SW52P4
on UC />04oO
?/EPA      Proposed Hazardous
           Waste Regulations

           Volume 4
           March 14, 1979
           San Francisco
           California
          Transcript

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                          TRANSCRIPT

                            Pub! ic Hearing

          on Proposed Rules for Controlling Hazardous Wastes

                Resource Conservation and Recovery Act

                         Sections 3001 - 3004

                               Volume IV

            March 14,  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 IV

                   Pages 653  - 947
                     8:35 a.m.

                  March 14,  1979
      U.S. ENVIRONMENTAL PROTECTION AGENCY
                     REGION IX
                215  Fremont Street
        San Francisco,  California  94105
Reported by:

  THOMAS R. WILSON,  CSR,  CM
  (CSR No. 2052)

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 1                         INDEX
                                                       Pa.£e
 2    KIERAN D. BERGIN, Hazardous Waste Engineer,
       Los Angeles County Sanitation Districts          665
 3
     BERNARD L. SIMONSEN, Regional Vice President,
 4      IT Corporation, Martinez, California             674

 5    ARTHUR DINSMOOR, Wilson Oil Company - Santa
       Fe for the Independent Petroleum Association
 6      of America                                       700

 7    S.  L. ZWICKER,  Senior Environmental Engineer,
       Corporation Environmental Sciences Depart-
 8      ment,  Union Oil Company of California, Los
       Angeles, California                              713
 9
     WILLIAM M. DAVIS, County of San Diego              735
10
     KAREN SHEWBART, Environmental Services  Depart-
11  I    ment,  Texas Division of Dow Chemical  Company     746

12  !  JAMES W. COLLINS, Cities Service Company,  Tulsa,
       Oklahoma, for the American Petroleum  Insti-
13      tute                                             765

14    JAY SNOW, Industrial Solid Waste Unit,  Texas
       Department of Water Resources for the National
15      Governors Association Task Force on Hazardous
       Waste Management                                 792
16
     A.  W. DILLARD,  Permian Basin Petroleum  Associa-
17      tion,  Midland, Texas                             818

18    ARNE ROVICK, Phelps-Dodge Corporation,  Phoenix,
       Arizona                                          830
19
     GREG McCLINTOCK, Counsel, Western Oil and  Gas
20      Association,  Los Angeles, California             840

21    H.  L. HANRIGHT, Petroleum Equipment Suppliers
       Association,  Houston, Texas                      870
22
     GEORGE FRED RHODES, Texas Coastal and Marine
23      Council, Port Lavaca, Texas                      885

24    EDWARD G. GLADBACH, Department of Water and
       Power, City of Los Angeles and USWAG             904
25

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                                                        ii.

 1                    INDEX  (Cont'.
                                                       Page
 2
     J. C. SCHWEGMANN, Director  of  Environmental
 3      Services, Kaiser Aluminum and  Chemical
       Corporation                                      922
 4
     WILLIAM F. JOPLING, State  of California
 5      Department of Health  Services,  Sacramento,
       California                                       926
 6

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                                                       654


 1                       HEARING PANEL

 2
     DOROTHY DARRAH
 3    Office of General Counsel
     U.S.  Environmental Protection Agency
 4    Chairperson

 5    JOHN P. LEHMAN
     Director, Hazardous Waste Management Division
 6    Office of Solid Waste
     U.S.  Environmental Protection Agency
 7
     HARRY TRASK
 8    Desk Officer - Sections 3002, 3003
     Hazardous Waste Management Division
 9    Office of Solid Waste
     U.S.  Environmental Protection Agency
10
     ALAN CORSON
11    Chief, Guidelines Branch (Section 3001)
     Hazardous Waste Management Division
12    Office of Solid Waste
     U.S.  Environmental Protection Agency
13
     AMY SCHAFFER
14    Office of Enforcement
     U.S.  Environmental Protection Agency
15
     ALFRED LTNBSEY
16    Chief, Implementation Branch
     Hazardous Waste Management Division
17    Office of Solid Waste
     U.S.  Environmental Protection Agency
18
     TIM FIELDS
19    Desk Officer - Section 3004
     Hazardous Waste Management Division
20    Office of Solid Waste
     U.S.  Environmental Protection Agency
21
     JAMES STABLER
22    Senior Environmental Engineer
     Air and Hazardous Materials Division
23    U.S.  Environmental Protection Agency, Region  IX

24

25

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                                                         655
 1              MR.  LEHMAN:  Good morning,  ladies  and




 2    gentlemen.   Could you take your seats,  please  and  let'




 3    get  started.   My name" is John Lehman.   I'm Director




 4    of  the Hazardous Waste Management Division of  EPA's




 5    Office of Solid Waste in Washington,  D.  C.   On behalf




 6    on  EPA,  I would like to welcome you to  the public




 7    hearing which  is being held to discuss  the proposed




 8    regulations for the management of hazardous  waste.   We




 9    appreciate your taking the time to participate in  the




10    development of these regulations which  are being




11    issued under the authority of the Resource Conservation




12    and  Recovery Act,  better known by its acronym  R-C-R-A




13    or  RCRA.




14              The  Environmental Protection  Agency  on




15    December 18th, 1978, issued proposed  rules under




16    Sections 3001, 3002 and 3004 of the Solid Waste




17    Disposal Act as substantially amended by RCRA, Public




18    Law  94-580.   These proposals respectively cover,  first,




19    criteria for identifying and listing  hazardous waste;




20    identification methods and a hazardous  waste list.




21              Second,  standards applicable  to generators




22    of  such  waste  for record keeping, labeling,  using




23    proper containers, and using a transport manifest.




24              And, third, performance, design and  operating




25    standards for  hazardous waste management facilities.

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                                                         656
          These proposals,  together  with those




already published pursuant  to  Section  3003 on April




28th, 1978, Section 3006  on  February 1st,  1978, Section




3008 on August 4th, 1978,  and  Section  3010 on July




llth, 1978, and that of the  Department  of  Transporta-




tion pursuant to the Hazardous Materials Transportation




Act on May 25th, 1978, along with  Section  3005




regulations for hazardous  waste management facility




permits, which will appear  soon as proposed rules under




40 CFR,  Parts 122, 123 and  124,  all  of  these taken




together constitute the hazardous  regulatory program




under Subtitle C of the Act.




          This hearing is  being held as part of our




public participation process in the  development of




this regulatory program.   I'd  like to  introduce to you




now the panel members who  share the  rostrum with me.




          From your left,  they are Harry Trask, Program




Manager for the Guidelines  Branch, or  in the Guidelines




Branch -- Excuse me -- Hazardous Waste  Management




Division, EPA in Washington.   Harry  is  the principal




staff member responsible  for Sections  3002 and 3003




regulat ions.




          Next is Alan Corson, Chief of the Guideline




Branch,  Hazardous Waste Management Division, EPA,




Washington.  Alan is the  principal staff member for

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                                                         657
 1   Section 3001 regulations.




 2             Amy Schaffer,  from our  Office  of  Enforcement




 3   EPA headquarters in Washington.




 *             Dorothy Darrah,  from our  Office  of  General




 5   Counsel,  EPA in Washington.




 6             Fred Lindsey,  Chief of  the  Implementation




 7   Branch, Hazardous Waste  Management  Division,  EPA,




 8   Washington.




 9             Tim Fields, Program Manager  in our  Assess-




10   ment and Technology Branch, Hazardous  Waste Management




11   Division,  EPA,  Washington.  Tim is  the principal  staff




12   person for Section 3004  regulations.




13             And Jim Stabler, Senior Environmental




14   Engineer of  the Air and  Hazardous Materials Branch in




15   Region IX, here in San Francisco.




16             As noted in the  Federal Register, our  planned




17   agenda is  to cover Section -- cover comments  on




18   Section 3004 today.  The comments received  at  this




19   hearing and  the other hearings as noted  in  the Federal




20   Register,  together with  the comment letters we receive,




21   will  be a  part  of the official docket  in this  rule-




22   making process.   The comment period closes  on  March




23   16th for  Sections 3001 through 3004, except for  a




24   recent development where we have  extended  the  comment




25   period for a very limited  section of Section  3001

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                                                         658
 1    regulations,  namely  that dealing with the extraction




 2    procedure.   We  have  extended the comment period on




 3    that  very  narrow part  until May 15th, 1979.




 4              This  docket  may be seen during normal




 5    working  hours in Room  2111D, Waterside Mall, 401 M




 6    Street Southwest,  Washington,  D. C.   In addition, we




 7    expect to  have  transcripts of  each hearing within




 8    about two  weeks of the close of the  hearing.  These




 9    transcripts  will be  available  for reading at any EPA




10    library,  and a  list  of those locations is available at




11    the registration table.




12              With  that  as a general background, I would




13    like  to  lay  the groundwork and rules for the conduct




14    of this  hearing.




15              The focus  of a public hearing is on the




16    publi'c response to a regulatory proposal of an agency,




17    or in this case agencies,  since both EPA and the




18    Department of Transportation are involved.  The




19    purpose  of this hearing is to  solicit comments on the




20    proposed regulations,  including any  background infor-




21    mation used  to  develop the comment.   This public




22    hearing  is being held  not primarily  to inform the




23    public nor to defend a proposed regulation but,




24    rather,  to obtain the  public's response to these




25    proposed regulations and thereafter  revise them as may

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                                                         659
 1   seem  appropriate.




 2              All  major substantive comments made at  the




 3   hearing  will be addressed during preparation of the




 4   final  regulations.




 5              This will not be a formal adjudicatory




 6   hearing  with the right to cross-examine.  The members




 7   of  the public  are  to present their views on the




 8   proposed regulation to the panel, and the panel may




 9   ask questions  of the people presenting statements to




10   clarify  any ambiguities in their presentations.   The




11   Chairman reserves  the right to limit lengthy questions,




12   discussions or statements.  We would ask that those




13   of  you who have a  prepared statement to make orally




14   to  please  limit your presentation to a maximum of ten




15   minutes  so we  can  get all statements in a reasonable




16   time.  If  you  have  a copy of your statement, please




17   submit it  to the Court Reporter.




18              Written  statements will be accepted at  the




19   end of the hearing.   If you wish to submit a written




20   rather than an oral  statement,  please make sure the




21   Court  Reporter has  a copy.  The written statements will




22   also  be  included in their entirety in the record.




23              Persons  wishing to make an oral statement




24   who have not made  an advance request by telephone or




25   in writing should  indicate their interest on the

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registration card.   If  you  have  not  indicated your




intent to give a  statement  and  you decide to do so




later on, please  return  to  the  registration table,




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




          As we call an  individual to make a statement




he or she should  come to the  lectern and identify




himself or herself  for  the  Court  Reporter and deliver




his or her statement.




          The Chairperson will  inquire as to whether




the speaker is willing  to entertain  questions from the




panel.   The speaker  is  under  no  obligation to do so,




although within     the  spirit of  this information-




sharing hearing,  it would be  of  great assistance to




the agency if questions were  permitted.




          Our day's activities  as  we currently see




them appear like  this.  We  will  break for lunch at




approximately 12:15 or  12:30; reconvene  about 1:30 or




2:00 o'clock.   Then, depending  on  our progress, we




will either conclude the day's  session or break for




dinner at about 5:00 p.m. and reconvene  at 7:00 p.m.;




continue on until we have received all statements.




          There are some general  housekeeping aspects.




Restrooms arid drinking  fountains  are located on the




6th floor here.   You can refer  to  a  floor map located




behind the reception desk in  the  6th floor lobby for

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                                                         661
 1  :  their  location.




 2              Similarly,  there are vending machines  for




 3    snacks,  coffee,  soda  pop and so forth located on  this




 4    floor.   And,  again,  you can determine their location




 5    by  reference  to  the  floor map.




 6              Public phones are available in the first




 7    floor  lobby.   If you  need to call another government




 8    agency,  you may  use  the FTS phone, which is located




 9    near the registration table in this room.  These  are




10    the only phones  designated for conference use.   EPA's




11    office  phones are extremely busy during the day,  and




12    we  do  not have the facilities to take phone messages




13    for people attending  conferences in this building.




14              There  are  handouts at the rear of the  room




15    partially listing nearby restaurants; also, information




16    on  airport bus lines  and taxis and other transportation




17    matters.




18              If  you wish to be added to our mailing  list




19    for future regulations, draft regulations or proposed




20    regulations,  please  leave your business card or  name




21    and address on a three-by-five card at the registration




22    desk.




23              The regulations under discussion at this




24    hearing  are the  core  elements of a major regulatory




25    program  to manage and control the country's hazardous

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                                                         662
 1   waste from  generation  to  final  disposal.   The Congress




 2   directed this  action  in  RCRA,  recognizing that disposal




 3   of hazardous waste  is  a  crucial  environmental and




 4   health problem which  must  be controlled.   In our




 5   proposals,  we  have  outlined requirements  which set




 6   minimum norms  of  conduct  for those who generate,




 ^   transport,  treat, store  and dispose of hazardous waste.




 8             In our  hearing  today,  we will concentrate




 9   on Section  3004,  which addresses standards affecting




10   owners and  operators  of  hazardous waste treatment,




11   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.




16             Facilities  on  a  generator's properties, as




17   well as offsite facilities,  are  covered by these




18   regulations and do  require permits.  Generators and




19   transporters do not otherwise need permits under our




20   proposal.




21             EPA  intends  to  promulgate final regulations




22   under all sections  of  Subtitle  C by December 31st,




23   1979.  It is important for the  regulated communities




24   to understand,  however,  that the regulations under




25   Sections 3001  through  3005 do not take effect until

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                                                        663
 1    six  months after promulgation.   That would be




 2    approximately June of 1980.   Thus, there will be a




 3    time period after final promulgation during which




 4    time public understanding of the regulations can be




 5    increased.




 6              And during this same  period, notifications




 7    required under Section 3010  are to be submitted and




 8    facility permit applications required under Section




 9    3005 will  be distributed for completion by applicants,




10              With that as a general summary of Subtitle




11    C  and the  proposed regulations  to be considered at




12    this hearing,  I will return  the meeting to our




13    Chairperson,  Dorothy Darrah.




14              MS.  DARRAH:  Thanks,  Jack.




15              For the last time,  let me go through the




16    rules that we are using for  the hearing.




17              When I call your name, if you do have an




18    extra copy of your statement,  we would appreciate it




19    if you would give it to the  Court Reporter.  If you




20    have more  than one extra copy,  the panel would be




21    happy to receive an additional  copy.  If you do not




22    have an extra copy but you would be willing to let us




23    Xerox your handwritten or typed version, we would




24    appreciate that so that -- in  order to better insure




25    the  accuracy  of the transcript.

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                                                         664
            By the way, I think  Jack  mentioned that


  copies of the transcript will  be  available in the EPA

               .1W m
  regional libraries^in Washington.   If  you do want to


  purchase copies, you should speak to  the  Court Reporter


            I will again be enforcing fairly strictly the


  ten-minute time limit for each presentation.   For your


  information, we heard 18 witnesses  on  Monday, 23


  witnesses on Tuesday, which was 8:30  in  the morning to


  10:15 at night.  We have 22 witnesses  scheduled for


.  today.   That's 6 people in addition to the 16 who


  preregistered.   I cannot tell  you whether all of the


  16  who are preregistered are here,  but I'm sure many


  of  them are.


