on requiring a 402 permit for a landfill in a
wetland prior to their consideration of a 404 permit application. We
see no justification for the Corps! of Engineers to exclude solid waste
as one of the fill materials they regulate. We think that regardless of
the purpose of filling in a wetland, the net result is the same. It
should not be assumed that solid waste is necessarily more polluted than
other materials which are put into a wetland. For example, materials
dredged from the bottom of a polluted river and dumped into a wetland
could contain materials far more toxic than municipal refuse.
We are supportive of the provision in the 1977 Clean Water Act Amendments
which enables states to take over the 404 permit process from The Corps,
with the approval of EPA. We encourage EPA to establish procedures for
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transferring 404 permit authority to the states; we will encourage
states to seek this authority. The integration of the permit process,
preferably at the state level, will help to assure both that the
environment will be protected and that permits can be issued expeditiously.
Further, we feel that the sanitary landfill criteria under Section 4004
of RCRA should not require a 402 permit for every landfill in a wetland.
402 permits should be required for all landfills with a point source
discharge - but the location of the landfill in a wetland is not
relevant.
NSWMA appreciates the opportunity to address the EPA today regarding the
proposed NPDES process for landfills in wetlands. We recognize that
this issue is extremely complex and has far-reaching impacts. We urge
you to take the time to seek a solution which is consistent with the
mandate of existing environmental legislation. We want to assure that
the environment is protected - and that concern for one segment of the
ecosystem, such as wetlands, doesn't cloud our perspective on all other
aspects of environmental protection.
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Browning-Ferris Industries, Inc.
FANNIN BANK BLDG. • P.O. BOX 3161 • HOUSTON.TEXAS 77001 • (713)790-1611
Presentation
of
3ames RfeGreco_
Director
Government and Industry Affairs
Browning-Ferris Industries, Inc.
at an
EPA Public Meeting
December 11, 1978
Washington, D.C. .
with respect to
NPDES PERMITS FOR SOLID WASTE DISPOSAL FACILITIES IN WATERS OF THE U.S.
United States Environmental Protection Agency
Policy Guidance Memorandum
August 23, 1978 Draft
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In late August/early September an August 23rd draft policy memorandum
regarding the "applicability of the NPDES program to facility operators who
dispose of solid waste in wetlands and other waters of the United States" was
distributed for review and comment to a limited number of interested parties.
On October 16th comments prepared by Browning-Ferris Industries were
forwarded to the U.S. EPA. In the November 16th Federal Register issue, EPA
announced that it would hold this public meeting. We feel it important and
noteworthy to recognize the Agency's decision to solicit greater public
participation and input regarding the draft policy memorandum and alternative
approaches for permitting solid waste disposal facilities located or planned to be
located in wetlands areas. Such public: participation — even when not statutorily
required and also when outside of the formal rule-making process — can only
enhance, in our opinion, sounder Agency decision-making, more practical policy-
formulation, and increased public understanding for the environmental protection
of our nation's waters, land, and public health.
We acknowledge the" Agency's mandate pursuant to the Clean Water Act
and its amendments to restore and maintain the chemical, physical, and
biological integrity of the Nation's waters. We also recognize the objective of
the Resource Conservation and Recovery Act of 1976 to prohibit future open
dumps on the land and to require the conversion of existing open dumps to
facilities which do not pose a danger to the environment or to health. It is our
understanding that regulations to be promulgated under Section 4004(a) of Public
Law 94-580 will establish criteria for determining which solid waste disposal
facilities shall be classified as sanitary landfills and which shall be classified as
open dumps. As you're likely aware we have commented extensively on and
expressed concern about the proposed 4004(a) criteria, particularly with respect
to locating facilities in environmentally sensitive areas — and the requirement
that a facility obtain an NPDES permit under Section 402 of the Federal Water
Pollution Control Act Amendments of 1972 or otherwise be classified as an "open
dump". We have previously questioned both the legality and practicality of this
requirement and continue to do so. Again, as in our past comments, reference is
made to the Frick letter of February 9, 1977 — wherein i.t is noted that an
NPDES permit is not required unless it can be shown that there will be garbage
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actually deposited on "wetlands" or a discharge of leachate from the site into
"wetlands". If garbage is actually deposited or leachate actually discharged into
waters of the U.S., we feel many would concur that these practices would and
should constitute "open dumping", be prohibited via the 400
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(2) For "Sanitary Landfills" .
