United States         Office of
             Environmental Protection    Solid Waste
  0 ! . ~"        Agency           Washington DC 20460
             Solid Waste
4>EPA       Proposed Hazardous
             Waste Regulations

             Volume 3
             March 13, 1979
             San Francisco
             California
             Transcript

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                          TRANSCRIPT

                            Public Hearing

          on Proposed Rules for Controlling Hazardous Wastes

                Resource Conservation and Recovery Act

                         Sections 3001 - 3004

                               Volume III

            Marchl3,  1979, San Francisco, California 94105
       This hearing was sponsored by EPA, Office of Solid Waste,
and the proceedings (SW-52p) are reproduced entirely as transcribed
       by the official reporter, with handwritten corrections.
                 U.S. ENVIRONMENTAL PROTECTION AGENCY
                                 1979

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      This prepublication copy of this transcript does not include
printed matter submitted at the time of the hearing.  This material
will be included in the final printing.

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  UNITED STATES  ENVIRONMENTAL PROTECTION AGENCY

                 WASHINGTON,  D.  C.

                     --- oOo ---



                   PUBLIC HEARING

                         on

 PROPOSED RULES  FOR  CONTROLLING HAZARDOUS WASTES
     RESOURCE CONSERVATION AND RECOVERY ACT
              SECTIONS  3001  - 3004


                     VOLUME_j.I__I

                   Pages  539  - 652
                     7:03  p.m.

                  March  13,  1979
      U.S. ENVIRONMENTAL  PROTECTION AGENCY
                     REGION IX
               215  Fremont Street
        San Francisco,  California  94105
Reported by:

  JERRY R.  SMYTHE,  CSR
  (CSR No.  2393)

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                                                        1 ,


 1                         INDEX

 2    ARNE ROVICK, Phelps-Dodge Corporation,  Phoenix,
       Arizona                                          554
 3
     GEORGE HERSH, Chief, Resource Recovery  Division,
       California State Solid Waste Management  Board    565

 5    DONALD MORROW, General Manager, Agrico  Chemical
       Company's Mining Division                        578
 6
     WILLIAM PARK, California Chemical Waste
       Processors Association                           588

 8    STEVE MUSSELL, Facilities Planning  Group,
       Manufacturing Department, Chevron  U.S.A.         616
 9
     SAM CHAPIN, Assistant Vice President, Voight
       Walker and Company, San Francisco                626

11    ARIEL PARKINSON, private citizen  (Member  of
       the California State Solid Waste  Management
12      Board)                                           636

13    PATRICK H. WICKS, Chem-Nuclear Systems,
     Bellevue, Washington                               642
14

15 n
                          	oOo	
16 "

17

18

19

20

21

22

23

24

25

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                                                        540

 1                      HEARING PANEL

 2    DOROTHY DARRAH
     Office of General Counsel
 3    U.S.  Environmental Protection Agency
     Chairman
 4
     JOHN  P. LEHMAN
 5    Director, Hazardous Waste Management Division
     Office of Solid Waste
 6    U.S.  Environmental Protection Agency

 7    HARRY TRASK
     Desk  Office - Sections 3002, 3003
 8    Hazardous Waste Management Division
     Office of Solid Waste
 9    U.S.  Environmental Protection Agency

10    ALAN  CORSON
     Chief, Guideline Branch (Section 3001)
11    Hazardous Waste Management Division
     Office of Solid Waste
12    U.S.  Environmental Protection Agency

13    AMY SCHAFFER
     Office of Enforcement
14    U.S.  Environmental Protection Agency

15    ALFRED LINDSEY
     Chief, Implementation Branch
16    Hazardous Waste Management Division
     Office of Solid Waste
17    U.S.  Environmental Protection Agency

18    TIM FIELDS
     Desk  Officer - Section 3004
19    Hazardous V/'aste Management Division
     Office of Solid Waste
20    U.S.  Environmental Protection Agency

21    ALAN  ROBERTS
     Associate Director for Hazardous Materials  Regulation
22    U.S.  Department of Transportation

23

24

25

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                                                        541




          ___-                        j-.os  O'CLOCK P.M.




 2             MR. LEHMAN:   Good  evening,  ladies and




 3   gentlemen.  My name  is  John  Lehman,  and  I am the




 4   Director of the Hazardous  Waste  Management Division




 5   of EPA's Office of Solid Waste  in  Washington,  D.C.




 6             On behalf  of  EPA,  I would  like  to welcome




 7   you to the public hearing  which  is being  held to




 8   discuss the proposed regulations for  the  management




 9   of hazardous waste.  We appreciate your  taking the




10   time to participate  in  the development of these




11 I  regulations which are being  issued under  the authority




12   of the Resource Conservation and Recovery Act,




13   better known by its  acronym  R-C-R-A,  or  RCRA.




14             The Environmental  Protection Agency on




15   December 18, 1978 issued proposed  rules  under Sections




16   3001,  3002, and 3004 of the  Solid  Waste  Disposal




17   Act as substantially amended by  the  Resource




18   Conservation and Recovery  Act of 1976, Public Law




19   94-580.




20             These proposals  respectively cover:   First,




21    the criteria for identifying and listing  hazardous




22   waste,  identification methods, and a  hazardous  waste




23    list;  second, standards applicable to generators of




24    such waste for recordkeeping, labeling, using proper




25    containers, and using a transport  manifest;  and,

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                                                        542




 1   third,  the performance, design, and operating




 2   standards for hazardous waste management  facilities.




 3             These proposals, together with  those  already




 4   published pursuant to Section 3003 on April 28,  1978




 5   for transporters of hazardous waste, Section 3006  on




 6   February 1,  1978 for State hazardous waste management




 7   programs, Section 3008 on August 4, 1978  concerning




 8   enforcement  matters, and Section 3010 on  July 11,




 9   1978 concerning the notification program  and that  of




10   the Department of Transportation pursuant to the




11   Hazardous Materials Transportation Act on May 25,  1978




12   along with Section 3005 regulations concerning




13   facility permits which are soon to be proposed  under




14   40 CFR,  Parts 122, 123, and 124.  All of  these  taken




15   together constitute the Hazardous Waste Regulatory




16   Program under Subtitle C of the Act.




17             So this hearing is being held as a part  of




18   our public participation process in the development




19   of this regulatory program.




20             I'd like to introduce the panel members




21   who share the rostrum with me this evening.  They  are,




22   from your left, Harry Trask, Program Manager in our




23   Guidelines Branch of the Hazardous Waste  Management




24   Division, EPA in Washington.  Harry is the principal




25   staff member responsible for Sections 3002 and  3003.

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                                                        543





  1              Alan  Corson,  who  is  the Chief of our




  2   Guidelines Branch  in the  Hazardous Waste Management




  3   Division,  EPA,  Washington,  and who is the principal




  4   staff member  for Section  3001  of  our regulations.




  5              Amy Schaffer, Office of Enforcement, EPA




  6   in Washington.




  7              Dorothy  Darrah, Office  of General Counsel




  8   from EPA  in Washington.




  9              Fred  Lindsey, Chief  of  the Implementation




 10   Branch of  the Hazardous Waste  Division in Washington.




 11              Tim Fields, who is Program Manager in the




 12   Assessment  and  Technology Branch  of our Hazardous




 13   Waste Division  in  Washington and  who is the principal




 14   staff person  for Section  3004  of  the regulation.




 15              And Alan  Roberts, who if I can get your




 16   title right,  Alan,  I believe is Assistant Director




 17   for the Hazardous  Materials Transportation Bureau  of




 18   the Department  of  Transportation.   Something close




 19   to that.   Also  from Washington,  D.C.




 20              As  noted  in the Federal Register,  our




 21   planned agenda  is  to cover  comments on Sections 3001




 22   through 3004  this  evening.  And this session is




 23   planned primarily  for those who cannot attend during




24   the day sessions which  have been  ongoing for the




25   last two days and will  conclude tomorrow.

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                                                        544





 1              The comments received at this hearing, and




 2    the other hearings as noted in the Federal Register,




 3    together with the comment letters we receive, will be




 4    a part of the official docket in this rulemaking




 5    process.  The comment period closes on March 16th  for




 6    Sections 3001 through 3004, and the docket may be




 7    seen during normal working hours in Room 2111D,




 8    Waterside Mall,  401 M Street, Southwest in Washington,




 9    B.C.




10              In addition, we expect to have transcripts




11    of each hearing within about two weeks of the close




12    of the hearing.   These transcripts will be available




13    for reading at any of the EPA libraries, and a list




14    of these locations is available at the registration




15    table.




16              With that as a background, I'd like to lay




17    the groundwork and rules for the conduct of this




18    hearing.




19              The focus of a public hearing is on the




20    public's response to a regulatory proposal of an




21    Agency, or in this case, Agencies, since both EPA  and




22    the Department of Transportation are involved.




23              The purpose of this hearing is to solicit




24    comments on the proposed regulations, including  any




25    background information used to develop the comment.

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                                                        545





 1             This public hearing is being  held  not




 2   primarily to inform the public nor to defend a propos-




 3   ed regulation, but rather to obtain the public's




 4   response to these proposed regulations, and  thereafter




 5   revise them as may seem appropriate.  All major




 6   substantive comments made at the hearing will be




 7   addressed during preparation of the final regulations.




 8             This will not be a formal adjudicatory




 9   hearing with the right to cross-examination.  The




10   members of the public are to present their views on




11   the proposed regulation to the panel, and the panel




12   may ask questions of the people presenting statements




13   to clarify any ambiguities in their presentations.




14             The Chairman reserves the right to limit




15   lengthy questions, discussions, or statements. And




16   we would ask that those of you who have a prepared




17   statement to make orally to please limit your




18   presentation to a maximum of 10 minutes so we can  get




19   all statements in a reasonable time.  If you have  a




20   copy of your statement, please submit it to  the court




21   reporter.  We will also accept written  statements  at




22   the end of the hearing, and if you wish to submit  a




23   written rather than oral statement please make sure




24   that the court reporter has a copy.  The written




25   statements will also be included in their entirety in

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                                                       546





 1    the  record.




 2              Persons wishing to make an oral statement




 3    who  have  not  made an advance request by telephone or




 4    in writing should indicate their interest on the




 5    registration  card.   If you have not indicated your




 6    intent  to give  a statement and you decide to do so




 7    later on,  please return to the registration table,




 8    fill out  another card, and give it to one of the staff




 9              As  we call upon an individual to make a




10    statement, he or she should corne up to the lectern,




11    identify  himself or herself for the court reporter,




12    and  deliver his or her statement.




13              The Chairperson will inquire as to whether




14    the  speaker is  willing to entertain questions from




15    the  panel.  The speaker is under no obligation to do




15    so,  although  within the spirit of this information-




17    sharing hearing it would be of great assistance to the




18    Agency  if questions were permitted.




19              I have a few housekeeping announcements




20    here.   Restrooms and drinking fountains are located




21    on  this floor,  and we ask you to refer to a floor map




22    located behind the reception desk in the sixth fllor




23    lobby.




24              Also, you can get coffee from vending




25    machines  located also on this floor.  Unfortunately,

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                                                        547




 1    we do not have public phones on this floor.  You must




 2    go to the first floor lobby if you wish to make a




 3    public telephone call.




 4              Also, if you wish to be added to our mailing




 5    list for future regulations, draft regulations or




 6    proposed regulations, please leave your business card




 7    or name and address on a three-by-five card at the




 8    registration desk.




 9              The regulations under discussion at this




10    hearing are the core elements of a major regulatory




11    program to manage and control the country's hazardous




12    waste from generation to final disposal.  The Congress




13    directed this action in the Resource Conservation  and




14    Recovery Act of 1976, recognizing that disposal of




15    hazardous waste is a crucial environmental and health




16    problem which must be controlled.




17              In our proposal,  we have outlined




18    requirements which set minimum norms of conduct for




19    those who generate, transport, treat, store and




20    dispose of hazardous waste.




21              These requirements, we believe, will close




22    the circle of environmental control begun earlier




23    with regulatory control of emissions and discharges of




24    contaminants to air, water, and the oceans.




25              Subtitle C establishes a comprehensive

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                                                        548




 1    program to protect the public health and environment




 2    from improper disposal of hazardous waste.  Although




 3    the program requirements are to be developed by the




 4    Federal Government, the Act provides that States with




 5    adequate programs can assume responsibility for




 6    regulation of hazardous waste.




 7              The basic idea of Subtitle C is that the




 8    public health and the environment will be protected




 9    if there is careful monitoring of transportation of




10    hazardous waste, and assurance that such waste is




11    properly treated, stored, or disposed of either at




12    the site where it is generated or after it is




13    carried from that site to a special facility in




14    accordance with certain standards.




15              Seven guidelines and regulations are being




16    developed and either have been or will be proposed,




17    as 1 noted earlier.




18              It is important to note that the definition




19    of solid wastes in the Act encompasses not only




20    garbage, refuse, sludges and so forth, but what is




21    termed other discarded materials, including liquids,




22    semi-solids and contained gases, with a few exceptions




23    from both Municipal and industrial sources.




24              So when we refer to solid waste, we mean




25    all of these waste products, including liquids and

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                                                        549





 1   semi-solids and gases.




 2             Hazardous wastes, which are  a  subset  of  all




 3   solid waste and which will be  identified by  regula-




 4   tions proposed under Section 3002, are those which




 5   have particularly significant  impacts  on public




 6   health and the environment.




 7             Therefore, Section 3001 is the keystone




 8   to the Subtitle C program.  It's purpose is  to




 9   provide a means for determining whether  a waste is




10   hazardous for the purposes of  the Act  and, therefore,




11   whether it must be managed according to  the  other




12   Subtitle C regulations.




13             Section 3001(b) provides two mechanisms




14   for determining whether a waste is hazardous:   First,




15   a set of characteristics of hazardous  waste; and,




16   second, a list of particular hazardous wastes.   A




17   waste must be managed according to the Subtitle C




18   regulations if it either exhibits any  of the




19   characteristics set out in the proposed  regulations




20   or if it is listed.




21             Also, EPA is directed by Section 3001(a) of




22   the Act to develop criteria for identifying  the set




23   of characteristics of hazardous waste  and for




24   determining which wastes to list.  In  this proposed




25   rule, EPA sets out those criteria, identifies a set

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                                                        550




 1    of characteristics of hazardous waste, and establishes




 2    a list of particular hazardous wastes.




 3              Also,  the proposed regulation provides for




 4    demonstration of noninclusion in the regulatory




 5    program.




 6              Section 3002 addresses standards applicable




 7    to generators of hazardous waste.  A generator is




 8    defined as any person whose act or process produces




 9    a hazardous waste.  Minimum amounts generated and




10    disposed  per month are established to further define




11    a hazardous waste generator.  These standards exclude




12    household hazardous waste.




13              The generator standards will establish




14    requirements for the following:  Recordkeeping,




15    labeling  and marking of containers used for storage,




16    transport, or disposal of hazardous waste; use of




17    appropriate containers, furnishing information on  the




18    general chemical composition of a hazardous waste;




19    use of a  manifest system to assure that a hazardous




20    waste is  designated to a permitted treatment, storage,




21    or disposal facility; and submitting reports to the




22    Administrator or authorized State program setting




23    out the quantity generated and its disposition.




24              Section 3003 requires the development of




25    standards applicable to transporters of hazardous

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                                                        551




 1    wastes.   These proposed standards address identifica-




 2    tion codes, recordkeeping,  acceptance and transporta-




 3    tion of  hazardous wastes, compliance with the manifest




 4    system,  delivery of the hazardous waste, spills of




 5    hazardous waste and placarding and marking of vehicles




 6    In this  regard, the agency has coordinated very




 7    closely  with proposed and current U.S. Department  of




 8    Transportation Regulations.




 9              Section 3004 addresses standards affecting




10    owners and operators of hazardous waste treatment,




H    storage,  and disposal facilities.  These standards




12    define the levels of human health and environmental




13    protection to be achieved by these facilities and




14    provide  the criteria against which EPA or State




15    officials will measure applications for permits.




If,    Facilities on the generator's property, as well as




17    off-site  facilities, are covered by these regulations




18    and do require permits.   Generators and transporters




19    do not otherwise need permits.




20              EPA intends to promulgate final regulations




21    under all sections of Subtitle C by December 31, 1979.




22    It is important for the regulating communities to




23    understand, however, that the regulations under 3001




24    through  3005 do not take effect until six months after




25    they are  promulgated.   That would be approximately

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                                                       552




 1    June  of  1980.




 2              Thus,  there  will be a time period after




 3    final  promulgation during which time public understand




 4    ing of the regulations can be increased.  During this




 5    same  period,  notifications required under Section




 6    3010  are to be  submitted, and facility permit




 7    applications  required  under Section 3005 will be




 8    distributed for  completion by applicants.




 9              With  that as a summary of Subtitle C and




10    the proposed  regulations to be considered at this




11    hearing,  I would like  to return the meeting to our




12    Chairperson,  Dorothy Darrah.




13              MS.  DARRAH:   Thank you,  Jack.




14              Let  me just  reiterate a couple things Jack




15    said.   When I  call your name, if you have an extra




16    copy  of  your  remarks,  if you would give them to the




17    court  reporter  before  you speak, that would be helpful




18    If  you do not  have an  extra copy but would loan us




19    a handwritten  copy or  your single typed copy, that




20    would  also be  helpful.  We can Xerox or mail it back




21    to  you or give  it back to you tomorrow if you will




22    be  here,  just  to insure the accuracy of the transcript




23              I will be enforcing the 10-minute limit on




24    presentations  this evening as I have done for two days




25    I will repeat  for all  of you that this is not the only

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                                                        553






 1   opportunity that you have  for  the  Agency to hear your




 2   views.  We certainly will  be accepting  written




 3   statements for the record  at this  hearing,  and the




 4   comment period on these regulations  remains open




 5   through the 16th of this month  and has  been extended




 6   for two months on the extraction procedure.  That




 7   notice appeared in the Federal  Register on  Monday.




 8             We certainly find these  hearings  helpful,




 9   but in order to let everyone speak we do have to limit




10   you to 10 minutes.




11             I will read the  names of the  people who have




12   signed up to speak in the  order in which I  will  call




13   them.   There were seven people  who had  preregistered,




14   Mr. Sigfried, who is fist  on the list,  did  speak




15   this morning, so he will not be speaking this evening.




16             So it will be Mr. Clay,  Mr. Rovick,




17   Mr. Hersh, Mr.  Morrow, Mr. Park, Mr. Mussell.




18             And then the people who  have  registered




19   since  coming, and the order in  which I  wil] call them




20   is the order in which they registered:   Bob Burt,




21   Kenneth Wilkins, Sam Chapin, Ariel  Parkinson,  and




22   Patrick Wicks.




23             If there are any people  in addition to




24   these  who do want to speak this evening,  I  would




25   appreciate it if you would go back and  register  and

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                                                        554





 1   indicate that you do want to  speak.   All  of these




 2   people may not be here, but  I will  call  each name,




 3   since I am not sure who is or who  is  not  here.




 4             Is Mr. Clay here?




 5             Is Mr. Rovick here?




 6             MR. ROVICK:  Yes.




 7             MS. DARRAH:  Okay.




 8             MR. ROVICK:  Good  evening.   My  name is




 9   Arne Rovick.  I am an attorney  from Phoenix,  Arizona,




10   representing Phelps Dodge Corporation  this  evening.




11             My written comments are  being  typed in




12   Phoenix today and are being  mailed  in,  so I don't




13   have them here this evening.




14             Phelps Dodge Corporation  this  evening will




15   address its comments to Section  3001.   Phelps Dodge




16   Corporation is a copper company  operating open pit




17   mines :n Arizona and New Mexico  and developing an




18   underground mine at Safford,  Arizona.




19             Our concern with Section  3001  is  interpret-




20   ing the applicability of the  definition  of  hazardous




21   to general mine wastes.  Generally, the  copper that




22   is being mined in the United  States today is a low-




23   grade ore where vast quantities  of  overburden and




24   waste are removed to get down to the  economically




25   processible ore, and these wastes  are  generally

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                                                        555




 1    deposited near the mine site.  The economics of




 2    mining demand that the waste be deposited in or  about




 3    the  mine.




 4              In reviewing the legislative history of




 5    RCRA,  it  is our opinion that the Congressman enacting




 6    this law  intended that that application of the




 7    hazardous waste section to the mining industry be




 8    deferred  pending a study.   Conversations on the  Senate




 9    floor  where Senator Domenici was describing the




10    Kennecott Copper Mine up in Bingham Canyon, Utah,




11    asked  whether the millions of tons of overburden




12    which  are dug up and simply dumped over on the other




13    side of the mountain were  the type of waste to be




14    regulated.   Senator Randolph specifically declared




15    that mining activity of the kind that was described




16    there  was not intended to  be covered here.




17              Also,  one of the House Committee reports




18    stated that at that time Congress did not have infor-




19    mation available on the mining industry to determine




20    what hazards, if any, existed and, therefore, declared




21    that they did not have sufficient information to enact




22    legislation with respect to mining wastes.




23              Therefore,  in lieu of an enactment of




24    regulations,  they put in Section 3002(f), which




25    directs the Administrator  of the Environmental

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                                                        556






 1    Protection Agency to make a study of mining wastes.




 2    After this study is completed,  the Administrator is




 3    charged with making recommendations to Congress as




 4    to whether regulation is necessary for mining wastes.




 5              We believe that in the original draft of




 6    Section 3001,  which I believe came out over a year




 7    ago,  the Environmental Protection Agency followed  this




 8    intent.   And I believe the early definition under




 9    Section 3001 exempted wastes from mining and mineral -




10    or the mining and processing of ores, which would




11    include the mine overburden and tailings.




12              Subsequently,  this exemption was narrowed,




13    if not written out of Section 3001 as it was finally




14    published on December 18th.  I  believe the December




15    18th  preamble, though, still states that the




16    Environmental Protection Agency defers applicability




17    of most of the treatment, storage, and disposal




18    standards for selected high-volume, relatively low-




19    risk  wastes, such as mining wastes, until information




20    is gathered and assessed to determine how they can




21    best  be handled.




22              The exemption that now is written into




23    Section 3001 exempts mine overburden which is




24    returned to the mine site.  This really  isn't an




25    exemption for copper mining at  all.  I don't know  if

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                                                        557





 1   it was intended to be, but  in  the  copper  mining




 2   industry, basically none of our wastes  are  really




 3   intended to be returned to  the mine  site.   The mine




 4   is operated lor 10, 20, 30, or 50  years,  and  the




 5   overburden is piled up around  the  mine.




 6             Therefore,  in keeping with  the  Congressional




 ^   intent, we would suggest that  the  exemption under




 8   Section 3001 for mine wastes be worded  similar to  the




 9   description under Section 3004 for special  waste




10   material, other mine  wastes, and that would be




11   discarded material from the extraction, benefication,




12   and processing of ores and  minerals.  We  believe




13   that this comports with the Congressional intent.




14             We understand the Environmental Protection




15   Agency has commenced  a study of mine  wastes — I




16   think it's referred to as the  Pedco  Report  -- and




17   that specific regulation of mine wastes be  deferred




18   until that study is completed.




19             In the event that that suggestion is not




20   taken, we would like  to suggest that  the  Environmental




21   Protection Agency make a careful study  of the toxicity




22   standard and the toxic extraction  procedure in these




23   proposed regulations.   We believe  that  if our waste




24   materials are hazardous under  this Act, and we don't




25   believe they are,  but if they  are  it  would  only be

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                                                       558





 1    because of the toxic test.   These millions of tons




 2    of rock material that are removed certainly aren't




 3    ignitable, corrosive, or reactive.  In viewing the




 4    proposed test on toxicity,  there is a direct




 5    correlation to the National Interim Primary Drinking




 6    Water Standards.  I'd like to point out that those




 7    standards already have a significant safety margin




 8    built into them.  So if our -wastes are determined to




 9    be hazardous by the toxic test, we believe they would




10    be only marginally toxic and feel that the current




11    test is too sharp a delineation between hazardous




12    and nonhazardous.




13              We don't believe that these solid wastes




14    that are piled near the mine present an immediate




15    danger to the public.  They are really no more




16    dangerous for physical contact than the state they




17    were in before they were lifted out of the mine and




18    dumped beside the mine.




19              So we believe that in determining the




20    toxicity test as well as the others, but for our




21    interest the toxicity test, that a gradient for




22    various levels be established and control standards




23    relate to the potential for damage.  1 think the




24    Congressional intent here was to control truly




25    dangerous materials and impose strict regulations on

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                                                        559






 1   them, and we believe  that  the  standards  proposed here




 2   are too broad and the delineation  too  sharp,




 3             As to the extraction  procedure,  we  haven't




 4   had time to analyze that.   I  find  now  we have an




 5   extra 60 days, so I'll defer  any comments on  that




 6   until May 15th.




 7             MS. DARRAH:  Okay.   Will  you answer ques-




 8   tions for the panel?




 9             MR. ROVICK:  To  the  extent  I am able to,




10   yes.




11             MS. DARRAH:  Thanks.




12             MR. FIELDS:  I have  just  one question.




13   The comment you made  regarding  copper  overburden




14   being returned to the mine, was that  statement




15   representative of all copper  mining or just your




16   company's copper mines9




17             MR. ROVICK:  I can  only  speak  for Phelps




18   Dodge Corporation, but I believe that  it is true for




19   the copper mining industry, which  is  basically now




20   in an open pit mining operation, that  the overburden




21   and the waste in the  mine  itself that  must be moved




22   to get to the ore that can  be  processed  is all lifted




23   out of the mine and discarded  to the  side.  And I'm




24   not aware of any company that  makes it a. practice of




25   putting it back into  the mine.

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                                                        560





 1              I think that would be true also for most




 2    of  the underground mining operations.




 3              MR.  LEHMAN:   Mr. Rovick, I just wanted to




 4    point  out to you — you mentioned our preamble as




 5    citing the House Committee report concerning over-




 6    burden intended for return to the mine site and that




 7    your belief is the Congressional intent was that this




 8    be  deferred.  I also call your attention to the fact




 9    that in a different part of that House Committee




10    report it also states  that certain mining overburdens




11    may be considered hazardous.  If they are, we believe




12    the Congressional intent was that they be regulated.




13    In  other words, we believe there is a distinction  made




14    in  the Congressional intent between nonhazardous




15    mining waste and hazardous mining waste.




16              You  might want to go back and read that  a




17    little more thoroughly and see if you see that other




18    dist inct ion.




19              MR.  ROVICK:   I have read that, and I have




20    read the legislative history that you are referring




21    to.   I think,  problem  one, there is a loose use of




22    the word "overburden"  in their return to the mine




23    site.   I believe it was Senator Domenici that used




24    that phrase, and he was describing the type of




25    operation that we have atPhelps Dodge where it's not

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                                                        561
     returned to the mine site.  It's  lifted out.
            If he is using  the phrase  "mine  site,"  he




  means the property all around  the mine  where  it's




  deposited.




            As to the hazardous  nature,  I  think,  speak-




  ing just for copper -- and  I note that  the regulations




  do set out specifically different standards for




  uranium and phosphates — we haven't  completed




  testing and characterizing  our billions  of tons of




  waste material that we have dug  up over  the last




  half century.  But I guess  initially  we  don't  feel




  they are hazardous.  They may  test out  to  be  that,




  depending on what standard  the Environmental  Protec-




  tion Agency comes out for in their toxicity test




  which is up for discussion  here.




            MR. LEHMAN:  Well, on  that  point --




j            MR. ROVICK:  We feel that  the  Congressional




  intent was for the Environmental Protection Agency




  to make a. comprehensive study  of the  mining industry




  and based on that study to  put out regulations  and




  not to impose regulations immediately  which would




  have, I think,significant effects on  the mining




  industry because we are dealing  with  such  a




  tremendously large volume of material.   We would  have




  to, I think, incorporate  different practices  in the

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                                                       562




 1    mining and perhaps significantly alter the way in




 2    which the  ore is removed.




 3              So we don't think that any management




 4    restrictions should be imposed until there is a study




 5    and determination.




 6              MR. LEHMAN:  Well,  can I follow up on that?




 '              You mentioned a little later in your




 8    testimony  that you believe that we should establish




 °    a different set of standards based on the degree of




10    hazard,  or words to that effect.  Basically, we




11    thought  we were doing that by setting aside -- if




12    a mine waste tests out to be hazardous, that instead




13    of applying the full set of standards that we set




14    them aside and apply a relatively reduced set until




15    we are able to study this a little further.




16              Can you comment on that?  I mean these




17    very limited standards, at least we consider them




18    to be very limited standards, do you believe them a




19    great burden to your industry?




20              MR. ROVICK-  Well,  I guess I have signed




21    up to speak tomorrow on Section 3004 on special




22    waste matters, but there are provisions under Section




23    3004 that  even if our wastes tested out to be toxic




24    We don't believe some of the controls under Section




2->    3004 are necessary.

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                                                        563





 1              MR. LEHMAN:  Maybe we can  cover  that




 2    tomorrow.




 3              MR. ROVICK:  They are directed at  hazard,




 4    but we don't think they would be  found  in  our




 5    materials.




 6              MR. LEHMAN:  Thank you.




 7              MR. CORSON:  Mr. Rovick, you  mentioned  in




 8    your testimony that you would request the  EPA  to




 9    rethink its toxicity definition and  its EP for  mining




10    wastes.  I  am wondering if you might perhaps share




11    with us what your thoughts are in terms of what  you




12    think might be an applicable EP.




13              If you feel at this point, in light  of  our




14    allowing the extra 60 days, that  you will  develop




15    something in that time period, we would appreciate




16    it if you could give us your thoughts as to  what  the




17    toxicity definition should be as  applicable  to  mining




18    wastes if different than the one  we  have proposed.




19              MR. ROVICK:  Well, unfortunately,  I  think




20    it's a technical, scientific question.  I  don't  have




21    a background in that.




22              My understanding is that the  toxicity  test




23    as now determined related to drinking water, relates




24    to certain  assumptions as to natural leaching,  as




25    to natural  movement of waters in  the groundwater

-------
                                                        564





 1    system,  dilution of leachate as it moves through  the




 2    groundwater stream, and also an extraction procedure,




 3    certain  assumptions about what sorts of leachate




 4    would be found in a dump.




 5              In our dumps, I guess they are all




 6    relatively homegeneous.  It's the rock that was there




 7    that's moved or the tailings, which are basically




 8    the rock with the copper, hopefully, removed,  that




 9    are deposited.




10              My understanding is that the acidic  acid




11    that's used in this test is acidic acid that comes




12    from a decomposition of organic materials which would




13    not be in our dumps.  To the extent that our dumps




14    may contain alkaline materials or other acidic —




15    different types of acidic materials, we question  the




16    validity of this type of extraction procedure  as  to




17    whether  it would be applicable to our type of  wastes.