            We will be trying to limit  our  questions


  insofar as possible.  If it appears to me that one


  witness — that we are,  you know, spending too much


  time  asking questions of a witness,  I  will inquire of


  that  person if he or she would be willing to respond


  to  written questions, because  we  certainly realize


  that  many of you have planes to catch,  and we certainly


  will  try to get through everyone  in as orderly and


  as  equitable a manner as possible.


            The first person today  is a  representative


  of  the County Sanitation Districts  of  Los Angeles.


            MR. KIERAN D.  BERGIN   Thank you.

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                                                         665
 1              I would like  to  apologize  for not having a




 2    transcript ready, but it was  revised forcibly by my




 3    boss last night.




 4              And I'd like  to  start- off  with something a




 5    little bit unique and congratulate  EPA --




 6              MS. DARRAH:   Do  you want  to give your




 1    surname,  please?




 8              MR. BERGIN:   I'm Kieran Bergin, Hazardous




 9    Waste Engineer for the  Los Angeles  County Sanitation




10    Districts.




11              We operate two Class  I hazardous waste




12    disposal  sites in the Los  Angeles region.




13              I would like  to  start  off  with something




14    a little  bit unique and, in general,  congratulate EPA




15    on what I think is a very  good  first  attempt at the




16    regulations, which I don't think anyone else has done.




17              Now, if the panel hasn't  fainted,  I would




18    1 ike to go on .




19              The first major  concern the districts have




20    is with the 200-foot proposed  barrier around hazardous




21    waste sites.  We feel that, while this may provide




22    adequate  protection for gaseous  difusion of airborne




23    contaminants during routine operation of a site, it




24    may  not provide adequate protection  in the event of




25    the  worst possible case that  could occur at a site.

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                                                        666
A chemical fire, an uncontrolled reaction,  that  type
of thing.
          In the case of an existing site,  such  as
our Calabasa land fill, it would take up approximately




250 per cent of the site acreage.  Since Class  I




disposal in California and the nation in general  is




going to be in short supply, we  feel that  this  should




be closely evaluated for existing facilities.




          Now,  Section 3004 also gives EPA somewhat




general authority to promulgate  standards  regarding




the location of hazardous waste  facilities.   It does




not appear that EPA has done anything regarding that




except the 200-foot barrier.  And it may seem ironic




for a local government agency to say that  EPA has




failed to use its authority, but we feel that this is




the case.  The intense attack that hazardous waste




facilities are under around the  nation is  going to make




it imperative that there be either federal or state




governmental support of existing sound hazardous  waste




disposal facilities.




          There have been bills  introduced in Congress




to require EPA, in coordination  with the National




Academy of Sciences, to find locations for hazardous




waste disposal facilities.  We feel that the  general




authority already given in Section 3004 regarding

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                                                         667
 1   location of sites may well  cover  this.




 2             As regards the  site  closure  fund,  the




 3   districts feel that it  is not  imperative  that  the




     fund be put on deposit  as a  condition  of  permit for




     the existing sites in California,  which are  well




     established businesses  that  have  been  in  business for




     a long term, as well as the  governmental  agencies




     that are in business.   We feel  that  a  staggered




 9   payment over the life of  the site  or a  five-year




10   period will provide adequate protection to the  public




11   against a site that would be abandoned  without  closure




12             The second concern we have with the  finan-




13   clal responsibility is  the fact that,  as  written,  they




14   will provide serious cash flow  problems during  the




15   post-closure period.   The reason  for this is that no




16   monies wil]  be reimbursed to the  sites  until the




17   closure has been completed.  This  will  essentially




18   require the operator to have the money  on deposit for




19   closure,  and then to have that money either  on  hand or




20   borrow it to do closure.




21 i            The same type of procedure will apply to the




22   post-closure operation and maintenance.




23             The districts feel that  this  type  of  cash




     flow problem simply need not exist because it will




     only cause higher disposal prices  with  no concurrent

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                                                         668
environmental benefit.




          The Los Angeles Region  has  been notably




absent of large-scale hazardous  waste health problems,




for a couple of reasons.  Most obvious and the first




one is the fairly recent influx  of  heavy industry to




the area.  And. we feel  the  second reason is that the




area has historically had good,  sound disposal at a




low cost.  There has not been  the economic incentive




that produces things like mud  canals  or the Valley of




the Barrels.




          The EPA's present  regulations, proposed




regulations,  as written would  ban the disposal of




volatile reactive and flyable  wastes  to land fills




unless the operator can meet the  equivalent exposure




that is promulgated in  the  regulations, similar to the




OSHA requirements.




          The districts feel that this standard is




unrealistic for several reasons.




          Under the Clean Air  Act,  the Los Angeles




Region is an area of noncomp1iance  with that Act.  As




a result, open burning  and  incineration is virtually




impossible to set up in that region,  since, as Mr.




O'Morrow of the Oil and Solvents  Process Company said,




his company has been unable  to convince the South




Coast Air Quality Management District to allow a

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                                                         669








 1    trade-off of pollutants to enable the  company  to




 2    recycle more materials.  The only legal  method for




 3    disposal of many materials is to land  fill.   If EPA




 4    does succeed in banning the disposal of  these  material




 5    to land fills,  there will be no legal  disposal method




 6    for many materials that are presently  in heavy use by




 7    industry in the Los Angeles Region.




 8              The districts feel that this policy  is




 9    unrealistic and should be re-evaluated.




10              And I will be glad to entertain any  question




11              MS. DARRAH:   Okay.  Thank you.




12              MR. FIELDS:   I wasn't quite  sure,  Mr. Bergin




13    what your position was on the buffer zone requirement.




14    You said the 200-foot buffer zone might  not  be




15    adequate and that we need -- that you  also said we




16    need to consider existing facilities.   I'm not sure




17    exactly what your exact position on our  standard was.




18              MR. BERGIN:   I think you could say our




19    position is that the 200-foot barrier  is an  arbitrary




20    number.  It should be — I feel it should be put down




21    in a note as a possible suggested standard rather than




22    an absolute standard and can be looked at on a case-by




23    case basis for facilities.




24              MR. FIELDS:   Okay.  You also indicated that




25    our standard for reactives, volatiles,  etc., you know,

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                                                         670
 1    we -- we were in that light,  I  guess,  considering the


 2    degree of hazard.  We felt  there  should be certain


 3    sort of controls on putting  volatiles,  uniteables,


 *    reactor type wastes into a  land fill  or other disposal


     environment.  Evidently, you differ with that.   We


     think the note would allow  the  disposition of these


 '    things in certain instances.

 Q
 0              But what would --  how would  you recommend


     we write a standard for land fill  disposal,  for


     example, of these volatiles  and reactives?   I mean


11    there should be some additional control,  we  feel, than


12    for other types of "hazardous wastes.


13              MR. BERGIN:  The  districts  don't feel that


     a land fill is the perfect  disposal place for any


15    materials.  Long-life toxic  organics,  we do  not feel


     that we should be putting them  in  land fill,  which is


17    essentially long-term storage.   We would advocate a


18    more integrated approach, with  the Air Disposal and


19    Water Disposal Acts in particular, to  allow  incinera-


20    tion and controlled reaction of some  of these material


21    if an analysis indicates that such treatment  is  in the


22    best interests of the total  environment,  rather than


23    having a policy which has banned  disposal to  air, land


24    and water.


25              MR. FIELDS:  Basically,  I think our

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                                                        671
 1    regulations would discourage, you know,  land  filling




 2    impoundment of some of these things.




 3              MR. BERGIN:  I certainly agree.




 4              MR. FIELDS:  But the options of  incineration




 •>    and treatment is also there in the regulations.   So




 "    I don't know if the regulations really don't  do what




 '    you are advocating.




 8              MR. BERGIN:  The regulations,  the preamble




 9    to the regulations, states that EPA  intends to




10    encourage incineration;  but, in stating  simply that




11    all incineration facilities must comply  with  all  of




12    the Clean Air Act,  for Los Angeles essentially means




13    no incineration.   I think there should be  --  possibly




14    it may be beyond the scope of this panel here, but




15    there should be some integration with the  Clean Air




16    Act to integrate the total environment rather than




17    separately looking  at air, land and  water.




18              MR. FIELDS:  Okay.




19              MR. LEHMAN:  Mr. Bergin, I'm a little




20    confused about that.  If I may follow up on that




21    general point, if you can't get an air variance for




22    incineration and you can't get an air variance for




23    recycling, why — you know, why are  you  able  to get




24    a variance for land fill?  In other  words, there  — if




2^    you land fill volatiles  or surface impound volatiles,

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                                                         672
you are going to get  release  into the air, obviously.




Now, are you just saying  that  landfills are not




currently regulated by  the  Clean Air Act?  Is that




what the point is?




          MR. BERGIN:   I  don't  believe that we have




had any enforcement by  the  Air  Quality Management




District since we would essentially be a nonpoint




source.  We have not  been enforced on by those people.




We don't think that the landfill is the perfect place




for disposal, and we  don't  think that most landfills




will qualify under those  standards co continue the




disposal of volatile  wastes.




          There are 401 compounds listed in the




appendices of Section 3004  that must be accounted for




in that analysis.  We don't think that's a small task.




          MR. LEHMAN:  Okay.  Thank you.




          MR. LINDSEY:  One final point, if I may.




          You indicated that  you felt we hadn't done




enough concerning the location  criteria, which we




called the general site selection criteria.  But then




you went on to talk about the problem of citizen




opposition and difficulty in  obtaining facilities,




that is locating facilities,  and felt that there




should be some federal  assistance here.  I'm not sure




I follow the train of your  thinking.

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                                                         673
 1              Were you saying  that,  through  having,  shall




 2    we say, more stringent or  more  specific  standards here




     with regard to location, that we  would  in  some way




     assist that, or were you trying  to  make  some other




     point there?




               MR. BERGIN:  No.   I think you've gotten the




 '    point there .




 8              MR. LINDSEY:  In other  words,  if we had




     more specific standards, what would you  like to  see,




10    then, if I can follow that a little further?




11              MR. BERGIN:  Ideally,  some  type  of large




12    area geological survey which would  pinpoint  sites




13    that may be facilities --  that may  be useful for




     hazardous waste disposal and integration with the




     local government in assuring that there may  be




     hazardous waste disposal available  in the  future,




17    possibly through zoning.




18              MR. LINDSEY:  That wouldn't be a regulatory




     activity,  then;  that would be some  other sort of a




20    study perhaps that Uncle Sam would  take to locate




21    ideal areas; is that what you mean?




22              MR. BERGIN:  It may well  be.  We are not




23    proposing any specific actions there, but  we do  feel




     that,  with the what we feel is broad  authority in




     RCRA concerning EPA's promulgating  standards regarding

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                                                        674
 1    location,  that there could be more done in this area.




 2              I must admit we haven't taken that to the




 3    obvious next step and worked it out.




 4              MR.  LINDSEY:  Well, if you have some last




 5    minute thoughts on this general site selection




 6    standards,  if  you would have us add something specific




 7    to that or some group of things specific,  if you




 8    could postmark them by Friday night,  that might be




 9    helpful to us.




10              MR.  BERGIN:  We will turn off the clock on




11    the postal meter until Friday's over.




12              MR.  LINDSEY:  You don't want to say that on




13    the record.




14              MS.  DARRAH:  If you are going to postmark




15    it,  you can do it with the Post Office.




16              Any  more questions?




17              MR.  TRASK:   No.




18              MR.  CORSON:  No.




19              MS.  DARRAH:  Okay.  I guess  there's no more




20    questions.   Thank you.




21              Bernie Simonsen,  IT Corporation?




22              MR.  BERNARD L. SIMONSEN:  My name is Bernard




23    Simonsen.   I'm Regional Vice-President for IT Corpora-




24    tion.   We  operate two of the Class I  disposal




25    facilities in  the State of California.

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                                                        675
 1              The comments that I will be making will  be




 2    directed primarily to the provisions of the proposed




 3    regulations dealing with financial responsibility  of




 4    hazardous waste management facilities.




 5              I have been participating in the submission




 6    of  comments on this section, both as a member of the




 1    National Solid Waste Management Association and on




 8    behalf  of our company for about the last 18 months.




 9              I'd like to first preface my comments with




10    a description of the environmental impairment insurano




11    policy  that we have had in force for approximately  the




12    last  two years and what I perceive its strengths and




13    weaknesses to be.   This policy can potentially meet




14    the requirements of the financial resonsibility sectioi




15    for site operation, but I want to make sure that




16    everyone's aware of some very definite problems and




17    limitations of it.




18              It is available through various insurance




19    brokers  in the United States.   Basically, it's being




20    underwritten through the Lloyds group in London.




21              I have listed in the prepared comments 15




22    of  the  exclusions  that are covered,  and I'll just




23    highlight a few of  them.




24              One is any occurrences outside of the United




25    States.

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                                                         676







 1              Anything to do with  nuclear fuel,  wastes or




 2    weapons.




 3              Unemployment disability,  personal  injury to




 4    an employee.




 5              A significant one  is  any  loss  where an




 6    officer,  director, or responsible employee was aware




 7    of noncompliance with any  regulations.




 8              Anything arising out  of ownership  or use of




 9    land motor vehicles, vessels,  oil or  gas drilling




10    platforms, deep water ports  or  airports.




11              Sudden unexpected  happenings.




12              Genetic damage.




13              Damage to property owned  or used by the




14    insured.




15              Punitive damages or  fines.




16              Preexisting conditions.




17              Neutralizing, restoring,  cleaning up or




18    inactivating any waste disposal site  used directly or




19    indirectly by the insured.




20              Or any clean-up  considered  to  be routine




21    and normal in connection with  the business of the




22    insured.




23              This policy is on  a  claims-made basis for




24    the term of one year.  By  "claims-made," it means




25    that the coverage is in place  if a  claim is made

-------
                                                         677
     during the policy period, not if the accident,  injury

     or incident occurred during the policy.   That's a

     distinction that I will get back to later.

               It's issued after the prospective  insured

     agrees to pay for an engineering survey of the  company,

     its facilities and equipment by an engineering  firm

     retained by the insured company.
 Q
               This survey cost approximately  $6,000 in

 "    1977,  and can be applied to up to 10 per  cent of the

**'    premium if the insurance is closed.  I have  no

     information at all on the criteria utilized  by  the

12    insurer in accepting the risk or on how the  premium

     is developed.

"              Premiums for our policy are  approximately

     $90,000 a year for sudden and nonsudden coverage.   We
     did get a deletion of the exclusion for nonsudden  or

1'    for sudden, if that makes any sense.
               The coverage is for 2 million per  occurrence

1°    4 million per year.  It covers all operations of our

2"    company, including the vacuum truck hauling, the two

21    Class  I site operations, tank cleaning and chemical

22    and oil spill cleanup.

23              The quotation for a 4 million/8 million
rtj
     policy was received for approximately  $125,000.  No
nc
     quotation was offered for any higher limit,  and the

-------
                                                         678
 1    material  that's on the street indicates  that  no




 2    higher limits are currently available.