To be located in wetland*; areas, utilize the 40* permit process for
converting the area into & fastland, then employing the appropriate
state agency permit process for the design, construction, operation,
monitoring, and maintenance of solid waste disposal facilities.
With this procedure we feel it important that the most appropriate
state agency be the "lead agency" regarding permit application for
the entire process.
Commensurate with these suggestions, but necessarily part of another
ruiemaking process, we again re-iterate our comments regarding Section 257.3-
l(aXO of the proposed 4004(a) criteria, and recommend deletion of the
requirement for a facility to obtain a 402 NPDES permit.
We sincerely feel these recommendations warrant consideration — and
that they are within the Agency's legal authority, consistent with Congressional
mandates, and in pursuit of our nation's environmental goals.
(As in any decision-making process questions may arise and interpretations may
warrant further clarification — if so, we're willing to ...)
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ygggg
National Wildlife Federation
2 16TH ST., N.W., WASHINGTON, D.C 20036 Phone: 202—7S7-6800
COKM37TS CF THE NKEXCNAL WILDLIFE FEDERATION
ON "THE DISPOSAL FACTXTITES IN WETLANDS
DRAFT POLICY GUIDANCE"
CF THE ENVIRONMENTAL PROTECTION AGENCY
Prepared and sufanitted by:
S. Ksralet
Patrick A. Parenteau
Counsel
Decenfcer 11, 1978
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Introduction
The National Wildlife Federation ("NWF") hereby contents on the "Disposal
Facilities in Wetlands" draft policy guidance of the United States Environmental
Protection Agency ("EPA") as solicited in the Federal Register (43, Fed. Beg.,
53495, November 16, 1978).
Interest of the "NWF"
The National Wildlife Federation is a nationwide conservation education
organization with headquarters in. Washington, D.C. and over two million members
in the fifty states, Guam, the Virgin Islands and Puerto Rico. NWF is the
largest conservation organization in America. The Federations associate members
and members of its state affiliate organizations regularly -use and enjoy fish,
waterfowl and other aquatic resources for fishing, birdwatching, hunting,
scientific research, photography and a wide range of aesthetic, educational
and recreational purposes^ The destruction or degradation of waters of the
United States including wetlands caused by the unregulated disposal of solid
waste directly and adversely affects the interests of these members.
Garments
EPA is required by law to recognize the disposal of solid waste (including
garbage) as a point source discharge of pollution, and to regulate these activities.
The disposal constitutes pollution per se in that it places pollutants (garbage
et. al,) into and irrevocably displaces and destroys wetlands (waters of the U.S.).
Moreover, there are serious leachate and runoff problems associated with these
disposal activities which are also pollutant discharges. Thus, NWF strongly
supports the regulation of the disposal of solid waste into wetlands through
the NPDES permit program -under Section 402 of the Clean Water Act ("CWA")
(Pub. L. 95-217) and the promulgation of effluent limitations under Sections
301 and 304.
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The Federation further believes that EPA needs to address the disposal of
solid waste on a comprehensive level for all waters of the United States, giving
consideration to Sections 403 and 40!i of the CWA and the Resource Conservation
and Recovery Act of 1976 (Pub, L. 94-580) ("BCRA"). As EPA intensifies its
regulation of these other wetlands djjsposal activities, it should not let. solid
waste disposal slip through the crack.
Applicability ~ Intent of the Discharge
Any determination of whether the NPDES program appliess to a disposal activity
should not be decided based on the subjective intent of the discharger, but rather
should be based solely on the nature of the discharged material. In the past,
the intent approach has led to unauthorized garbage disposal activities. The
situation in north Biscayne Bay (Florida) is a good example. The City of North
Miami was issued a §404 permit by the Corps to fill in approximately 100 acres
of wetlands which eventually would begone a municipal golf course". The under-
standing was that clean fill would be used. In fact, North Miami has used the
site for garbage disposal resulting in the filling of 60 acres of wetlands.