18              Our mining operations are located in New




19    Mexico and Arizona, which are arid regions, and I




20    don't know to what extent the validity of the  10




21    factor dilution exists in our groundwater system.




22    Our rainfalls are infrequent, and to what extent  they




23    percolate through the dumps or wash off and what  they




24    pick up, again, I don't know whether this 10 factor




25    holds true to that or not.

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                                                   565



          Speaking briefly with our engineers,  it




seems to me that the type of test  that  has  been




determined for toxicity, at least  in their  view,  is




related more to a domestic garbage dump  situation  in




a humid atmosphere than it is to the homogeneous




dumps in an arid region.




          MS. DARRAH:  Okay.  Thank you  very  much.




          MR. ROVICK:  Thank you.




          MS. DARRAH:  Mr. George  Hersh,  California




State Solid Waste Management Board?




          DR. HERSH:  I am Dr. George Hersh,  Chief




of the Resource Recovery Division, Solid  Waste




Management Board, California.  I am here  to testify




on rules under Sections 3002 and 3003.




          We are concerned with the effects on  our




used oil program, and I am abbreviating  slightly




from the printed text.




          California has put into  motion  a  used oil




recycling program.   We have about  2,400  voluntary




stations throughout the state and  a public  information




program which consists of cards posted  at locations




where oil is sold for due-it-yourself changers  and




cards posted at the stations wh^-re oil  can  be




deposited for recycling, plus TV spots,  a toll-free




number,  and a few other things.

-------
                                                        566




 1             The administrative rules for the program




 2   provide for registration of used oil haulers, of




 3   recyclers,  of transfer facility operators with our




 4   Board.   We require receipts for transfers of used




 5   oil and provide for the submittal of annual reports




 6   by used oil haulers, recyclers, and transfer facility




 7   operators so we can get an account of the amount of




 8   oil that's handled and processed and where it goes.




 9             The program depends on these 2,400 some odd




10   collectors, who are volunteers.  They are by and




11   large service stations, but we also have automotive




12   repair shops and recycling centers.




13             We understand that under the Environmental




14   Protection Agency regulations used oil generators,




15   such as automobile and truck service stations, would




16   be considered classified as generators of hazardous




17   waste and,  as such, would be required, among other




18   things, to apply for a generator's identification




19   code and either fulfill the manifest and other




20   recordkeeping and reporting requirements of a hazard-




21    ous waste generator or, in the case of used oil




22   generators, to enter into an "assumption of duties




23   contract" with the used oil hauler, recycler, or




24   disposer.




25             If that's the way that our used oil

-------
                                                       567





 1    handlers would fit into the proposal, it would have




 2    a detrimental effect on our program, and it would




 3    effectively work against the resource conservation




 4    goals of RCRA.   Muffler shops, recycling centers, and




 5    other facilities which are not handling used oil as




 6    a regular part  of their business would be likely




 7    to withdraw from our collection program rather than




 8    comply with the proposed Federal registration,




 9    recordkeeping,  and reporting requirements.  Also, the




10    present marginal monetary incentive for collecting




11    used oil is rather small, about one half to .7 cents




12    per gallon, and that would be reduced if stations




13    are required to pay a fee to used oil haulers or




14    disposers to assume the generator's responsibilities.




15              There is no shortage, by the way, of used




16    oil haulers in  the state.  We've got about 70 compa-




17    nies and about 300 trucks hauling used oil.




18              The problems we have identified could be




19    eliminated by categorically exempting service




20    stations and others that collect used oil for




21    recycling, exempting them from the requirements for




22    a hazardous waste generator.  This exemption would




23    also have the effect of encouraging the recycling




24    of used oil by  placing a disincentive on other modes




25    of disposal.  Such a waiver of the requirements is

-------
                                                        568





 1    reasonable and proper, since the used  oil  collected




 2    for recycling is not a waste but a resource  that  is




 3    to be put to use.




 4              That's all I have.   I appreciate the




 5    opportunity to testify.




 6              MS. DARRAH:  Thank you.  Will  you  answer




 7    quest ions?




 8              DR. HERSH:  Certainly.




 9              MS. DARRAH:  Okay.




10              MR. CORSON:  Just for purposes of  the




11    record,  Dr. Hersh,  how are you defining  "recycling"




12    with regard to oil?




13              DR. HERSH-  The preferred  method of




14    recycling is, of course, re-refining.  We  have  some




15    statistics.  The program has not been  in operation




16    for very long.




17              One of the things that we  are  looking at




18    is where does the oil go and in what ways  is it




19    recycled.  What we would like  to see,  of course,  is




20    the discouragement of any kind of use  which  is




21    classified as recycling but which does not in  fact




22    protect  the environment from oil, such things  as




23    road oil and use of  oil as a suspender for weed




24    killers  and the like.




25              The thing  that we are hoping to  encourage

-------
                                                         569





 1    is the refining  and  preferably re-refining that




 2    doesn't use  the  acid lay technique.




 3               Is  that  responsive?




 4               MR.  CORSON-   Yes,  I think that's what we




 5    are looking  for.




 6               I  think  it might be well to clarify  that




 7    in our definition  of "other  discarded material,"  if




 8    the use of the oil  does not  constitute disposal and




 9    is not used  for  burning as a fuel, then it is  not




10    in other discarded  material  and it is not a solid




11    waste and, therefore,  cannot be a hazardous waste




12    and,  therefore,  would fall out of our system.




13               DR.  HERSH:   Perhaps we are already in




14    agreement  and  nothing need be done.




15               MR.  CORSON:   Yes.




16               MR.  LINDSEY:   Can  I follow up on that?




17               Is  a significant amount — I think it's




18    fair to say  that there  is a  significant amount of




19    waste oil  which  is  collected now, not for recycling




20    into fresh lube  oil,  if you  will, to re-refining,




21    but rather is  perhaps treated in a minimal fashion




22    and then burned  in  boilers, school boilers and




23    industrial boilers  to some extent.




24               DR.  HERSH:   Yes.  We have some figures  on




25    fuel uses  of  recycled oil, and we also have some

-------
                                                       570






 1    use figures on road oils and other undesirable uses




 2    presently going on.




 3              MR.  LINDSEY:   Okay.   As long as the oil




 4    which is destined for re-refiners is out of the




 5    system,  then we are accomplishing essentially what




 6    you are  trying to accomplish;  right, do you think?




 7              DR.  HERSH:   Yes.   You would pick up -- the




 8    attempt  to direct the oil to the appropriate point




 9    would come at  the hauling stage.  The hauler would




10    still be required to  be registered.




11              The  people  that we want to get out of the




12    registration cycle are the service stations, the




13    primary  collectors, and particularly the non-service




14    station  primary collectors, people like recycling




15    centers  and outfits which don't do their oil




16    crankcase draining that aren't set up for it, except




17    this other kind of service function.




18              MR.  LINDSEY:   You said you had some figures.




19    Can you  tell us or can you estimate for us here




20    tonight  the percentages of the waste oil which are




21    reclaimed through your system, recovered through your




22    system do go back to  re-refiners as opposed to road




23    oil or what have you  that are burning in boilers?




24              DR.  HERSH:   I can't give you numbers that




25    are good for much right now.  This system has just

-------
                                                        571






 1   been inaugurated as of  January  of  this year.  We don't




 2   have figures coming back  from our  recordkeeping.   I




 3   do have estimates  in  our  office that  I can get for




 4   you, but they are  not very  solid.




 5             MR. LINDSEY:  Okay.




 6             MS. DARRAH:   I  have one  question.




 7             How is it through the hauler registration




 8   system that you intend  to protect  against the




 9   situation where somebody  with a truck comes along to




10   one or more service stations and says, "Look, I will




11   give you X cents more per gallon," and that person




12   intends to use it  for road  oiling  somewhere?  How is




13   that situation covered  in California?




14             DR. HERSH:  All right.   I think the problem




15   you are talking about is  somebody  who is at the




Ig   same time collecting  from service  stations and who




17 |  is not reselling or otherwise performing, but




18   themselves taking  the oil and putting it somewhere.




19 :            MS. DARRAH:   I  guess  the question is how




20   do you protect against  that or  how do you try to




21   protect against that?




22             DR. HERSH:  If  somebody  did that and had




23   no registration, they would be  performing an illegal




24   act.  No1?




25             MS. DARRAH:   Yes,  indeed.

-------
                                                        572





 1              DR.  HERSH:   All right.  And you would have




 2    the same stricture as you would have on anybody who




 3    is performing  an illegal act.  The major problem,  of




 4    course,  is how do you pick up on people like that.




 5    The usual place you pick up on them is a complaint




 6    because  they have affected the water quality.




 7    Somebody complains.




 8              In our state, it would be the Water Resource




 9    Control  Board  of the Region saying, "Hey, there is




10    an oil slick down here."  So that someone who made




11    a business practice of doing that would probably  be




12    picked up only if they made some kind of visible




13    nuisance that  was then reported to a controlling




14    agency.




15              MS.  DARRAH:  Is it unlawful for one of




16    these collector stations to turn over the oil or  to




17    sell the oil to an unlicensed hauler?  I guess  I  am




18    just worried about the possible incentive to a




19    gas station if someone offers to pay them more  money.




20              DR.  HERSH:   As far as I know, there is  no




21    law now which  forbids -- I don't think there is any




22    such provision in the State law.  There could be  and




23    it could be not in my head, but as far as I know,  no,




24    it would be possible for one of these stations  to




25    turn things over.

-------
                                                        573





 1              They do, however, have to do some bookkeep-




 2    ing which gets reported to the State, and we  have




 3    an  opportunity to at least do some processing on that




 4    bookkeeping and get a check.




 5              I doubt that we would pick up anything




 6    very small without a complaint, but a large and




 7    regular infraction we pick up simply because  we are




 8    trying to find out where the oil goes.




 9              MS.  DARRAH:  Okay.  It's not that I have




10    any knowledge that this is a problem.




11              DR.  HERSH:  I think all systems have the




12    potential for small leaks, but what we are trying  to




13    do  is avoid big,  systematic leaks and to provide




14    ways in which a small leak which is a nuisance gets




15    picked up, reported, and eliminated at some point




16    in  its history.




17              MR.  TRASK:  Dr.  Hersh, could you briefly




18    describe the paper handling system that goes  on,




19    starting with the waste oil hauler, I guess you call




20    him, and what  does he do for the pickup at the pickup




21    point and then what sort of reports he turns  in to




22    you?




23              DR.  HERSH:  Wait a minute.  From the hauling




24    stages on, you are back in a Federal system.  You




25    are back in the kind of system which would be a

-------
                                                        574





 1    manifest system for any hazardous waste.  No?  You've




 2    got  a hauler who has a license.




 3              I'm sorry.  The reason I am a  little fuzzy




 4    on that  is we have just had a division in responsibil-




 5    ity  in the state.   The recovery for hazardous waste




 6    handling has been  moved over to the Department of




 7    Health,  who now deal with the manifest system and




 8    all  its  aspects.  We still have the oil  program




 9    because  we are primarily interested in the recycling




10    and  management end of it and not — except in making




11    sure we  don't make trouble for the hazardous manage-




12    ment waste aspect.




13              MR. TRASK:  I didn't want to get into  that.




14              What sort of records and reports do these




15    haulers  have or make to you?




16              DR. HERSH:  I'm sorry, that's  what I was --




17    the  haulers don't  report directly to us.  They report




18    to the Department  of Health.




19              MR. TRASK:  Okay.




20              DR. HERSH:  The collectors report  to us,




21    and  our  records are shared with the Department of




22    Health.




23              MR. TRASK:  I guess the terms  are  bothering




24    me.   What is a collector, and what is a  hauler.




25              DR. HERSH:  Let me bring it down to --

-------
                                                        575





 1              MR.  TRASK:   Is a service station a




 2  i  collector?




 3  j            DR.  HERSH:   A service station  is a




 4    collector.  A  service station has a sign up that'says,




 5  |  "We  take oil."




 6              MR.  TRASK:   Okay.




 7              DR.  HERSH:   A selling point -- K Mart,




 8    Safeway,  what  have you -- has a sign in  it which




 9    says "Don't  throw your used oil down the drain.  Take




10    it  to so and so service station or call  this number




11    and  we will  give you  a list of places where you can




12    dump it . "




13              MR.  TRASK:   Okay.




14              DR.  HERSH:   So, that part of the system  is




15    a  notification to the buyer that there are places  to




16    dump.   Here  is a place.   That place keeps a record




17    of  how much  they receive.  They keep a record of who




18    they hand it over to.  That record comes to us,




19              MR.  TRASK:   Okay.  The collectors keep a




20    record of how  much they receive, not necessarily from




21    whom they receive it?




22              DR.  HERSH:   No, they don't keep a record




23    of who they  receive it from.




24              MR.  TRASK:   Just the volumes received?




25              DR.  HERSH:   Yes, just the volumes.

-------
                                                        576




 1              MR. TRASK:  Including what they  generated




 2    themselves?




 3              DR. HERSH:  Yes.




 4              MR. TRASK:  And then that record  is  sent




 5    in to you as a report?




 6              DR. HERSH:  Right.




 7              MR. TRASK:  And then the haulers  report  to




 8    the other agency in the state?




 9              DR. HERSH:  That's right.  We  do  not  yet




10    have a coordinated system balancing those  books, but




11    we hope that it's going to be fairly easy  to do that.




12              MR. TRASK:  Thank you.




13              MS. DARRAH:   To follow that up,  though,  I




14    think what you are implying is that once the hauler




15    collects the material  it's then rated as a  hazardous




16    material in California; is that correct?




17              DR. HERSH:  Ordinarily haulers of such




18    materials are required to go through the manifest




19    system and do licensing because they don't  confine




20    themselves to used oil.  Even if you pull  oil  off




21    the list of things for hazardous waste --  I am sorry.




22    I am thinking of my own type.




23              Used oil disposed of improperly  is a




24    hazardous waste.  Used oil going to a recycling




25    operation is not a waste, doesn't  come under the

-------
                                                        577





 1    system.   Unless the hauler  can  demonstrate  that  the




 2    only place that he goes  is  an approved  place and the




 3    only thing that he carries  is approved  materials so




 4    that he is not a hauler  of  waste  at  all,  he is




 5    simply a transporter of  a commodity;  if he  does  any-




 6    thing else, if he takes  some material  to  a  dump  or




 7    what have you, he is automatically required to get




 8    into the manifesting system and be a registered




 9    hauler.




10              MS.  DARRAH:   Some other material,  you  mean?




11    I guess my question is does that  used  oil that's




12    picked up — would that  hauler, if he  or  she is  taking




13    it only to a recycling center,  generate a manifest?




14    If this person is a licensed hauler  and hauls other




15    hazardous waste but at the  time is hauling  only  used




16    oil destined for a recycling center,  does that hauler




17    generate a. manifest on that used  oil?




18              DR.  HERSH:   All right.  I  was under the




19    impression that we had a mechanism to  do  it,  but I




20    can't pull it  out of my  head immediately,   I'm not




21    sure whether we have a separate subregulation there




22    or whether it's simply that the manifest  system  for




23    hazardous wastes is extended to cover  the material.




24    But I can get  you an answer, and  we  did have a method




25    for keeping a  record on  that.

-------
                                                        578





 1              MS.  DARRAH:  Okay.




 2              DR.  HERSH:  How much time have  I  got  for




 3    those two,  by  the way?  I just promised to  get  you




 4    two things.   Do you need them by two days?




 5              MS.  DARRAH:  We need them, if at  all




 6    possible,  by Friday, which  is the close of  the  comment




 7    period.   If they can be postmarked by Friday, that




 8    would be fine.




 9              DR.  HERSH:  Okay.  Generous.




10              MS.  DARRAH:  Thank you very much.




11              Mr.  Don Morrow, Agrico Chemical Company?




12              MR.  MORROW:  My name is Don Morrow, and  I




13    am General Manager of Agrico Chemical Company's




14    Mining Division.  Agrico operates three phosphate




15    mines located  in Central Florida.




16              Agrico is very concerned about  the




17    designation of phosphate mining materials as  hazardous




18    waste under the proposed regulations of the Resource




19    Conservation and Recovery Act.  I thank EPA for




20    this opportunity to express our concern.




21              I am convinced that EPA would not include




22    phosphate overburden and clays as hazardous waste  if




23    EPA representatives had had time to visit us  in




24    Florida and learn in specific what the  industry does,




25    the nature of the material  handled, the method  for

-------
                                                        579




 1   storage of these materials, and the  amount  of




 2   exposure risk.




 3             You need to know that our  industry disturbs




 4   approximately 5600 acres a year.  Overburden,  the




 5   soil above the layer of ore,  is displaced and  returned




 6   to each acre.  The sand and the clay that are  removed




 7   by the benefication process are also returned  to the




 8   mine site to be used in the reclamation  procedure.




 9             It is also important to know that the




10   industry reclaims each acre distrubed; that is, we




11   restore each acre to a generally more productive or




12   more aesthetic state than it  was originally.




13   Reclamation, in fact, has been mandated  by  the State




14   of Florida since 1975.




15             So what we have is  a dynamic process of




16   mining and reclamation of areas approximating  5600




17   acres or 8.7 square miles each year.  Can you  realize




18   how difficult it would be to  impose  the  proposed




19   restrictions on areas as large as this,  particularly




20   when these areas are moving each day?




21             The real question is:  Why is  it  even




22   necessary?  The overburden that is removed  from above




23   the matrix is simply deposited about 200 feet  from




24   its original location.   When  the land is reclaimed,




25   the overburden is returned closer to its original

-------
                                                       580




1    location.   We  didn't  change  the  chemical or




2    radiological characteristics of  it  in  any manner.   We




3    merely  displaced  it.




4              Moving  the  overburden  to  mine the matrix




5    is  analogous to  the  farmer moving the  soil to harvest




6    his  potatoes.  Certainly  the  movement  shouldn't cause




7    the  material to  be  reclassified  as  a  waste.  Since




8    it  wasn't  hazardous  to begin with,  it  certainly can't




9    be  labeled a hazardous waste.




10              After  the  phosphate is separated from the




11    ore-bearing matrix,  we are  left  with  the other two




12    parts of  the matrix,  sand and clay.  The sand, which




13    EPA  concurs is not  a  hazardous waste,  is pumped back




14    to  the  mine site  for  fill in the reclamation process.




15              The  clays  are  also returned to the mined-out




16    pits, and  in most cases  stored to an  elevation above




17    the  normal ground surface by constructing earthen




18    dams around the  mined-out areas.  The elevated storage




19    allows  the clays  to  dewater   and, in  time, consolidate




20    to  a firm  condition  where the area can be reclaimed




21    for  good  pasture  or  agricultural uses.  In the




22    meanwhile, these  ponds provide wonderful habitat  for




23    wildlife  and some of  the best fishing in Florida.




24              Let's  now  consider exposure.  EPA's recent




25    Environmental  Impact  Statement on Central Florida's

-------
                                                        581





 1    Phosphate Industry states, and  I quote,  "To  date,




 2    no activity of the phosphate industry  has  been  proved




 3    to cause a radiation dose to the general population




 4    in excess of the guideline.  Furthermore,  when




 5    industry average time-weighted  values  are  used,  it




 6    is anticipated that no phosphate workers will receive




 7    doses of radiation exceeding the guideline established




 8    for the general population."  So it has  been  establish




 9    ed that there is no risk to the phosphate  miner  work-




10    ing in these raining areas.




11              Hoxvever, EPA wishes to classify  the




12    overburden and clay ponds as hazardous waste.   When




13    we consider overburden, we should recognize  that




14    there's virtually no difference between  our  overburden




15    piles and much of the developed reclaimed  land  in




16    Polk County, Florida.   Our reclaimed land  is, in great




17    part, overburden piles that were leveled in  such a




18    manner as to create useful land.




19              It is indeed a rare occasion that  someone




20    would walk across an  overburden pile  or a clay  pond




21    and,  consequently, there is practically  no exposure




22    when the land is in the process of mining.   However,




23    m Polk County, many housing developments, shopping




24    centers, businesses, parks, recreation areas, clinics,




25    institutions, schools,  and the  U.S. Post Office  are

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                                                   582




all located on reclaimed land.  This use of the  land




causes much greater exposure than our overburden
piles.
          If there is a risk, we should build  fences
around these reclaimed developed areas and keep




people out.  We should then also construct fences




around the state oi Colorado, parts of Las Vegas,




Nevada, Albuquerque, New Mexico, and the beaches of




Sarasota, Florida.  These places have gamma radiation




levels as high or higher than the phosphate mines




and their reclaimed lands.  If EPA is going to




protect Floridians from their own land, they should




also protect the millions of endangered people living




in these other areas.




          As for alpha radiation, the respected




health physicist, Dr. Keith Shiager, has written,




and I quote, "Surveys conducted in Canada and Europe




indicate that as many as five percent of all houses




exhibit normal radon progency concentrations exceeding




.02 working levels.  Based on observed distributions




of normal concentrations, approximately one percent




of all residences would exceed  .03 working levels.




Consequently, it can safely be assumed that a million




or more people in the United States live in normal




radon progeny concentrations which exceed the level

-------
                                                        583





 1    for which the EPA proposes regulatory or remedial




 2    action."




 3              Of course, the real fact is that there  is




 4    no appreciable hazard when the radiation levels' are




 5    so low.   In a study by EPA, it was determined  that




 6    the amount of radiation only became significant to




 7    people living in dwellings on a small percentage  of




 8    reclaimed land if they stayed inside the same




 9    unventilated house for 70 years.  I submit to  you




10    if I,  or most other Americans, had to stay inside




11    an unventilated house for 70 years without going




12    outside, I would not be concerned about an increase




13    in my  risk of having cancer.




14              The most positive proof that radiation  is




15    not a  problem comes from a survey by the U.S.  Depart-




16    ment of  Health,  Education and Welfare in 1974  which




17    determined that Polk County, the primary location  of




18    phosphate mining since 1880, ranked 31st of 67  Florida




19    counties in mortality rates due to cancer of the




20    respiratory system.   Another study by the National




21    Cancer Institute shows that Polk County ranks  43rd




22    for 67 Florida counties in leukemia mortality.




23              These mortality rates indicate that  Polk




24    County is as healthy as the average county in  Florida,




25    so how can EPA conclude we have a radiation problem?

-------
                                                       584




 1    A  note  of  interest  to all of you is that Polk County




 2    is the  residence  of the oldest living American,




 3    Charlie Smith,  who  is 135 years old.




 4              All  these facts,  except Charles Smith,




 5    support the  industry's position that:




 6                   "The amount  of radiation from phosphate




 7              mining  or reclaimed land is of such low




 8              levels  as to have no discernible or




 9              significant health effects  on the people in




10              the  area;




11                   "The proposed classification of over-




12              burden  and clays  as hazardous is not




13              necessary;




14                   "The costs to the industry resulting




15              from this proposed classification is




16              inflationary to the American people and




17              provides  no benefits to the people; and




18                   "This proposed regulation represents




19              the  typical inflationary overkill from




20              which President Carter has  promised the




21              American  people some relief."




22              And  I thank you for this opportunity.




23              MS.  DARRAH:  Thank you, Mr. Morrow.  Will




24    you answer questions for the panel?




25              MR.  MORROW:  To the best of my ability.

-------
                                                         585





 1              MS.  DARRAH:   Okay.




 2              MR.  LEHMAN:   Mr. Morrow,  I believe  earlier




 3   in your  testimony  you  mentioned --  I believe  you




 4   said an  EPA  Environmental Impact Statement  on the




 5   Florida  Phosphate  Industry.   Was that correct,  or  was




 6   it some  other  Federal  agency?




 7              MR.  MORROW:   No, it was EPA.   EPA made a




 8   study on the Central Florida Phosphate Region,  and




 9   it was completed within the last couple  of  months.




10              MR.  LEHMAN:   A study or an Environmental




11   Impact Statement?




12              MR.  MORROW:   Environmental Impact Statement.




13              MR.  LEHMAN:   Do you have  in your  written




14   submission a reference to that document?




15              MR.  MORROW:   No.




16              MR.  LEHMAN:   Because we would  like  to  get




17 |  in touch with  the  people that wrote it.   I've never




18   heard of it, and I  am  just trying to track  down  the




19   source of  it so we  can check it out.




20              MR.  MORROW:   I don't have the  name  of  it




21   with me.    I  have a  copy of it in my room, and I  can




22   give it  to you tomorrow.




23              MR.  LEHMAN-   All right.   If we  can  maybe




24   supply the title to  it and the document  number  to  the




25   court reporter, it  would be  helpful to us.

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                                                        586
          MR. MORROW:  Certainly.




          MR. LEHMAN:  Thank you.




          MR. CORSON:  Just a quick question,




Mr .  Morrow.




          "We have in our proposed regulations  some




listed wastes and a means to demonstrate  those  wastes




should not be included which relates  to some elimina-




tions of radium 226, and you indicated  in  your




comments some lands exceed some  number  of  .03  working




levels.   I am wondering if you have any feel as to




whether the  .03 working level is a better  indication




of hazard or whether there is some number  that  you




think, as a  result of the studies you have reviewed,




does represent some area where we should  be  concerned




that the incidence of risk is something worthy  of




concern.




          MR. MORROW:  Mr. Corson, I  can't speak to




magnitudes,   but I know on our reclaimed land,  I am




told that ii we reclaim a portion of  land  that  in  its




native state was higher than .02 working  levels that




there is a good chance that the  reclaimed  land  is




higher than  the .02 working levels.   If it's less,




it's less.




          In other words, we don't seem to concentrate




it.   Did I answer your question?

-------
                                                        587





 1             MR. CORSON:  Well, no.  What  I  am  wondering




 2   is do you have any feel for what number would  be




 3   appropriate to exercise controls, because part  of  our




 4   concern is that these materials that  are  taken  from




 5   one place and used somewhere else,  if they are  not




 6   in a control system, could be used  as a fill in an




 7   area where houses would be built which  is not  the




 8   area that was disturbed in order to do  the mining?




 9   So what is the control level?




10             We picked one in our proposal or demonstrat-




11   ed what — we chose one that said if  your number  is




12   less than that we won't let you out of  the system.




13   We suggested in our proposed hazardous  rulemaking




14   a specific characteristic against which all  waste




15   would have to be evaluated if we were to  adopt  that




16   level at some point.




17             MR. MORROW:  I can't give you that number.




18   I'm not qualified to do it.




19             But I'd like to refer you to  the Florida




20   Phosphate Council summation where they  spoke in much




21   detail to the numbers.




22             MR. TRASK:  Mr. Morrow, in  a  lighter  vein,




23   why is it that Charlie Smith won't  support the




24   industry?




25             MR. MORROW-  He does support  the industry.

-------
                                                        588






 1              MR. TRASK:  Oh.  I thought  you  said  everyone




 2    in the county supported the industry  except  for




 3    Charlie Smith?




 4              MR. MORROW:  No.




 5              MR. TRASK:  I misunderstood that?




 6              MR. MORROW:  He is our oldest citizen  in




 7    the county.




 8              MS. DARRAH:  Thank you for  your comments,




 9    Mr.  Morrow.




10              MR. MORROW:  Thank you very much.




11              MS. DARRAH:  Mr. Bill Park,  Environmental




12    Protection Corporation?




13              MR. PARK:  Ladies and gentlemen, thank you




14    for this opportunity to appear before you to make




15    verbally some of our comments.




16              I  represent the California  Chemical  Waste




17    Processors Association, which is an organization of




18    handlers of  waste either  for the purpose  of  disposal,




19    recycling, reclaiming, or in some way process  waste




20    material in  California.   The membership of this




21    association,  which  is attached to the letter directed




22    to Mr. Lehman accompanying our comments,  some  21




23    regular members of  the association handle approximate-




24    ly 85 percent of the hazardous waste  that is handled




25    by reclaimers and off-site disposal in the state of

-------
                                                        589





 1    California .




 2              I  would appeal to our Chairperson  that  in




 3    the presentation of my comments --  I  am  representing




 4    all of these people, and we by vote have decided  that




 5    the association would make one statement to  the panel




 6    which we all concur with.  In fact, I  am appearing




 7    on behalf of quite a number of people, and  if  you can




 8    allow me a little latitude on the 10  minutes  I would




 9    appreciate it very much, realizing  if  we had  not




10    handled it this way we would have had  some  20  people




11    standing in  line at 10 minutes each.




r?              MR. DARRAH:   Can you tell me how  much time




13    you'd like?




14              MR. PARK:  I think I might  stretch  that




15    five or ten  minutes if I may.  It's not  the  intent




16    to comment orally on all of the matters  mentioned




17    in our written comment.  There are  some  40  comments




18    there,  and certainly I'm not going  to  touch  on all of




19    those.   But  I would like to stress  some  of  the things,




20    although we  feel that all of them are  important.   None




21    of them, we  feel, are of a frivolous  comment  nature,




22    but there are some, of course, that are  more  vital




23    to us than others.  I  would like possibly about 15




24    minutes to discuss those things which  we feel  are more




25    or less life or death to us.

-------
                                                        590





 1              MS. DARRAH:  Okay.  I will grant  your  15




 2    minutes.   If you would prefer to wait until  the  other




 3    people who are here have spoken, we can grant  even




 4    more time than that.  That's the choice I'll give  you.




 5              MR. PARK:  Due to the length of the  day,




 6    I  think I'll try the 15 minutes.




 7              MS. DARRAH:  Okay.




 8              MR. PARK:  The first  item listed  --




 9    incidentally, we are commenting on all sections,




10    Sections  3001 through 3004.




11              The first oral comment that we have  has  to




12    do with the identification and  listing of hazardous




13    waste which appears in the Federal Register.   In part,




14    it is stated in the supplementary information  on




15    Page 58947 that the "...first priority for  permitting




16    to off-site disposal facilities and new facilities...'




17    Our comment relative to off-site being the  first




18    priority  is as follows:




19              This appears to be discriminatory  to




20    regulate  one segment of the disposal operators off-




21    site nationwide while others are given up to five




22    years interim period whereby they would only be




23    subject to a limited set of requirements.




24              It has been demonstrated that some of  the




25    most technically sound operations are those  defined

-------
                                                        591





 1    as off-site or contracted private  firms  that  special-




 2    ize in this field.  Such firms are  open  to  frequent




 3    inspection and public scrutiny, whereas  private sites




 4    are often virtually invisible to all  but the  user.




 5    In that the same materials are handled,  it  appears




 6    environmental problems are identical.




 7              To allow a five-year differential  in




 8    implementation of the regulations  uniformly  will




 9    place a severe economic disadvantage  on  those firms




10    which professionally manage hazardous  waste  materials




11    and also will serve to further aggravate and  produce




12    a negative impact upon the initial  Congressional




13    intent of RCRA.




14              We would advocate a uniform  application  of




15    the regulations nationwide, and that  in  cases where




16    problems are anticipated priority  be  given  to poten-




17    tial public exposure, regardless of whether  the




18    facility is defined as off-site or  any other  term.