 3              Potential problems may exist under  some  of




 4    the following circumstances which could  make  this




 5    policy difficult to obtain or more expensive.




 6              One is the existence of other  on-site




 7  [  storage,  manufacturing, or processing facilities which




 8    might  be  a potential emissions source and,  hence,




 9    might  be  required to be included in the  policy




10    coverage,  even though not required under these  regula-




11    t ions .




12              Secondly, low-volume facilities,  which would




13    be  faced  with a more significant impact  due to  the




14    cost  -- on their cost of operation due to minimum




15    premiums,  since this does cover legal defense and




16    nuisance  suits must be viewed as a potential.




17              Third, sites with underground  drinking




18    water  under the facility might be viewed as an




19    extreme liability.




20              Fourth, inadequate assets or history  to




21    justify coverage of the risk to the $10  million




22    required  limit.




23              The policy we have in force is substantially




24    the one that I think the EPA has received testimony




25    on  from the Lloyds brokers.

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                                                        679







 1    Basically, the comments I'll make will  be  organized




 2    around the four operational phases of the  regulations




 3    -- the regulations have addressed.




 4              First is the operational phase,  which  will




 5    be where most of the comments will be directed.




 6              The proposed regulations require evidence




 7    of $5 million of general liability and  five/ten  for




 8    multiple facilities for environmental impairment  or




 9    nonsudden coverage.




10              During the site operations, a hazardous




11    waste management facility is similar to any  other




12    facility handling hazardous materials,  except  that,




13    upon ceasing business, the potential materials -- the




14    potential risks from the materials being in the




15    ground or in storage would continue, whereas  at  most




16    manufacturing facilities,  the ability would be to




17    remove them from the premises.




18              Due to the fact that insurance is the  only




19    realistic option to our firm as well as most  off-site




20    facilities,  most of my comments will be in that  area,




21    and that is also true for many smaller  on-site




22    disposal facilities.




23              Basically, the following issues  are




24    unresolved or present problems as contained in the




25    proposed regulations.

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                                                         680
 *              First -- And I mention  this  because  there




 2    is only one source of insurance.  There  are  a  number




 3    of brokers that are involved in it, but  really it's




 4    Lloyds of London is the only ultimate  source.    And




 5    that  is what action is anticipated or  required --  going




 "    to be required by the EPA if that policy  is  cancelled




 '    or is not renewed.




 °              Since it is only offered through one source,




 °    any decision to cancel would be final  unless a sale of




10    the facility were to occur to an  owner/operator who




11    could obtain the coverage or self-insurance  under  the




12    provisions of these regulations.  Basically,  this  puts




13    the operation in the position guaranteeing the




14    existence of insurance, which is  a reversal  of the




15    traditional roles.   The risk of loss of  insurance




16    would have two negative impacts.




17              One, the threat of permit cancellation would




18    eliminate many potential investors or  developers from




19    expanding or creating new disposal facilities  or




20    continuing existing ones.




21              And, secondly, once canceled,  the  facility




22    would be without revenue.  And since this is a claims-




23    made  policy, without insurance coverage,  this   means




24    the EPA would be increasing the risk of  site abandon-




25    ment  or bankruptcy.  And once abandoned  or bankrupt,

-------
                                                         681
 1   there would be no  insurance  coverage for any future




 2   claims made.




 3             The second  area, what  coverage is intended




 4   under the regulations?




 5             I have listed  the  15  exclusions that are




 6   contained in our policy.   Some  of  these can be voided




 7   by paying additional  premiums,  as  I  indicated, but




 8   which of these are intended  or  acceptable under the




 9   regulations since  the regulations  are silent on the




10   content of the insurance policy  which would be




11   acceptable ?




12             The reason  I bring  this  up is the expecta-




13   tions of the public and  the  regulatory agents must be




14   consistent with the available or required insurance




15   policies, and the  limitations must be known by all the




16   parties that  are going to  be  involved.




17             The third area,  what  types of claims or




18   liabilities are required to  be  covered?  Under various




19   proposals,  under the  oil spill  laws  that are being




20   considered by Congress,  such  things  as loss of income,




21   loss of profits,  genetic damage, loss of resources




22   and so forth  could be considered a claim but are




23   currently not covered by this form of insurance.




24             The fourth  area, the  limitations  of a claims-




25   made policy must  be known.  Upon failure to make

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                                                         682
 1   premium  payments,  site closure, change in ownership,




 2   bankruptcy  or  a number of other conditions, the policy




 3   may  be canceled,  resulting in no coverage for prior




 4   operat ions.




 5             The  fifth area, a specific exclusion of




 6   the  policy  is  as  follows, and I will just summarize  it.




 7   But  basically  it  means that,  if anyone in a responsible




 8   position is  aware of any noncompliance with any




 9   applicable  statute or regulation or instruction




10   relating to  environmental impairment issued by




11   competent authority, the policy coverage is voided.




12   The  only way that that does not occur is if the insurec




13   is operating under conditions of noncompliance under




14   a permit or  order of such authority with good faith




15   efforts  to  comply as soon as  reasonably can be




16   expected.




17             What this boils down to is that the




18   restrictions imply that, upon Issuance of a Notice of




19   Violation or the  serving of any legal action, all




20   coverage would cease for losses resulting from that




21   act  or omission unless this good faith effort can be




22   documented,  i.e.,  the EPA can cause voiding of the




23   insurance policy  or any other regulatory agency could




24   do so.




25             Next,  there is an indication -- there is no

-------
                                                         683
 1   indication in the regulations as to the basis  for


 2   either the $5 million coverage or the  10 per cent


 3   limitation on net equity fo,r sel f-insurance.   Both  of


 4   these levels limit the resources available  to  provide


 •>   adequate hazardous wast4 management facilities  by


 6   discouraging or disqualifying participants.  The $5

 7                           I
 '   million insurance levelispecified for  nonsudden is


 8   currently above that available, although higher limits

 _
 °   may become available wha|n the regulations are  promul-


10   gated.


11             A couple of other comments that are  not in


12   the prepared statement.


13             At this point, it's unclear  whether  the


14   provisions of the regulations would require the


15   operator to register witjh the state as a self-insurance


16   company or whether the Regulations would merely be


17   waived  if the owner-operator could present evidence


18 '  of  assets to the EPA.   TJhis would again make it


19 I  extremely difficult  if you had to comply with  all the


20   various seIf-insurance regulations and requirements


21   under the insurance  commissions of the various states.


22             And,  lastly,  we would indicate that,  due to


23   the significance of  this and several of the other


24   provisions to the economics of a site,  that the


25   requirements be  consistently applied to all facilities,

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                                                         684
 1   public  and  private,  on site and off site.   The  alterna-




 2   tives as  presented,  self-insurance or  insurance,  appea]




 3   to be acceptable;  but if,  as has been  indicated,




 4   exempting a public facility due to taxing  authority




 5   is authorized  under  your other acceptable  conditions,




 "   we would  be very  concerned.  The R and D study  per-




 '   formed  indicated  that the  -- or performed  for  the EPA




 °   indicated that a  hundred million dollar claims  are




 9   potential,  although  they could not describe  a




10   probability.   And since virtually since in  all  the inci




11   dents to  date  promulgated  by tbe EPA,  the  government  ir




12   general has been  unable to approve payments  of  even




13   $200,000  to several  million dollars, it's  highly




14   unlikely  that  this taxing  authority would  be effective




15  j as a means  of     financial responsibiIty.




16              The  second area  would be the site  closure.




17   In this area,  the proposed regulations for  requiring




18   funding through an engineering study of the  closure




19   cost prior  to  issuance of  a permit, the concept of




20   eliminating public burden  in case of site  abandonment




21   is valid;  however, the sole means for  refunding of




22   that closure,  we  feel, is  unduly restrictive.




23              Alternates which we could propose  would be:




24              First,  a lien against the land and/or real




25   improvements.

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                                                        685
          Second, providing  a  deposit  only  of the




amount required  for closure  of  the  facility on each




anniversary, i.e., if the cost  of closure  during the




first year was $10,000, then only $10,000  would be




required during  that first year.  If,  for  the second




year, it was 20,000, then an additional  10,000 would




be required to be deposited, and so forth.   This could




be updated upon  change  in operations or  every five




years through another engineering study  to  insure




that current closure costs are  appropriate.




          Third,  posting of  other securities or assets




to satisfy the provisions.




          Or, fourth, phasing  the deposit  as was




indicated by the  LA County Sanitation  Districts over




five to ten years.




          We would also like to reemphasize that the




question of the  tax deductibility of these  deposits




be addressed through concurrence with  the  IRS.  These




should be tax-deductible expenses of operation.




          The third phase, that of  post-closure




monitoring of maintenance, we  have  no  conceptual




problems with the proposed regulations.   We concur




that the funding  occur  over  the entire site life, as




we are proposing  in the site closure,  and  that a 20-




year post closure maintenance  monitoring,  we feel, is

-------
                                                         686
     effective for burial and injection  facilities.




               We might bring your attention  to  the  fact




     that  a much shorter six-month to one-year monitoring




     might be valid for certain storage  or  treatment




     facilities to insure no potential  liabilities due to




     seepage from tanks or spillage.




               Again,  the question of tax deduction  of the




 8    deposits we feel is relevant.




 9              The last phase, long-term liability,  we




10    concur with EPA analysis that there is no acceptable




11    alternative available for satisfying this objective.




12    We  have worked extensively on this, and  the proposal




13    which we would make is similar to  one  the EPA is




14    considering and the National Solid  Waste Management




15    Association is proposing, that of  a national fund to




16    handle claims on a no-fault basis  for  sites under the




17  j  following circumstances:




18              One.  The site was permitted under RCRA.




19              Second, it was operated  substantially within




20    the permit conditions.




21              Third,  that the site was  closed appropriatel




22    under RCRA standards.




23              The key elements of this  program  should




24    include :




25              Release from liability for  the generator  who

-------
                                                        687
 1    properly manifests and sends the materials to an RCRA-




 2    permitted hazardous waste facility.  This creates




 3    the  incentive for the generator to participate in the




 4    plan and gives him a benefit for doing so and incurring




 5    the  higher cost involved.




 6              Secondly, release from liability for a




 7    hazardous waste management facility operated and




 8    closed substantially in compliance with RCRA.




 9              Third,  a fund contributed to by producers




10    of hazardous wastes to pay for claims against sites




11    which have been closed in accordance with this — with




12    suitable rules of evidence on a no-fault basis.




13              And,  fourth, full liability for the facility




14    operator or the generator in perpetuity if it can be




15    established that  he acted in a negligent or willful




16    manner in violation of his permit and that caused or




17    resulted in the damage or a claim.




18              Again,  this is the -- both the carrot and the




19    stick approach.   There is something in it if you do it




20    right,  and you can't get out from under your liability




21    if you do it wrong.




22              A few other comments that I had in general




23    on the hazardous  waste,  the general provisions.




24              One,  I  feel that it's imperative that two




25    levels of ha.zard  as are — occur in the State of

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                                                         683
California be allowed:   a  hazardous and an extremely




hazardous category.   This  becomes important for two




reasons.




          One, when  you  start  approaching the




hazardous, the funding under  this national fund concepl




you run into the problem of  some facilities producing;




very large quantities of virtually innocuous wastes,




whereas other materials  such  as PCB's,  defoliants, and




so forth, are produced in  very small  quantities but ar«




high hazard.




          Secondly,  it allows  for more  stringent




controls on certain  facilities, while allowing




facilities that handle the more innocuous materials




to be much less stringently  regulated.




          Secondly,  there  is  a need for uniform and




rapid application  of  the processing of  permits, for




two reasons.




          No. 1, competitive  advantage  will occur  for




facilities which are  permitted last,  and the numbers




which I have heard are like  five years  to complete the




permitting process.   The costs incurred under this




program will be fairly significant, and the competitive




advantage will be  substantial.




          Secondly,  there  is  a potential for lawsuits




against those facilities which are not  permitted.  And

-------
                                                         689
     there is basically an extensive period  of  uncertainty.




 2             Both of these factors will  tend  to  dissuade




 3   the investment or continuance of these  types  of




     facilities.




               We would also like to indicate our  support




     for the comments made by Dr. Johnson  in Washington,




 '   D.  C.,  on behalf of the National Solid  Waste  Manage-




 °   ment Association.




 9             A  couple other brief comments that  I have  —




10             MS.  DARRAH:  Mr. Simonsen,  if they  could be




11   extremely brief, we would appreciate  it.




12             MR.  SIMONSEN:   One -- Just  a  series of




13   observations.




               In our interaction with the insurance




15   companies -- And I'm not speaking on  behalf of them;




     I  haWe  no relationship to them whatsoever.  But a




17   couple  comments that do  indicate the  reluctance or




18   problems that  will be encountered in  insuring under




19   the operational phase of this as well as any  post-




20   operational  liability coverage.




21             One,  the history of past incidents  is poorly




22   documented as  to frequency,  cause, responsibility,  and




23   the amount of  the claims.   This makes evaluation of




24   past  losses  very speculative.




25             Second, the laws covering environmental

-------
                                                        690
 1    damage  are  dated,  do not relate to present conditions,




 2    are  being continuously  altered by juries, court




 3    decisions,  and very drastically between states and




 4    regions.  This makes future projections of losses




 5    very difficult.




 6             Third,  there  is no absolute agreement upon




 7    the  impact  of  these regulations upon claims experiencec




 8    in the  future.   Public  — Increased public awareness




 9    and  availability  of funds could increase litigation,




10    whether substantial or  not, resulting in increases in




11  j  legal defense  costs or  claims, while the technical




12    requirements might  make losses less severe, more




13  |  controllable or less frequent than historical data.




14             Lastly,  the short lead time to prepare the




15    data, make  engineering  studies required and provide




16    the  coverage,  may cause severe disruption of the




17    insurance market,  and it can occur due to a significant




18    influx  in premiums  which can require a major increase




19    in reserves.   And we are talking in the neighborhood,




20    if you  presume 10,000 policies that would have to be




21    issued  at $50,000 premium per policy, on the order of




22    $500 million in premiums potentially within the one-




23    to five-year permit period.




24             Thank you.




25             MS.  DARRAH:   Okay.  Thank you.

-------
                                                         691
 1              Will you answer questions?




 2              MR.  SIMONSEN:  Yes.




 3              MR.  LINDSKY:  Mr. Simonsen, you expressed  a




 4    number of  concerns concerning the insurance provisions.




 5    Let  me ask you the $64 question.




 6              What would you have us do?  You listed




 7    concerns,  but  you didn't suggest to us what changes




 8    we  should  make in your opinion in that particular




 9    provision.   I'm talking about the site life liability




10    part.




11              MR.  SIMONSEN:  Well, first of all,  I  think




12    the  limitations of insurance have to be known.  The




13    regulations  as promulgated merely gloss over  in one




14    sentence that  insurance is required without giving any




15    specifications as to the form of the insurance, what




16    coverage is  or is not necessary, and so forth,  so




17    that--




18              MR.  LINDSEY:  You mean such things  as claims




19    made,  what  exclusions would be acceptable or  not




20    acceptable,  that  sort of thing should be written in




21    the  regulations?