•North Miami could argue that it is cornplying with applicable requirements because
it had the "intent to fill* and thus its activities were authorized by the 404
permit. It can be seen that allowing intent to govern the applicability of the
NPDES program leads to regulatory ambiguity and often to a failure to regulate
at all. Furthermore, the intent approach would allow the discharger to shop
around for the "best deal". What is needed is a definition of solid waste as
a pollutant, subject to regulation under Section 402: for openers, solid waste
would include such things as garbage (domestic., rounicipal, industrial) , trash
and sludge. These materials would be distinguished frcm "fill" materials
regulated under Section 404: consisting of clean rock, sand, cellar dirt and
other materials similar in nature to dredged spoil, A detailed regulatory
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definition of the two terms en an objective basis would put everyone on notice
regarding applicability of Section 402 of the CWA to solid viaste disposal
activities and would go a long way toward diminishing unauthorized discharges
of solid waste.
We understand that in sons cases Section 404 permits would be required for
solid waste disposal activities subject also to NPDES review because of dredging
activities conducted as part of dike installations. Procedures should be de-
veloped for joint review here to avoid unnecessary delays, while ensuring full
consideration of the statutory factors.
Regulations Ace Needed - Effluent Guidelines
Even if EPA is successful in implementing the wetlands policy in the
draft memorandum througn guidance to its regional offices as permit issuers,
a potential loophole still exists. There are 30 states which have been approved
by EPA, under Section 402 of the CWA, to administer the NPDES program. Hie
administrative authority granted the states includes the issuance of NPDES permits
subject to EPA review. Two recent circuit court cases support the reading that
' EPA has limited review authority under Section 402 (d) over state-issued NPDES
permits. Ford Motor Coapany v. EPA, 567 F. 2d 661 (6th Cir. 1977); State of
Washington v. EPA, 573 F. 2d 583 (9th Cir. 1978}. In essence, EPA may only object
to (veto) state permits if the permit violates a statutory or regulatory require-
ment. A policy guidance memorandum, according to the courts, is not such a
regulatory requirement. Should an approved NPDES state choose not to implement
EPA's policy regarding solid waste disposal in wetlands it seems as though EPA
would have difficulty keeping the state in line.
The approach that must be taken by EPA to assure the effectiveness of
regulation of solid waste disposal on a national level is through the issuance
of regulations, in particular by prcraulgating effluent limitation guidelines for
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the solid waste point source category under Sections 301 eand 304 of the CWA,
Ill this regard, we support the "zero discharge" approach of the memorandum.
In support of zero discharge, it is important to note that the application of
zero discharge requirements was recognized by the Congress in enacting the
Federal Water Pollution Control Act of 1972 (Pub. L. 95-200).f/ Alternative
means of disposal such as upland sanitary landfills, incineration and resource
recovery are examples of technologies; which, if applied to the disposal of
solid waste, would result in zero discharge and which therefore, would justify
a zero discharge effluent limitation.
There nay be technical and administrative problems associated with imposing
the suggested zero discharge limitation on a national scope. Oftese problems,
though, should not rule out a no discharge limitation. EPA's technology-based
exemption from the best practicable central technology currently available
("BPT") may be a reasonable approach to this problem of regulatory rigidity.
The technology-based exemption from t:he guidelines allowing disposal into
wetlands should be determined solely on the basis of no f easible technical
alternative (which would include the availability of alternative upland sites).
The alternatives study concept of the; memorandum embodies such an approach.
The exemption should be interpreted narrowly and should be limited to technical
considerations as contrasted to econcanic factors.
NKF is opposed to any cost exemption from the zero discharge guidelines
unless authorized by Section 301 (c) of the CWA. Cost considerations of this
kind are addressed in the development of the guidelines, not when the guidelines
are. applied to the discharge.
_/ 93rd Congress 1st Session, Cfcrrmittee Print, A Legislative History of the
Water Pollution Control Act. Amendments of 1972, prepared by the Environmental
Policy Division of the Congressional Research Service of the Library of Congres
January, 1973, Serial No. 93-1, at 162, 163 and 260.