19    We believe that this approach would best serve  the




20    national interest.




21              Our next comment appears  on  the copy  you




22    have on our Page 6.  It refers to  Page 18512,  Section




23    250.38.




24              The transporter -- no, excuse  me.   Let's




25    go down to Section 3004,  which appears on Page  58987-

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                                                       592





 1    58988  in  the Federal  Register pertaining to financial




 2    responsibility,  the financial responsibility or site




 3    life.




 4              "EPA has interpreted the term 'financial




 5    responsibility'  in Section 3004 of RCRA to include




 6    the  ability  to pay for injuries to people and property




 7    which  result from the escape of hazardous waste into




 8    the  environment ..."




 9              "The proposed regulations require a facility




10    to show  evidence of a minimum of $5 million of




11    financial  responsibility per occurrence per site for




12    sudden and accidental occurrences during the life of




13    the  site.   In addition, the owner or operator of a




14    facility,  or group of facilities, is required to have




15    and  maintain financial responsibility for non-sudden




16    and  accidental occurrences in the amount of $5 million




17    per  occurrence,  and an annual aggregate of $10 million




18    including  legal  defense costs.  Both types of




19    insurance  coverage in these amounts are now available




20    from the  private sector.'1  This is a quote from EPA.




21              "Financial  responsibility, which is intended




22    to include claims arising from both sudden and




23    non-sudden escape of  hazardous waste to the environ-




24    ment,  can  be established by liability insurance,




25    self-insurance,  a combination of the two, or some

-------
                                                        593





 1    other form of financial responsibility acceptable




 2    to the Regional Administrator.   If  a company elects




 3    self-insurance, however,  such  insurance for all sites




 4    owned and insured may not  exceed 10 percent of the




 5    firm's equity...




 6              "The  Agency also has  received comments that




 7    such liability  insurance  is  prohibitively expensive.




 8    EPA has discussed this point with  several insurance




 9    industry representatives,  has  reviewed the ranges of




10    premium costs for such liability insurance being




11    written today,  and has concluded that insurance




12    costs are not unreasonable."




13              Our comment:  After  a great deal of study




14    and research on this problem,  this  matter has become




15    our foremost concern.  It  has  to do with this section




16    of proposed regulations,  specifically the portion




17    relating to the liability  coverage  of $5 million with




18    a $10 million annual aggregate  coverage for sudden




19    and non-sudden  pollution  insurance.   This coverage is




20    required of the owners or  operators of a treatment,




21    storage, or disposal facility  during the site




22    operation.   Financial responsibility may be establish-




23    ed by any one of the previous  ways  mentioned.




24              These requirements may be a threat to the




25    national productive capacity of U.S.  industry in

-------
                                                       594






 1    general  and is  destructive to the very existence of




 2    small  business  enterprises involved in waste manage-




 3    ment,  regardless  of  how well they may be operated.




 4    We  also  believe that these regulations far exceed




 5    the mandate of  Congress.




 6              Contrary to the assertions of EPA, no




 7    insurance  policies meeting these requirements have




 8    been written.   A  policy was obtained by a member of




 9    our association in the amount of $2 million per




10    occurrence and  $4 million annual aggregate for an




11    annual premium  of $90,000, with provisions which




12    meet only  a portion  of the total requirements.  This




13    policy was underwritten by a foreign-owned and




14    operated insurance group.




15              After diligent effort on the part of this




16    association,  we have been unable to locate a domestic




17    underwriter who will consider this type of coverage.




18    Our only encouragement that such coverage is




19    obtainable comes  from a London-based group.




20              The self-insurance clause, which allows only




21    10  percent of equity to be applied as self-insurance,




22    is  of  little or no benefit to most members of our




23    association.   In  order for a company to be self-




24    insured, it would require an equity of $100 million.




25    With the exception of a very few companies, the

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                                                   595





operators of such facilities have  an  equity  of  less




than $1 mi 11 ion.




          This  provision, therefore,  is  discriminatory




against many small businesses which are  presently




performing in compliance with the  stringent  regula-




tions which are already in  force in the  state of




California.




          Most  industries operating in the United




States produce  a certain amount of hazardous waste




materials as an end product.  According  to these




regulations, if these wastes are to be disposed of




they must be deposited in an EPA approved  site.   In




order for a site to legally operate,  financial




responsibility  must be established and maintained.




In most cases,  insurance is the only  way that




financial responsibility can be established.  Our




experience shows that the only source for  this




coverage is foreign groups which can  issue or cancel




policies at  will.  This places in  the hands  of  foreign




interests an inordinate amount of  control  over  the




productive capacity of this nation.




          The mandate of Congress  contained  in




Section 3004 of RCRA is stated as  follows, and  I
quote.
                    "No private entity shall  be  precluded

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                                                       596






 1              by  reasons  of criteria established (regard-




 2              ing financial responsibility) from the




 3              ownership  or operation of facilities




 4              providing  hazardous waste treatment,




 5              storage  and disposal services where such




 6              entity  can  provide assurances of financial




 7              responsibility and continuity of operation




 8              consistent  with the degree and duration of




 9              risks  associated with the treatment,  storage




10              or  disposal of specified hazardous waste."




11              It  is  our  position that the level of




12    insurance  of  $5  million and $10 million is not




13    consistent with  the  degree and duration of risks




14    associated with  the  treatment, storage, or disposal of




15    specified  hazardous  material.  The level of financial




16    responsibility is  a  consideration that must be made




17    by  site-risk  analysis.




18              In  other words, a large facility in an urban




19    community  that handles high volumes of extremely




20    hazardous  waste  would have a much higher risk and,




21    therefore, should  provide more financial responsibil-




22    ity than  a small  site remotely located and handling




23    small  volumes of  less hazardous material.




24              if  we  take only the example that exists




25    that approaches  the  coverage required, it is estimated

-------
                                                        597





 1    that the cost for the required coverage  would  be  in




 2    the neighborhood of $150,000 per year per  facility.




 3    The cost of such premium must be passed  on  to  the




 4    waste generator and, thence, to the  consuming  public.




 5              Many facilities are presently  operating




 6    on an annual gross revenue of less than  that amount.




 7    This means that the fees for disposal by a  small




 8    operator must be more than doubled to meet  the cost




 9    of this single item in these regulations.




10              On the other hand, the large operator




11    handling a high volume, thus a high  revenue, will be




12    less affected, placing the small business  in a non-




13    competitive situation.




14              If we assume that 200 sites may  be ultimate-




15    ly permitted nationwide by EPA, it would require




16    $2 billion worth of coverage at an estimated annual




17    cost of S30 million.




18              It is our opinion that such regulations are




19    neither fair nor reasonable.




20              The reserve disposal capacity  that is




21    presently provided by facility operators in the state




22    of California is envied by most states.  The major




23    reason for the capacity that exists  in California is




24    because of the large number of small business




25    enterprises involved.   The adoption  of this portion of

-------
                                                        598





 1    the regulations will result in the demise of most  of




 2    these small businesses and, thus, greatly reduce our




 3    disposal capacity.




 4              We have another comment that I would  like




 5    to bring to your attention, and this is more or less




 6    a general statement about the regulations being




 7    inspecific of how to do this and how to do that .




 8    Instead of telling us what you want done, you are




 9    telling us how to do it.   This makes it very difficult




10    when it gets into application.




11              Page 59000 and 59001, Section -- this is




12    Comment 15 on Page 16 of my account, and this refers




13    to the Federal Register Pages 59000 and 59001,  the




14    General Site Selection.




15              Active portions of a facility shall be




16    located a minimum of 200 feet from the property line




17    of the facility.  We strongly disagree with this




18    requirement, because it would place an undue hardship




19    upon existing facilities.




20              For example,  it could reduce the usable




21    area from a 40-acre site to 20 acres.  In other words,




22    if you take an 80-acre piece of ground, you make out




23    a 200-foot perimeter all the way around it, you come




24    up with 40 acres.  So you have reduced the site




25    capacity in half.  If you take a 20-acre site,  you

-------
                                                        599





 1    reduce it to about nine acres or less.   Maybe  it's




 2    six.   But it's almost nothing when you  get  down  to  a




 3    20-acre parcel if you wipe out a 200-foot perimeter




 4    all the way around it.




 5              If the facility can demonstrate that there




 6    is minimal danger to human health and the environment




 7    operating closer than 200 feet of the property




 8    boundary, they should be allowed to operate  that




 9    facility.




10              Turn to page 21 of the comments that I




11    have  submitted to you, Number 25, and the page in  the




12    Federal Register is 59006 and 59007, here again,




13    financial requirements.




14              In addition to the comments previously




15    made  on financial responsibility, we have the  follow-




16    ing specific comments:




17              a.  Section 250.43-9(a)(1)(ii) Financial




18    Assurance for Facility Closure.  The requirements  for




19    facility closure requires that a closure trust fund




20    be established in the amount approved by the EPA




21    Administrator for each facility, to be  released  after




22    closure has been completed to the satisfaction of  the




23    Administrator.   This provision requires  the  operator




24    to invest the capital for closure twice, once  to




25    establish the fund and then again at time of closure.

-------
                                                        600





 1  i  The  trust fund should be available to the operator




 2  j  to  be  used for the purpose of closure.




 3  i            The same situation exists for the post-




 4  i  closure  monitoring and maintenance trust fund.   After




 5  i  closure,  these funds should be automatically  released




 6  |  for  the  operator's use in annual increments to  cover




 7    these  costs.




 8  I            b.   Section 250.43-9(b ) (2 ) Establishment




 9    of  Post-Closure Financial Responsibility for  Hazardous




10    Waste  Disposal Facilities.   We urge EPA to establish




11    now  the  post-closure financial responsibility portion




12    of  these  regulations so that we know where we are




13    headed.   For  the disposal facility operators  to  put




14    their  business future on the line without knowing  all




15    of  the rules  of the game before it's commencement  is




16    foolish.




17              Right now we are considering — some  of  us




18    are  trying to figure out whether we are going to ask




19    for  an exemption for rotary mud and brine water  sites




20    under  the facilities or whether to continue to  handle




21    small  volumes of hazardous waste.  But we don't  know




22    how  to play the game.  We don't know what the final




23    cost is  going to be.  We go ahead and try to  fulfill




24    the  requirements of RCRA and upgrade our sites  to




25    whatever  needs to be done in financial outlay,  and

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                                                        601





 1    many times thousands and  tens  of  thousands  of  dollars




 2    of capital outlay, to meet  these  regs  when  we  know




 3    that lurking behind the curtain  is  another  set of




 4    regulations coming to follow.  We don't  know if we




 5    will ever be able to meet those  or  not.




 6              So we are sitting  here  now trying to make




 7    decisions for the future, whether we are going to




 8    try to meet RCRA,  whether we are  going to ask  an




 9    exemption of RCRA, and we really  even  with  --  if we




10    consider that these regs  are going  to  be passed as




11    they are, we still don't  know  how to play the  game.




12    We don't know what the time  span  is  for  the next




13    regulations that come about, so  we  don't know  how much




14    time we've got to recover the  cost  or  recover  the




15    funds that we are getting ready  to  invest to meet




16    these regs.




17              So we urge you  now to  come up  with a




18    total package now so that we can  take  a  look at it




19    and know which way we can go.  It'll only be a service




20    to the nation and the industry in general if you will




21    do so.




22              As I said before,  you  have many comments




23    before you.  All of them  have  had a great deal of




24    thought from the practical  aspect,  the practical




25    applicat ion.

-------
                                                        602





 1              We are very proud of the  fact  that  we  did




 2    play a very effective role in developing  the




 3    California State regulations, which  in many ways are




 4    more stringent than these.  We are  proud  of that




 5    effort,  because they are workable and practical.




 6    We hope to work with you folks on the same basis in




 7    coming up with something.




 8              We do in general applaud  your  efforts,  and




 9    we are working to accomplish the same thing you  are.




10    We would like, however, for you to  accept  some of




11    our thoughts relative to the practical application to




12    make these a practicable and workable set  of  rules.




13              Thank you very much.




14              MS. DARRAH:  Thank you, Mr. Park.




15              Let me just state that we  certainly can --




16    even though the comment period closes this Friday, if




17    we need clarification or more information  from you,




18    we certainly will contact you or your association




19    and seek that.  I really appreciate  the  time  you have




20    taken to do this, and I think you probably have  given




21    us enough comments that we can question  you for  at




22    least a short time.




23              MR. PARK:  Fine.  Thank you.   We will  be




24    delighted to help any way we can.




25              MS. DARRAH:  Okay.

-------
                                                        603





 1              MR. LINDSEY:  Why don't I start.




 2              You made some comment in your  last set




 3    of comments that I'm not sure I follow.  You said  that




 4    you are worried about the next set of regulations




 5    which are going to come along.  It is true  that we




 6    have deferred a couple things in here.   Which ones




 1    really bother you?  Is it the fact of the special




 8    waste standards and you don't know where they are




 9    going to come out?  Is that the problem?




10              MR. PARK:  No.  How we are going  to handle




11    the final insurance package.




12              MR. LINDSEY:  Oh, the post-closure




13    liability?




14              MR. PARK:  Right.




15              MR. LINDSEY:  Okay.  Well, the problem there




16    is, one, we have not been able to find a mechanism




17    under our authority by which we can address that that




18    is workable.  I think we may have mentioned in the




19    preamble we think that what we've got here  is




20    something that Congress is going to have to address




21    and probably come up with some kind of trust fund




22    or something along those lines.




23              I guess what we are saying is, with regard




24    to the post-closure liability, we have not  been able




25    to find a mechanism that we have the authority to

-------
                                                       604





 1    implement  that  will  work okay.   I don't know what we




 2    can  do  about  that.




 3              MR.  PARK:   As an association,  we haven't




 4    taken violent  issue  with the trust fund concept,




 5    either  for closure  or for post-closure monitoring




 6    and  maintenance.   That is a known to us.   That is




 7    spelled out.   We  know what that's going to be.




 8              We  have,  of course,  taken rather strong




 9    objection  to  the  financial responsibility from the




10    standpoint of  liability insurance required during




11    operation.  But we  still have  this unknown that we




12    are  looking at, and  we have no idea where out of




13    left field that's going to come from and/or what it's




14    going to consist  of.   That is  the financial responsi-




15    bility  for post-closure.  From that period of time,




16    after the  site  is closed until  you folks say that the




17    monitoring and  all  can be — and maintenance can be




18    discontinued,   during that period of time, what is our




19    financial  responsibility?




20              If  you  say financial responsibility for




21    perpetuity, there ain't no such thing.




22              MR.  LINDSEY:  No.  As I --




23              MR.  PARK:   There can't be.




24              MR.  LINDSEY:  No.  What I was trying to get




25    to was  --  and I think in the preamble we have not been

-------
                                                       605





 1   able to come up with a mechanism for doing that that




 2   we have the authority to handle.  I think that's going




 3   to probably have to take a Congressional fix unless




 4   we get a stroke of genius somewhere.




 5             So I'm not sure we can do much about that




 6   concern before we promulgate these unless we, as I




 7   say, get a stroke of genius somewhere that we don't




 8   see at the moment.




 9             MR.  PARK:  How can the businessman look  at




10   it not knowing what that's going to entail?  Right




11   now in my small business operation in Kern County,




12   we are investing in excess of $100,000 to meet the




13   State regs.  We don't object to that because we know




14   what those State regs are.  But we had hoped that




15   most of that $100,000 capital investment would meet




16   the Federal regs when they came along.  Obviously, it's




17   not.




18             When I look at these regs, it means another




19   bundle of money that's going to have to be put in,




20   particularly with the premium on financial responsibil-




21   ity.  Then we've got something else lurking out in the




22   darkness that  we don't know.  So do we make a business




23   decision based on this unknown to say, "Okay.  We  can




24   risk it for five years," and by that time we will




25   recover our investment when we don't know we might have

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                                                       606
 two years?   And we may  decide  when  that  comes out we




 can't stay  in business  anymore.




           In this case,  we  have  thrown  money down the




 rat hole  trying to meet  regulations,  all in good




 will and  good faith  trying  to  meet  our  regulations,




| and then  we  find out  that we just  can't  economically




 possibly  do  it.




           So we are  asking  that  let's go ahead and




 get Congressional action if that's  what's required,




 and let's put the package together  and  bring it out




 so that we  can look  at  the  whole package.




           MR. LINDSEY:   I sympathize  with your problem.




 As I say, we think that's what we  are going to have




 to do .




           Incidentally,  there  have  been  a couple




 of statements made at these hearings  which more or




 less parallel to some extent our way  of  thinking




 relative  to  the fact  that there  probably would be a




 fund that would be set  up at the Federal level,




 Federal oversight of  a  fund, in  which there would be




 a charge  on  disposal  of  somewhere,  I  would estimate,




 in the neighborhood  of  $1 per  ton  which would cover




 everyone  who was permitted  and who  did  things right.




           But, again, that  would take Congressional




 action, and  we are considering a Congressional

-------
                                                       607






 1   initiative  to do  that,  as  are  the  National Solid Waste




 2   Management  Association  I happen  to know is pushing




 3   that sort of thing,  as  are some  others.




 4             But I can't tell you --  we  just don't, have




 5   the wherewithal to be able to  tell you that Congress




 6   is going to do  something about that.   If they don't,




 7   unless we get some other stroke  of genius, we won't




 8   be doing anything with  regard  to these regs.   We




 9   haven't been able to identify  anything that we can do




10   under RCRA  now.




11             MR. PARK:   To add another $1 a ton  on top




12   of the $1 a ton the  State  has,  the possibly several




13   dollars a ton for the premium  that the liability




14   insurance will place on it,  and  these regulations




15   wouldn't work.  They might work  in New York and they




16   might work  in San Francisco and  they  might work in




17   Los Angeles, but  they won't work in Kern County where




18   you've got  8,000  square miles  and  3,000 people living




19   there because, believe me,  these regs will be




20   unenforceable.  And  EPA and the  State,  I don't believe




21   can put enough policemen out behind those vacuuum




22   trucks to make sure  that they  go to a legal site.




23   We have been working with  these  things for seven years




24   now, and we are still not  getting  compliance  in the




25   state of California.  And  the  overlay of EPA  is not

-------
                                                       608





 1   going to make a hill of beans.




 2             So we are driving the waste  into  the  weeds




 3   and not putting it into the proper places,  and  this




 4   is the thing that I urge you  to look at  very  carefully,




 5             MR. LINDSEY:  Okay.  Let me  go  further  into




 6   the insurance thing while we  are discussing it.




 7             You did discuss that you feel  that  the




 8   insurance is not available, or if it is  available




 9   it's going to be a very high  premium.




10             MR, PARK:  In a foreign market.




11             MR. LINDSEY:  Well, it's an  international




12   consortium, the group I think you are  speaking  to.




13             In any event, we have had some  testimony on




14   that at some of the other hearings as  well,  both  to




15   the same point you are making and also  from that




16   consortium of people that they are ready  to take  on




17   anybody.  But that's not the  argument  I  want  to get




18   into.




19             If you are correct, what are  the  other  --




20   do you have any suggestions on what other alternatives




21   we might have with regard to  satisfying  this  mandate




22   that we have for financial responsibility;  that is,




23   for providing protection, to the public  in the event




24   of damages?  Is there another option we  can use?




25             MR. PARK:  I think  most of us  at  the  present

-------
                                                      609





 1   time, Fred, are carrying as much as $1 million  or more




 2   in umbrella -- public liability for accidental  and




 3   sudden-type insurance.  Our small company  carries that




 4  I type of insurance.  We have forever since  we  have




 5   been in business carried $1 million umbrella  or




 6   liability for sudden and accidental-type occurrence.




 7   But our policy is specifically restricted  from




 8   non-sudden pollution insurance, and I see  no  way to




 9   cover it.




10             But if you are going to withhold  the




11   financial responsibility for post-closure  until you




12   get Congressional action, maybe we better  withhold




13   this portion for Congressional action and  try the




14   same route.




15             MR. LINDSEY:  Early in your comments  you




16   took exception to the fact that it says in  the




17   preamble there that our policy will be to  work  on,




18   I think it says, new facilities and off-site  facilities




19   permits get priority.




20             Actually, our policy is probably  going to




21   be a little bit more involved than that, in that on-




22   site facilities who have an NPDES permit will try to




23   time the permit for RCRA permitting to coincide with




24   the repermitting of NPDES facilities so they  are both




25   done at the same time, and that's probably  the  way the

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                                                   610





on-site facilities will be done.




          With regard to off-site facilities,  one  of




the reasons why we wanted to give priority  there was




because we were under the impression  from talking  to




your industry that it would be  quite  helpful  to have




the RCRA permit in hand in terms of being able to




attract capital for expansion.   As you  know,  we have




a shortage of capacity, particularly  off-site




capacity, in this country.  We  are going to need




expansion of those facilities,  and we  were  under the




impression that getting the permits to the  good




people early would help them attract  the capital




to expand and so forth.




          And that's one of the reasons  we  did that




and why we have taken that policy.  Maybe in




California that wouldn't be important, since  you




already have permits.  But in the rest of the  nation




we are given to believe that that would  be  useful.




          MR. PARK:  This is the first time I've  heard




that comment.  It certainly didn't come  out of our




association.




          MR. LINDSEY:  No, it  wasn't  your  association,




          MR. PARK:  That's the first  I've  heard




anyone felt  it would be any great advantage to have:




       it 1J»  feftnd.  I can see under certain

-------
                                                       611





 1   circumstances that might be true.   However, the matter




 2   of discrimination still stands.  If you are going to




 3   go under the NPDES permit, allow another five years




 4   for on-site facilities, then certainly that is




 5   discriminatory against the off-site operator who has




 6   the expertise, has the money invested already to




 7   take care of the public need,  and if somebody can




 8   find a loophole and get another five years by going




 9   it on his own, then certainly that's how they are




10   going to go.  There could be a significant savings




11   in bucks.




12             MS. SCHAFFER:  Fred,  could I follow up




13   on that?




14             MR. LINDSEY:  Yes.




15             MS. SCHAFFER:  Mr. Park,  in following up




16   on that,  you said that you thought we should use,




17   I  think,  a potential public exposure as the way of




18   setting the priorities.  Could you tell me what you




19   mean by that?




20             MR. PARK:  Well, I think what I'm talking




21   about there is where the need is greatest to protect




22   public exposure.   If you are going to set priorities,




23   then it should be based on public exposure to the




24   waste material,  as to the site location, for example,




25   this type of thing.  That is a method that could be

-------
                                                       612





 1   used.




 2             Frankly,  in  all  fairness,  I  think what would




 3   be probably better  is  to have  a  deadline  date for




 4   everybody and say this  is  the  cutoff date we meet




 5   the regs and everybody  meets them  at the  same time.




 6   We have had a similar  situation  here in  California of




 7   meeting State Health Department  regs.   It was started




 8   at -- one site had  to  meet  a certain deadline date




 9   and another site had to meet another deadline date.




10   Well, they came down to me  with  a  deadline date three




11   months ahead of my  competitor.   I  said,  "No way.  If




12   you are going to give  me a  deadline,  give me the same




13   starting point as my competitor  because  I am not




14   running under a handicap.   I am  not  going to run a




15   hundred-yard dash and  my competitor  has  a 10-yard start




16   on me. "




17             So I would say that  they all ought to start




18   the same, with on-site  and  off-site  being figured




19   at the same -- have a  deadline date  for  meeting and




20   complying with Federal  regs on the same  date so no




21   one can maintain that  you  show favoritism.




22             MS. SCHAFFER:  Thank you,  Mr.  Park.




23             MR. PARK:  Surely.




24             MR. FIELDS:   Mr.  Park,  I have  one question




25   regarding that one  point,  the  general  site selection.

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          You gave calculations  regarding  how  much




site acreage would be taken  away by  this 200-foot




buffer zone we require.




          MR. PARK:  Yes.




          MR. FIELDS:  Do you  have any  thoughts  --




well, first of all, do you think there  should  be a




buffer zone, and what do you think an appropriate




buffer zone should be or whether there  should  be




any at all?




          MR. PARK:  I think that depends  on the




individual situation.  Now I have an 80-acre site




in the San Joaquin Valley, six and a half  miles




northwest of Taft.   The nearest  thing to that  site




facility are some oil pumping  units, and the nearest




neighbor is over a half a mile away.  It's  sage  brush,




some sheep range for a couple  weeks  in  the  spring  of




the year.  Otherwise, it's jack  rabbits and blunt-nosec




leopard lizards that we have to  worry about and  kit




foxes as an endangered species.  Other  than that,  we




have no need for a buffer zone,  except  enough  room to




drill possibly some monitoring wells or whatever you




folks are going to require.   But it  certainly  doesn't




require 200 feet to put down a six-inch bore hole




for a monitoring well.




          So I have a site on  this 80 acres where  we

-------
                                                       614




 1    are  handling this year,  projected on last year's




 2    business,  one and a half million barrels of fluids.




 3    Now  it's 42-gallon barrels on 80 acres of land.  In




 4    fact,  we have been handling that in about 45 acres.




 5    We  expanded it now to 80.   But by the time I get




 6    through meeting your regulations I haven't added




 7    anything to my site at all by developing another 35




 8    acres,  because I am going to wind up with less




 9    acreage than I have been operating on for the last




10    year and I will be spending thousands of dollars




11    enlarging the site to be able to add additional waste.




12    And  a  200-foot setback is going to cost me all the




13    acreage that I have added.




14              MR. FIELDS:  So you advocate the no buffer




15    zone requirement and allow the permitting official




16    to  determine on a case-by-case basis what the buffer




17    zone should be?




18              MR. PARK:  That's right.  I think if you




19    are  in a highly urbanized area and you've got houses




20    being  built or the danger of houses being built right




21    up  to  the perimeter, certainly there needs to be




22    thought on a buffer zone.   But in a very remote




23    area such as we are in,  and we are not an exception.




24    There  are many, many sites that are in very remote




25    areas,  and to put a categorical distance, I think,  is

-------
                                                        615




 1   wrong.   I think we need to meet the need.




 2             MS. DARRAH:  Mr. Park, let me  interrupt  here




 3   We are in a peculiar situation.  I have  six  more




 4   people here who are  signed up to speak.  Woul^d  you




 5   be willing to respond to written questions submitted




 6   by the panel?




 7             MR. PARK:  I would be delighted to.




 8             MS. DARRAH:  We would appreciate that.   I




 9   think that's the best way to handle it.




10             MR. PARK:  I will go further.  You gave  me




11   the offer of coming  in later.  I will  stay until the




12   last speaker, if you desire, and answer  any  questions




13   that I can.




14             MS. DARRAH:  It would be interesting  to




15   see what shape the panel is in.  We have been here




16   since 8:30 this morning.




17             MR. PARK:  Thank you very much.




18             MS. DARRAH:  Thank you.




19             The court  reporter needs a break.   Let's




20   take about a 10-minute break.




21             (Short recess.)




22             MS. DARRAH:  Alan Roberts, who is  our




23   representative from  the Department of  Transportation,




24   has another hearing  tomorrow.  We have,  of course,




25   another session tomorrow.   He's asked  to find out  if

-------
                                                       616




 1   anybody  speaking  tonight will  be addressing the




 2   Section  3003  regs and  the DOT  proposal.   Is anyone




 3   else  who is  speaking tonight  going to make comments




 4   on  those regulations?   Can you raise your hand if you




 5   are?




 6             SPEAKER FROM THE FLOOR:   Good-bye,  Alan.




 7   Nice  knowing  you.




 8             MS.  DARRAH:   Okay.   Mr.  Mussell, Chevron




 9   Corporation.   Is  that  a correct pronunciation?




10             MR.  MUSSELL:   Just  right.




11             I  am sure the fact  that  you called  a break




12   just  as  I  was  walking  up here  has  nothing to  do with




13   the silent protest on  the price of gasoline.




14             My  name is Steve Mussell.   I am a member




15   of  the Facilities Planning Group for the Manufacturing




16   Department of  Chevron  U.S.A.,  Incorporated.  I am




17   appearing  here today on behalf of  Chevron U.S.A.,




18   which is the  domestic  operating subsidiary of Standard




19   Oil Company  of California.




20             In  my job, I am required to be familiar with




21   environmental  issues that Chevron  must address,




22   especially including the control of  waste at  each of




23   our company  refineries, not only here in California




24   but in the entire nation.




25             I  appreciate the opportunity to present our

-------
                                                       617





 1    views  on  the proposed regulations under Section 3001,




 2    3002,  and 3004 of the Resource Conservation and




 3    Recovery  Act of 1976.




 4              The petroleum industry shares your concern




 5    for the protection of human health and the environment




 6    against improper waste management practices.  Our




 7    comments  today are intended to assist you in preparing




 8    the most  effective regulations possible to achieve




 9    these  common goals.




10              I  would like to briefly discuss several




11    specific  points covered in the regulations which




12    should be reconsidered or revised.  In addition to my




13    oral testimony, Chevron will submit written comments




14    in  more detail for your consideration.




15              Under the  proposed regulations, most of the




16    petroleum industry's surface impoundments are likely




17    to  be  classified as  hazardous waste treatment




18    facilities.   A very  high percentage of these




19    facilities,  although designed in accordance with




20    good engineering practice, probably will not meet the




21    requirements of the  proposed regulations.  It has been




22    estimated that it will cost $3 billion to upgrade




23    facilities for the petroleum industry refinery sector




24    alone.




25              As an example, the proposed regulations

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                                                       618





 1    require  that  the  bottom of  the surface impoundment




 2    liner  system  be  five  feet  above the high water table,




 3    and  that  is  impossible  to  attain in many coastal




 4    areas  where  the  majority of petroleum facilities are




 5    located.   The bottom  of many of these existing




 6    impoundments  are  below  the  water table.




 7              Several of  these  surface impoundments are




 8    located  over  brackish or otherwise non-potable




 9    aquifers.  Furthermore,  the discharge from these




10    ponds  is   currently regulated under the  National




11    Pollution  Discharge Elmination System.




12              The EPA should not regulate NPDES surface




13    impoundments  under RCRA regulations at this time.




14    The  Agency should conduct  an in-depth study to deter-




15    mine the  number  of surface  impoundments  that potential-




16    ly are affected  by these regulations, the environmental




17    risks  associated  with these facilities,  and the




18    costs  and  benefits of various degrees of control.




19              Alternatively, the EPA should  designate




20    petroleum  industry surface  impoundments  for regulation




21    under  the  Special Waste Standards Section.  As a




22    special  waste,  these  ponds  should be administered




23    under  the  NPDES  program.  This will avoid confusing




24    administrative problems, especially in California




25    where  the  Regional Water Quality Control Board has the

-------
                                                       619




 1    responsibility to administer the NPDES program, and




 2    the Department of Health Services has a responsibility




 3    to control hazardous wastes.