22              MR.  SIMONSEN:  Yes.   I can give you an




23    insurance  policy  that won't insure anything by having




24    appropriate  exclusions.




25              MR.  LINDSEY:  I  see.

-------
                                                        692
 1              MR.  SIMONSEN:   And there is no indication




 2    in there  as  to what  the  intent of the coverage is.   If




 3    it is promulgated  in that form and somebody not




 4    experienced  with the insurance in this area takes  it




 5    and says,  "Gee, they are insured against everything;




 "    let's let  them next  door."




 '              Then the  first claim comes in and he says,




 °    "I'm sorry,  but that's Exclusion No. 12."




 9              Then you  have  got an expectation mismatch




10    that could be  very  significant.




11              MR.  LINDSEY:  But if we were to spell those




12    out, then  you  might  still have some qualms about the




13    availability of this insurance on a broad scale but  —




14              MR.  SIMONSEN:   It still may not be available




15    for certain  types  of facilities.  In our case, we  were




16    successful.  I don't know what the basis for — for




17    denying coverage might be.  But  under this set of




18    regulations, a facility  of -- you know, of our size,




19    if it were denied  coverage by this source would have




20    no other  alternative but to cease operations.  And I




21    think that needs to  be at least  acknowledged in the




22    preparation  of these requirements.




23              MR.  LINDSEY:  Okay.  Slightly different




24    subject.   We are,  or our intention is that the self-




2^    insurance  provisions,  the 10 per cent of equity, would

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                                                         693
be -- probably  be  used  most  frequently as a deductible




on the insurance.   In your  policy now, do you self-




insure to some  point  and  use the deductible approach9




          MR. SIMONSEN:   The policy,  as written, has,




I believe, a $5,000  deductible on each claim and a




co-insurance of  10  per  cent  of any loss up to, but not




exceeding, $50,000.   This was the year-ago policy.   I




think they changed  it slightly.   I think it's 75,000




now.




          MR. LINDSEY:  Given that our regulations




are written the  way  they  are, do you  expect that most




people would use the  10 per  cent of equity as a




deductible?  Is  that  the  way they tend to use it?




          MR. SIMONSEN:   I  would -- I would think that




probably this was  not optional;  you had to accept




that  type of deductible.  So the question might come




up as to whether if  a facility taking this type of a




deductible were  faced with  under a half a million




dollars of equity,  he would  be disqualified again under




the EPA regulations.




          But,  again, if  you are talking self-insurance




as opposed to equity  to allow a  deductible, then,




again,  you may be  faced with complying with state law




for self-insurance  as opposed to a business decision




to accept a deductible  on policy.

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                                                        694
 1              MR.  LINDSEY:   Okay.  I think the  latter,  a




 2    business  decision to accept the deductible,  is  where




 3    we  were  coming from.  In other words, if  a  company




 4    has certain assets,  we  feel that that should be




 5    sufficient demonstration that they have the  financial




 6    wherewithal to at least go part way on this.




 7              MR.  SIMONSEN:  But those words  will stagger




 8    state  insurance commissions.




 9              MR.  LINDSEY:   What you are saying  is  we




10    better watch the wording we use on this?




11              MR.  SIMONSEN:  Yes.




12              MR.  LINDSEY:   Okay.  Maybe we will have to




13    talk further about that.




14              Youdidprovide -- youdidtalkto --




15    specifically to one  of  the exclusions which  --  which




16    is  here',  which is on your Page 3, No. 5,  concerning --




17    Let's  see if I can find it.  Maybe that's not it.   No.




18    I don't  remember which  one it was.




19              But, anyway,  the point was that if an




20    officer  or employee  of  the company knew they were in




21    violation, then the  --  of a -- of a permit  condition,




22    then the  -- the policy  would be -- not be applicable




23    to  that  condition unless the facility was making  a




24    good-faith effort to comply or something  to  that




25    nature.

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                                                         695
 1              MR.  SIMONSEN:  Yes.




 2              MR.  LINDSEY:  And you said --  then  followed




 3    that  up  by saying that any action, any enforcement




 4    action by  EPA  then might create a problem where  the




 5    insurance  would be lost for that problem.




 6              Is that the way you read it?




 7              MR.  SIMONSEN:  Again, I'm not  an  attorney,




 8    so  I  --  I  would at least view that as a  potential  --  a




 9    potential  situation.




10              Again,  it's a distinction between a  claims-




11    made  and an occurence policy, and I'm not totally




12    familiar with  the legal implication, but it appears




13    that  that  could occur in the case of violation being




14    issued if  no action were taken by the company.




15              MR.  LINDSEY:  In most cases, I think we




16    would issue a  compliance order which would  have  some




17    definite date,  you know, change this or  remedy this




18    particular situation  by such and such a  date.  And,




19    based on your  policy  now,  if that were the  case  and




20    that  were  the  kind of compliance order we issued,  and




21    then  the company  were complying with that,  do  you




22    feel  that  your insurance would be jeopardized  --




23              MR.  SIMONSEN:  No.  If -- if --




24              MR.  LINDSEY:  -- as long as you met  the




25    dates?

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                                                         696
 1              MR.  SIMONSEN:   If,  in our case, we were  to




 2   take  action,  which  we  would intend to do, to maintain




 3   the permit  and so  forth,  then the coverage would




 4   remain  in  force.




 5              But,  again,  what I'm referring to is  if  the




 6   intent  of  the EPA  is  to  have  coverage to protect the




 1   public  from anybody,  including somebody who might  be




 8   in trouble  or running  a  less-than-acceptable site,




 9   then  the bad  guy may  not  have coverage ,  even though he




10   has a policy.




H              And,  again,  that needs to be an awareness of




12   the --  of  how this  thing  would interact  which may  not




13   be perceived.




14              MR.  LINDSEY:   Okay.




15              MR.  FIELDS:   I  have some questions of back-




16   ground  on  your policy  and your experiences with the




17   insurance  industry.




18              How long  has  the policy been in effect that




19   you currently have?




20              MR.  SIMONSEN:   I believe since June 1st,




21   1977.




22              MR.  FIELDS:   Okay.   Does that policy  cover




23   only  the disposal  area  at your facility1?




24              MR.  SIMONSEN:   No.   It covers the entire




25   company operations.

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                                                         697
 1              MR.  FIELDS:  Do you know of  any  other




 2    companies in California or — that have  or — or are




 3    in  the  process of getting this type  of  insurance that




 4    you have?




 5              MR.  SIMONSEN:  I don't have  any  direct




 6    knowledge of anyone having any policy.   Our indication




 '    are that  none  were in.existence for  hazardous waste




 8    facilities per se,  but  I have got some  feedback that




 9    one other party may have received a  quotation for a




10    facility.




11              MR.  FIELDS:  Well, I know  --  I guess you are




12    the first one  in California that's got  even this.   Do




13    you favor demonstration of the limits  — You know, you




14    had some  disagreement with those.  But  do  you favor




15    this  type of insurance  nationally for  hazardous waste




16    facilities?




17              MR.  SIMONSEN:  We, as a company,  need a




18    business  decision to insure the risk.




19              Again, it raises the issue of  whether it




20    should  be required or is a business  decision.   In our




21    case, we  did -- we were able to obtain  it.   My question




22    is  whether at  this point jumping in  at  this amount as




23    a mandate for  a very peculiar type of  insurance which




24    is  not  available by any U.  S. carriers  will produce a




25    very  disruptive effect  or whether it will  provide the

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                                                         698
 1   public protection  that  is being sought by the  EPA.




 2   And  I don't  have  the answer to that question.  We  have




 3   been looking for  it  for about the last year and  have




 4   not  been  able  to  get anybody to commit one way or  the




 5   other.




 6             MR.  FIELDS:   Thank you.




 7             MR.  TRASK:   Mr.  Simonsen, you mentioned  a




 8   couple of situations where generators might be tied




 9   into a national fund to — as a,  I guess, an alterna-




10   tive to the  insurance  responsibility thing.  Would




11   the  current  regulations for generators provide for




12   that, or  are some  changes needed?




13             MR.  SIMONSEN:  As we perceive it, I  don't




14   believe that the  Resource Conservation and Recovery




15  ' Act  authorizes that.   The only alternative on  that




16   would be  a legislative  activity.




17             The  reason we proposed it was basically  to




18   indicate  the -- that we don't feel there is any  action




19   that can  be  taken  under the law as -- as written that




20   can  address  the issue.   Insurance doesn't get  you




21   there because  it  --  you have got to pay for it for --




22   on a claims-made  policy.   You have got no way  of




23   predicting the premiums.   And basically that's only as




24   good as the  policy and  for the duration of the policy.




25             Some sort  of  a proposal of this nature would

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                                                         699
be needed on  a  legislative  avenue if appropriate.




          MR. TRASK:   Is  this underway by NSWMA now?




          MR. SIMONSEN:   NSWMA has been working on a




prospective legislative package for this.




          MR. TRASK:   Okay.




          MR. LEHMAN:  Mr.  Simonsen, just a couple of




hopefully quick questions here.




          You mentioned a premium of $90,000 a year




for both sudden and  nonsudden coverage at the amount




you mentioned for  two  facilities, plus other opera-




tions.  Do you  have  any way  of splitting that out as




to, you know, how  much of that premium has to do with




the sudden and  accidental part of your coverage versus




the nonsudden or environmental impairment side?




          MR. SIMONSEN:   No.   We were never given any




quotation prior to that.




          The reason we included the sudden was that




our normal, general  liability insurance carrier had




been progressively making the sudden coverage so




restrictive that we  viewed  that we had no coverage




whatsoever.  So we had it deleted from — in its




total from our  general liability coverage and had the




exclusion deleted  from the  environmental impairment




policy.   So we just  shifted  the sudden on to the




other simultaneous with --  containing the first

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                                                         700
 1    quotat ion.




 2              MR.  LEHMAN:  Okay.  Well, thank  you.




 3              MS.  DARRAH:  I guess that's  all  our  questions




 4    Thank you very much.




 5              Arthur Dinsmoor,  Wilson Oil  Company  for the




 *    Independent Petroleum Association.




 7              MR.  ARTHUR DINSMOOR:  My name  is  Arthur




 °    Dinsmoor.  I'm from Midland, Texas.   I'm District




 9    Manager of  Young Oil Company.  I'm speaking this




10    morning as  a representative of the Independent




11    Petroleum Association of America.




12              in the interest of brevity,  I  will not




13    repeat qualifications or the industry  statistics  that




14    were read into the record yesterday.




15              This statement that has been submitted  is




16    subject to  revision.  I will read partly  from  the




17    prepared testimony, and I will depart  from it  at  some




18    t ime .




19              I do not envy the panel their  job, and  I do




20    appreciate  their long suffering and patience.




21              I also don't envy them  the  fact  that  this




22    has to be done over again when 3005   and  3006  come up.




23              in our statement, in addressing  Section




24    3004,  ostensibly on Page 15, ostensibly  Section 3004




25    compliance  burden  for explorer-producers  will  be  less

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                                                         701
because drilling muds  and  oil  production brines have




been designated special  wastes and,  therefore, com-




pliance with parts of  3004  have been deferred pending




further analysis.  A close  look at  the applicable




standards that remain, however, indicate that any




thought that the deferral  means significant interim




relief is simply illusory.




          The comments,  or  the following comments,




are offered on those general  facility standards




specifically applicable  to  muds and brines.




          In waste analysis,  the requirements will




be extremely difficult for  most small producers who




do not now have in-house technical  capacility to carry




out these hundreds of  thousands of  tests,  or we do not




feel that commercial laboratory capacity is currently




available or at a cost that would be -- bring any real




benefit.   The analysis of  these oil field-produced




brines should not be required.




          On site selection,  our reading of the general




site selection requirements indicates that many




current drilling and production sites would be off




limits under the criteria  enunciated.  For example,




most of the Gulf Coast area,  one of the country's most




active and vital oil and gas  regions, would come withir




the wetlands prohibition.   Also, the active fault zone

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                                                         702
prohibition would pose  a  problem for some California




producers, as would  the highly  restrictive 500-year




floodplain limitation restrict  development in many




areas throughout the country.




          As a side  comment,  I  would ask where the




industry might get 500-year  floodplain weather data




since we just celebrated  our  bicentennial in 1976.




          This section  clearly  -- and on site security




this section clearly demonstrates the problem of




trying to regulate a drilling or production site on




the same basis as a  permanent  plant  or large, well-




staffed facility.  Requirements for  fences -- Deviatior




is allowed only upon showing  a  satisfactory substitute




— gates and security personnel are  not practical at




most of these locations.   Where precautions are needed




they are taken.  Producers have always been liable to




landowners and others with access to and surface use




rights to areas surrounding  drilling and production




sites.




          The manifest  system and recordkeeping and




reporting requirements  are giving us a lot of complex




thought problems, and we  are  in the  process of.




revising that section.  Suffice it to say that there if




a very difficult interplay of legal  liabilities that




may or may not be able  to be  resolved.

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                                                         703
 1              Certification of reports  should  be  based  on




 2    one's best knowledge for the reasons previously




 3    noticed.  Also, if an emergency does occur,  it  should




 4    not be — will not be of the kind contemplated.




 5              For example, should a leak or  spill occur




 6    at a tank or pit site, evacuation of communities  would




 7    not be necessary.   Spill prevention control  and




 8    countermeasure plans, which are already  required  under




 9    federal law, would cover most of these situations.




10              Regardless of the legal complexities, the




11    excessive administrative burdens inherent  in  this




12    subsection will be monumental for the average




13    independent producer, who is a small businessman.   As




14    stated previously repeatedly throughout  our  comments,




15    he generally operates by himself or with a small  staff




16    and is able to succeed in large part because  of his




17    ability to move quickly where opportunity  presents




18    itself.  Needless to say, his movement will  be  greatly




19    impeded if his attention must be devoted to  endless




20    paper work, and especially of the detail specified




21    here .




22              In the section on visual  inspection,  since




23    personnel are not permanently stationed  at production




24    sites,  visual inspections on a daily basis are




25    unrealistic.  Most production facilities are  located

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                                                         704
in unpopulated areas.   They  are run by automatic
systems and, hence,  are  ieft  unattended except for




periodic visits  to make  sure  operations are running




smoothly.  When  drilling operations cease, the




associated facilities might also  remain unattended for




a period of time.  Therefore,  inspections less




frequent than daily  should be  approved.




          Under  the  section requirements of closure anc




post-closure, given  the  type  and  amount of waste




involved and the extraordinarily  large number of




facilities, it is difficult to justify the need for




certification of proper  closure by a registered




professional engineer and recordation of a survey




plaque certified by  a registered  professional land




surveyor showing the type and  location of hazardous




waste disposed of.




          Twenty years of post-closure care is requirec




for those facilities from which hazardous waste is not




removed.  This 20-year period  may be reduced only upon




a satisfactory showing that a  shorter period of care





is needed.