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The "no alternatives" approach of the memorandum is deficient in one
important aspect. If zero discharge is not technically feasible (e.g. there is
no practicable alternative upland disposal site), EPA should require a compre-
hensive review of potential wetland disposal sites in each case. Review of the
alternative sites should, at a minimum, include factors such as wildlife and
vegetation diversity, water quality, fish, shellfish and the recreational aspects
of the site. The site selected should be the one which causes the least adverse
environmental impact on these resources on an individual and cumulative basis.
Interim Measures
The issuance of regulations to control solid waste discharges may take EPA
months (perhaps years). During this period the uncertainty which has existed
regaiding EPA*s authority and responsibility will continue resulting in additional
unauthorized discharges. In the meantime, to cover the gap between now and the
promulgation of regulations, we suggest that EPA take the following interim
actions to assure to the maximum extent possible that unauthorized solid waste
activities will not happen:
(1) Issue the draft policy meniorandum with changes suggested in these
comments to establish a uniform EPA regulatory position.
(2) Enter into a "Memorandum of tfaderstanding" xvith the Corps which would
(a) require EPA and the Corps to notify one another upon receipt of an
application of a permit for solid waste activity, (b) require EPA and the
Corps to notify one another of any known unauthorized activities,
(c) establish among EPA and the Corps a national uniform approach to
regulating these disposal activities, and (d) clarify EPA/Corps jurisdiction.
(3) Encourage NPEES states to implement the policies of the memorandum
and to the degree possible, within legal constraints, require state compliance.
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Overlap - Sections 402 and 404 of tba CWA
As discussed above, EPA is required by law to regulate solid waste disposal
into wetlands under Section 402 of the CWA. There are circumstances where the
disposal of solid waste is also subjesct to Section 404 of the CWA. According to
Corps regulations, any material used for the primary purpose of replacing an
aquatic area with dry land or of changing the bottom elevation is "fill material"
and requires a Section 404 permit to be discharged into waters of the United States.
33 CFR §§323.3 Cm) and 323.3. If a discharger wants to fill a wetland to alter its
use and wishes to accomplish this by filling the area with solid waste, a 404
permit must be obtained. Apparently, in situations such as thisr an NPEES permit
and 404 permit are required. The issuance of the 404 permit does not excuse
EPA (or an NPDES state) from meeting its statutory duties.
The joint permit situation outlined above would require close coordination
between EPA and the Corps to eliminate unnecessary regulatory requirements,
duplicative paper works, and-overly burdensome permit issuance procedures.
Such problems could be ironed out in an EPA/Corps memorandum of understanding.
Section 404 (b) &tfcfc*l ines
The draft memorandum recognizes joint EPA/Corps authority over solid waste
disposal tinder certain circumstances, but fails to realize the importance of the
alternatives approach to the Section 404 permit program, thder Section 404 (b),
Corps-issued permits must comply with guidelines developed by EPA. The guidelines
are based on environmental criteria found under Section 403 (c) of the CWA.
Cue of tile. ITS*-*** criteria requires that the guidelines include "other possible
locations and methods of disposal or recycling of pollutants including land-
based alternatives'1 C Section 403 (c) (1) CF) of the CWA). This alternatives re*-
quirement directly supports and. requires the incorporation^ of the "feasible
alternatives" approach of the memorandum into the Section 404 (b) guidelines.
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Wfe understand that EPA is in the process of revising the 404 (b)
guidelines (which are contained in 40 CFR Part 230). We urge EPA to .
include in the revised guidelines a feasible a3.ternatives approach to
the disposal of solid waste in wetlands including the concept that the
discharge of solid waste for the purpose of filling a wetland would not
comply with the 404 (fo) guidelines if feasible alternatives to wetland
disposal exist (e«.g. upland disposal).
New and JSclsticig Facilities - rEhe Draft Memorandum Approach
EPA's approach to disposal activities at new sites (as opposed to
ongoing operations) appears to be a satisfactory approach to minimize
future destruction of wetlands by the discharge of solid waste without
unreasonably burdening existing operations. Our endorsement of course
is predicated on the issuance of regulations as discussed above.