 4              If the EPA proceeds with regulation of




 5    NPDES surface impoundments,  it should be on a




 6    category-by-category basis,  giving consideration to




 7    the specific waste in the impoundments, its degree




 8    of hazard, the site hydrogeological conditions, and




 9    the costs and benefits of any additional controls




10    which may be required.  The  proposed, detailed




11    requirements of Section 250.45-3 should be removed




12    and incorporated as part of  the Special Waste




13    St andards.




14              The proposed regulations fail to consider




15    relative  toxicities of different hazardous wastes.




16    One pound of crude oil tank  bottoms is not equal in




17    toxicity  to one pound of PCB.   We recommend that




18    hazardous wastes be classified by toxicity and the




19    control  be commensurate with the degree of hazard.




20              The requirement for an up-front trust fund




21    for each  disposal site would create a large and un-




22    necessary financial burden on the petroleum industry.




23    The EPA  states that trust funds are a good idea and




24    have an  advantage because they grow while a facility's




25    income is greatest.  However,  the large quantities of

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                                                       620





 1    hazardous  wastes  are treated,  stored,  and disposed




 2    of  on  site by  generators,  and  such activities do not




 3    create any income.




 4              The  financial  requirements for closure and




 5    post-closure monitoring  may be appropriate for a




 6    firm  that's dedicated to hazardous waste management.




 7    Trust  funds are  inappropriate  for other industrial




 8    enterprises that  are not in the hazardous waste




 9    management business for  profit.




10              It is  estimated  that a large oil company




11    would  be  required to place as  much as  $100 million in




12    a  trust  for closure of a producing or  exploration




13    site  or  a  like amount for  a single large refinery.




14              The  regulations  should be revised to provide




15    a  self-insurance  option  to meet closure and post-




16    closure  requirements.  Where the public is protected




17    by  standard legal process, a company with substantial




18    assets should  be  permitted to  be self- insured.   This




19    will  also  have the added benefit of freeing capital




20    from  an  idle trust, allowing its productive use in




21    locating  and developing  oil resources.




22              Chevron U.S.A. urges the EPA to revise the




23    proposed  regulations to:




24                    Re-study the cost/benefit of regulat-




25              ing  petroleum  industry surface impoundments

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                                                        621





 1              under RCRA;




 2                 To consider the relative toxicity of




 3              hazardous wastes and control the wastes




 4              accordingly; and




 5                  To establish a self-insurance option




 6              to satisfy the financial requirements of




 7              closure.




 8              Thank you.




 9              MS.  DARRAH:  Thank you.  Will you answer




10    questions from the  panel?




11              MR.  MUSSELL:  If I can.




12              MS.  DARRAH:  Okay.




13              MR.  FIELDS:  I have one question regarding




14    your existing surface impoundments.




15              You indicated these facilities are located




16    in  a lot  of cases above the water table.  Have you




17    done any  analyses of the groundwaters?




18              MR.  MUSSELL:  I indicated that for some  of




19    the facilities the  bottom surface impoundment is




20    located  below the water table.




21              MR.  FIELDS:  Okay.  I meant that.  Right.




22              Have you  done any groundwater monitoring




23    at  these  sites to determine whether any contamination




24    of  groundwater resources is occurring?




25              MR.  MUSSELL:  The groundwater in some of

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the locations, the ones that we are talking  about  in




the coastal areas, the groundwater is above  10,000




parts million of solids or higher.  Actually, what  I




am saying is a salt water aquifer is not potable or




not usable as fresh water.
          MR. FIELDS:  How about around usable




aquifers?  Surely, some of these impoundments are




located above usable aquifers.




          MR. MUSSELL: Yes.  The argument  is that  if




there is a usable aquifer underneath a facility, then




there should be regulations or should be a method  for




making sure that leachate does not contaminate usable




aquifers.




          The point that we'd like to make is that




if we can show that there are no usable aquifers




underneath surface impoundments we shouldn't have




to be classified as a waste treatment facility and




fall under all of the proposed provisions  of the




regulations.




          MR. FIELDS:  So you are saying if the water




is unusable you shouldn't have to comply with the




operating requirements in Section 3004; that's your
argument?
          MR. MUSSELL:  Correct.




          MR. LINDSEY:  Mr. Mussell,  I  need  a  point  of

-------
                                                        623





 1    clarification.   You said that it would cost $3 billion




 2    to upgrade existing NPDES lagoons to meet the surface




 3    impoundment standards we have.  Is that for your




 4    company,  for —




 5              MR.  MUSSELL:  No.




 6              MR.  LINDSEY:  -- the entire industry, or




 7    what?




 8              MR.  MUSSELL:  The origin of that estimate,




 9    and it is an estimate, is from the Solid Waste




10    Management Committee of the API who is trying to put




11    together  some  idea of the cost to the petroleum




12    industry.  That's not just Chevron.




13              MR.  LINDSEY:  Okay.  I believe that they




14    did mention they were going to give us figures on that




15              MR.  MUSSELL:  Yes.   The $3 billion number




16    is a rough estimate, as I heard it last week.




17              MR.  LINDSEY:  Okay.  In another vein here,




18    you said  that  you felt that the closure trust fund




19    would be  as large as $100 million for one of your




20    large sites.  I think that's what you said.  That's




2i    a much, much higher figure than we were thinking.




22    I mean most of  the large sites which we have estimated




23    we have been talking in terms of $100,000 or something




24    like that.




25              What  is it that you are going to do to close

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                                                   624





a site that is going to cost $100 million?




          MR.  MUSSELL:  The numbers  that  I  quoted  —




I don't have the background with me.   I'd be  happy




to provide you with that.




          MR.  LINDSEY:  That would be  most  interesting




to us.  I just can't imagine what you  could do  that




would cost you those kinds of  figures.   If  you  can




give us the background for that number,  that  would be




very helpful.




          MR.  MUSSELL:  Okay.




          MR.  LINDSEY:  You also indicated  we should




set up relative hazards and set different standards




for handling wastes based on that relative  hazard.




We have heard this from others before  today and almost




every day we have had these hearings that we  should




classify waste based on hazard and then, presumably,




treat them in some different fashion.




          Do you have any thoughts,  specific  kinds




of thoughts -- assuming we were able to  do  that,  come




up with degrees of hazard and  set several classifica-




tions, what is it that we would do differently  in  the




management of those wastes, given that we have




extremely hazardous, seriously hazardous, hazardous,




and maybe hazardous, or whatever, however many  classes




we've got?  What kind of things would  we  do differently

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                                                      625





 1    in  the management of those wastes?  Do you have any




 2    thoughts  on that?




 3              MR.  MUSSELL:   Well,  that's a rather




 4    complicated question to answer.   I think that given




 5    several factors of public exposure,  possibility of




 6    materials leaching to a usable aquifer, the relative




 7    corrosivity or toxic or volatile or ignitable factors




 8    of  the waste would have to be  looked at and some




 9    realistic approach taken to understanding whether or




10    not we would take extreme care by closing in




11    facilities, requiring 200 or more feet from public




12    lands, because of varying degrees.




13              Now if you are asking how to draw up the




14    guidelines based on whether the waste is highly toxic,




15    a material like dioxin, or whether it's a waste like




lg    drilling  mud,  which is  relatively nontoxic, nonhazard-




17    ous,  I'm  really not in  a position to answer that kind




18    of  quest ion .




19              But I think that you can categorize certain




20    types  of  wastes and recognize  that you do not need




21    to  protect the environment or  protect the public from




22    drilling  mud to the extent that you do to very toxic




23    material.




24              MR.  LINDSEY:   Okay.




25              MS.  DARRAH:   Okay.  No more questions.

-------
                                                       626





 1   Thank you  very much.




 2              Bob Burt,  California  Manufacturers




 3   Association?




 4              Kenneth Wilkins?




 5              Sam Chapin?




 6              For the  information of  the  people who are




 7   here, there are  two  people  in addition to Mr.  Chapin




 8   who  are  scheduled to testify.   I  just want to  give you




 9   that information.




10              MR. CHAPIN:   This statement is in support




11   of the financial responsibility requirements concern-




12   ing  insurance for both  sudden and accidental --




13              MS. DARRAH:   Could you  state your name and




14   your affiliation for the  record,  please?




15              MR. CHAPIN:   Yes.   I  am sorry.




16              I am Sam Chapin,  Assistant  Vice President




17   of Voight  Walker and Company of San Francisco.  We are




18   excess and surplus lines  insurance brokers, and we are




19   commenting in support  of  the financial responsibility




20   requirements concerning the insurance for not  only




21   the  sudden and accidental but also non-sudden  and




22   accidental pollution resulting  from the escape of




23   hazardous  wastes into  the environment.




24              As I have  said, I am  here representing




25   Voight Walker and  Company.   We  are a member of the

-------
                                                       627





 1    company  of  Alexander Howden Group,  Limited, of London,




 2    England.   Alexander Howden is one of the largest




 3    insurance  brokers  in the world,  with total assets




 4    of  over   250  million pounds,  or  approximately




 5    $500  million.




 6              Howden  Agencies is  the exclusive United




 7    States underwriting manager of a pool of insurance




 8    companies  writing  environmental  impairment liability,




 9    also  known  as  pollution insurance.   This policy




10    specifically  covers non-sudden and accidental pollu-




11    tion  to  air,  water, or land.




12              While  this insurance has been available in




13    the United  States  since 1975, it is not widely known.




14    A number  of educational seminars have been held around




15    the company for  the leading insurance brokers.




16    However,  only  recently has interest in gradual




17    pollution  increased.   Limits  of  $5 million per claim,




18    $10 million annual  aggregate  are now available in




19    order to  comply  with the proposed EPA financial




20    responsibility requirements for  non-sudden and




21    accidental  pollution.




22              I would  like to briefly discuss two




23    important  areas •  first, a brief  history of the




24    insurance  pool;  and,  second,  the potential impact that




25    these regulations would have  on  the insurance industry.

-------
                                                       628




 1    I will not  go  into  a  technical  discussion of the




 2    policy at this  time.  However,  a  copy  of the policy




 3    is available on  request  through the  offices  of




 4    Voight Walker  and Company.




 5             The  insurance  pool  concept began in 1974




 6    when H. Clarkson, Limited,  a  Lloyds  brokerage firm,




 7    initiated negotiations with leading  European insurers




 8    to discuss  the  concept of  insuring gradual pollution.




 9    These individuals were leaders  at  that  time,  in  that




10    they recognized  the fact that gradual  pollution




11    coverage was not widely  available  and,  in addition,




12    they were aware  of  the increasing  social pressure for




13    this protection.




14             An elaborate technical  plan  was developed




15    that classified  various  industries by  numerical  value




16    on the basis of  environmental hazards  associated with




17    each industry.   In  addition,  a  network  of environmental




18    engineers was  organized  to  perform surveys to insure




19    uniform quality  throughout  the  world.   These surveys




20    provide on-site  inspections,  a  review  of the current




21    state of compliance with all  applicable regulations,




22    and an evaluation of  the ability  and attitude of




23    management  toward pollution control.




24             At the present time,  the pool insures  one




25    of the largest  hazardous waste  disposers in  the

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                                                        629






 1   country.   In addition, another leading hazardous




 2   waste disposer has ordered a survey, and a  formal




 3   quotation has been released.  Also, interest has been




 4   shown by  other leading hazardous waste disposers.




 5             These companies decided to seek pollution




 6   insurance prior to the EPA proposed guidelines.  They




 7   obviously recognize the critical need for gradual




 8   pollution protection.




 9             Typical costs for this insurance  range from




10   a minimum premium of $5,000, which would apply to  a




11   relatively innocuous risk, to $80,000 or more to the




12   large hazardous waste disposer operations.  The




13   hazardous waste disposer currently written  is being




14   charged a premium in the area of $80,000 to $90,000.




15             It is our feeling that premium costs will




16   be reduced as insureds comply with the EPA  guidelines




17   and regulations.




lg             The insurance industry is conservative by




19 i  nature, and while insurance for sudden and  accidental




20   pollution is normally a. part of every insured's




21   portfolio, protection against non-sudden and accident-




22   a.1 pollution is generally not available through the




23   standard  insurance companies.  There is no  question




24   that  Love Canal and other horror stories that we have




25   all read  about have created a changing social climate.

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                                                       630





 1    The  public  has  demanded action from the Government to




 2    insure  public  safety  in dealing with hazardous waste.




 3             The  compilation  of codes, rules,  and




 4    regulations by  the  specific action of the Government




 5    in response to  the  increasing demands of the public




 6    sector  is not  without  precedent.   As an example, the




 7    Employee Retirement  Income Security Act of  1974




 8    embodied a  host  of  standards of performance by which




 9    trustees of employees'  benefits and welfare plans




10    were held accountable.   A  direct  result of  such a




11    codification of  rules  and  regulations was the creation




12    of a measurable  insurance  risk:  The wrongful violation




13    of such standards of  performance.




14             With  this  reality to measure insurance




15    groups, American International Group and Lloyds of




16    London  prepared  liability  policies to protect these




17    trustees.   As  rates  became determinable,  based on




18    loss experience,  and  these companies realized a fair




19    profit  on this  class,  other insurers were attracted




20    to the  marketplace.   Today there  are no less than 10




21    insurance groups competing for this coverage.




22             The  EPA  is  now creating a strikingly similar




23    situation with non-sudden  and accidental requirements.




24    By codifying specific  rules, regulations, obligations,




25    and  standards  of performance, the EPA provides for the

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                                                       631





 1    insurance  industry the measurable risk, the degree of




 2    compliance or noncompliance with the specific code




 3    of  regulations.




 4              The Voight Walker Environmental Impairment




 5    Policy  is  the first to recognize this measurable




 6    risk  and  to provide protection.  As we continue to




 7    represent  an equitable and responsive insurer for this




 8    liability  coverage, our successful participation will




 9    inevitably attract other insurers into the marketplace.




JO              We welcome these regulations, and we will




11    work  toward providing insurance along with the rest




12    of  the  world insurance marketplace.   Thank you.




13              MS.  DARRAH:   Thank you.  Will you accept




14    questions  from the panel?




15              MR.  CHAPIN:   Yes.




16              MS.  DARRAH:   Okay.




17              MR.  LEHMAN:   Mr. Chapin, we just heard from




18    Mr. Park  that he feels that the type of insurance that




19    you just  described is  discriminatory against small




20    businesses in the sense of, I presume — we have his




21    statement,  but I'm just trying to paraphrase it --




22    that  the  premiums involved, for example, are relatively




23    higher  for a small business than they are for a large




24    business.   In other words, the premium, the delta




25    cost,  is  higher  for a  small business than it is for

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                                                       632
  a large one.
            Would you care to comment on  that?




            MR. CHAPIN.  From my experience  with  this




  insurance,  it has not proven to be the  case.  Certain-




  ly,  the cost relates basically to the  income  of the
  company.
            In the case that I cited  in  these  comments,
  it was literally for one of the  largest,  if  not  the




  largest,  hazardous waste disposer, which  was a




j  premium of approximately $80,000.  I  have seen




  coverages go — we have a minimum premium — the




  program has a minimum of $5,000.  It  is certainly,




  again from my experience, somewhat of  a surprise to




  the insured when we offer this contract that the




  premiums are as reasonable as they are, which has been




  my personal experience.




            MR. LEHMAN-  Well, I would  assume  that




  regardless of what the level of  the policy is that




  the premium that is charged is directly related  to  at




  least -- one of the factors is the size of the




  operation; is that not true?




            MR. CHAPIN:  Yes, indeed, of course.




            MR. LEHMAN:  I believe the  point that




  Mr. Park was trying to make was  that  this was not a




  linear relationship.  Is that a  fair  characterization?

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                                                        633





 1             MR. CHAPIN:   Well,  at  this stage of the




 2   development of this program,  it  would seem that the




 3   smaller insured certainly  is  paying proportionally




 4   a smaller premium, and  fairly dramatically so, again




 5   from the experiences  that  I personally have had in




 6   this insurance.




 7             MR. LEHMAN:   Okay.   Thank you.




 8             MR. LINDSEY:   Given that there is a dearth




 9   of actuarial experience, particularly with the




10   regulated community,  and losses  and so on and this




11   insurance has not been  widely held in the past until




12   recently, how do you  go about setting premiums for




13   this sort of thing?   In other words, when a company




14   wants or shows an interest  in buying this insurance,




15 |  how do you set the premium?




16             MR. CHAPIN:   Well,  I think it is a very




17 i  difficult  question when there is no specific




18 !  actuarial information available  as far as loss history




19   But as I stated with  the Employee Retirement Income




20   Security Act, the insurance community was faced with




21    the same set of circumstances.   ERISA created a




22   considerable personal responsibility on the individual




23    serving as trustee and  beneficiary of employee benefit




24    plans.  Before, they  had largely been held harmless




25    by their employers through  various exculpatory

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                                                       634




 1    clauses.   So initially the premium was difficult to




 2    arrive  at.   I think the cost in that case was, of




 3    course,  based on the number of participants in the




 4    plan  and the asset values of the plan.




 5              But as we said, if you are proposing this




 6    regulation and you are making insurance one of the




 7    options  to meet the financial responsibility, there




 8    has to  be in the insurance community certain carriers




 9    that  are willing to accept the obligations that the




10    insurance carries and,  indeed, establish what they




11    feel  is  a fair price very quickly, if indeed your




12    proposed requirements are made law.   We will certainly




13    see other carriers in the field, and if the rates




14    that  are established by the carrier that I am repre-




15    senting  prove to be inadequate or excessive, we will




16    very  quickly see, I am confident from my experience




17    in  the  ERISA field, where indeed there were only two




18    prime carriers at the inception and with the passage




19    of  ERISA there are now at least ten aggressively




20    competing for this business, that the insurance will




21    seek  a  level that will, I think, through actuarial




22    studies  and loss experience reach a just level that




23    is  equitable.




24              MR. LINDSEY:   Does the fact of the technical




25    regulations provide — what's the word I want?

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                                                       635





 1    Assurance -- provide assurance to the insurance




 2    industry?  In other words, does it provide a base




 3    upon which you can -- I'm not getting through what




 4    I want to say.




 5              Does it help in the setting of these




 6    premiums and so on, in other words, the fact that




 7    there are now technical regulations or will be when




 8    we promulgate our regulations, does that help you




 9    in terms of feeling safer in providing this service'?




10    Is that why we are getting into it now, or what?




11              MR. CHAPIN:  Well, of course, this insurance




12    has been available since 1975, well before probably




13    the idea of these regulations were in someone's mind.




14    But it certainly will not do anything but help as




15    far as the insurance industry goes, I suppose,




16    because you -- the insurance industry, being very




17    conservative, is not going to accept a risk that is




18    not in compliance initially with the EPA requirements.




19    The fact that you are solidifying and codifying these




20    requirements still further will enable the insurance




21    industry to proceed with more confidence.  Obviously,




22    the more strict you are in the compliance -- or in




23    the regulations -- I realize that there are certainly




24    two sides to that question.   But the stricter you are




25    in demanding the requirements of our potential

-------
                                                       636





 1    insureds  the  better insurance risk we have, because




 2    the  less  likely  they are to pollute and, obviously,




 3    that  would make  a better insurance risk, and, indeed,




 4    lower the insurance premiums.




 5              MR.  LINDSEY:   Okay.




 6              MS.  DARRAH:   Okay.   Thank you very much.




 7              Ariel  Parkinson?




 8              MS.  PARKINSON:  My  name is Ariel Parkinson.




 9    I  am  appearing as a member of the somewhat educated




10    public, though I am a  member  of the California State




11    Solid Waste Management Board  as well.




12              I wish to commend the regulations in general,




13    both  in their  comprehensiveness and in their strictness




14    I  have had some  experience in talking with the State




15    Department of  Health during the preparation of




16    regulations for  the State of  California, which are




17    certainly analogous to these  proposed regulations.




18    I  think that  the comprehensiveness and strictness of




19    the  regulations  are very necessary.  They are an




20    essential part of what I perceive as a major strategy




21    of the Resource  Conservation  and Recovery Act.




22              Unlike some  of the  preceding Federal acts,




23    there seems to be very little direct incentive or




24    direct encouragement to resource recovery as of now




25    under RCRA.  There is,  however, what seems to be the

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                                                         637
major strategy  of  making the open dumping so  difficult




or making  landfill  so expensive and so difficult  that




there is an  indirect  encouragement to the recovery




of resources.




           This  kind of thing that's in the regulations




for hazardous waste is comparable.  By making




disposal more difficult and more expensive, there is




an indirect  encouragement to the recovery of  resources




from hazardous  wastes.




           This  is  also,  however, what I perceive




as a limitation  of  the regulations as they are now




promulgated.  I  think there should be some effort to




give them  more  direct encouragement to resource




recovery and, perhaps,  even incentive to resource




recovery from hazardous wastes.




           I  think  that you can draw more experience




on what has  happened  in California.  Up until very




recently,  there  were  only five members of the State




Department of Health  who were employed to monitor the




excellent  manifest  system and system of regulations




that have  been  set  up.   This is an obviously




inadequate number.  I believe that the number has




recently been increased by 11.   That is at least what




the Department of Health was trying for.   That's a




better picture.

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                                                         638





 1              In the field of resource recovery  from




 2    hazardous wastes,  which is also a goal and objective




 3    of  the State Hazardous Waste Plan, there is  only




 4    one person who is  in charge of trying to see that  the




 5    resource recovery  program works.   I've tried to follow




 6    the work that's been done in this to some extent,  and




 7    it  seems that for  man-hours spent he is something  of




 8    a miracle worker.   And it's a difficult job.  It




 9    involves not just  -- you can't just send out broad-




10    sides.   You have to go to a plant.  You have to




11    discuss with the people.   You have to go to  another




12    plant  and take the information personally.   But the




13    efforts have panned out to a tremendous extent.




14              I know that the State Department of Health




15    requested another, I think,  three people in  resource




16    recovery to cover  the state.  The last I heard they




17    hadn't received or hadn't been able to employ the




18    three  people.  Now I don't know how hard they worked




19    at  it,  but there does seem to be this tremendous




20    disproportion between even the effort spent  on




21    monitoring the disposal and the effort spent on




22    encouraging resource recovery.




23              Also from my admittedly amateur explorations




24    of  the field, I do believe that there is a tremendous




25    potential right now in California for the recovery of

-------
                                                       639





 1   materials from hazardous wastes that has not been




 2   exploited.   I have been told in conversations with




 3   members of the State Department of Health that it's




 4   just  the most hazardous wastes that are generally




 5   the most valuable and that would really make the




 6   best  field for profitable or break-even resource




 7   recovery.




 8             I'd like to make, I guess, two final points




 9   in closing.




10             What I have heard of the practices in the




11   Bay Area,  they are somewhat archaic in view of the




12   potential for resource recovery, and that the practices




13   in the Los Angeles area are also archaic, or, in fact,




14   very  minimal.




15             My other concluding point is that I think




16   there has been a great danger in this state in the




17   permission to use Class 2 wastes as a sponge for




18   receiving liquid wastes.   I think that this takes away




19   the incentive for resource recovery of both types of




20   waste.




21             MS.  DARRAH:   Okay.  Thank you.  Will you




22   answer questions for the panel?




23             MS.  PARKINSON:   I can, but I am a generalist.




24             MS.  DARRAH:   Okay.




25             MR.  LINDSEY:  Ms. Parkinson, I don't know

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                                                       640





 1   how well you have read all these regulations we have




 2   here,  but at the risk of telling you something you




 3   may already know, we have chosen to exempt resource




 4   recovery facilities recovering resources from hazardous




 5   wastes from the regulatory program here.  We did that




 6   partially with the feeling that we were going to




 7   encourage those facilities.   However, we've heard




 8   from some people -- I don't  know whether it was




 9   earlier yet today or yesterday -- that they thought




10   they would rather be in the  system.




11             Do you have a feeling as to whether or not




12   that might be an effective approach to award




13   encouraging resource recovery, or would we be better




14   off having them in the system in some fashion?




15             MS. PARKINSON-  I  think that it could be




16   a help, but not a very big one.  I know that in




17   discussing the State Department of Health regulations




18   that the environmentalist with whom I was invited to




19   Sacramento wanted to have part of the disposal fee




20   set aside for a fund that would give them more direct




21   encouragement to the establishment of resource




22   recovery facilities; like a revolving fund for loans




23   or an R&D Institute or something of that sort.




24             MR. LINDSEY:  Okay.




25             MR. TRASK:  Ms. Parkinson, you indicated we

-------
                                                       641





 1    ought  not  to allow Class 2 waste to be used as a




 2    sponge for the hazardous waste.  I think that's the




 3    way you put it.




 4              MS.  PARKINSON:  Yes.




 5              MR.  TRASK:   Are there some figures on how




 6    much of that is  done?  Do you have any feel for that,




 7    or is  that a wide-spread practice?




 8              MS.  PARKINSON:  I think it's fairly common




 9    in the Los Angeles or Southern California area, and




10    one of the problems is that there are not only




11    vertical monopolies but binary vertical monopolies




12    that collect and haul and dispose of the Class 2




13    wastes and collect and haul and dispose of the Class 1




14    wastes.   This  is such a profitable enterprise that




15    right  now  in the Los  Angeles area there are three




16    times  as much  waste planned for as there is waste




17    because there's  actually competition for it at this




18    point.   One company wants to take Class 2 wastes and




19    recover energy from it, but another company in this




20    case is more powerful and can undercut them and wants




21    to take the waste and use it as a sponge for their




22    Class  1 operation.




23              MR.  TRASK:   Under the California system,




24    that means Class 2 waste is going into a Class 1 land-




25    fill along with  the Class 1 waste?

-------
                                                       642





 1             MS. PARKINSON:   Yes,  I  am certain.




 2             MR. TRASK:   It  doesn't  happen the other




 3   way around?




 4             MS. PARKINSON:   No.   I  have enough




 5   confidence in the  working of the  system to believe




 6   that it must be  a  Class  1 site.




 7             MR. TRASK:   I  was  wondering if perhaps you




 8   had some  ideas on  the  other  way  around --




 9             MS. PARKINSON:   No.




10             MR. TRASK:   --  which  we have sort of




11   proposed  here, as  you  probably  realized.




12             MS. PARKINSON:   Yes.




13             MR. TRASK:   Thank  you.




14             MS. PARKINSON:   I  don't know that there




15  i isn ' t either.




16             MS. DARRAH:   Thank you  very much.




17             Patrick  Wicks,  Chem-Nuclear Systems,




18   Incorporated9




19             MR. WICKS:   Ladies and  gentlemen, I am




20   Patrick H. Wicks,  representing  Chem-Nuclear Systems




21   of  Bellevue, Washington.   I  appreciate the opportunity




22   to  present our comments  on EPA's  proposed hazardous




23   waste guidelines and  regulations  which are to be




24   adopted pursuant to RCRA, Sections 3001, 3002, and




25   3004.

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                                                        643




 1             Chem-Nuclear Systems operates two major




 2   hazardous waste treatment and disposal facilities  in




 3   the United States and is committed to the safe and




 4   environmentally-sound management of chemical and




 5   radioactive wastes.  Since these proposed regulations




 6   will have a major impact on our operations and because




 7   of our good operating record, we urge EPA to seriously




 8   consider our comments and our suggested changes and




 9   additions that follow in revising these regulations




10   prior to their promulgation.




11             With respect to Subpart A of the regulations




12   Identification and Listing of Hazardous Waste, we




13   have three basic comments:




14             1.   Section 250.13(a) (1).   There appears to




15   be a problem in (i) and (ii) because the term "liquid"




16   is not defined in the Act or in the definition




17 '  section of 250.11.   It would seem appropriate that




18   sludges as well as liquids be included in (i) but




19   perhaps not in (ii).   It would also be useful to




20   define "liquid" in the definition section.




21              2.   It is suggested that the following




22    change be made to Section 250.14(b) (2 ) , SIC 1099




23    listing:  "T" should be added after "A" due to the




24    presence of significant quantities of heavy metals




25    in clarifyer sludge,  including chromium and lead and

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                                                       644





 1   others that  are  toxic  to  aquatic  organisms.




 2             The  third  comment  on  this  Subpart  deals




 3   with our  suggestions for  additions  to  that  listing




 4   of SIC's  and specific  waste.   I won't  repeat those.




 5  , There are 10 or  12  there  in  my  comments.




 6             Subpart B  -  Standards Applicable  to




 7   Generators of  Hazardous Waste.




 8             The  only  significant  comment on this




 9   section is in  response to EPA's request for comment




10   regarding the  proposed regulations  as  they  apply to




11   generators producing less than  100  kilograms per




12   month as  addressed  in  250.20(c)(5),  250.23,  and 250.29.




13   We believe the proposed regulations as written are




14   satisfactory and reasonable.   In  addition,  EPA may




15   want to consider allowing generators of greater than




16   100  kilograms  per month to apply  for exemptions from




17   reporting, recordkeeping,  and manifest provisions




18   if their  waste is approved by EPA or the appropriate




19   State agency to  be  disposed  in  a  Subtitle D facility.




20             Subpart D -  Standards for Owners  and




21   Operators of Hazardous Waste Treatment, Storage and




22   Disposal  Facilities, Sections 250.40 to 250.46-6.




23             1.   250.43(h).   In Subsection (iii) add,




24   "if  applicable," since pH will  not  be applicable to




25   all  wastes.   In  addition, the Note following  (iv)

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                                                       645





 1    should be  expanded to allow less frequent sampling at




 2    off-site  facilities for shipments which are received




 3    only  once  on an infrequent basis and which are small




 4    in  quantity, such as no more than 5,000 pounds, or




 5    which have received a detailed analysis by the




 6    generator.  In certain cases,  it may be hazardous




 7    to  perform the inspection analysis required under




 8    this  section,  such as sodium or other reactive wastes




 9    and toxic  pesticides which would be expected to be




10    received  in relatively small quantities.




11              2.  250.43-l(h).   The Note following this




12    subsection should be expanded  to allow a buffer area




13    less  than  60 meters where no residences are closer




14    than  500  feet  from the property line.  This is




15    necessary  since facilities located in a remote area




16    or  an industrial  area should not need a large buffer




17    area.




18              3.  Section 250.43-3(c)(1).  I think you




19    should insert  the words "outside the facility" after




20    the word  "environment" in the  sixth line; this is




21    necessary  due  to  occasional minor spills that might




22    occur at  facilities which would not have an impact




23    on  human  health or the environment outside the




24    facility.




25              4.  Section 250.43-5(a)(2).  We recommend

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                                                       646




 1    that  you  change  the  30-day  requirement to five days




 2    to  provide  for more  rapid  notification to waste




 3    generators  of waste  receipts  at  an  authorized




 4    facility.




 5             5.  250.43-5(b)(2)(i)(C).   I believe you




 6    should  add  the unit  cubic  feet  to  the quantities




 7    listed, since this is  a  commonly used waste unit.




 8             6.  250.43-5(c) (1) .   Insert "outside the




 9    facility" at the end of  the subsection for the same




10    reasons I indicated  in  a previous  comment.