          Again, lack of evidence of contamination in




the long history of  the  oil and gas industry does not




justify this excessively long  period of monitoring and




reporting.   Also, this requirement ignores the unique,

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                                                         705
 1   temporary nature of drilling  operations and the




 2   relationship between the  owner  and  —  the landowner




 3   and the operator.  Once drilling  or production opera-




 4   tions cease, the land, usually  including access roads,




 5   is reseeded by the operator,  who  only  holds a mineral




 6   interest in the land.  Continued  surveillance and




 7   monitoring could raise not only logistical and




 8   practical problems, but also  signficant legal




 9   problems if the landowner is  unwilling to extend




10   access to his property.




11             Finally,  even though  the  financial  responsi-




12   bility requirements have been deferred,  we think the




13   catastrophic effects these requirements would have'




14   on the oil and gas exploration  and  production industry




15   deserve immediate attention.  Cash  deposits of the




16   size contemplated would surely  cripple most indepen-




17   dents.   If financial responsibility is ultimately




18   determined necessary for these  operations,  it should




19   be managed through  a bonding or  letter-of-credit




20   system rather than  a cash deposit system.   There are




21   currently sufficient number of  state bonding  programs




22   in existence with which producers are  familiar.  That




23   is,  posting bonds secured prior to  the commencement




24   of drilling and which are secured on either an




25   individual well basis or a statewide basis and from

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                                                         706
 1    which EPA could draw experience.




 2              In conclusion, the IPAA appreciates  the




 3    magnitude of EPA's mandate to protect the  environment




 4    from hazardous waste pollution.  Nevertheless,  we  do




 5    not  believe all hazardous wastes should be  regulated




 6    with the same level of intensity.  The hazard  should




 7    be  clearly established and the degree of hazardous




 8    risk then considered in formulating appropriate




 9    hazardous waste management programs.




10              We do not believe that there is  any  evidence




11    of  contamination caused by drilling muds and oil




12    production brines  or crude oil wastes that  warrants




13    their inclusion in the hazardous waste regulator




14    program.   Accordingly,  we urge the agency  to defer all




15    regulation of these substances until it has completed




16    its  special waste  study and until it has demonstrated




17    need for regulation.  Otherwise, we fear this  nation's




18    ability to produce vital energy resources  and  to





19    maintain a  stable economy will  have been greatly  under-




20    mined,  at great cost and with no appreciable benefit




21    to  the  environment.




22              in this  matter of degree of risk, I  would




23    like to touch on the matter of — matter of basic




24    thinking.  All of  us tend to at some time  during every




2$    day  in  our normal  working life be touched  by the

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                                                         707







 1   problem of  tunnel  vision.   We have trouble sometimes




 2   seeing the  forest  for  the  trees.   And we are all




 3   subject to  making  some  mistakes.




 4             I would  say,  though,  that zero particle




 5   emission or particulate emission  is something that is




 6   not possible  in  the  United States  today in many areas




 7   of our environmental problems.   As a statement of this




 8   nature exceeds in  some  areas  existing air quality




 9   standards of  the Environmental  Protection Agency.




10   Also, a risk-free  society  is  an impossibility in this




11   day and age.  I  would mention an  article by Aaron




12 ;  Wlldofski, published in the February Journal of




13   American Scientists  and in which  he concludes that




14   fear of risk  has become a  kind  of  disease in the




15   United States.   And  I quote:




16             "How extraordinarily,"  Wildofski said, "the




17        richest, longest lived,  best  protected,  most




18        resourceful civilization with the  highest degree




19        of insight  into its own  technology is on its way




20        to becoming the most  frightened.   Chicken Little




21         is alive and well  in  the United States."




22              I do not say  this in  levity.   I say it in




23    true honesty  and with great concern.  This country




24    was built  by  free men in a country of large natural




25    resources,  led on by the hope of profit.   Profit is

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                                                         708
  not guaranteed.  Profit  is  not  a dirty word, and I




  will never apologize  for  it.




            A study  of  the  background of most of these




  panel indicates a  high  level  of education.   Profita-




  bility built the schools  that they were privileged to




  attend.  It built  your  museums;  it built the life that




  we enjoy in this country  today.




            Economics  is  the  only gauge we have of  succes




  We may not agree that  it  is a perfect gauge, but it




  is the one that we have  and the one we are stuck with.




  It is the only one we  have  that is readily available.




            I question  in  my  own  mind where or what




  measure of success we  have  in many governmental




  functions.   Who is personally responsible in govern-




  ment for its actions?




            I have served  in  various -- on various




  governmental boards  at  the  local and interlocal  level




|  One thing that I did  notice is  the first thing we do




  is hire a consultant  firm of  experts; and then if the




  mistake is made later  on,  we  have a scapegoat.




            And  I don't  want  to be -- I'm not trying to




  say this in a matter  of  levity.   I think it is of




  great importance.  The  enormous impact of the proposed




  regulations, as our  competent counsel read them, will




  produce some of the  following actions.  This could

-------
                                                         709
 1    well  plug 50 per cent of the proven domestic  reserves




 2    of  oil  and gas deposits in the United States  today.




 3              Can we afford to give that away?   It  would




 4    trigger massive unemployment.  Today, we  cannot  pay




 5    for the imported amounts of energy that we  are




 6    bringing into our country, except by printing more




 7    money.   And one reason that the OPEC countries  are




 8    going up is to try to maintain their buying power




 9    against a shrinking and devaluing dollar.   With  this




10    loss,  we couldn't do it.




11              Also, we feel, or I personally  feel,  that




12    this  -- if this act is implemented as currently




13    proposed, it would bring us into an impossible  defense




14    situation for our country.  We would no longer  be




15    the country that I had the privilege of serving  in




16    World War II.




17              Again, I don't want to hurt anybody's




18    feelings.  I don't -- I'm not suggesting  this in a




19    matter  of levity.  As we grow older, we do  attend more




20    funerals of our friends and neighbors.  We  often hear




21    the words, "The Lord giveth; the Lord taketh  away.




22    Blessed be the name of the Lord."




23              I can accept that in blind faith.   I  cannot




24    accept  the propositions that have been brought  forth




25    by  the  agency.

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                                                         710
          I have  lived  in  and amongst oil-producing




wells for 30 years.   I  have  been  involved in a day and




night operational capacity  in the oil and gas-producin&




industry for 30 years.   And  we do not deliberately




set out to foul the  area that we  live in.




          I would beg and  plead with this panel to




become acquainted with  the  facts  as  we honestly




believe they are  and  to  avoid any action on imple-




menting these proposed  regulations to the oil and gas-




producing industry until such time as they can become




thoroughly informed  and  the  degree of risk can be




properly assessed and the  degree  of  regulation that




the industry truly needs can be studied out.




          The industry  stands ready  to come forward




and work with this agency  at any  time.   We are used to




working seven days around  the clock,  and we are
avai1 able.
          Thank you.




          MS. DARRAH•  Thank  you,  Mr.  Dinsmoor.




          I take  it you  will  accept  questions from the
panel?
          MR. DINSMOOR:   Yes,  ma'am,  I will try.




          MS. DARRAH:   Okay.




          MR. LINDSEY:   Mr.  Dinsmoor,  your Independent




Petroleum Producers  Association,  you  have members in

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                                                         711
 1    California?




 2              MR. DINSMOOR:  Yes,  sir.




 3              MR. LINDSEY:   I  am  led  to  believe,  or I




 4    understand that, in California, the  kinds  of  materials




 5    we are talking about here, muds and  production brines




 6    and so forth, are controlled  under the  California




 7    waste, hazardous liquid  waste  regulations,  and that




 8    they do go to Class I or Class  II-I  facilities.  Can




 9    you confirm that?  Do you  know  about  that?




10              MR. DINSMOOR:  I have no operating  experienc




11    in California.  All of my  operating  experience is in




12    the Midwest.




13              I think that you are  probably correct.   I'm




14    not familiar with the exact details  of  California




15    regulations.




16              MR. LINDSEY:   Okay.




17              MS. DARRAH:  Tim?   Do you  have anything?




18              MR. FIELDS:  Mr. Dinsraoor,  one bit  of good




19    news,  I guess, is that we  --  we have,  you  know,




20    published a correction notice  in  the  Federal  Register,




21    and we are not going to  -- we  are not  proposing to




22    require that  all your facilities  close  in  accordance




23    with the 3004 closure standards.  That  correction has




24    been published in the Federal  Register,  but it wasn't




25    in the December 18th notice.

-------
                                                         712
 1              MR. DINSMOOR:  I make that  statement  on this




 2    basis.   The long-term cost liability  is  such  that we




 3    could not afford to leave open or have on  production a




 4    single  well that would be classified  as  strip or




 5    marginally economic the day the regs  were  implemented,




 6    because then we would be into the 20-year  surveillance




 7    after it has ceased to produce revenue,  so that if we




 8    have a  well that will not generate  adequate revenue




 9    in advance, then we have to plup it the  day before




10    the regs are implemented.




11              Now,  I spent 11 months with another agency




12    of the  government,  the DOE, in a.n effort to secure




13    relief.   It was based on hope.  Unfortunately,  we were




14    not successful.  We did — Our company did invest a




15    good deal of money  trying to keep one well available




16    for production  of safe domestic reserves for  the




17    country.   "We did not receive meaningful  relief.   No




18    business can leave  itself open for  these long-term




19    liabilities based on hope so  that something could or




20    might happen down the line is not good enough.




21              As manager for our small  company,  I would




22    have to make the hard decision to plug those  wells




23    the day before  the  regs would be implemented,  and I




24    would become liable under these things,  or I  should be




25    fired and -- and a  more competent manager  put in my

-------
                                                         713
 1    place because  I  would  be  leaving the company open to




 2    predictable bankruptcy.




 3              MR.  FIELDS:   Okay.   You also commented on




 4    the burdensome nature  of  our  waste analysis require-




 5    ments, I guess for  these  muds and brines.  As a




 6    manager of various  wells,  etc.,  you know, drilling




 7    wells around the country,  do  you have a pretty good




 8    feel -- I know you  use  certain  chemicals from well to




 9    well,  I guess.   Do  you  have a pretty good knowledge




10    generally of what's  in  those  muds without doing any




11    analysis?  I mean --




12              MR. DINSMOOR:   In general,  yes.  But, you




13    know,  the regulations  as  proposed are so specific




14    that we would have  to  get  into  a detailed basis,  say




15    area by area, or in  a  given field area based on the




16    depth of well that  would  be --  control the components




17    that we might be using.





18              MR. FIELDS:   Okay.   Thank you.




19              MS. DARRAH:   I  guess  that's all the questions




20    Thank you.




21              Mr. Wes Atwood ,  Occidental  Chemical Company?




22    is Mr.  Atwood here?




23              Mr. S.  L.   Zwicker,  Union Oil Company of




24    California?




25              MR. S.  L.   ZWICKER:  Good morning.

-------
                                                         714
 1              Before I start,  Mr.  Lindsey ,  the answer to




 2    your question on the muds  and  brines  in California is




 3    a II-I site, to the best of ray  knowledge.




 4              MR. LINDSEY:  Okay.




 5              MR. ZWICKER:  My name is  Stanley Zwicker,




 6    and I am a Senior Environmental Engineer in the




 7    Corporate Environmental Sciences Department of the




 8    Union Oil Company of California in  Los  Angeles.




 9              I'm appearing here today  to  highlight some




10    of our concerns with the regulations.   We  have




11    additional detailed written comments  in preparation




12    which will be submitted for the record.




13              I will make five general  comments on the




14    regulations as a whole before  I touch  on certain




15    aspects of the 3004 regulations.




16              Our first concern is  the  degree  of risk.




17    EPA's proposed regulations contain  a  major flaw in




18    that they fail to take into account  the degree of




19    risk associated with various hazardous  wastes.  By its




20    approach in Section 3001,  EPA  has simply made nearly




21    everything hazardous and in Section  3004 has called




22    for waste management measures  that  far  exceed the




23    precautions needed for proper  management of most




24    wastes.  It is interesting to  note,  however, the




25    agency does justify its use of  special  waste

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                                                          715
categories  in Section 3004 by using: a degree of  risk/




quantity  argument,  yet refuses to recognize this




argument  on  a general basis.




           In  adopting this worst case approach to  the




regulation  of hazardous wastes,  the agency has,  in




effect, developed  a generic approach which fails to




acknowledge  the  need to analyze on a case-by-case




basis particular site locations, types of wastes to




be handled,  and  the quantities of waste to be handled.




          The proper management of hazardous wastes




should be accomplished by providing for a maximum




degree of flexibility which takes into account all of




the above factors.   Failure to provide such flexibilit




will result  in closure of existing sites and few,  if




any, new  sites to  handle the  volume of wastes that




will be designated  as hazardous.   Many operators will




simply not be able  to meet,  either technically or




economically  all of the requirements to operate a




hazardous waste  disposal facility.




          Much has  been said  about the public's




resistance to the  location of hazardous waste




facilities in  their communities.   Based on recent




revelations on several  specific  past instances,  this




fear may have  some  justification.   I think the




classification of wastes by degree of  hazard could

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                                                          716
help solve this problem.




          Those facilities  which would be operated




and designated to  receive  only the lesser of hazardous




wastes would probably  be much more acceptable to the




public.  Since it  is these  less hazardous wastes which




make up the majority of  the volume of waste to be




disposed of, the wider  availability of such disposal




sites that would be possible under the degree of risk




approach would insure  sufficient disposal sites for




most hazardous wastes.




          The degree of  hazard approach already




exists in several  state  programs for hazardous waste




management.  As mentioned  before,  we have hazardous




and extremely hazardous  in  California.  I'm also told




that Texas and Washington  have this type of approach,




and we think that  EPA  should examine these programs




in this regard.




          The second point  is the overlap of regula-




tions .




          Despite  requirements to the contrary, many




of the proposed rules  overlap into areas already




regulated under other  federal environmental programs.




In regulating activities,  such as NPDES permitted




treatment facilities and emissions from incineration,




the RCRA is placing unnecessary additional burdens

-------
                                                          717
 1   on facilities  which are  already adequately controlled




 2   to meet  the  RCRA  goal  of protection of human health




 3   and the  environment.   These RCRA-imposed burdens  add




 4   no additional  protection and,  therefore, should be




 5   eliminated for these  and any other facilities similar!




 6   regulated.




 7             Extraction  procedure.




 8             You  have  attempted to  develop a simple  and




 9   inexpensive  test.   However, in many instances, the




10   proposed procedure  which has been developed does  not




11   represent the   real  world action of wastes in the




12   environment.   In  earlier testimony provided in Denver




13   by our company, we  provided an example of this based




14   on our mining  experience.




15             Waste oils.




jg             EPA  has singled  out  waste oils as hazardous




17   because waste  oil is  a  potential carrier of other




lg   hazardous substances.   Some waste oils, such as those




19   from crude oil production  operations,  have tradi-




20   tionally been  used  for  road resurfacing and dust




2i   suppression.   These waste  oils,  the crude waste oils




22   I'm talking  about,  do  not  contain the  hazardous




23   substances found  in other  waste  oils.




24             EPA  offers  no evidence why a disposal




25   method which has  been proven environmentally safe

-------
                                                         718
 1    should be abandoned.