?fe have a problem with the definitional distinction of new and .
existing facilities. According to the draft roanorandunv, those areas
of an existing facility which are not "substantially converted11 are
new and are subject to the more stringent requirements for new facilities.
5nis is acceptable, however, EPA needs to clarify the tens "substantially
converted". We suggest that if the area maintains any characteristics
ccranon to wetlands including the area's ability to support habitat similar
to adjacent or nearby wetlands, that substantial conversion has not
occurred.
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EPA proposes to issue interim permits to existing facilities. We understand
that the interim permit procedure nay !« necessary f ran a viewpoint of reasonable
exercise of regulatory responsibility lay EPA, Reporting and compliance schedules
would be iitposed in the interim permits requiring the preparation of an alternatives
study by the discharger within one year of issuance of the interim permit. A
r
year is too long (we suggest 6 months or a shorter period if necessary, based
on the rate and nature of the fill and, the area involved) unless EPA requires
that disposal at the facility be greatly curtailed or limited to areas which have
been conpletely filled.
Enf
NNF is concerned about EPA"s intentions regarding disposal activities which
have occurred since enactment of the [Federal Water Pollution Control Act of 1972
and were not authorized under Section 402 or Section 404. NWP believes that
waters of the U.S. which are or were illegally filled remain waters of the U.S. .
These discharges which have occurred since enactment of the IWPCA- are clearly
illegal and we urge that EPA consider appropriate enf orcanent actions and
restoration of these wetlands on a case-by-case basis in consideration of the
damage done (acres filled) , nature of the disposal, material and the dischargers
efforts to ccqply with the CWA.
We appreciate the opportunity to content on the policy guidance roenorandum.
We, encourage EPA to get on with it and fully meet its statutory responsibilities
by adopting regulations, issuing peimts and bringing appropriate enforcement
actions, NWF stands ready to assist EPA in this effort in any way it can.
Patrick A. Parenteau
Counsel
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Attendees - Public Meeting
Draft Policy Guidance Memorandum for
Permits for Solid Waste Disposal Facilities
in Waters of the United States
December 11, 1978
Washington, D.C.
Abbott, Seth J., Jr.
Manager
Conservation Group
Atlantic Richfield Company
Post Office Box 2819
Dallas, Texas 75221
Adams, O.H.
Director
Commonwealth of Virginia
Department of Health
Division of Engineering
Madison Building
109 Governor Street
Richmond, Virginia 23219
Andres, Donald
KMCON
1420 Roll Circle
San Jose, California 95112
Austin, John D., Jr.
Counsel
American Mining Congress
'1200 18th Street, N.W.
Washington, D.C. 20036
Bailey, William A., PhD.
SCS Engineers
11800 Sunrise Valley Drive
Suite 432
Reston, Virginia 22091
Batchelder, Francis J. , P.E.
Environmental Engineering Division
American Electric Power Service
Corporation
2 Broadway
New York, New York 10004
Boltz, David G.
Senior Pollution Control Engineer
Industrial Relations Department
Bethlehem Steel Corporation
Bethlehem, Pennsylvania 18016
Burch, Carey W.
Enviroplan Inc.
6621 Electronic Drive
Springfield, Virginia 22151
Burnett, Barbara
Office of Congressman Long
Director, Special Projects
2445 Rayburn, HOB
Washington, D.C. 20515
Caple, Arthur
Maryland State Environmental
Health Administration
Chief, Solid Waste
201 W. Preston Street
Baltimore, Maryland 20212
Carlson, Elaine
Congressional Research Service/
Library of Congress
Research Assistant
10 1st Street, S.E.
Washington, D.C. 20540
Carpenter, Wally
Environmental Engineer
Division of Environmental Planning
Tennessee Valley Authority
272 401 Building
Chattanooga, Tennessee 37401
Ciavattieri, Frank
EPA Region I
Enforcement Division
Boston, Massachusetts 02103
Custis, Glenn W., P.E.