11             7.  250.43-5(c)(5)(iii)(F) .   Add the unit




12    cubic feet  to the  list  of  units  in  this subsection.




13             8.  250.43-5(c)(5)(iii)(H).   Insert




14    "to the best of  my knowledge"  after  "complete" in  the




15    first sentence and the  word "only"  in the second




16    sentence  after the word  "for."




17             9.  250.43-5(c)(6)(vii).   Add the unit




18    cubic feet  to the  units  listed  in  this subsection.




19             10.  250.43-5(6)(viii).   Insert "to the




20    best  of my  knowledge"  after "complete" in the first




21    sentence  and the word  "only"  in  the  second sentence




22    after the word "for."




23             11.  250.43-7(e)(3).   It  appears that this




24    provision should read  "Of  completion  of closure within




25    180 days  after closure."

-------
                                                       647




 1             12.   250.43-9(a)(2)(ii).   A method for




 2   determining the "period of payment" is not provided




 3   in this subsection for use in calculating annual cash




 4   payments to the post-closure monitoring and maintenance




 5   trust fund.




 6             13.   250.43-9(b)(1)(i) .  It is suggested




 7   that the phrase "exclusive of legal defense costs"




 8   be deleted from this provision.




 9             14.   250.44(g).  I believe you should




10   delete the last part of this provision, starting with




11   "in accordance with occupational safety and health




12   administration's...";  OSHA requirements would apply




13   in any case to flammable and combustible liquids,




14   but OSHA requirements may not be suitable for




15   nonflammable or noncombustible liquids.




16             In addition, it is suggested a Note be




17   added at the end of this section as follows:  "Note.




18   These requirements may be partially waived if the




19   owner/operator of a storage facility can demonstrate




20   adequate health and. environmental protection to the




21    satisfaction of the Regional Administrator."




22             15.   250.45-3(d).   Again, we suggest the




23    addition of a  Note as  follows'   "Note.   An owner/




24   operator may use modified operating and maintenance




25    procedures if  he can demonstrate to the Regional

-------
                                                       648




 I    Administrator  that  an  equivalent  or  greater degree




 2    of  waste  containment would  be  achieved."




 3              I  have  four  general  comments that really




 4    respond to  the request in  the  preamble of the




 5    regulations  for comments.




 6             One  deals with post-closure liability for




 7    hazardous waste sites  which EPA has  requested comments




 8    on  the desirability of a Federal  fund.  Chem-Nuclear




 9    recommends  the formation of such  a Federal fund with




10    contributions  from  facility operators.  The size




11    of  the fund  should  be  on the order of $100 million




12    to  $500 million in  size.   Payments for each claim




13    should be  limited to $5 million to $10 million, and




14    there should be a Federal  guaranty established for




15    such payments.




16              In addition,  it  is suggested that EPA seek




17    appropriate  legislation to  require that permitted




18    hazardous waste landfills  be deeded  to the Federal




19    Government  or  appropriate  State Government at the




20    end of closure or sometime  before that point.  We




21    believe this will provide  substantial credibility to




22    such sites  that is  now often absent  and will provide




23    much better  control of waste disposal practices.




24    Moreover,  it will settle the question once and for




25    all of who  has the  liability in perpetuity, because no

-------
                                                       649




 1    corporation can do that.




 2              Regarding the financial responsibility




 3    section of the regulations, EPA has requested comment




 4    as to whether the several trust funds to be




 5    established under the regulations should be  interest-




 6    bearing or not.   It would seem only prudent  that




 7    they be that way;  that is, interest-bear ing.




 8              In addition, there seems to be no  reason




 9    for establishing separate requirements with  respect




10    to financial responsibility for publically or




11    privately owned facilities.  Also in the financial




12    responsibility section,  the required review  of costs




13    should be either on an annual basis or once  every




14    two years,  since conditions affecting such costs




15    would not be expected to change rapidly.




16              In various sections of the Subpart D




17    proposed regulations,  reference is made to facilities




18    within a certain distance from water wells.  It is




19    presumed that this reference is to wells that are




20    in existence or would be in existence at the time a




21    permit is issued and that installation of new wells




22    after the initial  permit would not cause cancellation




23    or modification  of the permit for that reason.




24              Finally,  in  response to a comment  to the




25    possible combination of  PCB regulations with RCRA

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                                                       650





 1   regulations, we  support  your  intentions to combine




 2   those two  regulations  and  merge  those regulations




 3   into these.




 4              That's  the end of my comments.




 5              MS.  DARRAH:  Thank  you.   For the benefit




 6   of the panel,  can  I  ask  you to clarify a  couple




 7   things for me?




 8              MR.  WICKS:   Yes.




 9              MS.  DARRAH:  First  of  all,  are  you providing




10   us written justification for  the various  specific




11   suggestions that  you made  in  the beginning of your




12   presentation where that  --




13              MR.  WICKS:   I  can.   If there is a specific




14  ' question,  I certainly  can.




15              MS.  DARRAH:  Okay.   Let  me  ask:  Given the




16   nature of  your suggestions -- that it was sort of




17   by number  and  that it  was  fairly quick and we do not




lg   have copies — would you be willing to answer in




19   writing  any questions  that we may  have once we




20   get copies of  your comments?




21              MR.  WICKS:   Certainly.




22              MS.  DARRAH:  Okay.   Even so, would you be




23   willing  to answer some questions now?




24              MR.  WICKS:   Sure.




25              MS.  DARRAH:  Okay.

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                                                       651





 1             MR. LEHMAN:   Mr.  Wicks,  I  just want to




 2   clarify something.   Your  comment  on  Section 3002




 3   seemed to imply  --  I just  want  to  get  this right --




 4   that you feel that  the  small  quantity  exlcusion of




 5   100 kilograms per month should  be  raised on a case-by-




 6   case basis,  is about the  best I  can  put it.  That's




 7   what I got  from  what you  said.   Is that what you




 8   meant?




 9             MR. WICKS:  What  I  meant there is that I




10  i can foresee  cases where small quantities are generated




11  | and they will be permitted  to be  disposed of.   These




12   will probably be relatively low-hazard materials,  but




13   they will meet the  criteria and  will be classified




14   as hazardous waste.   And  those will  be allowed to  go




15   into a central landfill,  for  example.   And these are




16   only maybe  one-time  situations  or  whatever.




17             MR. LEHMAN:   Even above  100  kilograms?




18             MR. WICKS:  Yes,  even  above  100 kilograms.




19             I  am suggesting,  if that is  the case,  you




20   might want  to waive  those  reporting  and recordkeeping




21   procedures  for those cases.




22             MR. LEHMAN:   But  you  are limiting your




23   remarks to  a one-time kind  of situation,  not a routine




24   generation  of --




25             MR. WICKS:  It  would depend  on the situation,

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 1




 2




 3




 4




 5




 6




 7




 8




 9




10




11




12




13




14




15




16




17




18




19




20




21




22




23




24




25
                                                   652





I think, but I can foresee cases where  it  might  be




an ongoing thing and you could waive  those requirements




in some cases on a case-by-case basis.




          MR. LEHMAN:  Thank you.




          MS. DARRAH:  I guess we don't  have  any




more questions right now.  Thank you.




          Is there anybody else in the  audience  who




would like to offer comments on the regulations




tonight?
          Mr. Park, I note that you  are  still  in  the




audience.  The panel has indicated to me  that  they




are pretty well burned out, and I think we would  ask




you if we do have questions if we might  submit  them




to you in writing.  You did    indicate  you  would be




happy to respond in writing, and I think  we  will  use




that opt ion.




          MR. PARK:  Yes.




          MS. DARRAH:  We appreciate  it.




          Thank you very much for everyone who  stayed




and offered us comments, and we will  close this




session of the hearing now.  We will  be  reconvening




tomorrow at 8:30 to take comments on  Section 3004.




          (Whereupon, the hearing recessed




          at 10:05 o'clock p.m.)

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STATE OF CALIFORNIA—THE RESOURCES AGENCY                                           EDMUND G BROWN JR,

STATE SOLID WASTE MANAGEMENT BOARD
1020 NINTH STREET, SUITE 300
PO. BOX 1743
SACRAMENTO, CALIFORNIA 95808
 (916) 322-6194
       March  16, 1979
       Ms. Dorothy Darrah
       Office of General Counsel
       U.S. Environmental Protection Agency
       Hazardous Waste Management Division
       Office of Solid Waste
       Waterside Mall, 401 M Street
       Washington, D.C.  20460

       Dear Ms. Darrah:

       Thank you again for the opportunity that was given me to testify at  the
       Hearing held  in San Francisco about the rules for controlling hazardous
       wastes developed under Sections  3001 - 3004 of  the Resource Conservation
       and Recovery  Act of 1976.  As you will recall,  my testimony dealt with the
       impact of the proposed rules on  California's used oil recovery program.
       The following additional information is submitted as requested by the Hearing
       panel.

       The attached  rules and regulations for our used oil program were adopted
       by the Solid  Waste Management Board on October  6, 1978, and are a part of
       the California Administrative Code,  These regulations provide for
       registration  of used oil haulers, recyclers, and transfer facility operators
       (Section 18611), provide for the documentation  of all transactions of
       used oil (Sections 18642 and 18652), and prohibit the transfer of used oil
       to anyone except another registered hauler, a used oil recycler exempted
       from registration, or to a person outside the State (Section 18641).
       Recycletrs exempted from registration are those  that recycle less than
       5,000 gallons annually.

       Receipts used to document exchange of used oil  are required to be retained
       by used oil haulers., recyclers and transfer facility operators for two
       years and must be made available to the Solid Waste Management Board, upon
       request, for  review and audit.   Also, annual reports are required to be
       submitted by  these people indicating the amount of used oil possessed at
       the beginning and end of the reporting period,  the total amount received
       and transferred, and in the case of used oil recyclers, the amount recycled
       including the quantity of final  product produced, the quantity lost  in the
       process, and  the amount of residues produced.   These requirements for
       receipts and  for annual reports  were included in the regulation to help us
       assess the effectiveness of the  collection program and to help assure that
       the used oil  collected is ultimately transferred to a registered used oil
       recycler.
                                                                                    OD

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March 16, 1979
Page two
Ms.  Darrah
Although our regulations do not specifically prohibit  a collector (service
station) from selling the used oil to a non-registered hauler,  such haulers
would be in violation of the law,  and would be subject to prosecution and
assessment of civil penalties.
                             .

The fourteen used oil recyclers in California proce
gallons of used oil during 1978.  This total includ
                                       fornia processed about 30.1  millio
                                       total includes 10.5 million  gallon
I trust that the above information will answer the questions raised by the
Hearing panel.  If any further clarifications are needed,  please call me
at (916) 322-6194.

Sincerely,
jf  t/n i~~\}  f\^~~'
George L. ^rstt, Cni.
Resource Recovery Division

Attachments

LSatow/ad

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TITLE 14          SOLID WASTE MANAGEMENT BOARD                  493
(Register 78, No. *3—10-28-78)

             CHAPTER  8.   USED OIL RECYCLING PROGRAM
       Article
       1.        General Provisions and Definitions
       2.        Registration
       3.        Requirements for  Oil Retailers
       4.        Requirements for  Used Oil Collection Facilities
       5.        Requirements for  Used Oil Haulers and Used Oil Transfer Facility
                     Operators
       6.        Requirements for  Used Oil Recyclers
       7.        Enforcement

                                Detailed Analysis

                  Article I.  General Provisions and Definitions
       Section
       18600.    Scope and Authority
       18601.    Objectives
       18602.    Definitions

                             Article 2.   Registration
       Section
       18610.    Scope
       18611.    Registration  of Used  Oil  Haulers,  Used  Oil Transfer  Facility
                     Operators and Used Oil Recyclers
       18612.    Prerequisite for Application for Registration
       18613     Application for Registration
       18614     Issuance of Registration
       18615     Notification of Registration

                     Article 3.   Requirements for Oil Retailers
       Section
        18620.    Scope
        18621.     Display of Signs
        18622.    Specification for Sign

             Article 4,   Requirements for Used Oil Collection Facilities
       Section
        18630.     Procedures for Being Listed as a Participating Facility
        18631.     Operation of the Facility

        Article 5.  Requirements for Used Oil Haulers and Used Oil Transfer
                               Facility Operators
        Section
        18640.     Registration
        18641.     Operation Requirements
        18642     Records of Transactions
        18643.     Annual Report
        Section
        18650.
        18651.
        18652.
        18653.
        Section
        18670.
        18671.
        18672.
        18673.
        18674.
        18675.
Article 6.   Requirements for Used Oil Recyclers

Registration
Product Quality
Records of Transactions
Annual Report

           Article 7.  Enforcement

Scope
Inspections
Order of the Board
Suspension or Revocation of Registration
Enforcement  Actions
Petition for Reinstatement

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494                     NATURAL RESOURCES               TITLE 14
                                             (Register 78. No. *3—10-28-781

           Article  1.  General Provisions and Definitions

  18600.   Scope  and  Authority.   This chapter  is  adopted  by the
State Solid Waste Management Board pursuant to and for the purpose
of implementing the Used Oil Recycling Act of 1977, Article 9, Chapter
1 (commencing with section 3460), Division 3 of the Public Resources
Code as  it may be amended from time to time. These regulations,
together with the Act, regulate oil retailers, used oil collectors, and used
oil recyclers. Nothing in this chapter is  intended to limit the authority
of any other state or local agency in its proper exercise of regulatory
authority over oil retailers, used  oil collectors, or  used oil recyclers.
  NOTE: Authority cited: Section 3470, Public Resources Code. Reference: Chapter  1,
Division 3, Public Resources Code, Section 3460  et seq.
  History. 1. New Chapter 8  (Sections 18600-18675, not consecutive, Articles 1-7) filed
           10-23-78; effective thirtieth day thereafter (Register 78, No. 43).

  18601.   Objectives. In adopting  this chapter, the board intends to
regulate the handling of used oil to encourage reuse. The board intends
that used oil shall be collected and recycled  to the maximum extent
possible, by means which are economically feasible and environmental-
ly sound, in order to conserve irreplaceable petroleum resources, pre-
serve and enhance the quality of natural and human environments, and
protect public health and welfare.
  NOTE: Authority cited: Section 3470, Public Resources Code. Reference: Chapter 1,
Division 3, Public Resources Code, Section 3460, et seq.

  18602.   Definitions.   Unless  the  context  otherwise  requires,  the
following definitions and the definitions in Public Resources Code sec-
tion 3460 shall govern the construction of this chapter: (a)  "Used Oil"
means a petroleum based oil which, after sale to  a  consumer through
use, storage, or handling, has become unsuitable for its original purpose
due to the presence of impurities or loss of original properties and  is
suitable for recycling.
   (b)  "Act" means the Used Oil Recycling Act of  1977.
   (c)  "Executive Officer"  means the Executive Officer of the board.
   (d)  "Oil Retailer" means any person who sells to consumers more
than 500 gallons of lubricating or other oil annually in containers for use
off the retailer's premises.
   (e)  "Used Oil Collection Facility" means a facility, listed with the
board where used  oil may  be deposited.
   (f) "Used Oil Hauler" means a used oil collector, except a person
collecting used oil  solely from sources owned and operated by the
person, who transports more than 500 gallons of used oil annually over
public highways.
   (g)  "Recycle" means to prepare used oil for reuse as a petroleum
product  by refining, re-refining, reclaiming, reprocessing, or other
means, or to use used oil in a manner that substitutes for a petroleum
product  made from new oil.
   (h)  "Used  Oil Recycler" means  any person who recycles 5,000 or
more gallons of used oil annually, except a person recycling solely from
sources owned and operated by such person.
   (i) "Used Oil Transfer Facility Operator" means a used oil collector,
except a person collecting used oil solely from sources owned and oper-
ated by  the person, who maintains  any  storage facility that receives
more than 10,000 gallons of used oil annually.

-------
TITLE 14        SOLID WASTE MANAGEMENT BOARD               495
(Register 78, No. 43—10-28-78)

   (j)  "Registration" means an entitlement  to operate, issued by the
board  to a Used Oil Hauler, Used Oil Transfer  Facility Operator, or
Used Oil Recycler.
  NOTE Authority cited: Section 3470, Public  Resources Code Reference Chapter 1,
Division 3, Public Resources Code, Section 3460, et seq.

                       Article 2.  Registration

  18610.  Scope.  This article sets forth the requirements for regis-
tration of a used oil hauler, a used oil transfer  facility operator, or a used
oil recycler. It also sets forth the procedures  for submitting an applica-
tion, and for  review and  approval or denial of  a registration by the
board.
  NOTE: Authority cited: Section 3470, Public  Resources Code Reference: Chapter 1,
Division 3, Public Resources Code, Section 3460, et seq.

  18611.  Registration of Used Oil Haulers, Used Oil Transfer Facility
Operators  and Used  Oil  Recyclers.   Beginning January  1, 1979, all
used oil haulers, used oil transfer facility operators, and used oil recy-
clers must be registered with the  board.
  NOTE: Authority cited. Section 3470, Public  Resources Code. Reference Chapter 1,
Division 3, Public Resources Code, Section 3460, et seq

  18612.  Prerequisite for Application for  Registration.   (a) Any
used oil haulers applying to the board for  registration  as a used oil
hauler must be  registered with, or must have an application pending
with the State Department of Health Services as a hazardous waste
hauler.
   (b)  All used oil transfer facility operators  applying to the board for
registration must have a hazardous waste facility permit, or must have
an application for same pending from  the State Department of Health
Services.
   (c)   All used oil recyclers applying for registration must have a haz-
ardous waste facility permit or must nave an application for same pend-
ing with the State Department of Health Services.
  NOTE Authority cited. Section 3470, Public  Resources Code Reference Chapter 1,
Division 3, Public Resources Code, Section 3460, et seq

  18613.  Application for Registration,  (a)  An  application for regis-
tration shall be  filed with the board at the following address:
       State Solid Waste Management Board
       ATTN: Used  Oil Recycling  Program
       P.O. Box 1743
       Sacramento, California 95808
   (b)  The application shall  require  that information be supplied in
adequate detail to establish that the applicant is qualified to be regis-
tered as a used oil hauler, used oil  transfer facility operator, or used oil
recycler. The application  shall require, among other things, that the
applicant give the address at which process may be served upon it; the
address of each  location at which  the applicant maintains a place of
business associated with used oil transfer, storage, hauling, or recycling.

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496                      NATURAL RESOURCES              TITLE 14
                                               (Register 78. No. 43—10-28-78)

   (c)  All information in the application shall be certified by the appli-
cant as being true and accurate to the best of the applicant's knowledge.
   (d)  Within ten days after it receives an application for registration
the board shall notify the applicant of its receipt.
   (e)  An application for registration shall be filed on a form prescribed
by the board.
   NOTE- Authority cited. Section 3470, Public Resources Code Reference  Chapter 1,
Division 3, Public Resources Code, Section 3460, et seq.

   18614.  Issuance of Registration,   (a) The board shall issue  a reg-
istration upon review of an application if the following requirements
are met to the board's satisfaction:
     (1)  The applicant is currently registered with the Department of
   Health Services as a hazardous waste hauler or has a current hazard-
   ous waste facility's permit issued by the Department of Health Serv-
   ices for the operation sought to be registered by the board.  If the
   applicant is not registered or permitted, as appropriate,  by the De-
   partment of Health Services, but does have an application pending
   with such Department, the board may issue a registration which will
   become effective only upon  issuance of the Department of Health
   Services' permit or registration.
     (2) The applicant certifies in writing that it understands and will
   comply with the applicable requirements  of this chapter and  of the
   Act.
     (3) The applicant proves that it is able to comply with this chapter
   and with the Act.
   (b)  A registration issued by  the board shall be non-transferable.
   (c)  A registration issued by the board shall be valid until surrendered
by the registrant or  revoked by the board.
   NOTE- Authority cited: Section 3470, Public Resources Code. Reference. Chapter 1,
Division 3, Public Resources Code, Section 3460, et seq.

   18615.  Notification of Registration.   Within ten  days  after it  is-
sues or denies a registration, the board shall notify the applicant of its
action, and shall provide to a new registrant appropriate stickers for use
in identifying its  vehicles as registered with the board.
   NOTE: Authority cited. Section 3470, Public Resources Code Reference: Chapter 1,
Division 3, Public Resources Code, Section 3460, et seq.

              Article 3.   Requirements for Oil Retailers

   18620.  Scope.  The requirements of  this article shall apply to any
person who sells more than 500 gallons of lubricating or other oil annual-
ly in containers to consumers for off-the-premises  use.
   NOTE: Authority cited Section 3470, Public Resources Code. Reference. Chapter 1,
Division 3, Public Resources Code, Section 3460, et seq

   18621.  Display of Signs,   (a)  Any oil retailer  shall  display  a sign
informing the consumer of one or more conveniently located collection
facilities For used oil.
   (b)  The sign shall be posted in a conspicuous manner at or near that
point within the seller's establishment where the  oil is  displayed for
sale.

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TITLK  14         SOLID WASTE MANAGEMENT BO\RD               497
(Register 78, No  43—10-28-78)

  (c) In counties where five percent or more of the population,  as
determined in accordance  with  the latest Bureau of Census informa-
tion, speak a specific primary language other than English, the sign shall
be in such other language, as well as in  English. Specific language
requirements for each county will be provided by the board.  Add-on
information indicating specific location(s)  where used oil may be de-
posited  shall in all cases be in English.
  NOTE-  Authority cited: Section 3470, Public Resources Code. Reference Chapter 1,
Division 3, Public Resources Code, Section 3460, et seq.

  18622.  Specification for Sign.   The sign shall be  provided  by the
board or shall be an exact copy of the board's sign. The business names
and addresses of specific locations where used oil may be deposited  by
customers shall be filled in by the oil retailer.
  NOTE. Authority cited- Section 3470,  Public Resources Code. Reference- Chapter 1.
'Division 3, Public Resources Code, Section 3460, et seq.

     Article 4.  Requirements for  Used Oil Collection Facilities

  18630.  Procedures  for  Being Listed as a Participating  Facility.
Any person may  be included in the board's  list of participating facilities
by notifying the  board in writing that  it will receive  used oil from the
general public, and by providing the business name and address (in-
cluding a zip code) of the facility. The facility shall remain on the  list
until such time that the operator requests to be removed from  that list,
or the board removes the facility from  the list for non-compliance with
this  chapter or for failure to function  as a  used oil collection facility.
  NOTE: Authority cited: Section 3470, Public Resources Code. Reference- Chapter 1.
Division 3, Public Resources Code, Section 3460, et seq.

  18631.  Operation of the Facility,   (a)  The operator of a  used  oil
collection facility shall accept up to five gallons of used oil per day from
any  person without charge, except when:
     (1)  the facility's used  oil storage  tanks are filled to capacity, or
     (2)  the facility operator determines that his own deposits of used
  oil require the use of the remaining used oil storage capacity before
  the storage  tanks are emptied.
   (b) The operator of a used oil collection facility shall not dispose of
used oil using any of the following methods, unless authorized by other
provisions of law:
     (1) discharge to sewers, watercourses, marine waters, drainage
   systems, surface or ground waters;
     (2) incineration; and
     (3) deposit on land.
   (c) The operator of a used oil collection facility shall maintain  the
 facility and shall collect used oil in such a manner as is safe for users of
 the facility, and shall observe all  applicable safety  requirements  im-
 posed by law.
   NOTE- Authority cited: Section 3470, Public Resources Code  Reference  Ch.ipU-r 1.
 Division 3, Public Resources Code, Section 3460, et  seq

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 498                      NATURAL RESOURCES               TITLE 14
                                              (Register 78, No 43—10-2S-78)

           Article 5.   Requirements for Used Oil Haulers
              and Used Oil Transfer Facility Operators

   18640.  Registration.   All used oil haulers and used oil transfer fa-
 cility operators shall register with  the board in accordance with the
 procedures set forth in Article 2 of this chapter.
   NOTE: Authority cited. Section 3470, Public Resources Code Reference- Chapter 1,
 Division 3, Public Resources Code, Section 3460, et seq.

   18641.  Operation Requirements,  (a) A registered used oil haul-
 er or used oil transfer facility operator shall transfer used oil only to a
 registered used oil hauler, a used oil transfer facility operator, a regis-
 tered used oil recycler, a used oil recycler exempted from registration
 or a person outside the state.
   (b)  A registered used oil hauler or used oil transfer facility operator
 shall comply with applicable provisions of regulations adopted by the
 Department of Health Services (Title 22, Division 4, Chapter 2 of the
 California Administrative Code) governing the transport, transfer, and
 storage of hazardous waste in a manner that would not result in  a
 hazard to public health, personal safety, wildlife or domestic livestock.
   (c)  A registered used oil hauler shall comply with applicable provi-
 sions of regulations adopted by the California Highway Patrol (Title 13,
 section 1160-1167 of the California Administrative  Code) governing
 transport of hazardous materials.
   NOTE: Authority cited. Section 3470, Public Resources Code Reference- Chapter 1,
 Division 3, Public Resources Code, Section 3460, et seq.

   18642.  Records of Transactions.   A registered  used oil  hauler or
 used oil transfer facility operator shall provide a receipt to any person
 to whom oil is transferred; maintain a complete  record of all such
 transactions, documented by reproducible receipts for two years; and
 make  available to the  board, upon request, all records and copies of
 receipts for the purpose of review and audit. A used oil hauler or a used
 oil transfer facility  operator fulfilling the  hazardous waste manifest
 requirements of the State Department  of  Health  Services (Title 22,
 section 60233 of the California Administrative Code) will be considered
 to "have fulfilled this record keeping requirement provided the recycler
 maintains a copy of the manifest at his business address for a period of
 two years and makes it available to the board upon request.
 .  NOTE- Authority cited: Section 3470, Public Resources Code. Reference Chapter 1,
 Division 3, Public Resources Code, Section 3460, et seq.

   18643.  Annual Report,   (a) A registered used oil  hauler  or used
 oil transfer facility operator shall submit an  annual report to the board
 on his activities during the calendar year. This annual report shall state
 the quantities  of used  oil possessed at the  beginning and end  of the
 reporting period, the total amount collected, and the amounts trans-
 ferred during the reporting period. The report shall be submitted to the
 board no later than February 1 of each year, commencing in calendar
 year 1980.
   (b)  The report shall be on a form provided by the  board itemizing
 the amounts transferred  to used oil haulers, used oil tranfer facilities,
 used oil recyclers, and to  those outside the state, indicating the state or
 foreign country to which transferred.
  NOTE. Authority cited: Section 3470, Public Resources Code. Reference: Chapter 1,
Division 3, Public Resources Code, Section 3460, et seq

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TITLE 14        SOLID WASTE MANAGEMENT BOARD              499
(Register 78, No. «—10-28-78)

         Article 6.   Requirements for Used Oil Recyclers

  18650.  Registration.  Beginning January 1, 1979, no person except
a person recycling solely from sources owned and operated by the
person and  except persons recycling less than 5,000 gallons annually,
shall operate a facility for recycling used oil without registering with the
board as a used oil recycler in accordance with the procedures outlined
in Article 2  of this chapter.
  NOTE: Authority cited: Section 3470, Public Resources Code. Reference- Chapter 1,
Division 3, Public Resources Code, Section 3460, et seq.

  18651.   Product Quality,   (a) Any product made in whole or  in
part from used oil may be represented as substantially equivalent to a
product made from new oil for a particular use if substantial equivalen-
cy has been determined  in accordance  with rules prescribed by the
Federal Trade Commission under section 383(d) (1) (A) of the Energy
Policy and Conservation Act (P.L.  94-163) or if the product conforms
fully with specifications applicable to that product made from new oil.
Otherwise the product shall be  represented as made from previously
used oil.
   (b)  For  the  purpose  of determining "substantial equivalency"
between virgin and re-refined lubricating oil, the standards tor lubricat-
ing  oil contained in  Article  4, Chapter  7 of Division 8, Business and
Professions  Code (as amended current to date of test), enforced by the
California Department of Food and Agriculture, Division of Measure-
ment  Standards shall apply until such time that the abo%'e referenced
rules of the Federal Trade Commission are developed and implement-
ed.
   (c)  To assure conformance with the minimum standards for lubricat-
ing oil, the board may conduct, or may cause to be conducted, appropri-
 ate  laboratory analysis of samples of re-refined oil from consumer
 outlets.
   NOTE: Authority cited: Section 3470, Public Resources Code. Reference Chapter 1.
 Division 3, Public Resources Code, Section 3460, et seq.

   18652.  Records of Transactions,   (a) A registered used oil recy-
 cler shall provide a  receipt to any hauler or used oil transfer facility
 operator from whom used oil is received, maintain a complete record
 for  two years of all such transactions, documented by reproducible
 receipts; and make available to the board, upon request, all records  and
 copies of receipts for the  purpose of review and audit. A recycler fulfill-
 ing the hazardous waste manifest requirements of the State Depart-
 ment of Health Services  (Title 22, section 60235 of the  California
 Administrative Code)  will be considered to have fulfilled this record
 keeping requirement  provided the recycler maintains a copy of the
 manifest at the business address for a period of two years, and upon
 request, makes it available  to the board.

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500                     NATURAL RESOURCES              TITLE 14
                                              (Register 78, No. 41—10-28-78)

   (b)  In addition to maintaining records of the quantities of used oil
received for recycling, the recycler shall maintain records of the quanti-
ties of the final product (s) produced, the quantities lost in the process,
and the amount of residues produced (in gallons). The recycler shall
make available to the board, upon  request, all records and copies of
receipts for the purpose of review and audit.
   NOTE: Authority cited: Section 3470, Public Resources Code. Reference: Chapter 1,
Division 3, Public Resources Code, Section 3460, et seq.

   18653.  Annual Report,  (a) The registered used oil recycler shall
submit an annual report to the board on his activities during the calen-
dar year. This annual report shall state  the quantities of used oil pos-
sessed at the beginning  and end of the reporting  period,  the total
amount received, and the amount recycled during the reporting peri-
od. The report shall be submitted to the board no later than February
1 of each year commencing in calendar year 1930.
   (b)  The report shall be on a form provided by the board itemizing
the amounts prepared for reuse as a lubricating oil, as a fuel, as a road
oil, used in the manufacture of asphalt, and for other uses, specifying
each type of use. It shall also indicate the amounts  consumed in  the
process of preparing the used oil for reuse including the waste gener-
ated.
   NOTE: Authority cited: Section 3470, Public Resources Code. Reference: Chapter 1,
Division 3, Public Resources Code, Section 3460, et seq.

                      Article 7. Enforcement

   18670.  Scope.   This article applies  to  the enforcement  of  the
provisions of this chapter,  including inspection of used oil recycling
facilities and their records inspection of the records of used oil haulers,
and used oil transfer facility operators.
   NOTE: Authority cited- Section 3470, Public Resources Code. Reference: Chapter 1,
Division 3, Public Resources Code, Section 3460, et seq.