 2               EPA has also not extended  the  retailer




 3    exemption to service stations because  of  the so-called




 4    waste oil problem.  It must be pointed out  that the




 5    major problem associated with improper disposal of




 6    waste oil comes not from service  stations where we




 7    have a controlled situation and the waste is col-




 8    lected,  but from the do-it-yourselfers.   Service




 9    stations, in fact, provide an outlet  where  these do-




10    it-yourself individuals can properly  dispose of waste




11    oils.




12              If administrative -- If  the  administrative




13    burden as contained in the proposal is adopted,




14    service station operators could well  become reluctant




15    to accept any outside waste oils  and  improper disposal




16    of waste oils by individuals may  actually increase.




17              We believe the whole approach to  waste oil




18    management needs reevaluation with  a  fresh  look at




19    defining different types of waste  oils and  also an




20    evaluation of the current practices of service




21    stat ions.




22              Storage.




23              The proposed regulation  limits  the time




24    allowed for storage by a generator  to  a maximum of




25    90 days, after which the facility  must comply with

-------
                                                         719
 1   storage  requirements  of Section 3004 and the permit




 2   regulations.   This  time limit simply is too short for




 3   many operations.  On-site  storage by a generator




 4   should be  allowed for a period of up to twelve months.




 5   This would allow smaller operators to accumulate




 6   quantities of  waste which  can be economically collects 1




 7   It would also  allow collections from generators who




 8   are located in rural  areas to be scheduled on a more




 9   regular basis  than  could be done with the shorter time




10   period.




11              Let  me now  get into Section 3004,  and I will




12   try and hurry  through.




13              No.  1, we are concerned about the  note




14   system.




15              In Section  3004,  EPA has proposed  a rather




16 i  stringent  series of design and operating standards




17   which must  be  met by  any and  all facilities  handling




18   hazardous  wastes.  EPA  has also created within the




19   regulation  a note system which would permit  variances




20   from established design  and operating standards.




21              Because of  the unnecessarily  stringent




22   nature of  the  standards  and the large volume of wastes




23   included under  the system  which are of  a minimal




24   hazardous  nature, there  will  be a large number of




25   facilities  seeking relief  through the note  system.

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                                                         720
Each application under  the  note system, therefore,




will require a case-by-case review,  resulting in  long




delays in permitting  and  the risk of widely varying




interpretations.




          We think EPA  should abandon the note system




and designate alternative  standards  within the body




of the regulation.  Such  an approach would provide an




operator with a degree  of  certainty  that the note




system simply cannot  provide.




          An additional concern is the possibility




that insurance carriers might not be willing to




provide the necessary coverages LI the operating




permit were based on  a  note variance rather than  on  a




specified design standard.




          I would like  now  to talk about the special




waste categories.




          We believe  the  concept is  good but needs to




be expanded in several  ways.




          No. 1, the  special waste category seems,




as I read it, only to apply to a waste if it has




hazardous characteristics  under 250.13.  What about




those wastes that are listed or processes listed  under




250.14, shouldn't they  also be eligible for treatment




under special waste,  or you seem to  have precluded




that from ever happening  the way you have written the

-------
                                                         721
 1   regulat ion.




 2             By  far,  a  very strong concern in California




 3   comes  from  our  tertiary  oil recovery problem.  Under




 4   your utility  waste category,  you have established




 5   special waste  for  flu gas desulfurixation wastes  from




 6   utility power  plants.   These  are siriilar in nature  to




 7   flu gas desulfurization  wastes from tertiary oil




 8   recovery  steam  generators,  yet these are apparently




 9   excluded  from  the  utility special  waste category.




10   Without such  a  designation, the disposal of these




11   sludges would  be  fully regulated under Section 3004




12   requirements.   Costs for this could be so great so  as




13   to prevent  the  development  of these valuable oil




14   reserves.




15             I must  say that,  in case you are unfamiliar,




16   there  is  a  very large issue in California about steam




17   generation  tertiary  recovery.  There will be -- We  are




18   being  required  to  install sulfur -- SO  removal




19 ;  devices on  all  of  this equipment,  and we are going  to




20   be generating  a very large  volume of waste, which  is




21   probably  being  handled now  in a II-I facility.  It




22   would  probably  have  to go to  a Class I facility under




23   your regulation.




24             Mining  wastes  are another category on




25   special wastes  that  we have some concern aboui    We

-------
                                                         722
 1    believe that a special waste approach  is  proper for




 2    mining.  However, any mining waste  regulations should




 3    be delayed until the studies required  by  the  statute




 4    are completed and the need for such  regulations is




 5  ,  just if led.




 6              Several miscellaneous  issues.




 7  ,            We think the use of OSHA  work place standard




 8    is inappropriate.  These standards  were not  designed




 9  j  as standards to be applied to the ambient  air.



10              Second, you have a "no discharge"  require-




H    ment from the storage of organic wastes.   When you




12    look at the emissions to the air, it's an  impossible




13    criteria to meet.  If it were possible to  have no




14    discharges, then the air regulations under the Clean




15    Air Act would require that.  Instead,  there  are




16    specific emission limits required from storage tanks.




17    Emission levels consistent with  regulations  under the




18    Clean Air Act State Implementation  Plans  should be




19    allowed.




20              The inclusion of accidental  discharges such




21    as oil spills under RCRA requirements  is  not  warranted




22    We think the RCRA regulations should appropriately be




23    directed only to intentional disposal  of  waste.  We




24    have them under the Water Act Section 311 for accidental




25    spills, and we think they will be adequately  regulated

-------
                                                         723
 1    there.




 2              The inclusion  of  surface  impoundments




 3    designed to meet NPDES requirements under RCRA will




 4    result  in necessitating  costly  facility upgrading whic




 5    will have little environmental  benefit.  On this




 6    issue,  we support the American  Petroleum Institute




 7    position of not regulating  these  impoundments under




 8    RCRA at this time but conducting,  instead,  an in-depth




 9    study of the number of impoundments involved and the




10    costs and benefits to be  derived.   An alternative




11    would be to designate these  types  of facilities under




12    special waste categories.




13              Requirements to return  the soil to its




14    original condition may work  to  discourage land farming




15    The only requirement should  be  that the remaining




16    soil not cause environmental  harm.




17              Finally, I don't  think  it would be complete




18    without talking about financial  aspects.




19              We believe EPA  has  grossly underestimated




20    the costs associated with closure  and monitoring of




21    hazardous waste facilities.   The  requirements in the




22    regulations are defined  for  large-scale facilities




23    operated by companies in  the  waste  management business




24    They are applied, however,  to all  companies, including




25    those for whom waste disposal is  an incidental part of

-------
                                                         724
 1    the  business.





 2              The  cash deposits that would  be  required for




 3    all  the small  single-purpose facilities that  we as a




 4    company might  operate could seriously affect  the




 5    amount  of  capital available for normal  business




 6    activity.   We  believe EPA should allow  the site




 7    liability  self-insurance optior to  be made applicable




 8    to  closure and post-closure requirements  also.




 9              We fully recognize the need for  regulating




10    hazardous  waste disposal practices.  However,  we




11    believe the current proposal does not reflect  the




12    best way to accomplish this need.




13              We hope that these remarks and  any  written




14    material we will submit will help you to  develop a




15    better  regulation.




16              I will be happy to try to answer any




17    questions  you  might have.




18              MS.  DARRAH:   Okay.  Thank you,  Mr.  Zwicker.




19              MR.  LINDSEY:  Mr. Zwicker, two  points




20    quickly.




21              Waste oils,  you attacked  the  fact that we




22    have not allowed road oil without a permit and said




23    that there was -- we had no basis for --  to do that.




24    I  would just like to ask if you are aware --  Yesterday




25    __  I think it  was yesterday.   It may have been Monday

-------
                                                         725
 1    -- we had testimony from  someone  whom I  can't remember




 2    that -- concerning a study  that  --  that  showed that




 3    only one-half of one per  cent  of  the  material applied




 4    to roads and road oiling  remained on  the roads;  the




 5    rest of it presumably washed off  into the streets or




 6    leached into the ground.




 7              Are you aware of  that  study,  or do you know




 8    anything about that sort  of thing?




 9              MR. ZWICKER:  No, I'm  not.   My comments are




10    strictly — on this issue are  dealing with the crude,




11    waste crude oils is what  I  am  saying  should be used,




12    and we are talking about  rural areas  in  the oil  fields




13    where this is done as a very common practice.  I don't




14    think one would say you should take some of the




15    transformer oils which we know have some bad substance




16    in them and use them on road oils.  What I am saying




17    is there are different types of  waste oils and we




18    should start looking at them as  separate types of




19    waste, not one generic term of "waste oil."




20              MR. LINDSEY:  Another  point which you  made




21    which was a little interesting -- which  was interestin




22    to us because I think it's  the first  time we have




23    heard this approach.  You essentially said that  the




24    note system was too flexible and  that what you would




25    rather see -- or left too much up in  the air and it

-------
                                                         726
 1    was too flexible and that what  you  would rather see




 2    was a set of some number of  alternative regulations




 3    for facilities.  Do you think  it's  --  so by so doing,




 4    if we followed your approach,  [  would  assume we would




 5    have six, eight, ten different  sets of  alternates,




 6    regulatory,  alternate design standards.   Do you think




 7    it's possible to anticipate  all  the potential




 8    acceptable situations we might  run  into?




 9              It seems to me that  ;;he potential for




10    acceptable combinations of siting and  design and waste




11    characteristics and so on is virtually  limitless,  and




12    without a great degree of flexibility,  I don't know




13    how we can accommodate those sort of things.




14              MR. ZWICKER:  I'm  certainly  not one to argue




15    about limiting flexibility.  I'm concerned that, under




16    a note system, we are going  to  have a  lack of certaint




17    in what's going on.




18              MR. LINDSEY:  That's  true.   Any time you




19    have flexibility, there is a lack of certainty.




20              MR. ZWICKER:  But  I  think some specific




21    alternate standards whereby  an  operator can say, "If




22    I do this, I'm going to be okay," and  not have to  go




23    back to EPA with some proposals  that are going to




24    require a rather extensive review and  a lot of delays




25    in processing any permits.

-------
                                                         727
 1              I think  if  there  --  in many instances, if




 2    there were three or  four  choices,  an operator could




 3    pick one that he could  meet  and thereby streamlining




 4    the process considerably.




 5              MR. LINDSEY:  But  you would not have us




 6    do away with a note  or  note  system as part of that,




 7    would you?




 8              MR. ZWICKER:  I really don't know if you




 9    could totally do away with  it.   I  guess what I am




10    saying is that the note system  provides the flexi-




11    bility but, at the same time,  it provides a great deal




12    of uncertainty to  an  operator  in designing his




13    facility, something  that's  going to be,  I think,




14    detrimental to an  operator.




15              MR. LINDSEY:  Another problem with the




16    note system,  and let  me just have  -- ask you -- one




17    more comment on that.




18              I mean with a very stringent set of alterna-




19    tives that we would  be  afraid we would be stifling




20    innovation, that is  fhe development of new and perhaps




21        most effective or more  effective techniques.




22    Again, that's another what  we think is a -- the degree




23    of flexibility in  this  sort  of  thing and that we don't




24    intend to stifle innovation.




25              MR-. ZWICKER:  I think part of my difficulty

-------
                                                         728
 1    in  answering your question is  it  has  to  go back to the




 2    degree of risk concept.  You simply don't  have to have




 3    all of these standards complied with  from  the majority




 4    of  the wastes.  They are all not  that  hazardous.




 5              If you go back and come  up  with  a scheme




 6    that's based on a degree of risk  approach,  you could




 7    have facilities that are permitted for only certain




 8    degree of risk wastes.  If you try and make every




 9    facility good for the most hazardous  of  wastes, you




10    are going to have a lot of problems.   And  that's  why




11    I'm saying the degree of risk  approach is  so necessary




12    to  make this whole process workable.




13              MR. LINDSEY:  Okay.




14              MR. LEHMAN:  Can I follow up on  that, Mr.




15    Zwicker?




16              Earlier on in your testimony,  you indicated




17    that you felt the California,  Texas and  Washington




18    systems assuming a degree of risk  were laudable or




19    we  ought to look at them.




20              MR. ZWICKER:  I didn't  say  "laudable."   I




21    think I said you ought to look at  it.




22              MR. LEHMAN:  The implication was that they




23    were certainly on the right track  when we  were off




24    the track, or words to that effect, if I may paraphrase




25    that .

-------
                                                         729
 1              MR. ZWICKER:   That  was  our position.  Okay.




 2              MR. LEHMAN:   And  over  the  last several days,




 3    we have had a number of  people  testify,  both from




 4    industry and from the  State of  California government,




 5    about the California system,  which  is based on two




 6    degrees of two different  classifications.  But one of




 7    the principal things that came  out  of that testimony




 8    is that under -- as we  understand it from this




 9    testimony, under the California  system,  which does




10    have two degrees of classification  of waste, that each




11    and every permit which  is issued  under that extremely




12    hazardous category is  done  on a  case-by-case basis.




13              Now,  your statement in  here leaves me very




14    confused because you are basically  saying that this




15    case-by-case review based on  a  degree -- based, you




16    know, without any degree of hazard  situation gives you




17    a  lot of problems and  you want us to abandon -- Your




18    statement says  EPA should abandon the note system,  and




19    yet that's exactly the  system that you are operating




20    under here in California as far  as  I can tell.




21              I'm a little  confused  as to how --




22              MR.  ZWICKER:   What  I am -- What I was trying




23    to get at is many of the wastes  in the petroleum




24    industry are adequately handled  and  treated in a II-I




25    facility right  now.   Some of  our  --  And  that's a

-------
                                                         730







 1   flexibility  that's  because  of  the degree of hazard




 2   concept.   It --




 3              Under your  system,  it  would have to be a




 4   Class I site.  I  am not  sure  that there will be an




 5   adequate number of  Class  I  sites in the State of




 6   California to handle  all  the waste.




 7              MR. LEHMAN:  Well, we  don't have any Class




 8   I, Class II; we have  hazardous waste facilities.




 9              MR. ZWICKER:   You have a hazardous waste




10   which is effectively  a Class  I site.




11              MR. LEHMAN:  Okay.   I  guess we are not




12   getting very far  with this  discussion.   But I just —




13   I frankly  am -- I just really  don't  understand how you




14   can object to --  You  know,  you want  flexibility, you




15   want case-by-case review, and  yet you are saying you




16   don't want the note system, which is the way we have




17   done it, so  . .  .




18              MR. ZWICKER:   Let me try,  in  our written




19   comments,   to try  and  clarify that a  little bit more.




20              MR. LEHMAN:  All  right.   Okay.




21               MR. FIELDS:  Mr.  Zwicker,  one comment.




22               In your discussion of  overlap, you identifie




23    two areas.  One was NPDES permit facilities, which we




24    have heard several  people comment  about.




25               But the second  one,  if you could help me

-------
                                                         731
 1    define that a little bit,  you  indicated that RCRA was




 2    not adequately considering existing regulations in the




 3    area of emissions from  --  from incinerators.




 4              Are you suggesting that  we should not -- not




 5    write hazardous waste incinerator  regulations or




 6    write different standards  or what?