Environmental Engineer
Environmental Control Department
Reynolds Metals Company
6601 W. Broad Street
Richmond, Virginia 23261
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Dawson, Russell A.
Senior Editor
BPI
P.O. Box 1067
818 Roeder Road
Silver Spring, Maryland
20910
DeVille, William B.
Louisiana Governor's Office/OSTEP
Manager, Research and Development
P.O. Box 44066
Baton Rouge, Louisiana 70804
Dollard, Elizabeth M.
Director, Policy Research
National Solid Wastes Management
Association
1120 Connecticut Avenue, N.W.
Suite 930
Washington, D.C. 20036
Doyle, John
Public Works Committee, U.S. House
of Representatives
Minority Counsel, Subcommittee on
Water Resources
Rayburn House Office Building 2165
Washington, D.C. 20215
Dunn, J.J. , Jr.
Executive Secretary
Institute for Solid Wastes
American Public Works Association
1776 Massachusetts Avenue, N.W.
Washington, D.C. 20036
Farrington, Edmond H.
Kerr-McGee Corporation
605 Commonwealth Building
1625 K Street, N.W.
Washington, D.C. 20006
Florence, Lois
Solid Waste Project
Environmental Action Foundation
1346 Connecticut Avenue, N.W.
Washington, D.C. 20036
Gilchrist, James E.
Counsel
Exxon Company, U.S.A.
P.O. Box 2180
Houston, Texas 77001
.Gilley, William F., P.E.
Director
Division, Solid and Hazardous
Waste Management
Commonwealth of Virginia
Madison Building
109 Governor Street
Richmond, Virginia 23219
Giroir, E.A., Jr.
Police Juror
Terrebonne Parish Police Jury
Houma, Louisiana 70356
Gordon, Ruthanne
Student Intern
National Wildlife Federation
16th and 0 Streets, N.W.
Washington,, D.C. 20001
Greco, James R.
Director
Government and Industry Affairs
Browning-Ferris Industries, Inc
Fannin Bank Building
Houston, Texas 77030
Guidry, Eulin
Police Juror
Terrebonne Parish Police Jury
P.O. Box 4035
Houma, Louisiana 70361
Gulledge, William P.
Engineering-Science
7903 Westpark Drive
McLean, Virginia 22102
Harris, Jim
Attorney
General Portland, Inc.
2300 Republic Bank Building
Portland, Oregon 75201
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Hickman, H. Lanier, Jr., P.E.
Executive Director
Governmental Refuse Collection
and Disposal Association
1629 K Street, N.W.
Washington, D.C. 20006
Israelsen, O. Allen, P.E.
Corporate Business Development
Bovay Engineers, Inc.
1730 North Lynn Street
Arlington, Virginia 22209
Jaffe, Adam B.
Science Monitor
Environmental Defense Fund
475 Park Avenue South
New York, New York 10016
Jorgensen, Stan R.
Solid Waste Program
EPA Region 6
First International Building
1201 Elm Street
Dallas, Texas 75270
Kant, Edward J., P.E.
Loureiro Engineering Associates
20 Tower Lane
Avon Park South
Avon, Connecticut 06001
King, James J.
Environmental Coordinator
Florida Power and Light Company
P.O. Box 529100
Miami, Florida 33152
Kratsas, Dr. Robert G.
Ecologist
Standard Oil Company
200 East Randolph Drive
Chicago, Illinois 60601
Krug, Gene
Department of Energy
Policy Analyst
20 Massachusetts Avenue, Rm.6134
Washington, D.C. 20545
Lowrey, W.C.
Washington Representative
Shell Oil Company
Suite 200
1025 Connecticut Avenue, N.W.
Washington, D.C. 20036
Matthews, Terry
National Governor3 Association
Director, Waste Management
Project
444 North Capitol Street
Washington, D.C. 20001
McAnulty, John
Coast Guard
Chemical Engineering
100-2nd Street, S.W.
Washington, D.C. 22041
Moon, Daniel K.
Corporate Development
Rollins Environmental Services,
Inc.
One Rollins Plaza
Wilmington, Delaware 19899
Moyer, William F.