   18671.  Inspections,   (a) The  Executive  Officer or his  duly  au-
thorized representative,  upon presentation of proper  identification,
may enter the plant of a used oil recycler to  obtain samples for the
purpose of making laboratory analysis, or may, during regular business
hours,  enter the business offices of either a used oil recycler, a used oil
hauler, or a used oil transfer facility operator to inspect and copy perti-
nent records, reports, information or test results relating to the require-
ments of this chapter.
   (b)  A report listing any deficiencies found during the inspection
(and subsequent laboratory tests if applicable) shall be prepared by the
inspector and shall be kept on file by the board. A copy of the report
shall be provided to the used  oil recycler, used oil hauler or used oil
transfer Facility operator.
   (c) If corrections are needed, the used oil recyclers, hauler, or used
oil transfer facility operator shall provide the board with a written plan
of correction which states the actions  to be taken and the expected
dates of completion.

-------
TITLE 14         SOLID WASTE MANAGEMENT BOARD               501
(Register 78. No. 43—10-28-78)

   (d)  When obtaining samples from a used oil recycler, the inspector
shall obtain a sample large enough to allow  the operator to  retain a
portion for separate analysis.
  NOTE: Authority cited: Section 3470, Public Resources Code. Reference. Chapter 1,
Division 3, Public Resources Code, Section 3460, et seq

  18672.  Order of the  Board.  After hearing, the board may issue a
cease and desist order to any person who has  or is about to violate the
provisions of this chapter.
  NOTE: Authority cited: Section 3470, Public Resources Code. Reference: Chapter 1,
Division 3, Public Resources Code, Section 3460, et seq.

  18673.  Suspension or Revocation  of Registration,   (a) The board
may, after hearing, suspend or revoke registration  as a used oil hauler,
recycler, or used oil transfer facility operator for:
    (1) Violation of any applicable requirements  of this  chapter.
    (2) Aiding, abetting or permitting the violation of any provisions
  of this chapter.
    (3) Misrepresentation or omission of a significant fact either in the
  application for registration or in information subsequently submitted
  to the board.
    (4) Failure to comply with any  order.
    (5) Failure to maintain a valid registration with the State Depart-
  ment of Health Services as a hazardous waste hauler or to maintain
  a hazardous waste facility permit with the State  Department  of
  Health Services, as appropriate.
   (b)  The suspension shall remain in effect until the violation has been
corrected to the satisfaction of the board, or until the board  makes a
final determination based on the  outcome of a hearing.
  NOTE. Authority cited: Section 3470, Public Resources Code. Reference- Chapter 1,
Division 3, Public Resources Code,  Section 3460, et seq

   18674.  Enforcement Actions.   Should the  board  find  that good
cause exists for the filing of an action to enjoin a violation or to recover
civil penalties, the board may take such  an action.
  NOTE: Authority cited: Section 3470, Public Resources Code. Reference: Chapter 1,
Division 3, Public Resources Code, Section 3460, et seq.

   18675.  Petition for Reinstatement.  A used oil recycler, a used  oil
hauler, or a  used oil transfer facility operator, whose registration has
been suspended or revoked  may petition the board for reinstatement
after  30 days or more  have elapsed from the  effective date of the
decision or from the date of the denial of a similar petition.
  NOTE. Authority cited: Section 3470, Public Resources Code. Reference  Chapter 1,
Division 3, Public Resources Code, Section 3460, et seq.

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-. ,1S£AU    ,;SL|£ T .ONES..3
                             PWOENIX ARIZONA 9SOO3
                             March  14,  1979
                            REVISED  COMMENTS
                                                            I 310-9511369
   Mr.  John P.  Lehman
   Director
   Hazardous Waste Management  Division
   Office of Solid Waste (WH-565)
   rJ.  S.  Environmental Protection  Agency
   Waterside Mall, 401 M Street
   Washington,  D.C.   20460

             Re:   Proposed  Regulations  -  Resource
                  Conservation and Recovery Act
                  §§  3001 and  3004	

   Dear Mr. Lehman:

             Phelps  Dodge  Corporation is  pleased to submit
   the following  comments  on  the December 13,  1978  Proposed
   Regulations under  §§ 3001  and 3004  of the  Solid Waste
   Disposal  Act,  as amended  by  the  Resource  Conservation
   and Recovery Act  of  1976  (Public Law 95-580).   These  pro-
   posed Regulations  appeared in  the  Federal  Register,  Vol.
   43,  No.  243  at pages 58946-59022.

            Phelps Dodge Corporation is engaged  in the mining,
   milling and smelting  of  copper bearing  ores in  the  south-
   west.   Ic. presently has,  in active  operation,  open  pit  cop-
   per mines at  Ajo  and Morenci,  Arizona,  and at  Tyrone,  New
   Mexico.   It also  has  an underground copper mine  in the de-
   velopment stage at Safford, Arizona.

-------
Mr. John P.  Lehman
March 14, 1979
                         SECTION 3001

          Section 3001 of the Resource Conservation  and  Re-
covery Act  directs  the Environmental Protection Agency  to
develop and  promulgate criteria for  identifying the  char-
acteristics of hazardous wastes, and  for  listing hazardous
wastes which will be subject to the hazardous waste  regula-
tions promulgated under the Act.

          It is Phelps Dodge Corporation's concern  that  the
proposed regulations,  in their  present  form,  impose  an  un-
authorized and certainly unnecessary economic burden  on  the
operations of the  domestic  copper mining  industry.   An
examination of  the  legislative history discloses that  the
Act was  primarily  intended  to regulate  the disposal  of
municipal  and  industrial  waste.   It was  not intended  to
regulate mining operations.

          Most of  the  copper domestically produced  in  the
United States  is now  produced  from porphyry copper  mines
which consist  of low grade  disseminated  ore bodies.   The
mining  process  of  the ore  bodies is  such  that enormous
amounts of useless  overburden may  overlie  the ore body  and
have to be removed.   In addition to the  initial overburden,
it  is  typical  that for every  ton  of ore removed from  the
mine,  that from  1-1/2  to 5  tons of  other  unusable rock  and
alluvial materials  are generated.   This  latter material  is
uneconomic to process and must likewise  be handled and dis-
carded  in the same manner  as  the overlying overburden.

          Both the  overburden  and  unusable  mine material
generated  on  a  daily  basis are deposited  by truck, rail
or, in rare cases,  by  conveyor  as  close to the mine  itself
as  possible.   The mine operator must keep his transporta-
tion of  unusable mine material  to  as short  a distance  as
possible because  of  the  economics  of  mining.   Accordingly,
most storage areas  for  such  unusable  material are within a
mile or  two  of  the mine itself.   There is  no alternative
method of handling and storing these enormous quantities  of
unusable  mine material.   They must be  deposited in  the
vicinity of the mine.

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Mr. John P. Lehman
March 14, 1979
     *     Although  the term  "solid waste"  is  defined  in
the Act  as  including  "discarded  material,  including  solid,
.  .  .  material resulting  from  . .  .  mining  .  .  .  opera-
tions,"  it  is  clear  from the legislative  history of  the
Act  that Congress did  not  intend mining wastes  to  be
classified  as  "hazardous",  and  thereby subject to regula-
tion as  a hazardous waste.   The  Senate Report of  the  Com-
mittee on Public  Works states that  the hazardous  "[mlate-
rials of major  concern are arsenic  wastes,  insecticide  and
pesticide  residues,  waste oil,  explosive waste, sludge
contaminated with  metals  such as chromium and  zinc,  and
radioactive  waste."    (Senate Report  Committee  on  Public
Works, S.R. 94-988,  p.  3).  Furthermore,  in  a  colloquy
which  took  place on  the  Senate floor when  the  bill was
being  considered  on June  30, 1976, Senator  Randolph,  in
answer to  a question  from  Senator  Domenici, specifically
and uncategorically stated  that  "[mlining activity of  the
kind you  describe would  [n]ever be regulated  under  this
bill."   Senator Randolph also  commented to Senator  Domenici
that "[tjhere  is nothing  in this  bill  to  regulate  mining."
These comments  were made  to  Senator Domenici  when he  de-
scribed  to  Senator  Randolph  the  process  followed  by  Ken-
necott Copper Corporation  in  its  porphyry  copper operation
in Bingham  Canyon, Utah, in which "millions  of  tons  of
overburden  are  simply  dug up and  dumped  over the  side  of
a mountain."

          In addition  to  the  legislative  history  consist-
ing of  the  aforementioned Senate  Report  and  exchange  be-
tween Senators  Randolph and Domenici,  the House Report  of
the Interstate  and  Foreign Commerce Committee states  that
"Committee  information on the  potential danger posed  by
mining  waste is not  sufficient to form  the  basis for  legis-
lative  action at this  time.  For  this reason,  the Committee
has mandated  a study  of mining  waste."   (emphasis  added)
(House  Report,  Committee  on  Interstate  and  Foreign  Com-
merce,  H.R.   14496,  p.  15).   Congress  frankly admits  that
it lacks  sufficient  information   to  determine the  hazards
associated with mining waste.  Accordingly,  section 8002(f)

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Mr. John P. Lehman
March 14, 1979
of the Act requires the Administrator,  in  consultation with
the Secretary of  the  Interior,  to conduct a  comprehensive
study of mining  waste  and make  findings  and recommendations
based upon the  results of that study.   It was anticipated
that Congress would then determine what  additional  legisla-
tion,  if any,  is needed  with respect to mining waste.
Thus, it  appears  clear that the  Solid  Waste  Disposal Act
as  amended by the Resource  Conservation  and  Recovery Act
does not apply to mining overburden and  unusable mine mate-
rial, at  least  not until  after  completion of the special
study on raining waste  mandated by  5 S002(£).   The  proposed
regulation  of mining waste  under the Act   is  therefore
unauthorized.  As  stated in the  House  Report of  the Com-
mittee on Science and  Technology,  the intent and purpose of
the special  study on raining waste  is "to generate documents
which will be the  basis  for decisions and plans concerning
research, development  and demonstration.   It is  conceiv-
able,  for example,  that a study might conclude  that no
action  under this bill  is called for  in a certain subject
area. .   . ."  (emphasis  added) (House Report,  Committee on
Science  and  Techonolgy, H.R.  74-1461, p. 13).  Accordingly,
until the special study  on  mining waste is completed,
regulation  by the EPA of mining waste is premature and
without  statutory authority.

          Nonetheless,  in  drafting  its  criteria  for clas-
sification of hazardous  wastes,  the Environmental Protec-
tion Agency  has  applied  the  criteria  to all   "solid waste"
with three exceptions; one of which is  "overburden result-
ing from mining  operations  and  intended for  return to the
mine site."   43  F.R. at 58955,  §  250.10(d)(2)(ii) .

          The above  cited  exception  is  no   exception at
all  when applied  to   open pit copper  mining operations
(nor  indeed  for  that  matter  to  underground  operations).
Phelps  Dodge Corporation  knows  of  no  open pit copper
mining operation where any part   of the  O"erburden or un-
usable mine  material  is returned  to the  mine or is  intended

-------
Mr. John P.  Lehman
March 14, 1979
to be  returned  to  the mine.   Likewise,  in the  case of
underground mines,  the  unusable  mine material produced in
sinking  new shafts  and driving  development headings is
typically not discarded underground.

          For the reasons hereinabove discussed,  Phelps
Dodge  Corporation strongly recommends  that  the exemption
should  be amended  to  read:  "overburden  resulting  from
mining operations and discarded at the mine site."  Phelps
Dodge  Corporation  further  recommends  that  the following
definitions be added to the proposed  regulations to clarify
the scope of this exemption:

          (A)   "Mine Site"  — a mine  and related  prop-
     erty necessary  for  the conduct  of mining  operations;

          (B)  "Overburden" — discarded material from the
     extraction,  beneficiation and processing of  ores and
     minerals.

The  proposed  amendment  and additional  definitions  would
make it  clear  that,  in keeping with Congressional intent,
overburden discarded at  the  mine  site would not,  at least
for the  present,  be  subject to regulation  under the Solid
Waste Disposal Act.

          Phelps  Dodge Corporation  believes that  it was
Congress '  intent  that  the Resource   Conservation  and Re-
covery  Act  should   not  apply  to mine  wastes, at  least
not until  after  completion of  the  special study mandated
by § 8002(f)  of  the  Act.   However,  in the  event that  this
intent  is  not recognized  by  the  Environmental  Protection
Agency,  Phelps  Dodge.  Corporation  believes that  the  pro-
posed  definition  of toxic  should be  given careful study.

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Mr. John P. Lehman
March 14, 1979
          The vast amount of wastes  generated  in  the mining
of copper are the naturally occurring  rock  removed  diractly
from the mine, together with the tailings which result  from
the concentrator  process.  This  material annually con-
stitutes  billions  of tons.   If this  material  is  to be
regulated  at all  under  the  Hazardous  Waste Regulations,
Phelps Dodge Corporation believes that it will be  regulated
only because  of  the test for toxicity which is being  pro-
posed.   Such wastes  are  neither  ignitable,  corrosive or
reactive.   If they are determined to be  toxic, Phelps Dodge
Corporation is confident that such  wastes will not  test out
significantly greater than the proposed  standard.

          The proposed  toxicity test  is  based  upon the
National  Interim Primary  Drinking  Water  Standards.   The
standards  adopted  under the  Safe  Drinking Water Act  were
based upon an assumed  consumption of  two liters of potable
water per  day.   A significant margin for  safety was built
in.

          "(Clritical maximum contaminate  levels
          have substantial  safety  factors.  The
          safety factors for persons drinking  un-
          usually  large  quantities  of water  are
          not as high as those of the  majority of
          the population,  but  they  do provide a
          reasonable  degree  of   protection  under
          the circumstances."   40  Fed. Reg.
          59575,  December 24, 1975.

Therefore,  any  waste which would violate the  proposed
toxicity standard by a small  increment certainly would not
present  a significant  hazard   to  public  health  and  the
environment.    Phelps Dodge  Corporation  therefore submits
that the standard proposed  for  determining toxicity is too
sharp a  delineation and  that various  levels  of  toxicity
should be  recognized  and different  handling and  treatment
standards  applied.   This  concept has already  been recog-
nized to some extent by  classifying mine wastes as special
wastes.

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Mr. John P. Lehman
March 14, 1S79
                          SECTION 3004

          Section 3004 of  the  Act  concerns  itself  with the
regulation of  hazardous  waste treatment, storage  and  dis-
posal facilities.   The Section 3004  draft  regulations set
forth general facility standards.   Certain  waste cate-
gorized  as "special  waste"  has  been exempted from  some
general  facility  standards.   Proposed regulation  250.46-5
defines  a category  of  special  waste  as  "other mining
waste."    Such  wastes  are  "discarded  material  from  the ex-
traction,  benefication,  and  processing  of  ores  and  min-
erals, "

          Phelps Dodge Corporation in its mining of copper
ore displaces several  hundred thousand tons  of  other mining
waste each day.  These wastes are in the  form of mine over-
burden (as defined  above)  and  tailings.   Phelps Dodge  Cor-
poration has not  yet  completed testing of  these wastes to
determine their chemical characteristics.   However, Phelps
Dodge Corporation believes that  if  these  wastes are deter-
mined to  be  hazardous under  the  provisions of these  pro-
posed regulations,  they  would  be hazardous only by reason
of  the  proposed  toxicity  standards.   The  wastes   are  not
ignitable, corrosive or reactive.

          Depending on the final determination  of standards
for toxicity,  the  mining wastes may  or may  not be  classi-
fied as hazardous.  Phelps Dodge  Corporation believes  that
its mining wastes  do  not  constitute a  hazard to  the  en-
vironment.   In this  regard,  the Environmental Protection
Agency obviously  agrees  with  Phelps  Dodge  Corporation  in
that the draft regulations repeatedly state  that mine waste
"occurs  in very  large volumes, that  the  potential  hazards
posed by  the waste are relatively low, and  that the waste
generally  is  not amendable  to the control  techniques  de-
veloped  in Subpart  D  (disposal  facility  regulations)."   43
Fed. Reg. at  58992.

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Mr. John P. Lehman
March 14, 1979
          Therefore,  prior  to the  imposition  of costly
controls  on Phelps Dodge  Corporation  and other  companies
similarly  situated,  it must  be asked  whether the  "rela-
tively  low"  hazards do exist  and  whether costly  controls
should  be  imposed  at this  time  which  offer no  protection
to  the  public  health  and the  environment.   Phelps  Dodge
Corporation submits  that  the regulations of  Subpart D
cannot  and need  not be  applied  to mining wastes.   The
Environmental Protection Agency's  policy in  this  regard has
been to defer

          "applicability  of most  of  the treat-
          ment, storage,  and  disposal   standards
          for  selected high volume,  relatively
          low  risk  waste  categories (i.e.,  min-
          ing  waste  .    . ) until  information  is
          gathered  and assessed to  determine how
          they  can best  be  handled."   43  Fed.
          Reg.  at 58943.

          Pursuant  to proposed § 250.46-5, the disposal of
mine waste  would  be subject to  standards  with respect to
sampling, site  selection,  security, record keeping and re-
porting, visual inspection, closure, and groundwater  moni-
toring.

          Sampling  provisions  for special  waste are set
forth at §  250.43(f).  Obtaining a  "representative sample"
of  the  several  hundred  thousand tons  of material that are
removed   each  day by  Phelps  Dodge  Corporation and  of the
many billions  of  tons  that have been  removed  in the past
is  a problem  in itself.   This  problem  is magnified by the
fact that  Phelps Dodge Corporation is  but  one of many in
the  copper  mining  industry.    The  sampling  procedures set

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Mr.  John P.  Lehman
March 14, 1979
forth  in these  regulations  simply do  not address  this
problem  for  the  mining industry.   The characteristics or
the  rock may  vary  from  region  to region  of  the  mine.
Certainly the  rock  varies  in one  respect  since  only that
portion of the rock  containing an  economically recoverable
amount  of copper is actually processed.   An acceptable
sampling  technique  for  analyzing  the hundreds  of millions
of tons  of  rock  must be ascertained.  Certainly each rail
car or truckload  of  waste  cannot be independently analyzed,
and certainly no  one rock  sample from a waste dump can give
a  true  test  for the entire  mass.    Therefore,  it  is sub-
mitted, that the  waste analysis tests as set forth in these
regulations  were  designed  for other types of  wastes  and
cannot be generally  applied  to mining wastes.

          Section 250.43-1 sets forth standards for general
site selection.  These standards are  logically inapplicable
to the mining  of ores.  It  is  quite possible  that  the ore
body itself may be  located within  a  "500-year floodplain."
The ore must be mined where  it  is found.  The mine operator
does not  have  a  choice of relocating  the  mine  to  an area
on higher ground  not within a 500-year  floodplain.   Sim-
ilarly,  the economics of  mining  demand  that  the  waste
materials be discarded  as  close  to  the  mine  as possible.

          In addition,, many areas  of the  southwest  in
which mining activities are  conducted  are  in  rugged, arid
regions subject to  sudden violent  thunderstorms with rapid
runoff.   In  many cases, the gulleys,  ravines  and  arroyos
through  which these flood  waters rush  are the gulleys,
ravines  and arroyos into which mine  wastes have  tradi-
tionally been dumped.   It  is physically impossible to
pile the hundreds of millions of tons of mine wastes on the
narrow  ridges  which  rise  between   these  gulleys,  ravines
and arroyos.   Normally dry arroyos have been and must con-
tinue  to be used as a primary site for  the disposal of
mine wastes.

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Mr. John P. Lehman
March 14, 1979
          Similarly, the restriction  that  a  waste area not
be located in the recharge zone of a sole source aquifer is
again  a  condition which cannot  be imposed on  the  mineral
extraction  industry.    If  an economically recoverable ore
body has been found, it must be  mined where  it is located.
The mine operator does not have alternatives  for waste dis-
posal  sites.   The  wastes  must  be  discarded  close  to the
mine.   If that  region happens  to  be above  a  sole  source
aquifer, then  that is  where the  mine  waste must be  dis-
carded.

          Just these requirements,  that  mine wastes  not be
disposed of in a 500-year floodplain or above a sole  source
aquifer, if imposed on future mines sites, could well pro-
hibit  unnecessarily the opening of  additional  ore  bodies.
Certainly, such  severe  restrictions  cannot be  imposed at a
time when, by the Environmental Protection Agency's  own ad-
mission,  not enough  is known  about the  effects of  mine
wastes to establish specific guidelines.

          The regulation  on  site  selection  also  provides
at §  250.43-1(h)  that active  portions  of the  waste  areas
be located at least 60 meters from the property line  of the
facility.   Such  a requirement is,  again,  totally unneces-
sary for the disposal  of mine wastes.  For instance,  at the
Phelps Dodge Corporation Morenci  mine, US  Highway 666 runs
over an active mine dump.   The  public of course has  access
to this  highway and   has  driven  over the  dump for  many
years.   The public has not  been  subjected  to  risks  from
"unexpected discharges or  releases  from  fires, explosions,
spills,  and  underground leaks."   The safety  factor  which
the Environmental Protection  Agency  seeks  to impose  around
waste  areas containing  hazardous  wastes  are for  those
wastes which by  their  very  nature  present a potential for
immediate  harm  to the  public health and  the  environment.
The hundreds of  thousands  of  tons of rock which are  dis-
carded day  in  and day out  around  a  mining area, certainly

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Mr. John P. Lehman
March 14, 1979
do not pose a danger  to  the public  from  fires,  explosions,
spills  and underground  leaks.   The rock  in  its natural
state poses  no  threat.   The  imposition of  at  least a 60
meter buffer  zone  around a mining  area  removes from pos-
sible use  an area  which  could  receive  considerable waste
material.   Such  an imposition substantially increases the
costs for the operation of a mine.

          The security provision at  §  250.43-2  again seeks
to  protect the public  from  those  highly  hazardous mate-
rials  which  could pose  immediate  danger to  the public
health  and environment.    Again,  the  mine  overburden and
tailings produced by the  copper  mining  industry  do  not pose
a  hazard  of this  type.   Therefore,  requiring  a two meter
fence around the waste facilities,  if they  are deemed to be
hazardous,  is totally  inappropriate  for  this type  of acti-
vity.  In the United States, mine  dumps containing  billions
of tons of material cover hundreds  of square miles  of area.
Mine dumps  are  frequently located in areas of  rugged ter-
rain.   Requiring  the  operator  to  place an expensive six
foot barrier  over  miles  of rugged terrain  benefits no one
but  the  party who  sells  the  fence  to the mine  operator.
Certainly,  the removal of  rock  from  one  place and  deposit-
ing it in another creates no mere  danger to  animal  life and
human  life than  that which existed before the rock was
moved.   The imposition of the expensive security  require-
ments  set forth  at 250.43-2 are  absolutely  unnecessary
since the  mine overburden  and tailings,  even if  determined
to  be  hazardous  under the § 3001 toxicity test, do not
pose  the  type of  hazards that  require  security  fencing.

          The  record  keeping  requirements set  forth at
§  250.43-5  again  are drafted with  the concept of  keeping

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Mr. John P. Lehman
March 14, 1979
records for numerous containerized quantities of hazardous
wastes.   It  is  submitted  that if  records are kept for
mining wastes  that a  map designating the  area  where the
materials are  deposited  should be  sufficient.   An annual
report of total  tonnage  should be adequate.  The  chemical
composition of  the wastes  does  not vary  significantly
from  day  to day and therefore  it  should not be necessary
to make a daily analysis  and  keep  records on  a daily basis.

          The  closure  requirements  at § 250.43-7(k), (1)
and  (m)  are directed  at those facilities  which  contain
highly hazardous  materials.  Subsection (k) appears to
incorporate  by reference all  the  provisions  for  closure
while the intent  of the  proposed  regulations is to exempt
special wastes  from most of the closure and post  closure
requirements.   Hone of  the special  waste  categories appears
to be subject to the closure  and post closure financial re-
quirements.   This  should  be  clarified.   Certainly  the re-
quirements that the facility "be secured so  that human and
animal life  cannot  come  into contact  with hazardous waste"
is not necessary  for  mining wastes.   As discussed above,
there is  no  danger from physical contact.

          The  groundwater monitoring and   reporting re-
quirements at  § 250.43-8  are designed to monitor hazardous
wastes with  a  high  potential for contaminating the ground-
water.  Until  there is some evidence  that the high volume,
relatively low risk mine  wastes are  endangering groundwater
aquifers,  the  expensive monitoring requirements should not
be imposed.     A  single  well  should provide adequate sur-
veillance to   indicate whether a  problem exists  or not.
Only  if a danger  is discovered should  the  extensive mon-
itoring and  reporting  requirements  be imposed.

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Mr. John P.  Lehman
March 14, 1979
          In conclusion,  Phelps  Dodge Corporation submits
that the  regulations  have  been  drafted with the  objective
to  regulate  domestic  and  industrial  wastes which are
truly hazardous, that  is  they pose imminent danger to the
public health  and  the  environment.    Trying  to apply one
general standard to  all  types  of  waste is  inappropriate.
The  extensive regulations should  not be applied to the
mine overburden and tailings  produced  by the copper mining
industry.

                         Very truly  yours,
                                                  XES,  P.C.
JFB:blb

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                           TESTIMONY FOR PRESENTATION
                          AT PUBLIC HEARING ON PROPOSED
                   HAZARDOUS WASTE GUIDELINES AND REGULATIONS
                            March 12, 13, & U, 1979
                            San Francisco, California
                                       By
                                Dr. George Hersh
                State of California, Solid Waste Management Board

I am Dr. George Hersh, Chief of the Resource Recovery Division, Solid Waste Management
Board, State of California,  I am here to testify regarding rules proposed under
section 3002 and 3003 of the Solid Waste Disposal Act as amended by the Resource
Conservation and Recovery Act of 1976.  My comments are directed to the regulations
proposed for generators of used oil and to the impact of the proposed regulations on
California's used oil recovery program which began on January 1, 1979.

California's used oil recycling program was authorized by Senate Bill 68 of 1977 and
is administered by the State Solid Waste Management Board.  Briefly, it includes
about 2400 voluntary used oil collection stations, throughout the State, where the
do-it-yourself oil changers can deposit their drainings, and a public information
program (t.v. spots, signs posted by oil retailers, etc.) to encourage the
do-it-yourselfers to use these stations.  The administrative rules for the program
provide for registration of used oil haulers, recyclers, and transfer facility
operators with the Board, requires receipts for transfers of used oil, and provides
for submittal of annual reports by used oil haulers, recyclers and transfer facility
operators accounting for the used oil handled or processed during the year.

The program depends upon 2400 used oil collection stations to help alleviate the
problems associated with the indiscriminate dumping of about 12 million gallons
of used oil annually by the do-it-yourself oil changers.  Most of these collectors
are service stations that have yolunte_er_ed_ to provide this extra service.  There
are also a number of automotive repair shops and recycling centers that have
volunteered as collection stations.

We understand that, under the proposed regulations, used oil generators such as
automobile and truck service stations would be considered generators of hazardous
wastes, and as such, would be required (among other things), to:

     1.  Apply for a generator's identification code; and

     2.  Either fulfill the manifest and other record keeping and reporting
         requirements of a hazardous waste generator or in the case of used
         oil generators, to enter into an "assumption of duties contract"
         with a used oil hauler, recycler, or disposer.

The regulations, as presently proposed, would have a detrimental effect on our program,
and, contrary to the resource conservation goals of the Resources Conservation and
Recovery Act, would discourage the recycling of used oil.  Muffler shops, recycling
centers and other facilities not handling used oil as a regular part of their business
would be likely to withdraw from our collection program rather than comply with the
proposed federal registration, record keeping, and reporting requirements.  Also, the
present marginal monetary incentive for collecting used oil (.05C to .07c per gallon)

-------
Testimony



would be reduced if stations are required to pay a fee to used oil haulers or
disposers to assume the generator's responsibilities.   Incidentally, there Is
no shortage of used oil haulers in the State.  There are 70 companies in the
business with about 300 trucks hauling used oil.

The problems we have identified could be eliminated by categorically exempting
service stations and others that collect used oil for recycling from the
requirements for a hazardous waste generator.  This exemption would also have the
effect of encouraging the recycling of used oil by placing a disincentive on
other modes of disposal.  Such a waiver of the requirements is reasonable and
proper, since used oil collected for recycling is not a waste product but a
resource that is to be put to use.

I appreciate this opportunity to testify.

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              Statement of
              DON R.  MORROW
    GENERAL MANAGER,  MINING DIVISION
         AGRICO CHEMICAL COMPANY
              P.  0.  BOX 1110
            MULBERRY, FLORIDA

               before the

  U.S. ENVIRONMENTAL  PROTECTION AGENCY
               concerning
THE PROPOSED REGULATIONS OF THE RESOURCE
      CONSERVATION AND RECOVERY ACT

San Francisco, Calif.      March  13, 1979

-------
     Good evening.  My name is Don R. Morrow and I am General Manager



of Agrico Chemical Company's Mining Division.  Agrico operates three



phosphate mines located in Central Florida.



     Agrico is very concerned about the designation of phosphate



mining materials as "hazardous waste" under the proposed regulations



of the Resource Conservation and Recovery Act.  I thank EPA for this



opportunity to express our concern.



     I am convinced that EPA would not include phosphate overburden



and clays as hazardous waste if EPA representatives had had time to



visit us in Florida and learn in specific what the industry does,



the nature of the material handled, the method for storage of these



materials, and the amount of exposure risk.



     You need to know that our industry disturbs approximately 5,600



acres a year.  Overburden, the soil above the layer of ore, is



displaced and returned to each acre.  The sand and clay that are



removed by the beneficiation process are also returned to the mine



site to be used in the reclamation procedure.



     It is also important to know that the industry reclaims each



acre disturbed; that is, restores each acre to a generally more



productive or more aesthetic state.  Reclamation, in fact, has been



mandated by the State of Florida since 1975.

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     So we have a dynamic process of mining and reclamation of areas
approximating 5,600 acres (8.7 square miles) each year.   Can you
realize how difficult it would be to impose the proposed restrictions
on areas as large as this, particularly when these areas are moving
each day?
     The real question is, why is it even necessary?  The overburden
that is removed from above the matrix is simply deposited about 200
feet from its original location,   when the land is reclaimed, the
overburden is returned to its approximate original location.  We
didn't change the chemical or radiological characteristics of it in
any manner.  We merely displaced  it.
     Moving the overburden to mine the matrix is analogous to the
farmer moving the soil to harvest his potatoes.  Certainly the movement
shouldn't cause the material  to be reclassified as a "waste."  Since
it wasn't hazardous to begin  with, it certainly can't be labeled a
"hazardous waste."
     After the phosphate is separated from the ore-bearing matrix,
we are left with the other two parts of the matrix, sand and clay.
The sand, which EPA concurs is not a hazardous waste, is pumped back
to the mine site for fill in  the  reclamation process.
     The clays are also returned  to the mined-out pits,  and in most
cases, stored to an elevation above the normal ground surface by
constructing earthen dams around  the mined-out areas. The elevated
storage allows the clays to dewater and, in time, consolidate to a
firm condition where the area can be reclaimed for good  pasture or
agricultural uses.  In the meanwhile, these ponds provide wonderful
habitat for wildlife and some of  the best fishing in Florida.