 7              MR. ZWICKER:   I  think very simply you should




 8    leave the regulation of  emissions  from incinerators to




 9    the Clean Air Act.  I think they are adequately




10    regulated by the Clean  Air Act,  by SIP's and the new




11    source performance standards.




12              MR. FIELDS:   Well, the Clean Air Act, the




13    regulations were not written with  hazardous waste




14    incinerators in mind.




15              MR. ZWICKER:   No, but  they regulate what




16    comes out of those stacks  very rigorously.




17              MR. FIELDS:   All  right.   Thank you.




18              MS. DARRAH:   Let me,  Harry,  just follow up




19    on that .




20              Under your comment on  the NPDES facilities,




21    are you suggesting that under the Clean Water Act, you




22    believe we can adequately  regulate discharges or




23    leaking to ground water  from ponds in  the treatment




24    train,  or are you saying that  you  don't believe such




25    leaking poses an environmental problem"7

-------
                                                         732
 1              MR. ZWICKER:  I think  I'm  endorsing what




 2    API  said.   Let's study the problem.   We  have regula-




 3    tions.   We have built a lot of facilities  to -- under




 4    the  Water  Act.   And now before we  regulate,  impose




 5    additional burdens in upgrading  these  facilities,  let';




 6    see  what the problem is.




 7              MS. DARRAH:  All right.  But  you are not




 8    saying that we could necessarily under  the Clean




 9    Water Act, should we find or believe that  there is an




10    environmental problem, that we necessarily could




11  !  adequately regulate them under the Clean Water Act?




12              MR. ZWICKER:  There may  be a  need to regulat




13    under this act, but I think we have  to  study that




14    and  demonstrate it clearly first.




15              MS. DARRAH:  Okay.  I  just wanted to clarify




16    that.  Thank you.




17              Harry?




18              MR. TRASK:  Yes.  Mr.  Zwicker, if I might




19    ask  a few questions on this waste  oil,  and I'm refer-




20    ring now to used lubricating oil,  not  to what comes




21    out  of your well.




22              You indicated that --  I  think  you said that




23    the  major  problem associated with  disposal of waste




24    oil  came from do-it-yourselfers.




25              MR. ZWICKER:  That's what  I  am led to believ

-------
                                                         733
 1              MR.  TRASK:  What is -- specifically  is  that




 2    problem?




 3              MR.  ZWICKER:  Well, I think  there  is a  lot




 4    of  home  mechanics around who change  their  oil  and




 5    don't  have any place to put  it, and  it  gets  discarded




 6    either into storm drains or  somehow  put  in some kind




 7    of  containers  and just put out with  the  regular trash.




 8              MR.  TRASK:  Well,  you see, that's  a  little




 9  I  different  than what we had been led  to  believe




10    previously, that the waste oil was used  as a carrier




11    for chemicals  and got spread on the  roads  and  in  horse




12    arenas and caused horses to  die and  this  sort  of  thing




13    and so that didn't seem to us to come  from do-it-




14    yourselfers;  it seemed to have come  from  waste oil




15    collectors who then took it  and did  not  re-refine it.




16    So  that  was one of the reasons we are  dealing  here.





17               In the area of 90-day storage as it  applies




18    to  waste oil collection and  storage, what is the




19    current  practice here in California  regarding size of




20    tank,  frequency of pickup9




21               And one other thing  I'm wondering, does your




22    company,  or do other oil companies  pick up from their




23    own stations sometimes, or is  it  all by some




24    independent?




25               MR.  ZWICKER:  I'm  going to have to check int

-------
                                                         734







 1    that, Mr. Trask.  I'm not  sure  of  the  details of that.




 2    I will get back to you on  that  information.   I would




 3    rather check out than make  an erroneous  statement




 4    here.




 5              MR. TRASK-  You  are submitting --




 6              MR. ZWICKER:  Yes, we  are.




 7              MR. TRASK:  -- a  written statement?




 8              MR. ZWICKER:  Yes, we  are.




 9              MR. TRASK:  If you could add some  of that




10    data and information in there,  we  would  appreciate it.




11              MR. ZWICKER:  Thank you.   I  will.




12              MR. TRASK:  Thank you.




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




14              We will recess for ten minutes;  reconvene at




15    10:35.




15              If Mr. William Davis  is  here,  he will then




17    be the next speaker.  Otherwise, Ms. Karen Shewbart




ig    will be the next speaker at that time.




19              (Short recess. )




20              MS. DARRAH:  One  announcement.   People have




21    been inquiring as to how to get  copies of  the hearing




22    transcript.  As I announced earlier this morning, if




23    you do want to purchase copies  rather  than reading




24    them in the EPA Library, please  contact  the  Court




25    Reporter.

-------
                                                         735
 *              Mr. William Davis,  County  of  San  Diego?



 2              MR. WILLIAM M. DAVIS:   My  name  is William




 3    Davis, better known as Bill Davis,  from the County of




 4    San Diego.




 5              Forgive me if  I sound  just  a  little croaky.




 6    That Mexican food finally got  to  me.




 7              And when I arrived,  I  see  that  we have a




 8    Madame Chairman -- Chairwoman, Chairperson  rather than




 9    a Mr.  Chairman, so I will address  you as  Madame




10    Chairperson.




11              MS. DARRAH:   Thank  you.  That's better than




12    some people have done.




13              MR. DAVIS:  I  am a  little  out of  breath.   I




14    just arrived.




15              On behalf of the San Diego  County Board of




16    Supervisors, I would like to  present  comments




17    pertaining to the Environmental  Protection  Agency's




18    supposed rule under Section 3004,  Subsection




19    250.43.9(b) of the Solid Waste Disposal Act as




20    substantially amended by the  Resource Conservation




21    and Recovery Act of 1976.  We  are  concerned with the




22    financial responsibility ramifications  of the proposed




23    rules.




24              The County of  San Diego  is  both owner and




25    operator of a small-scale hazardous  waste,  or

-------
                                                         736
 1    California designation Class  I, disposal  site.   The




 2    facility was established in 1961  in  conjunction with




 3    the  county's Otay sanitary landfill  to  serve  the




 4    environmental needs of the industry.   I was personally




 5    involved in establishing that  facility.




 6              It is one of ten such sites  presently




 ?    approved by the state for the  confinement  of  most  typet




 °    of  industrial and toxic chemicaJ  wastes.




 9              The service area includes  San Diego and




10    Imperial Counties and a portion of Orange  County.   The




11    site is  underlain with a thick layer of low




12    permeability bentonite clay which has  been determined




13    by  the  state as suitable for  the  containment  of




14    environmentally dangerous wastes.  Also,  geological




15    studies  have shown that confinement  of  hazardous




16    wastes  at  this location is not considered  an  endanger-




17    ment to  undergound water supplies or to the environ-




18    ment.




19              The area climate is  se-niarld, with  an




20    average  annual rainfall of 10  inches.




21              In addition to the  county's  Otay site, the




22    BKK  Corporation of Wilmington, California, currently




23    operates a large-scale liquid  industrial  waste




24    transfer station in the San Diego metropolitan  area




25    for  transshipment to its major disposal facility at

-------
                                                         737
 1   West Covina in Los  Angeles  County.




 2             In regards  to  the recently published




 3   Environmental Protection Agency's proposed hazardous




 4   waste guidelines  and  regulations, the County of San




 5   Diego believes that  the  requirement  under Subsection




     250.43.9(b), Financial Responsibility,  that owners/




     operators of hazardous waste  disposal facilities




     maintain financial  responsibility in the annual




 9   aggregate of $10  million would  be unrealistic,




10   unreasonable,  and would  be  prohibitively expensive.




     Premium costs for such liability  insurance, even if




12   available,  would  be extremely costly, more particularl




13   umbrella coverage.




14             It is estimated by  the  county's risk manager




15   that financial ramifications  of  the  annual premium




16   costs would be $500,000,  nearly  a half  million, and




17   possibly more.   Costs of providing  the  proposed amount




18   of liability insurances  would,  of course, be passed on




19   in the form of higher disposal  fees.




20             During  the  first  six  months of Fiscal Year




21    78-79,  gross revenues from  the  county's hazardous




22    waste disposal operations amounted  to only $52,500.




23    Projected revenue for the year  would be about  $100,000




24    Because of  this narrow revenue  base,  the fees  would be




25    prohibitively  higher.

-------
                                                         738
 1              I  wish to add at this point that  at  the




 2    recent  conference held in San Diego on hazardous




 3    materials  management,  annual insurance premiums were




 *    quoted  as  probably being somewhat less than  the




 5    $500,000  figure we just quoted.




 6              For your information the County of San Diego




 '    is  presently self-funded and se2f-administrates its




 "    general liability exposures.  In other words,  self-




 9    insured.




10              Funding for  exposures is budgeted  for each




11    fiscal  year  based upon actual actuarial and  experience




12    data.   Catastrophic losses that might exceed the




13    fiscal  budget are backed by a reserve liability




14    contingency  fund that  is specifically reserved for




15    this  purpose.




16              in addition  to that fund, the county's




17    unallocated  reserve would be a source of funding in




18    the event  of an unlikely contingency.




19              The county's reserve liability fund  is




20    currently  at a $1 million level, and will be




21    incrementally increased over ensuing years  to  reach




22    a  $3  million level, which is believed more  than




23    adequate  to  meet any unforeseen or unsuspected jury




24    verdict.




25              Since the county undertakes its own  claims

-------
                                                         739
 1   administration with  insurance  industry trained claims




 2   personnel and defense  attorneys,  the financial burden




 3   of an unexpected  claim would be minimized.  This would




 4   be particularly true when  consideration is given to




 5   the fact that cases  of this  magnitude would be in




 6   litigation which  presently requires approximately five




 7   years to resolve  through the courts in this area of




 8   the country.  This would constitute a buffer in that




 9   there would be adequate advance time to properly




10   reserve funds to  cover a potential  loss.




11 I            Parenthetically, the  County of  San Diego's




12   tax base is presently  $8.06  billion and expanding.




13   Ten per cent of equity, if applied  to the tax base  as




14   qualifying under  the proposed regulation  for the




15   level of self-insurance, would  be $800 million.




16             In substance, it is felt  that the County  of




17   San Diego's self- insurance program  is consistent with




18   and equivalent in effect to  EPA's proposed regulations




19   and would be adequate  for any legitimate  damage claim




20   that may arise from operations  of the county's




21    hazardous waste disposal site.




22              Suffice it to say  the county was established




23    as a governmental entity in  1850 and it is not likely




24    to close its doors or  sidestep  its  financial responsi-




25    bilities as could be the case with  private industry.

-------
                                                        740
    It is a distinct  possibility,  however, that the county




    could be  faced with  the  alternative of closing the




    only site south  of Los  Angeles County approved for the




    disposal  of  environmentally dangerous wastes if




    required  to  provide  financial  responsibility which




    would exceed present  fiscal capabilities.




              Closure of  the site  could result in illegal




    disposal  of  these wastes in unapproved areas, with




 9   concomitant  adverse  effects on the environment and




10   public health, and in hardships to local agencies  and




11   to industries generating environmentally dangerous




12   wastes.




13             Furthermore,  the resulting long haul




14   distance's and lack of competition could result in




15   higher disposal  costs which would ultimately be passed




16   on to the consumer.




17             In the  Environmental Protection Agency's




18   own words,  "EPA  must  take into account the need for




19   more hazardous waste  management capacity as it develop




20   the regulatory program because public health and  the




21   environment  will  not  be  well protected if one of  the




22   results of  the program is to shut down most of the




23   facilities  currently  available."




24             We are  just as concerned, and perhaps more




25   so, as the  Environmental Protection Agency with respect

-------
                                                         741







 1    to safeguarding the public and  the  environment from




 2    improper disposal of hazardous  wastes.   While it is




 3    understandable and agreed that  some  form of financial




 4    responsibility is necessary,  it  is  our  feeling that




 5    the requirement of such  financial responsibility in




 6    the amount of $10 million annual  aggregate  upon a




 7    government agency would  impose  an undue financial




 8    burden upon the community and threaten  closure of the




 9    county's only hazardous  waste disposal  facility.




10              In summary, the San Diego  County  Board of




11    Supervisors believes that the county's  self-funded




12    liability program would  adequately  provide  for any




13    legitimate claim which might  arise  in operation of its




14    OTAY hazardous waste disposal site.   It is, therefore,




15    respectfully requested that this  statement  be taken




lg    into consideration in EPA' s final rule-making.




17              Thank you for  the opportunity to  let you




lg    know of our feelings, and I will  accept any questions.




19              MS. DARRAH:  Thank  you  very much.




20              MR. LINDSEY:   Bill, just  one  point of




2i    clarification.




22              You are aware,  I think, of the provision




23    under the site life liability insurance provisions




24    for self-insurance and liability  insurance, but also




25    this phrase which says "other evidence  of financial

-------
                                                         742
 *    responsibility acceptable to the Regional  Administra-




 2    tor."




 3              MR.  DAVIS:   Yes, Fred, I'm well  aware  of




 4    that,  as  you and I have discussed in the past, and




 5    hopefully that our self-funded  insurance program will




 6    be  taken  into  consideration at  the time that  we  appliec




 7    for  --




 8              MR.  LINDSEY-   Okay.




 9              MR.  DAVIS:   -- a permit to operate.




10              MR.  LINDSEY:   Let me  ask a couple of




11    questions about that.




12              This self-funded self-insurance , the reserve




13    fund,  what is  that?  Does that  bank money, this




14    reserve  fund,  which is  available to handle any




15    contingencies  that the  city might come up  with?   Is




16    that what it is?




17              MR.  DAVIS:   Unfortunately, Fred, I  can't




18    give you  a direct answer on that.  But there  is  a




19    reserve  fund in the amount of the $1 million, and




20    which  is  available immediately.




21              Now,  whether  that's in a bank or not or in




22    cold cash, I don't know.




23              MR.  LINDSEY-   But it  is readily  available?




24              MR.  DAVIS:   It is readily available, yes.




25              MR.  LINDSEY:   And there is no liens or

-------
                                                        743
1    anything  like that?




2              MR. DAVIS:   No liens against it.




3              MR. LINDSEY:  You also made the suggestion




4    that  you  had, what was it,  $8 billion in tax --  a  tax




5    base?




6              MR. DAVIS:   As a gross tax base.




7              MR. LINDSEY:  A lot of times these




8    facilities like this  are set up as authorities in




9    such  a  manner that the tax base of the city and  the




10    other resources of the city are not — or county or




11    whatever  are  not available to settle claims against




12    that  authority.   Is that the case in your situation?




13    In other  words,  is your operation -- would the tax




14    base  of the  city and  the other -- other resources  of




15    the city  be  available to settle a claim against  the --




16    against the  facility?




17              MR. DAVIS:   I'm not sure, Fred.  I was




18    interpreting  the 10 per cent of equity, and I assume




19    if applied to private industry, it would be 10 per




20    cent  of the  equity that they have in the business.