Manager, Wetlands Section
Department of Natural Resources
and Environmental Control
Edward Tatnall Building
P.O. Box 1401
Dover, Delaware 19901
Muth, Harold D.
Vice-President
Government Relations
The American Waterways
Operators, Inc.
1600 Wilson Boulevard
Arlington, Virginia 22209
Palmer, Philip A., P.E.
Consultant
Environmental Engineering
E.I. DuPont DeNemours & Company
Wilmington, Delaware 19898
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Parker, Hampton M., Phd.
Technical Manager, Environmental
Affairs
Union Carbide Corporation
270 Park Avenue
New York, New York 10017
Parsons, Stanley
Attorney
Illinois EPA
2200 Churchill Road
Springfield, Illinois 62706
Pogell, Suzanne
Public Affairs Director
Chesapeake Bay Center for
Environmental Studies
137 Conduit Street
Annapolis, Maryland 21401
Quillin, Lieutenant
OCE
Reg. Functions
Forrestal Building
Washington, D.C. 20003
Rieker, Jim
Environmental Engineer
Mobil Oil
.150 E 42nd Street
New York, New York 10017
Rood, R. Fenton
Oklahoma State Department of
Health
Industrial and Solid Waste Div.
N.E. 10th and Stonewall
P.O. Box 53551
Oklahoma City, Oklahoma 73105
Schneider
Senior Special Assistant
The Council of State Governments
Environmental Resources
Iron Works Pike
Lexington, Kentucky 40578
Schroeder, Stephen H.
Attorney
Natural Resources Defense
Council, Inc.
917-15th Street, N.W. '
Washington, D.C. 20005
Sebree, David B.
Energy and Environment Division
Legal Department
E.I. DuPont DeNemours & Company
Wilmington, Delaware 19898
Segal, Harvey L.
General Physical Scientist
HQ USAF/LEEVP
Washington, D.C. 20330
Sexton, George L.
Coordinator
Environmental Controls
BETZ
Trevose, Pennsylvania 19047
Shaw, Judith G.
Senior Environmental Affairs
Associate
American Petroleum Institute
2101 L Street, N.W.
Washington, D.C. 20037
Shelton, Lori
Trends Publishing
Writer/Editor
233 National Press Building
Washington, D.C. 20045
Sidbury, Anne
Solid Waste Project
National Wildlife Federation
1412 16th Street, N.W.
Washington, D.C. 20036
Simmons, Donald W.
Engineer-Environmental Control
National Steel Corporation
2800 Grant Building
Pittsburgh, Pennsylvania 15219
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Smalley, Daniel H.
Staff Biologist
U.S. Fish and Wildlife Service
18th and C Streets, N.W.
Washington, D.C. 20240
Smith, Gabe
Attorney
Utility Water Act. Group
700 Main Street
Richmond, Virginia 23225
Smith, Peter
Federal Agency Liaison
OFA-EPA
401 M Street, S.W.
Washington, D.C. 20460
Smith, Turner T.
Attorney
Hunton and Williams
Box 1535
Richmond, Virginia 23212
Spiegel, Don
Environmental Engineer
Versar, Inc.
6621 Electronic Drive
Springfield, Virginia 22152
Steen, Sharon L.
.Attorney
DeBevoise and Liberman
1200 17th Street, N.W.
Washington, D.C. 20036
Seilley, Johnny J., P.E.
Director
Terrebonne Parish Police Jury
Department of Public Works
500 School Street
P.O. Box 4035
Houma, Louisiana 70360
Thibodaux, Horace J.
T. Baker Smith & Son, Inc.
550 South Van Avenue
P.O. Box 2266
Houma, Louisiana 70360
Toothaker, Anne M.
General Electric Company
Building 36, Room 120
Schenectady, New York 12345
Turgeon
HWMD, EPA
401 M Street, S.W.
Washington, D.C. 20460
Wyche, Bradford W.
Attorney
Wald, Harkrader & Ross
1320 19th Street, N.W.
Washington, D.C. 20035
Zoll, David F.
Attorney
American Petroleum Institute
2101 L Street, N.W.
Washington, D.C. 20037
ya!783
SW-47p
Order no. 742
GPO 938 308
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