-------
     Let's now consider exposure.  EPA's recent Environmental Impact
Statement on Central Florida's Phosphate Industry states that, "To
date, no activity of the phosphate industry has been proved to cause
a radiation dose to the general population in excess of the guideline.
Furthermore, when industry average time-weighted values are used, it
is anticipated that no phosphate workers will receive doses of
radiation exceeding the guideline established for the general
population."  So there is no risk to the phosphate miner working in
the mining area.
     However, EPA wishes to classify the overburden and clay ponds
as hazardous waste.  When we consider overburden, we should recognize
that there's virtually no difference between our overburden piles
and much of the developed reclaimed land in Polk County.  Our
reclaimed land is, in great part, overburden piles that were leveled
in such a manner as to create useful land.
     It is indeed a rare occasion that someone would walk across an
overburden pile or a clay pond and, consequently, there is practically
no exposure when the land is in the process of mining.   However, in
Polk County, many housing developments, shopping centers, businesses,
parks, recreation areas, clinics, institutions, schools, and the
U.S. Post Office are all located on reclaimed land.  This use of the
land causes much greater exposure than our overburden piles where
nobody goes.
     If there is a risk, we should build fences around  these reclaimed
developed areas and keep people out.  We should then also construct
fences around the State of Colorado, parts of Las Vegas, Nevada,
Albuquerque, New Mexico, and the beaches of Sarasota, Florida.

-------
These places  have gamma radiation  levels as high or higher than the
phosphate mines and their reclaimed  lands.  If EPA is going to "protect"
Floridians  from their own land, they should also "protect" the millions
   i>         "
of  endangered people living in these other areas.
     And as for alpha radiation, the respected health physicist,
Dr. Keith J.  Schiager, has written,  "Surveys conducted in Canada and
Europe indicate that as many as 5% of all houses exhibit normal radon
progeny concentrations exceeding 0.02 wl.  Based on observed
distributions of normal concentrations, approximately 1% of all
residences  would exceed 0.03 wl.  Consequently, it can safely be
assumed that  a million or more people in the U. S. live in normal radon
progeny concentrations which exceed the  level for which the EPA proposes
regulatory  or remedial action."
     Of course, the real fact is that there is no appreciable hazard
when the radiation levels are so low.  In a study by EPA, it was
determined  that the amount of radiation only became significant to
people living in dwellings on a small percentage of reclaimed land,
if  they stayed inside the same unventilated house for seventy years.
I submit to you, if I, or most other Americans, had to stay inside
an  unventilated house for seventy years, I would not be concerned
about an increase in the risk of having cancer.
     The most positive proof that radiation is not a problem comes
from a survey by the U.  S. Department of Health, Education and Welfare
in  1974 which determined that Polk County, the primary location of
phosphate mining since 1880, ranks 31st of 67 Florida counties in
mortality rates due to cancer of the respiratory system.   Another

-------
study by the National  Cancer Institute shows that Polk County ranks
43rd for 67 Florida counties in leukemia mortality.  These mortality
rates indicate that Polk County is as healthy as the average county
in Florida, so how can EPA conclude we have a radiation problem?
A note of interest to all of you is that Polk County is the residence
of the oldest living American, Charlie Smith, who is 135 years old.
     All these facts support the industry's position that:
        The amount of radiation from phosphate mining or
     reclaimed land is of such low levels as to have no
     discernible or significant health effects on the people
     in the area;
        The proposed classification of overburden and clays
     as "hazardous" is not necessary,
        The costs to the industry resulting from this proposed
     classification is inflationary to the American people and
     provides no benefits to the people;
        This proposed regulation represents the typical
     "inflationary overkill" from which President Carter
     has promised the American people some relief.

     I thank you again for the opportunity to present my views.

                                      Respectfully submitted,
                                      J^c-^ ]\.  fty?l>si,isV~+.<->	
                                      Don R. Morrow

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CALIFORNIA  CHEMICAL
        WASTE
     PROCESSORS
     4S75 PACHECO BOULEVARD,  MARTINEZ. CALIFORNIA 94553    (41S) 228-5100

                                March 12, 1979
      Mr. John P. Lehman
      Director, Ha2ardous Waste Management Division
      Office of Solid Waste  (WH-565)
      U. S. Environmental Protection Agency
      Washington, D. C.  20460

      Dear Mr. Lehman:

      Attached are comments compiled by the California Chemical
      Waste Processors Association relative to Sections 3001,
      3002, 3003, and 3004 of the "Proposed Rules" for the
      Resource Conservation and Recovery Act of 1976 (P.L. 94-580).
      These comments are the result of many hours of discussions
      by the members of our Association and represent the collective
      opinions of the companies involved (see membership list
      attached).

      Although in general it is felt that these regulations would
      provide a valuable standard for performance within the haz-
      ardous waste management industry and would improve the general
      environment, it is further felt that some of the specific
      requirements proposed would be extremely costly to the general
      public, technically infeasible based upon the types of materials
      handled, or would result in significantly reduced participation
      in the industry by small operators.  The California Chemical
      Waste Processors Association would like to extend the opportunity
      to discuss the attached recommendations with your staff  at any
      opportunity.  If there are any questions, please contact me for
      further information, backup data, or potentially a meeting with
      members of the Association.

      Thank you for this opportunity to present these items to you
      for you review.
                                Very tru
      WHP/jk

      Enclosures  (2)
                                William H. Park
                                President

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 CALIFORNIA  CHEMICAL
         WASTE
      PROCESSORS
      3040 19TH STREET, SUITE 10, BAKERSFIELD  CALIFORNIA 93301   I805) 327-96; 1

                       MEMBERSHIP  LIST  -  MARCH, 1979
REGULAR MEMBERS

Aurignac Industrial Waste Plant
P. 0. Box 331
San Ardo, CA.  93450
(408) 627-2434

BKK Corporation
3031 East I. Street
Wilmington, CA.  90744
(213) 775-3607

Casmalia Disposal
P. O. Box 5275
Santa Barbara, CA.   93108
(805) 969-4703

Chemical Processors Inc.
5501 Airport Way So.
Seattle, Washington 98108
Ronald S. West
(206) 767-0350

County of San Diego
County Operations Bldg.
Bill Davis MS-0380
5555 Overland Avenue
San Diego, CA.  92123
(714) 565-5635
Environmental Disposal Service
P.O. Box 1071
430 W. Elm Avenue
Coalinga, CA.  93210
(209) 935-2002

Environmental Protection Corp.
3040 19th Street
Bakersfield, CA.  93301
(805) 327-9681

Geotherma1, Inc.
P. 0. Box 480
Middletown, CA.  94561
(707) 987-3305
IT Environmental Corporation
4575 Pacheco Blvd.
Martinez, CA.  94553
(415) 228-5100

Liquid Waste Management
Drawer L
Taft, CA.  93268
(805) 763-3141

M. P. Oil Company
175 Ray Street
Bakersfield, CA.  93308
(80S) 393-1151

McAuley Oil Company
P. 0. Box 16014
Long Beach, CA.  90806
(213) 595-6595

Nuclear Engineering Co., Inc.
P. O. Box 156
San Ramon, CA.  94583
(415) 426-7160

Oakland Scavenger Company
2601 Peralta Street
Oakland, CA.  94607
(415) 465-2911

Oil & Solvent Process Company
P. O. Box 907
Azusa, CA.  91702
(213) 334-5117

Operating Industries, Inc.
2425 South Garfield
Monterey Park, CA.  91754
(415) 726-3202

Richmond Sanitary Svc.
205 41st Street
Richmond, CA.  94805
(415) 236-8000

-------
Romic Chemical Corporation
2081 Bay Road
East Palo Alto, CA.  93202
(415)  324-1638

Ventura Regional County Sanitation Dist.
P. O. Box AB
Ventura, CA.  93001
(805) 659-2130

Zero Waste Systems, Inc.
2923 Poplar Street
Oakland, CA.  94608
(415) 893-8257

Aqua Clear Farms, Inc.
2510 West Orange Avenue
Anehiem, CA.  92804
ASSOCIATE MEMBERS

Chancellor and Ogden
3301 East I Street
Wilmington, CA.  90744
(213)  432-8461

Dorado Growth Industries
dba C.P.S.
3487 Noell Street
San Diego, CA.  92110

Elkins Ranch Company
P. 0. Box 695
Fillmore, CA.  93015
(805) 524-1781

Oscar E. Erickson, Inc.
249 Tewksbury Avenue
Richamond, CA.  94801
(415) 235-1393

Gasch & Associates
4302 Madison Avenue
Sacramento, CA.  95842
(916) 334-8400

Industrial Environmental Services
4575 Pacheco Blvd.
Martinez, CA.  94553

IT Corporation
4575 Pacheco Blvd.
Martinez, CA.  94553
(415) 228-5100
Liquid Gold Oil Corporation
9957 Medford Street
Oakland, CA.  94607

Lowry and Associates
17748 Sky Park Blvd.
Irvine, CA.  92714
(714) 751-3820

McKay Trucking
P. 0. Box 376
Coalinga, CA.
(209) 935-0851

J. J. Magana, Corp.
P. O. Box 579
San Pablo, Ca.  94806

Nash Salvage, Inc.
16211 Placid Drive
Whittier, CA.  90604
John P. Nash

Pacific Soils Engineering, Inc.
17921 Sky Park Circle, Suite G
Irvine, CA.  92714
(714) 557-9450

0. James Pardau
4309 Vista de Lago Way
Fair Oaks, CA.  95628
(916) 967-8351

Penfield & Smith Engineers, Inc.
P. O. Box 98
Santa Barbara, CA.  93102
(805) 966-7156

Rodi, Pettker, Galbraith, Bond &
   Phillips
A Law Corporation
611 W. 6th Street, Suite 1600
Los Angeles, CA.   90015
(213) 680-0823

Rudy Bonzi, Inc.
2650 West Hatch Road
Modesto, CA.  95351

SCS Engineers
4014 Long Beach Blvd.
Long Beach, CA.  90807
(213) 426-9544

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Trotter-Yoder & Associates
3730 Mt. Diablo Blvd.
Lafayette, CA.  94549
(415) 284-2980

Turner & Sullivan
5;:0 Capital Mall, Suite 700
Sacramento, CA.  95814
(916) 441-1116

Woodward-Clyde Consultants
3 Embarcadero  Center, Suite 700
San Francisco, CA.    94111
AFFILIATE MEMBERS

California Regional Water Quality Control
  Central Valley Region
3201 S. Street
Sacramento, CA.  95816

County of Fresno Health Department
1246 L. Street
Fresno, CA.  93721

Department of Health
Vector and Waste Management Section
714 P. Street
Sacramento, CA.  95814

Kern County Health Department
1700 Flower Street
P.O. Box 997
Bakersfield, CA.  93302

State Solid Waste Management Board
1416 Ninth Street, Room 1335
Sacramento, CA.  95814

California Water Quality Control Board
North Coast Region
1000 Coddingtown Center
Santa Rosa, CA.  95401

Tulare County Health Department
Civic Center
Visailia, CA.  93277

Kern County Public Works Department
2601 "0" Street
Bakersfield,  CA.  93301
     Department of Environmental
       Health Services
     San Bernadino County
     1111 E. Mill Street, Bldg. 1
     San Bernadino, Ca.  92415

     Stanislaus Co. Department of
       Environmental Resources
     820 Scenic Drive
     Modesto, CA.  95350

     Department of the Army
     U.S.A.E.H.A. R.D.-W, FAMC
     Denver, Colo.  80240

     Contra Costa County Health Dept.
     100 37th Street, Room 1500
BoardRichmond,  CA.  94805

     Solano County Dept. of
       Public Health
     355 Tuolumne Street
     Vallejo, CA.  94590

     Environmental Quality Board
       City of Los Angeles
     City Planning Department
     Room 517 City Hall
     200 No. Spring Street
     Los Angeles, CA.  90012

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          COMMENTS ON THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976
          By the California Chemical Waste Processors Association
          March 9, 1979

  A.  Section 3001  Identification and Listing of Hazardous Waste

      1.  Supplementary Information:  Introduction, page 58947

          "...first priority for permitting to offsite disposal facilities
          and new facilities..."

Comment:  It appears to be discriminatory to regulate one segment of the

          disposal operators (offsite) nationwide while others are given up

          to 5 years interim period whereby they would only be subject to

          a limited set of requirements.


          It has been demonstrated that some of the most technically sound

          operations are those defined as offsite or contracted private

          firms that specialize in this field.  Such firms are open to

          frequent inspection and public scrutiny whereas, private sites

          are often virtually invisable to all but the user.  In that the

          same materials are handled it appears environmental problems are

          identical.


          To allow a five year differential in implementation of the

          regulations uniformly, will place a. severe economic disadvantage

          on those firms which professionally manage hazardous waste

          materials and also will serve to further aggravate and produce

          a negative impact upon the initial Congressional intent of RCRA.


          We would advocate a uniform application of the regulations nation-

          wide, and that in cases where problems are anticipated, priority

          be given to potential public exposure regardless of whether the

          facility is defined as offsite or any other term.  We believe

          that this approach would best serve the national interest.

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          COMMENTS ON THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976
          March 9, 1979''
      2.  Section 250.10 (d)

Comment:  Certain wastes are excluded from regulation because they are

          called reclaimable or are considered not to be discarded.  We

          disagree with this philosophy and urge that all hazardous

          materials be regulated.  Too many examples have occurred where

          waste products destined for reclaiming ended up in the wrong

          place and have caused irreparable damage to both human health

          and the environment.


          Again, we strongly urge that these materials be regulated and

          tracked even though they may be legitimately reclaimed.


          Likewise we strongly disagree with the exclusion for generators

          of less than 100 kilograms per month.  Extremely hazardous

          materials such as cyanides, dioxin, or PCB's should have very

          tight control and an exclusion does not make any sense.


          We urge that E.P.A. adopt a classification system based upon

          degree of hazard.  Perhaps then small quantities of the least

          hazardous could be excluded.


          In a related vein we do not understand why E.P.A. has refused

          to designate wastes by degree of hazard.  We are quite concerned

          that without a proper identification logic we will be over-

          whelmed with quantities of waste that could otherwise go to

          sites with less stringent requirements than our Class I sites.

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        COMMENTS ON THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976
        March 9, 1979
    2.  Section 250.10  (d)  (Continued)

        We have operated in California quite rationally with a two-step

        hazard classification system for years.  We urge E.P.A. to adopt

        a similar approach for a national program.


        Regarding the section dealing with identification and testing

        of materials to determine whether or not they are hazardous, we

        are concerned with the cost of implementation.  In Washington,

        D.C. at the February 23 hearings an Environmental Engineer with

        the Association of American Railroads testified that the full

        analysis would cost approximately $6000 per sample.  He was told

        by an E.P.A. panel member that this seemed much too high as E.P.A.

        estimates were only about $390 per sample.


        This approach by E.P.A. seems completely irresponsible by our

        Association.  The low cost of $390 given by E.P.A. is actually

        more costly to the generator than if he were to go ahead and

        actually dispose of the waste material.  What E.P.A. is advocating

        is that generators merely call everything hazardous and handle

        accordingly because the testing requirements to prove other-

        wise are actually more costly than disposing of the waste at

        a Class I facility.  We urge that some less costly testing

        procedure be offered by E.P.A.


B.  Section 3002  Standards Applicable to Generators of Hazardous Waste

    1.  Section 250.22  Manifest,  page 58977

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          COMMENTS ON THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976
          March 9, 1979~
          "Samples shown on pages' 58980 and 58981 do not contain suffi-

          cient information for proper management of hazardous materials."

Comment:  We would recommend adoption of a report that more closely

          follows that used in California.


      2.  Section 250.29  Exemption for Generators of Less Than 100 Kilograms

          Per Month of Hazardous Waste; Retailers; and Farmers

Comment:  We would recommend that E.P.A regulate these sources and adopt

          a degree of hazard classification system.  It is our concern

          that too much waste will go uncontrolled by the proposed

          exemptions and endanger human health and the environment.


  C.  Section 3003  Standards Applicable to Transporter of Hazardous Waste/

          Published in the Federal Register April 28, 1978.


      1.  Page 18509, Placarding of Vehicles

          "E.P.A. is considering recommending to D.O.T. the development of

          a new placard for such substances."


Comment:  Due to the range of placards for display on vehicles carrying

          hazardous waste, it is strongly recommended that no further

          placards be required.  The current terms utilized provide ample

          warning to emergency response personnel     approaching a

          vehicle or to the general public in observing the vehicle.

          The use of further categories such as carcinogenic, biocumulative,

          netogenic, or other such terms would provide no additional

          information even to an experienced individual, and would tend

          to confuse or not be understood by the uninformed public.

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          COMMENTS ON THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976
          March 9, 1979
      1.  Page 18509, Placarding of Vehicles (Continued)

          Additionally, the logistics of replacing all of the conforming

          sign holders to allow for additional categories would be expensive

          with very minimal if any advantage.


      2.  Page 18511, Section 250.34 through 250.36

Comment:  It is strongly recommended that the waste materials consigned to

          a transporter provide for flexibility in the location to which it

          is hauled.  Due to a number of factors, such as traffic conditions,

          hours of operation, capacity, haul distance and price, the use of

          one or another approved sites may be necessary or economical.  The

          elimination of this flexibility through the requirement to

          dispose of the material at one facility and only one facility

          without written approval would result in loaded vehicles being

          tied up adding transportation expenses to the generator.  It

          is agreed that the generator has the right to require the

          material to be hauled to a sole facility and be handled in a

          specific manner through the disposal contract between the

          generator and disposal facility.  This does not, however,

          require that this procedure be required for all materials, such

          as oil and water, muds, and other less hazardous materials.

          Analysis of this section indicates that it serves no specific

          purpose and would result in increased cost of disposal to the

          generator who will out of economic necessity be forced to pass

          these costs on to you and me, the consumer.

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          COMMENTS ON THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976
          March 9, 1979
      3.  Page 18512, Section 250.38  A Transporter Shall Mark Each

          Vehicle with the City or Community Where It Is Based

Comment:  We do not see any reason for this.  Perhaps a telephone number

          would be of more use.

  D.  Section 3004  Standards Applicable to Owners and Operators of

          Hazardous Waste Treatment, Storage, and Disposal Facilities

          Proposed Regulations dated December 18, 1978.

      1.  Page 58987 and 58988  Financial Responsibility

          "...Financial Responsibility:  site Life Liability.  E.P.A. has

          interpreted the term financial responsibility in Section 3004

          of RCRA to include the ability to pay for injuries to people and

          property which result from the escape of hazardous waste into the

          environment..."


          "The proposed regulations require a facility to show evidence of

          a minimum of $5 million of financial responsibility per occurrence

          per site for sudden and accidental occurrences during the life

          of the site.  In addition, the owner or operator of a facility,

          or group of facilities, is required to have and maintain financial

          responsibility for non-sudden and accidental occurrences in the

          amount of $5 million per occurrence, and an annual aggregate of

          $10 million, including legal defense costs.  Both types of

          insurance coverage in these amounts are now available from the

          private sector.


          Financial responsibility, which is intended to include claims

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          COMMENTS ON THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976
          March 9, 1979
          arising from both sudden and non-sudden escape of hazardous

          waste to the environment, can be established by liability

          insurance, self-insurance, a combination of the two, or some

          other form of financial responsibility acceptable to the

          Regional Administrator.  If a company elects self-insurance,

          however, such insurance for all sites owned and insured may not

          exceed 10 percent of the firm's equity..."


          "The Agency also has received comments that such liability

          insurance is prohibitively expensive.  E.P.A. has discussed

          this point with several insurance industry representatives,

          has reviewed the ranges of premium costs for such liability

          insurance being written today, and has concluded that insurance

          costs are not unreasonable."


Comment:  The foremost concern of our Association has to do with this

          section of the proposed regulations, specifically the portion

          relating to the liability coverage of $5 million with a $10

          million annual aggregate coverage for sudden and non-sudden

          pollution insurance.  This coverage is required of the owners

          or operators of a treatment, storage, or disposal facility

          during the site operation.  Financial responsibility may be

          established by any one of the following:

               A.  Evidence of liability insurance.

               B.  Self-insurance with level of such insurance not
                   exceeding 10 percent of equity.

               C.  Other evidence of financial responsibility acceptable
                   to the Regional Administrator

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COMMENTS ON THE RESOURCE CONSERVATION MID RECOVERY ACT OF 1976
March 9, 1979
These requirements may be a threat to the national productive

capacity of U. S. industry in general and is destructive to the

very existence of small business enterprises involved in waste

management regardless of how well they may be operated.  We

also believe that these regulations far exceed the mandate of

Congress.


Contrary to the assertions of E.P.A., no insurance policies

meeting these requirements have been written.  A policy was

obtained by a member of our Association in the amount of $2

million per occurrence and $4 million annual aggregate for an

annual premium of $90,000. with provisions which meet only a

portion of the total requirements.  This policy was under-

written by a foreign owned and operated insurance group.


After diligent effort on the part of this Association, we have

been unable to locate a domestic underwriter who will consider

this type of coverage.  Our only encouragement that such

coverage is obtainable comes from a London based group.


The self-insurance clause, which allows only 10 percent of

equity to be applied as self-insurance is of little or no

benefit to most members of our Association.  In order for a

company to be self-insured it would require an equity of $100

million.  With the exception of a very few companies, the

operators of such facilities have an equity of less than $1 million.

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COMMENTS ON THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976
March 9, 1979
This provision, therefore, is discriminatory against many small

businesses which are presently performing in compliance with the

stringent regulations which are already in force in the state of

California.


Most industries operating in the United States produce a certain

amount of hazardous waste materials as an end product.  According

to these regulations if these wastes are to be disposed of they

must be deposited in an E.P.A. approved site.  In order for a

site to legally operate, financial responsibility must be

established and maintained.  In most cases insurance is the

only way that financial responsibility can be established.  Our

experience shows that the only source for this coverage is

foreign groups which can issue or cancel policies at will.

This places in the hands of foreign interests an inordinate

amount of control over the productive capability of this nation.


The mandate of Congress contained in Section 3004 of RCRA is

stated as follows:  "No private entity shall be precluded by

reasons of criteria established (regarding financial responsibility)

from the ownership or operation of facilities providing hazardous

waste treatment, storage and disposal services where such

entity can provide assurances of financial responsibility and

continuity of operation consistent with the degree and duration

of risks associated with the treatment, storage or disposal of

specified hazardous waste."

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COMMENTS ON THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976
March 9, 1979
It is our position that the level of insurance of $5 million
and $10 million is not "...consistent with the degree and duration
of risks associated with the treatment, storage or disposal of
specified hazardous waste."  The level of financial responsibility
is a consideration that must be made by site risk analysis.  In
other words, a large facility in an urban community handling a
high volume of extremely hazardous waste would have a much
higher risk and therefore, should provide more financial
responsibility than a small site remotely located, handling
small volumes of less hazardous material.

If we take the only example that exists that approaches the
coverage required, it is estimated that the cost for the
required coverage would be in the neighborhood of $150,000 per
year per facility.  The cost of such premium must be passed on
to the waste generator and thence to the consuming public.
Many facilities are presently operating on an annual gross
revenue of less than this amount.  This means that the fees
for disposal by a small operator must be more than doubled
to meet the cost of this single item in these regulations.
On the other hand, the large operator handling a high volume,
thus a high revenue, will be less affected, placing the small
business in a non-competitive situation.

If we assume that 200 sites may be ultimately permitted

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COMMENTS ON THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976
March 9, 1979
nationwide by E.P.A., it would require $2 billion worth of

coverage at an estimated annual cost of $30 million.


It is our opinion that such regulations are neither fair nor

reasonable.


The reserve disposal capacity that is presently provided by

facility operators in the state of California is envied by

most states.  The major reason for the capacity that exists

in California is because of the large number of small business

enterprises involved.  The adoption of this portion of the

regulations will result in the demise of most of these small

businesses and thus greatly reduce our disposal capacity.

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    COMMENTS ON THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976
    March 9, 1979
2.   Page 58993,  NPDES Permitted Facilities


    The Association recommends that all hazardous waste be handled in

    accordance with these regulations for the receiving, storage,  and

    reporting requirements up to the point where the material is either

    treated such as to be no longer hazardous or is injected into a

    domestic sewage system covered by an NPDES permit.


    The Association also recommends that NPDES permitted industrial

    facilities should operate under the proposed regulations for all

    materials being deposited into ponds and lagoons similar to the

    permitted RCRA facilities.  If this requirement is  not imposed,

    facilities,  whether a generator or off site disposal facility, with

    an NPDES permit would be capable of avoiding regulation under RCRA.


3.   Page 58996,  Section 250.41, Definitions


    The Association strongly recommends that the definitions and respon-

    sibilities of owners and of operators be distinguised and delineated

    separately.   Due to the complexities of the various ownership and

    operator relationships, it is difficult and in some cases contractually

    impossible for both the owner and the operator to jointly comply

    with all of the requirements.  The Association's recommendation is

    that the owner or the operator, whichever is filing for and

    receiving the hazardous waste facility permit, be responsible for

    any and all actions under these regulations to the  permitting agency.

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    COMMENTS ON THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976
    March 9, 1979



    It would then be that parties responsibility to show both financial

    responsibility and all other requirements for obtaining the permit

    through whatever means might be employed satisfactory to the

    permitting agency.


4.  Page 58996, Section 250.41 (2), Active Fault


    It is recommended that the definition for active fault be changed

    to conform with the California definition of an active fault as

    follows, "A fault in the earth's crust that has been active

    during Holocene time (last 11,000 years)."  Alquist-Priolo,

    Geologic Hazards Zones Act.  No disposal area or hazardous waste

    storage or handling facility shall be located on the trace of an

    active fault, Section 15002.1 California Education Code.


5.  Page 58996, Section 250.41 (7), Basin


    The definition of an artificial material has not been provided and

    is hence confusing.  It should be clarified whether this phrase

    indicated man-made, manufactured, not natural in place, or other

    depending on the intent.
    It is recommended that the definition of disposal be reinserted to

    read:  "means the discharge,  deposit, injection,  dumping,  spilling,

    leaking,  or placing  of any solid waste or hazardous waste into

    or on any land or water."

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     COMMENTS  ON  THE RESOURCE CONSERVATION  ftHD RECOVERY  ACT OF 1976
     March 9,  1979



 7.   Page  58997,  Section 250.41  (44),  Incinerator


     This  definition should  be expanded to  include means of thermal

     reduction other than controlled  flame  combustion, such as pyrolysis,

     molten salt, etc.


 8.   Page  58997,  Section 250.41  (45),  Incompatible Waste


     This  definition should  be deleted and  the following definition

     should be substituted,  "means incompatible waste as defined by

     Subpart A criteria".  By placing this  definition in Section 3004

     regulations  would  put the same term with the  same definition

     in two sections of the  RCRA regulations.


 9.   Landfill


     It is recommended  that  this definition be reinserted to read:

    "means an  excavated, engineered,  and proper facility whereby hazardous

     waste is  deposited or covered."


10.   Off Site


     It is recommended  that this definition be reinserted to read:

     "means any facility where a public road must be utilized for

     transfer  between the generator and the disposal facility or where

     the facilities are not under common ownership."

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     COMMENTS ON THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976
     March 9, 1979



11.  Page 58999, Section 250.41 (83), Storage Facility


     It is recommended that the period during which generators may store

     waste should be shortened to thirty or sixty days making them

     subject to the standards for a storage facility.  As an alternative,

     standards for generators storing hazardous waste should be proposed

     for the period under ninety days.


12.  Page 59000, Section 250.43 (f)  General Facility Standards


     This section is vague about the frequency, detail, and need for the

     "detailed analysis of each type of waste from each source".  It

     should indicate that this information must be supplied in the

     manifest and be a requirement imposed on the generator.


13.  Page 59000, Section 250.43 (g)  and (h) General Facility Standards


     The frequency of collection,  detail of analysis, retention period,

     method of collection, and items to be analyzed are vague.  No

     indication is provided for the use of this analysis which may cost

     more than the cost of the disposal.  If limited to general

     character, such as ph, explosive range, and sample retention for

     one week, it could be manageable.


14.  Page 59000, Section 250.43-1, General Site Selection


     The statement should be made that this section applies to new

     site selection and should not be utilized as a basis for rejecting

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          COMMENTS ON THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976
          March 9, 1979
          a permit on an already operational facility.   It is also recommended

          that in Subparagraph (a)  and that the word "in"  an active fault

          zone be defined.


     15.   Page 59000 and 59001,  Section 250.43-1 (hi General Site
          Selection


          Active portions of a facility shall be located a minimum of 200

          feet from the property line of the facility.


Comment:   We strongly disagree with this requirement because it would place

          an undue hardship upon existing facilities.  For example, it

          could reduce the usable area from a 40 acre site to 20 acres.  If

          the facility can demonstrate that there is minimal danger to

          human health and the environment operating closer than 200 feet

          of the property boundary, they should be allowed to operate that

          facility.


     16.   Page 59001, Section 250.43-3  (4)  Contingency Plan and Emergency
          Procedures


          "At all times when the facility is in operation, there shall be

          at least one person present with the responsibility of coordinating

          all emergency response measures."


Comment:   Would request that this be modified to read:  present or on-call.


          Even those facilities which utilize 24-hour coverage and operation

          depend on a call out procedure for key emergency personnel.  Rarely

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     COMMENTS ON THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976
     March 9, 1979
     is the on-site person the one most knowledgeable and capable to

     handle a true emergency.  This general situation applies to all

     industry and not simply the hazardous waste end.


17.   Page 59001, Section 250.43-2  (a). Security


     It is suggested that this paragraph be changed to read, "operated

     so as to deter unauthorized entry of persons or domestic animals..."

     Also, we would like to recommend the following addition to the

     "Note - A Facility...that the active portion of the facility is

     surrounded by a natural, artificial barrier, or that demonstrates

     there is sufficient security so as to minimize unknowing and/or

     unauthorized entry of persons and domestic livestock.


18.   Page 59001, Section 250.43-3  (b) (3)&(4)  Contingency Plan and
     Emergency Procedures


     The specific procedures identified, although perhaps of values for

     an extremely hazardous process unit, are misleading and impractical

     in large storage or treatment facilities for stable materials, such

     as oil water mixtures, fluids and sludges containing heavy metals,

     and similar waste streams.  It is of value to have a communication

     system on the facility capable of contacting off site personnel,

     such as a radio or telephone.  To go beyond that to an alarm or

     other mechanism is not considered valuable, except in extreme

     circumstances.  In land farming operations where the operation

     is spread over several hundred acres an alarm system to alert a

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     COMMENTS ON THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976
     March 9, 1979~
     a heavy equipment operator is infeasible.


19.   Page 59003, Section 250.43-5 (a)  (2)  Manifest System,  Record Keep-
     ing and Reporting"

     The Association recommends that the procedures for handling, number

     of copies required, and distribution of the manifest be reviewed.

     The procedure must encompass situations such as where the generator

     is not in direct communication with the disposal site, multiple

     generator lots being transported in a single truck load, blending

     of multiple wastes, and requirements of other regulatory agencies

     for information with regard to materials being disposed.  It is

     strongly recommended that efforts be made to reduce the number of

     copies of manifests required to be distributed and retained in

     order to minimize the cost and space requirements of this reporting

     system.


20.   Page 59003, Section 250.43-5 (3)  Manifest System, Record Keeping
     and Reporting


     The Association position is that the reporting requirements as

     specified under these regulations are extremely onerous, provide

     very little real value to either the regulatory agency or the

     operating facility, and are exceedingly costly to the disposal

     facility and hence the generator.  Specifically:  Records required

     under paragraphs  (b),  (2),  (i)  and (ii) above specifying the

     location and types of disposed wastes shall be turned over to the

     Regional Administrator upon closure of the facility.

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          COMMENTS ON THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976
          March 9,1979



          (i) Reads as follows:  "A record of each hazardous waste treated,

          stored, or disposed of at the facility to include the following:


          (a)  D.O.T. proper shipping name, etc.

          (b)  D.O.T. hazard class, etc.

          (c)  Quantity,  etc.


Comment:  For a site that handles in excess of 25,000 truckloads per year

          and has an expected active life of 20 to 25 years this will

          exceed 500,000 to 625,000 transactions that must be turned over to

          the Regional Administrator upon closure.  This seems excessive.

          Perhaps a reporting procedure on an annual basis would be more

          appropriate.


          Similarly, Section (5) regarding training records reads, "...shall

          be maintained until the closure of the facility" also seems

          excessive and of no apparent use to save them from the previous

          years of operation.  We would recommend that these records be

          maintained for a period of three years only.

     21.  Page 59003, Section 250.43-5  (b) Record Keeping


          The records to be maintained until closure of the facility should

          relate solely to information potentially of value in an emergency

          situation on the site, such as storage or burial locations for

          materials which might cause immediate danger to employees or

          emergency personnel in response to an incident.  Long range

          information of a statistical or maintenance value only should be

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     COMMENTS  ON THE RESOURCE  CONSERVATION AND RECOVERY ACT OF 1976
     March 9,  1979



     periodically forwarded to the Administrator for determination

     as to its value for permanent maintenance storage.  The indication

     of the specific records to be maintained should be proposed in

     the permit application and agreed to at the time that the permit

     is issued.


22.   Page 59004, Section 250.43-5 (6)  Reporting


     The Association recommends that the quarterly report to the Regional

     Administrator be deleted.  This report is burdensome, unnecessary,

     and submitted so infrequently as to make the information of

     little or no value to the Administrator.  An alternative is the

     manifest  procedure being utilized in California by the Department

     of Health, specifically submitting a copy of each manifest at the

     end of each month to the regulating agency in lieu of the

     quarterly report and the reporting requirements.


23.   Page 59004, Section 250.43-5 (6) (VII) Reporting


     Thj.s specific information is not capable of being determined by the

     disposal  facility due to the variations in means of measurement

     (i.e., tons, barrels, gallons), the inability to measure at the

     disposal  facility, and the inaccuracies of any such measurement.

     The value of this information, if any, must be weighed against the

     added cost, the delay in manpower in making the measurement, as

     well as the added exposure and/or hazard to personnel at the disposal

     facility while performing the measurement.  Due to the fact that

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          COMMENTS ON THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976
          March 9, 1979
          the transporter and/or generator is paying for every gallon or

          barrel of material being charged for on the manifest, it is highly

          unlikely that materials listed on the manifest would have been

          diverted.


     24.  Page 59004, Section 250.43-5  (E) Manifest System, Record Keeping
          and Reporting


          Reads:  the quantity of each hazardous waste from each generator.

Comment:  As site operators we are not always privileged to the

          information of "who" the generator is, as this is protected through

          the State Health Department confidentiality rulings.  Therefore,

          in some cases we could not completely fill out the necessary

          reports.


     25.  Page 59006 and 59007, Section 250.43-9 Financial Requirements


          The previous comments in item #D (1)  also apply to this section.

          In addition to those comments, we have the following specific

          comments:


          a.  Section 250.43-9 (a) (1)  di) Financial Assurance for
              Facility Closure


          The requirements for facility closure requires that a closure trust

          fund be established in the amount approved by the E.P.A. Admin-

          istrator for each facility, to be released after closure has been

          completed to the satisfaction of the Administrator.  This provision

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     COMMENTS ON THE RESOURCE CONSERVATION RHP RECOVERY ACT OF 1976
     March 9, 1979
     requires the operator to invest the capital for closure twice,
     once to establish the fund and then again at time of closure.
     The trust fund should be available to the operator to be used for
     the purpose of closure.

     The same situation exists for the post-closure monitoring and
     maintenance trust fund.   After closure these funds should be
     automatically released for the operator's use in annual increments
     to cover these costs.
     b.  Section 250.43-9 (b)(2)  Establishment of Post-Closure Financial
         Responsibility for Hazardous Waste Disposal Facilities'
     We urge E.P.A. to establish now the post-closure financial respon-
     sibility portion of these regulations in a sensible manner.  For
     disposal facility operators to put their business future on the
     line without knowing all of the rules of the game prior to its
     commencement is foolish.   This would be like entering into an
     agreement to purchase a new house without knowing what the total
     cost will be upon the completion of said house.
     It is not in the best interest of industry, the economy, nor the
     country to rush these regulations and their implementation prior
     to fully assessing what the total impact will be upon the
     economic future of this country.

26.   Page 59007, Section 250.4 (b) Standards for Storage

     This paragraph should be changed to read as follows, "Hazardous

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     COMMENTS ON THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976
     March 9, 1979
     waste storage operation shall be conducted in such a manner as to

     minimize the potential for discharge."


27.   Page 59007 and 59008,  Section 250.44-1 (a)s(b)  Storage Tanks


     Reference to venting tanks to the atmosphere should be based upon

     the quantity and concentration of harmful vapors or vapors result-

     ing in violation of the air specifications rather than quantity.

     As reference, the 5,000 gallon limit does not relate to the nature

     or vapor pressure of the materials stored.


28.   Page 59008, Section 250.45 (a) Standards for Treatment/Disposal


     It is recommended that this section be deleted as it is a statement

     of philosophy.


29.   Page S9009, Section 250.45-2  (b) (3) Landfills


     It is recommended that the requirement for exact location of each

     waste in dimensions of cells refer to containerized extremely

     hazardous waste, rather than all materials which might be placed

     in a cell.  Cell burial might be warranted for materials with

     nominal hazards due to the engineering considerations, without

     any benefit to be gained from the logging of exact locations.


30.   Page 59009, Section 250.45-2  (b) (5) Landfills


     Should be changed to read, "Containers of liquid waste shall be

     surrounded by an amount of absorbent material capable of absorbing

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          COMMENTS ON THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976
          March 9, 1979	—
          all of the liquid contents of the containers within that cell."

          So long as the amount of material capable of absorbing the waste

          is sufficient, the requirement should pertain to entire cells rather

          than on a container by container basis.  This still provides

          the same level of security, but would drastically reduce the cost

          and exposure to personnel during the burial process.


     31.  Page 59010, Section 250.45-2 (b) (13)  Construction and Operation


          Design of the liner system.


Comment:  We object to a design within the regulations.  What we would urge

          is for criteria or performance data to be given and allow pro-

          fessional engineers or geologists to design the specific facility

          to meet those criteria.  There is a wide variety of possibilities

          and these will improve in the future.  It does not make sense to

          tie the entire nation down to two liner designs without the

          latitude to accept technological advancements.


     32.  Page 59011, Section 250,45-2  (c) (31 Closure


          It is recommended that the benches be at thirty foot intervals rather

          than at twenty foot intervals thus conforming to the existing

          California regulations.


     33.  Page 59015, Section 250.45-6  (q) Chemical, Physical and Biological
          Treatment Facilities


          (G) Reads"...waste food cutoff..."

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          COMMENTS ON THE RESOURCE CONSERVATION AND RECOVERY ACT OF  1976
          March 9, 1979



Comment:  This appears to be a typographical error.  Perhaps should  read:

          waste feed cutoff.

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TESTIMONY PRESENTED BY STEPHEN R. MUSSELL




                 ON THE




  PROPOSED HAZARDOUS WASTE REGULATIONS



               UNDER THE




 RESOURCE CONSERVATION AND RECOVERY ACT




               BEFORE THE




    ENVIRONMENTAL PROTECTION AGENCY




             MARCH 13, 1979




       SAN FRANCISCO, CALIFORNIA

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MR. CHAIRMAN AND MEMBERS OF THE COMMITTEE:

MY NAME IS STEVE MDSSELL.  I AM A MEMBER OF THE FACILITIES
PLANNING GROUP FOR THE MANUFACTURING DEPARTMENT OF CHEVRON
U.S.A., INC.  I AM APPEARING HERE TODAY ON  BEHALF OF CHEVRON
U.S.A. WHICH IS THE DOMESTIC OPERATING SUBSIDIARY OF
STANDARD OIL COMPANY OF CALIFORNIA.   IN MY  JOB I AM REQUIRED
TO BE FAMILIAR WITH ENVIRONMENTAL ISSUES THAT CHEVRON MUST
ADDRESS INCLUDING THE CONTROL OF WASTE AT EACH OF CHEVRON'S
MANUFACTURING FACILITIES, NOT ONLY HERE IN  CALIFORNIA, BUT
NATIONWIDE.
I APPRECIATE THE OPPORTUNITY TO PRESENT OUR VIEWS ON THE PROPOSED
REGULATIONS UNDER SECTIONS 3001, 3002 AMD 3004 OF THE RESOURCE
CONSERVATION AND RECOVERY ACT OF 1976.
THE PETROLEUM INDUSTRY SHARES YOUR CONCERN  FOR THE PROTECTION OF
HUMAN HEALTH AND THL ENVIRONMENT AGAINST IMPROPER WASTE MANAGEMENT
PRACTICES.  OUR COMMENTS TODAY ARE INTENDED TO ASSIST YOU IN
PREPARING THE MOST EFFECTIVE REGULATIONS POSSIBLE TO ACHIEVE
THESE COMMON GOALS.

I WOULD LIKE TO BRIEFLY DISCUSS SEVERAL SPECIFIC POINTS COVERED
IN THE REGULATIONS MUCH SHOULD BE RFCONSIDERFD AND REVISED.
IN ADDITION TO MY ORAL TESTIMONY, CHEVRON WILL SUBMIT DETAILED
WRITTEN COMMENTS FOR YOUR CONSIDERATION.
UNDER THE PROPOSED REGULATIONS, MOST OF THE PETROLEUM INDUSTRY'S
SURFACE IMPOUNDMENT ( SECTION 250.45-3) ARE LIKELY TO BE CLASSIFIED
AS HA:ARDOUS WASTE IRLATMFAT FACILITIES.  A VERY HIGH PERCENTAGE
OF THESE FACILITIES, ALTHOUGH DESIGNED  IN ACCORDANCE KITH GOOD

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ENGINEERING PRACTICES, PROBABLY WILL NOT MEET THE REQUIREMENTS




OF THE PROPOSED STANDARDS.  IT HAS BEEN ESTIMATED THAT THREE



BILLION DOLLARS WOULD BE REQUIRED TO UPGRADE THE FACILITIES




FOR THE PETROLEUM INDUSTRY REFINERY SECTOR ALONE.






AS AN EXAMPLE, THE PROPOSED REQUIREMENT (SECTION 250.45-2) THAT




THE BOTTOM OF THE SURFACE IMPOUNDMENT LINER SYSTEM BE FIVE FEET



ABOVE THE HIGH WATER TABLE IS IMPOSSIBLE TO ATTAIN IN MANY




COASTAL AREAS WHERE THE MAJORITY OF PETROLEUM INDUSTRY




FACILITIES ARE LOCATED.  THE BOTTOMS OF MANY OF THESE EXISTING




IMPOUNDMENTS ARE BELOW THE WATER TABLE.






SEVERAL OF THESE SURFACE IMPOUNDMENTS ARE LOCATED OVER BRACKISH




OR OTHERWISE NON-POTABLE AQUIFERS.  FURTHERMORE, THE DISCHARGE




FROM THESE PONDS ARE CURRENTLY REGULATED UNDER THE NATIONAL



POLLUTION DISCHARGE ELIMINATION SYSTEM  (NPDES).






THE EPA SHOULD NOT REGULATE NPDES SURFACE IMPOUNDMENTS UNDER




RCRA REGULATIONS AT THIS TIME.  THE AGENCY SHOULD CONDUCT AN



IN-DEPTH STUDY TO DETERMINE THE NUMBER  OF SURFACE IMPOUNDMENTS



POTENTIALLY AFFECTED BY THESE REGULATIONS, THE ENVIRONMENTAL




RISKS ASSOCIATED WITH THESE FACILITIES  AND THE COSTS AND BENEFITS




OF VARIOUS DEGREES OF CONTROL.






ALTERNATIVELY, THE EPA SHOULD DESIGNATE PETROLEUM INDUSTRY




SURFACE IMPOUNDMENTS  FOR  REGULATION UNDER THE SPECIAL WASTE



STANDARDS SECTION  (SECTION 250.46).  AS A SPECIAL WASTE, THESE




PONDS SHOULD BE ADMINISTERED UNDER THE  NPDES PROGRAM.  THIS WILL




AVOID CONFUSING ADMINISTRATIVE PROBLEMS, ESPECIALLY  IN CALIFORNIA




WHERE THE REGIONAL WATER  QUALITY  CONTROL BOARD HAS THE




RESPONSIBILITY TO ADMINISTER THE  NPDES  PROGRAM, AND  THE  DEPARTMENT

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OF HEALTH SERVICE HAS RESPONSIBILITY FOR THE CONTROL OF HAZARDOUS




WASTE.






IF THE EPA PROCEEDS WITH REGULATION OF NPDES SURFACE  IMPOUNDMENTS,




IT SHOULD BE ON A CATEGORY-BY-CATEGORY BASIS GIVING CONSIDERATION




TO THE SPECIFIC WASTE IN THE IMPOUNDMENT, ITS DEGREE  OF HAZARD,



THE SITE HYDROGEOLOGICAL CONDITIONS, AND THE COSTS AND BENEFITS




OF ANY ADDITIONAL CONTROLS WHICH MAY BE REQUIRED.  THE PROPOSED,




DETAILED REQUIREMENTS OF SECTION 250.45-3 SHOULD BE REMOVED




AND INCORPORATED AS PART OF THE SPECIAL WASTE STANDARDS.






THE PROPOSED REGULATIONS FAIL TO CONSIDER RELATIVE TOXICITIES



OF DIFFERENT HAZARDOUS WASTES. ONE POUND OF CRUDE OIL TANK




BOTTOMS IS NOT EQUAL IN TOXICITY TO ONE POUND OF PCB.  WE



RECOMMEND THAT HAZARDOUS WASTES BE CLASSIFIED BY TOXICITY, AND




CONTROL TO COMMENSURATE WITH THE DEGREE OF HAZARD.






THE REQUIREMENT FOR AN UPFRONI TRUST FUND FOR EACH DISPOSAL  SITE




(SECTION Z50.43-9) WOULD CREATE A LARGE AND UNNECESSARY




FINANCIAL BURDEN FOR THE PETROLEUM INDUSTRY.  THE EPA STATES




THAT TRUST FUNDS HAW, AN ADVANTAGE BECAUSE THEY  GROW  WHILE "A



FACILITY'S INCOME IS GREATEST".  HOWEVER, THE LARGE QUANTITIES




OF HAZARDOUS WASTES ARE TREATED, STORED AND DISPOSED  OF ONSITE



BY GENERATORS AND SUCH ACTIVITIES DO NOT CREATE  ANY  INCOME.



THE FINANCIAL REQUIREMENTS FOR CLOSURE AND POST-CLOSURE MONITORING




MAY BE APPROPRIATE FOR A FIRM DEDICATED TO HAZARDOUS  WASTE




MANAGEMENT.  THEY ARE INAPPROPRIATE FOR OTHER  INDUSTRIAL



ENTERPRISES THAT ARE NOT IN THE HAZARDOUS WASTE  MANAGEMENT



BUSINESS FOR PROFIT.  IT IS ESTIMATED THAT A  LARGE OIL COMPANY




WOULD BE REQUIRED TO PLACE AS MUCH AS $100 MILLION IN A TRUST  FOR




CLOSURE OF PRODUCING AND EXPLORATION DISPOSAL SITES  OR A  LIKE

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AMOUNT FOR A SINGLE LARGE REFINERY.






THE REGULATIONS SHOULD BE REVISED TO PROVIDE A SELF-INSURANCE




OPTION TO MEET CLOSURE AND POST-CLOSURE REQUIREMENTS.  WHERE




THE PUBLIC IS PROTECTED BY STANDARD LEGAL PROCESS, A COMPANY




WITH SUBSTANTIAL ASSETS SHOULD BE PERMITTED TO BE SELF-INSURED.




THIS WILL ALSO HAVE THE ADDED BENEFIT OF FREEING CAPITAL FROM



AN IDLE TRUST ALLOWING ITS PRODUCTIVE USE IN LOCATING AND




DEVELOPING OIL RESOURCES.






CHEVRON U.S.A. URGES THE EPA TO REVISE THE PROPOSED REGULATIONS




TO:






•  RE-STUDY THE COST/BENEFIT OF REGULATING PETROLEUM INDUSTRY




   SURFACE IMPOUNDMENTS UNDER RCRA.






•  CONSIDER THE RELATIVE TOXICITY OF HAZARDOUS WASTES AND




   CONTROL THE WASTES ACCORDINGLY.






•  ESTABLISH A SELF-INSURANCE OPTION TO SATISFY THE FINANCIAL




   REQUIREMENTS FOR CLOSURE.






THANK YOU.

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                  STATEMENT FOR PRESENTATION AT EPA PUBLIC  HEARING,
                       MARCH 13, 1979,  SAN FRANCISCO,  CALIFORNIA


     Gentlemen, I am Patrick H. Wicks,  representing Chem-Nuclear Systems,  Inc.
of Bellevue, Washington.  I appreciate  the opportunity to present our comments
on EPA's proposed hazardous waste guidelines and regulations  which are to  be
adopted pursuant to RCRA (Pub.  L. 94-580), sections 3001, 3002  and 3004.
Chem-Nuclear Systems operates two major hazardous waste treatment and disposal
facilities in the United States and is  committed to the safe  and environmentally
sound management of chemical and radioactive wastes.   Since these proposed
regulations will have a major impact on our operations and  because of our  good
operating record, we urge EPA to seriously consider our comments, suggested
changes and additions that follow in revising these regulations prior to their
promulgation.

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                       CHEM-NUCLEAR SYSTEMS',  INC.,  COMMENTS  ON
                      PROPOSED EPA REGULATIONS TO  AMEND  40 CFR,
            PART 350, AS PUBLISHED IN FEDERAL  REGISTER DECEMBER  18,  1978
General

    Unless otherwise indicated in these comments,  we concur  with  or  have no
objection to the proposed regulations  as written.   However,  our lack of
objection assumes that EPA and state agencies  to be given  certain authority
under these regulations will  be reasonable in  their interpretation of the
regulations during their implementation.


Subpart A - Identification and Listing of Hazardous Waste, Sections  250.10 to
            250.15

1.  Section 250.13(a)(l):  There is a  problem  in  (i) and  (ii)  because the term
    "liquid" is not defined in the act or the  definition section  in  250.11.  It
    would seem appropriate that sludges as well as liquids be  included in (i)
    but perhaps not in (ii).   It would also be useful  to define "liquid" in
    the definition section, 250.11.

2.  It is suggested that the following change  be made to section  250.14(b)(2),
    SIC 1099 listing:   ",T" should be  added after  "A"  due  to the  presence of
    significant quantities of heavy metals in  clarifier sludge, including
    chromium and lead  and others that  are toxic to aquatic organisms.

3.  It is suggested that the following wastes  be added to  the  process description
    list in section Z50.14(b)(2):

    A.  1099 Cyanide process water for copper/molybdenum separation  (T)

    B.  2641 Solvents  and resins from  paper coating processes  (I, 0)

    C.  2821 Phenolic  sulfurization residues (0)

    D.  2869 Wood treating process wastes containing penta chlorophenol,
        creosote or arsenic (I, 0, M)

    E.  2891 Phenolic  resin manufacturing wastes containing  phenol (0)

    F.  2891 Paraformaldehyde waste from resin manufacturing (0,  C)

    G.  3322 Caustic/phenolic foundry  casting  wastes (C, 0)

    H.  3334 Aluminum reduction potliner (spent cathode) containing  cyanide
        and cryolite (R, T)

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    I.  3334 Anodizing solution waste acids (C)

    J.  3334 Air pollution control  sludges containing coal  tar pitches (T,  0,  M)

    K.  3339 Cutting oil  contaminated with zirconium (I,  R)

    L.  3674 Silicone wafer etchant hydrofluoric acid waste  (C,  T)

    M.  3674 Photo resist stripper  and solvent wastes (C, T,  I)


Subpart B - Standards Applicable to Generators of Hazardous  Waste,  Sections
            250.20 to 250.29

    The only significant comment on these sections is in  response to  EPA's  request
for comment regarding the proposed  regulations as they apply  to  generators
producing less than 100 kilograms per month as addressed  in  250.20(c)(5),
250.23 and 250.29.  We believe the  proposed regulations as written  are satisfactory
and reasonable.   In addition, EPA may want to  consider allowing  generators  of
greater than 100 kilograms per month to apply  for exemptions  from reporting,
record-keeping and manifest provisions, if their waste is approved  by EPA or the
appropriate state agency to be disposed in a Subtitle D facility.


Subpart D - Standards for Owners and Operators of Hazardous Waste Treatment,
            Storage and Disposal Facilities, Sections 250.40  to  250.46-6

1.  250.43(h):  In subsection (iii) add ", if  applicable",  since pH will not be
    applicable to all wastes; in addition, the note following (iv)  should be
    expanded to allow less frequent sampling at  off-site  facilities for
    shipments which are received only once, on an infrequent  basis  and which
    are small in quantity (such as  no more than  5,000 pounds) or which have
    received a detailed analysis by the generator.  In certain cases, It may
    be hazardous to perform the inspection analysis required  under  this section,
    such as sodium or other reactive wastes and  toxic pesticides which would be
    expected to be received in relatively small  quantities.

2.  250.43-1(h):  The note following the subsection should  be expanded to allow
    a buffer area less than 60 meters where no residences are closer  than 500
    feet from the property line.  This is necessary since facilities  located
    in a remote area or an industrial area should not need  a  large  buffer area.

3.  250.43-3(c)(l):  Insert "outside the facility" after  the  word "environment"
    in the sixth line; this is necessary due to  occasional minor spills that
    might occur at facilities which would not  have an impact  on  human health
    or the environment outside the  facility.

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 4.  Section 250.43-5(a)(2):   Change 30 days  to  5 days  to  provide more  rapid
     notification to waste generators of waste receipts at an  authorized
     facility.

 5.  250.43-5(b)(2)(i)(C):  Add  the unit cubic feet  to  quantities listed,
     since this is a commonly used waste unit.

 6.  250.43-5(c)(l):  Insert "outside the facility"  at  the end of this  sub-
     section for the same reason as indicated in the previous  item No.  3.

 7.  250.43-5(c)(5)(iii)(F):   Add the unit cubic feet to the list of  units in
     this subsection.

 8.  250.43-5(c)(5)(iii)(H):   Insert "to the  best of my knowledge" after  "complete"
     in the first sentence and the word "only" in the second sentence after the
     word "for".

 9.  250.43-5{c)(6)(vii):  Add the unit cubic feet to the  units  listed  in this
     subsection.

10.  250.43-5(c)(6)(viii):  Insert "to the best  of my knowledge" after  "complete"
     in the first sentence and the word "only" in the second sentence after the
     word "for".

11.  250.43-7(e)(3):  It appears this provision  should  read "Of  completion of
     closure within 180 days after closure".

12. •250.43-9(a)(2)(ii):  A method for determining the  "period of payment" is not
     provided in this subsection for use in calculating annual cash payments to
     the post closure monitoring and maintenance trust  fund.

13.  250.43-9(b)(l)(i):  It is suggested that the phrase "exclusive of  legal
     defense costs" be deleted from this provision.

14.  250.44(g):  Delete the last part for this provision starting with  "in
     accordance with occupational safety and  health  administration's..."; OSHA
     requirements would apply in any case to  flammable  and combustible  liquids,
     but OSHA requirements may not be suitable for nonflammable  or non-
     combustible liquids; in addition, it is  suggested  a note  be added  at the
     end of this section as follows:  "Note.  - these requirements may be
     partially waived if the owner/operator of a storage facility can demon-
     strate adequate health and  environmental protection to the  satisfaction
     of the Regional Administrator."

15.  250.45-3(d):  Add at the end of this provision  a note as  follows:   "Note.  -
     an owner/operator may use modified operating and maintenance procedures if
     he can demonstrate to the Regional Administrator that an  equivalent  or
     greater degree of waste containment would be achieved."

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16.  With respect to post closure liability for hazardous waste sites,  EPA has
     requested comments on the desirability of a federal  fund.   Chem-Nuclear
     recommends the formation of such a federal fund with contributions from
     facility operators.  The size of the fund should be  on the order of
     $100,000,000 to $500,000,000 in size.  Payments for  each claim should be
     limited to $5,000,000 to $10,000,000 and there should be a federal guarantee
     established for such payments.   In addition, it is suggested that  EPA seek
     appropriate legislation to require that permitted hazardous waste  landfills be
     deeded to the federal government or appropriate state government at the end of
     closure or some time before that point.  We believe  this will  provide sub-
     stantial credibility to such sites that is now often absent and will  provide
     much better control of waste disposal practices.

17.  Regarding the financial responsibility section of the regulations, EPA has
     requested comment as to whether the several trust funds to be established under
     these regulations be interest-bearing or not.   It would seem only  prudent
     that such trust funds should be interest-bearing.  In addition, there seems
     to be no reason for establishing separate requirements with respect to
     financial responsibility for publicly or privately owned facilities.   Also
     in the financial  responsibility section, the required review of costs should
     be either on an annual  basis or once every two years, since conditions
     affecting such costs would not  be expected to  change rapidly.

18.  In various sections of the subpart D proposed  regulations, reference  is made
     to facilities within a certain  distance from water wells.   It is presumed
     that this reference is to wells that are in existence at the time  a permit
     is issued and that installation of new wells after the initial  permit would
     not cause cancellation or modification of the  permit for that reason.

19.  In response to EPA's request on its plans to merge the TSCA PCB marking and
     disposal regulations with the Subtitle C regulations, we recommend that EPA
     handle the PCB disposal regulations in this manner.

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. ^  
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                                                                              DATA  SHEET
(Generator's Name)
Generator's I.D, No.	
Manifest Document No.
                           CHEMICALS FOR DISPOSAL - MARCH, 1979
55-gallon DOT-17H drum #1  (300 Ib)

1x1 gal Acetone, Flammable Liquid
6x1 gal Hexane, Flammable  Liquid
2x1 gal Flammable liquid,  n.o.s. (Benzene-
          Toluene-Xylene mixture),
          Flammable Liquid
3x1 pt  Xylene, Flammable  Liquid
1x1 gal Dioxane, Flammable Liquid
1x1 pt  Tetrahydrofuran, Flammable Liquid
2x1 pt  Acetone, Flammable Liquid
3x1 gal Heptane, Flammable Liquid
1x1 gal Ethyl alcohol, Flammable Liquid
2x1 gal Methyl ethyl ketone, Flammable Liquid

4x5 pint Polystyrene case  DOT-33A #2

4x9 Ib  Sulfuric acid, Corrosive Material

55-Rallon DOT-17E drum #3  (450 Ib)

55 gal  Flammable liquid,  n.o.s. (Acetone-
          Hexane mixture), Flammable Liquid

Fiberbox DOT-12A80 #4 (50  Ib)

4x1 gal Ethyl acetate, Flammable Liquid

Fiberbox DOT-12A50 #5 (25  Ib)

1x1 pt  Phenol, liquid, Poison B
1x1 pt Aniline, oil, Poison B

Wooden box DOT-1SA65 #6 (30 Ib)

2x1 pt  Sulfur monochloride, Corrosive
          Material
1x100 g Thionyl chloride, Corrosive Material
1x1 pt  Thionyl chloride, Corrosive Material

Wooden box DOT-15A25 #7 (10 Ib)

1x1 Ib  Phosphorus pentachloride, Corrosive
          Material

Fiberbox DOT-12A80 #8 (35  Ib)

1x5 pt  Phosphoric acid, Corrosive Material
1x1 Ib  Hydrobromic acid, Corrosive Material
1x1 pt  Hydroiodic acid, Corrosive Material
Fiberbox DOT-12A80 #8 (35 Ib) (Continued)

1x1 Ib  Sulfuric acid, Corrosive Material
3x1 pt  Fluoboric acid, Corrosive Material,
          Ltd. Qty.
1x1 pt  Hydrochloric acid, Corrosive Material
1x1 pt  phosphoric acid, Corrosive Material
3x1 pt  Hydrofluoric acid, Corrosive Material,
          Ltd. Qty.
2x10 ml Hydrochloric acid, Corrosive Material
2x10 ml Sulfuric acid, Corrosive Material

Fiberbox DOT-12A50 #9 (12 Ib)
1x25 g  Arsenic trioxide, solid, Poison B
1x100 g Arsenical compound, n.o.s., solid,
          Poison B
2x1 Ib  Potassium cyanide, solid, Poison B
lx% Ib  Thallium salt, solid, n.o.s.,
          Poison B
                                         FIGURE 1

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Mr. Harry Trask                                                March 12, 1979


     Figure  1 is an illustration of  a  hypothetical attachment format which

could be used to accompany  the manifest  for  such a shipment.  Please note that

this format  complies with Sections 172.202 and  250.22 of Titles 49 and 40,

respectively.

                                           Sincerely,

                                           SAFETY SPECIALISTS, INC.
KJWrwlm
Enclosure
                                            Kenneth J.  Wirfcins, Manager
                                            Hazardous Materials Services
                                   U.S. GOVERNMENT PRINTING OFFICE: 1979O—281-147/50

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