21              Now,  that was the best cross-reference I




22    could make.   But what I was attempting to say was  that




23    I doubt that  we will  go out of business.  I think  we




24    will  -- we will have  the -- the — the -- the financia




25    means to  stand  behind any possible damage claim  that

-------
                                                         744
 1    might be filed against the county.   Whether or not we




 2    could tap that $8. billion or not,  1  don't  know.




 3              MR. LINDSEY:  I think  the  --  in  trying  to




 4    assess whether or not a city or  a  county  had -- was




 5    able to show other evidence of  financial  responsibility]




 6    I  think we would  have to be assured,  it  would seem to




 7    me,  at least under these regulations,  that  the -- ther^




 8    was  -- that the resources were  available  to -- to such




 9    a  suit as opposed to simply being  there.   If they




10    weren't available, it wouldn't  do  us  much  good, I




11    wouldn't imagine.




12              MR. DAVIS:  Yes.  I think  the point I was




13    attempting to make,  Fred,  was that  for  every $100,000




14    of insurance, we would have to  increase our rate  by




15    10 cents per gallon.




16              Now, I'm not dealing  in  metric  tons this




17    time,  but gallons.




18              Added to our present  operating  cost of  4




19    cents, that would be about 14 cents  a  gallon.   And




20    then,  of course, if the insurance  premium  goes higher




21    than that,  we would just be forced out  of  business,




22    and  those who have small amounts of  service waste to




23    dispose of would just simply have  to  find  alternative




24    means, and that would take them  longer  haul distances.




25              MR. LINDSEY:  Okay.

-------
                                                         745
 1              MS.  DARRAH:   I  had a question.




 2              You  mentioned sort of parenthetically  that




 3   at the San  Diego  meeting  last week, you had heard




 4   information  that  some  of  the insurance premiums  might




 5   not be as  high as  apparently your estimate --




 6              MR.  DAVIS:   That's true.




 7              MS.  DARRAH:   -- have been.  Can you give  us,




 8   or could you submit  in writing the assumptions that




 9   your county's  risk manager  is going on and whether  —




10   the information you've received in San Diego and




11   perhaps here today,  whether your estimate would  change




12              MR.  DAVIS:   It  probably would.  However,  it1




13   doubtful that  the county  would be willing to go  out of




14   the United States to obtain any kind of insurance




15   premium.  We have heard Lloyds of London and others




16   as well.  We are hopeful  that our self-insurance




17   program would  be approved.




18             However, in  response to your question, there




19   were some figures that  might range  from 5,000 to




20   80,000.   I haven't seen anything in black and white




21    insofar as that's concerned.   It was just strictly  a




22   job on situation.   It  would depend  upon how secure  the




23    city is.   The  engineer  would have to determine that.




24              And,  of course, one problem in that that




25    concerns us is that, if we  are dealing with a private

-------
                                                         746
 1    insurance  company,  they could conceivably  cancel  your




 2    policy  on  a moment's notice on a year-to-year  basis.




 3    That  concerns us,  and I think that would concern  the




 4    entire  industry.   That's one reason why the  county is




 5    self-insured.




 6              We do have a source of constant  funding.




 7    But  insofar as how the risk manager arrived  at  this,




 8    he made several phone calls, I'm told, and actually,




 9    quoting what he told me, was that they just  laughed at




10    him.   I don't know.   I'm just quoting.




11              MS.  DARRAH:   Okay.  I guess we have  no




12    further questions.




13              I have changed the order slightly  of  the




14    next  speakers based on the fact that some  people  say




15    they  do have earlier plane reservations.




16  ]            I have also informally been told that there




17  j  are  perhaps at least three people who had  preregisterec




18    who  will not be speaking.   But let me just tell you




19    the  next three speakers I  will call in this  order:




20    Karen  Shewbart, Jim Collins and Jay Snow.




21              Ms.  Shewbart from Dow Chemical.




22              MS.  KAREN SHEWBART:  Good morning.   I am




23    Karen  Shewbart, Environmental Services Department,




24    Texas  Division of  Dow Chemical Company.




25              I wish to summarize some of our  concerns in

-------
                                                         747
 1   response to the agency's  solicitation for a compre-




 2   hensive review of all  issues  raised by the agency in




 3   the preamble and proposed  regulations, those addressing




 4   standards applicable to owners  and operators of




 5   hazardous waste treatment,  storage and disposal




 6   facilities,  and the associated  background documents.




 7             We have worked  closely  with the agency and




 8   with various trade associations,  professional societies




 9   and standard-setting groups over  the past two years




10   to help develop a consistentset of meaningful  regulation;




11   for hazardous waste management  that will  provide




12   adequate benefits in protection of human  health and




13   the environment from reasonable risks, while demanding




14   realistic expenditures of  resources.




15             Towards this goal,  we have provided comments




16   pertaining to all major aspects of the draft regula-




17   tions and those previously proposed.   Today, we wish




lg   to highlight our major concerns regarding:




19             First of all, the general regulatory




20   structure of Section 3004.




21             Secondly,  general facility standards; and




22 i            Third,  standards for  treatment  and disposal.




23             First,  the regulatory structure.




24 I            Specifically, the use of specific design and




25   operating standards  versus performance standards.

-------
                                                         748
 1              One major concern with the proposed  Section




 2    3004  regulations is the overspecification  of  design




 3    and operating standards by the agency.   We  believe  thai




 4    the regulations would be greatly streamlined  by




 5    prescribing what performance is required and  allowing




 6    flexibility in what specific procedure  is  used.   Over-




 7    specification of procedural standards  complicates the




 8    regulations and restricts flexibility  of choice.   The




 9    combined  effect is the suppressed development  of  new




10    technologies and more cost-effective solutions.




11              The use of rigid design and  operating




12    standards is especially burdensome and  unreasonable




13    when  applied equally to new and existing facilities.




14    Proposed  standards should recognize and provide  a




15    reasonable mechanism for allowing the  continuing




16    operation of existing facilities which  are  adequately




17    protecting human health and the environment.




18              The use of notes as a mechanism  to  mitigate




19    the technology-suppressing eflect of specific  design




20    and operating standards, is certainly  a step  in  the




21    right direction.  However, the relief  provided to the




22    regulated community by the use of notes is  seriously




23    undermined by the agency's determination that  alterna-




24    tive  requirements may only be substituted  for  those




25    design and operating standards accompanied  by  notes.

-------
                                                         749
 1              We urge the use of notes be  generalized to




 2    allow a facility to substitute an alternate  requirement




 3    for all design and operating standards  if  the facility




 4    can demonstrate that the proposed alternative meets the




 5    human health and environmental standards,  or that it




 6    provides the same degree1 of performance  as the




 7    prescribed standard for which it is  to  be  substituted.




 8              Under general facility standards,  this is




 9    another area of considerable concern to  us.




10              First of all, under site selection, the




11    proposed restrictions for general site  selection shoulc




12    not be applied equally to all hazardous  waste manage-




13    ment facilities.




14              For example, there is no reason  to prohibit




15    the siting of an incinerator or other  destructive




16    device in a floodplain, floodway or  near an  active




17    fault,  where there is no risk of the release of




18    harmful amounts of hazardous wastes.




19              In addition, the location  of  storage and




20    treatment facilities should be based on  a  classifica-




21    tion of wastes by degree of hazard.  This  would




22    result in a more realistic siting procedure  based on




23    protection of human health and the environment.




24              We strongly recommend that the agency




25    modify its proposed siting location  restrictions to

-------
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11




12




13




14




15




16




17




18




19




20




21




22




23




24




25
                                                         750
fully recognize appropriate  exemptions.




          The 500-year  floodplain  is  another area of




concern.




          Proposed Section 250.43-l(d)  prohibits the




location of a facility  in a  500-hundred year flood-




plain.  This provision  is overly  stringent for




practically all waste disposal  areas  and bears no




demonstratable relationship  to  the protection of human




health or the environment.




          Moreover, the proposed  regulation is not in




the public interest since it  might require many well-




designed and environmentally  sound facilities, such




as in the Gulf Coast area, to close.




          We recommend  that  all  site  restrictions




predicated on the use of the  500-year floodplain be




removed the regulation.




          Concerning the regulatory floodway, based




on the way this regulation is written relating to




locating a regulatory floodway,  new facilities are not




allowed to locate in the regulatory floodway and




existing facilities must be  closed.




          In many areas of the  country,  the designatio




of regulatory floodways is not  complete today and was




not in existence when present waste disposal




facilities were built.

-------
                                                         751
 1              This requirement  is  unfairly  rigorous for




 2    existing facilities, and  some  exceptions  should be




 3    allowed.  Not to allow some  exceptions  for existing




 4    facilities could harm the overall  objective of RCRA




 5    by creating a serious shortage  of  acceptable hazardous




 6    waste disposal facilities.




 7              Old facilities  should not  be  forced to close




 8    or relocate in order to meet the selection criteria




 9    outlined in this section  if  these  facilities pose no




10    threat to human health or the  environment.




11              Groundwater and leachate monitoring is




12    another area of concern.




13              Proposed Section 250.43-8(c)(4)  states that




14    if after the comprehensive analysis  has  been performed




15    and background levels for groundwater  and  leachate




16    monitoring are established,  analyses  show  that the




17    quality of the groundwater or  the  water  in the zone of




18    aeration is statistically different  from  background




19    quality, the facility must discontinue  operation until




20    the Regional Administrator determines  what actions




21    are to be taken.




22              It is unreasonable to  require  a  facility to




23    suspend operations within seven  days  of  analysis,




24    because many of the parameters  measured  by the




25    comprehensive analysis are not,  of themselves, toxic

-------
                                                         752






 1    and  would  not  evidence any endangerment  to  human




 2    health or  the  environment.  Only in cases where  human




 3    health  and the environment are endangered should  a




 4    facility be required to modify or suspend operations.




 5              We recommend that a statistically  significant




 6    monitoring deviation from background levels  should




 1    cause additional investigative testing and  evaluation,




 8    but  that such  a condition in itself should  not be




 9    justification  for termination of operations.




10              Under standards for treatment  and  disposal,




11    incineration.




12              Effective destruction of hazardous  wastes




13    wherever viable is preferable to perpetual  care.  The




14    overly  stringent proposed procedural standards for




15    incinerators,  however, may force the disposal of  waste




15    by less preferable modes.




               We are concerned about the excessive




lg    specifications for trial burns and various  operating




19    parameters, as well as the oveilanping with  other




20    environmental  regulations.




               The  agency,  in its development of  Subtitle




22    C  regulations, should only address the proper




23    disposition of hazardous wastes.  Thus,  destruction




24    efficiency is  the only meaningful parameter  for




25    establishing performance for the incineration of

-------
                                                         753
 1    hazardous waste.




 2              We contend,  however,  that  the proposed




 3    destruction level of  99.99  per  cent  is unreal 1stical1y




 4    high and will further  discourage  the use of incinera-




 5    t i o n .




 6              The proposed  99.99  per  cent  appears to be




 7    based  upon highly controlled  test  burns, spot deter-




 8    minations under ideal  conditions,  and  in some cases




 9    with less than cost-effective requirements.




10              For example,  most of  the referenced test




11    burns  in the incineration background document,  Back-




12    ground Document No.  25, involved  a ratio of auxiliary




13    fuel to waste quantities of over  100 to 1.




14              Furthermore,  the  99.99  per cent destruction




15    efficiency has not been demonstrated to be  cost-




16    effective or to be consistently achievable  on day-to-




17    day operations,  especially  for  those units  experiencing




18    variable waste loads and fuel composition.




19              In particular, we dispute  the conclusion of




20    the agency that halogenated aromatic hydrocarbons are




21    more thermally stable and require  more stringent




22    operating conditions for their  destruction.  We contenc




23    that the temperature of 1200  degrees centigrade




24    specified by the agency is  not  supported by o;ther th




25    temperatures for complete combustion of many

-------
                                                         754
 1    halogenated pesticides and other case  histories




 2    reported  in the background document, or  by  the




 3    literature cited in the Environmental  Impact  Statement,




 *    Appendix  M.




 5              Furthermore, it is readily accepted that




 6    excessively high temperatures can  adversely affect




 7    incinerator operation by:




 8              First, forming nitrogen  oxides which are




 9    designated pollutants.




10              Secondly, increasing corrosion and  shortenin;




11    incinerator life.




12              Third, by increasing energy  requirements;




13    and




14              Fourth,  by increasing capital  and operating




15    costs.




16              Any specified combustion  criteria for




17    hazardous incinerators should be allowed if a facility




18    owner-operator can demonstrate adequate  destruction




19    efficiencies.




20              We recommend that the regulations for




21    incineration be generalized by excluding all  reference




22    to  halogenated hydrocarbons and by  requiring  a




23    realistic level of destruction efficiencies.




24              Landfills.  The agency states  that  the




25    owner/operator of a landfill must  demonstrate that no

-------
                                                         755
 1   direct contact  will  occur between the landfill and




 2   the water  table.   This  standard is unnecessarily




 3   stringent  in many  cases for the protection of the huma




 4   health and  the  environment.




 5              The human  health and environmental standard




 6   states that all  facilities shall be located, designed,




 7   constructed and  operated in such a manner as to




 8   prevent :




 9              a.  Endangerment of an underground drinking




10   water source beyond  the facility property boundary,  or




11              b.  Endangerment of an aquifer which is




12   designated  as a  sole  or principal aquifer.




13              It is  necessary to assess each situation on




14   its individual merits.   For example,  a unique




15   situation  exists in  the Gulf Coast area, which is




16   described  in the Texas  Department of  Water Resources




17   Technical  Guidelines  for Hazardous Waste Disposal.




18   The situation is one  of a low permeability clay and




19   high water table as  typified by the Beaumont clay




20   formation.  Pill placed below the water table could




21   cause localized  saturation of the clay liner, but




22   extremely slow movement of the groundwater together




23   with attenuation and/or biodegradation precludes




24   harmful distribution  of materials from the landfill.




25             We do not believe  that a landfill built in

-------
                                                         756
 1    the  area described above should  be  placed several feet




 2    above  ground.   The hydraulic  head which would develop




 3    would  cause considerably higher  rates  of permeation




 4    to  occur than  those associated with a  below-ground




 5    faci1 it y.




 6              There is also the additional hazard due to




 7    the  potential  for slumping and disintegration of the




 8    walls  of the facility.  On balance,  the hazards




 9    associated with this above-ground facility would be




10    much greater then the hazard  potential  of n facility




11    contacting groundwater in a thick impermeable clay bed




12              We,  therefore, maintain that direct contact




13    of  the landfill with groundwater be selectively




14    permitted,  where due to unique soil  characteristics,




15    harmful  contamination of groundwater will not occur,




16    and  there  is no endangerment  of  human  health or the




17    envi ronment.




18              We recommend that unique  area characteristic




19  i  be  recognized  and addressed at the  state level, as




20    have permafrost areas, consistent with what is




21    feasible and necessary to protect human health and the




22    environment.




23              We will be submitting  detailed comments by




24    March  16th.




25  j            Thank you for the opportunity to address som

-------
                                                         757
 1    of  our  concerns today.




 2              MS.  DARRAH:   Thank you.




 3              Will you answer questions from  the  panel0




 4              MS.  SHEWBART-   Yes.




 5              MR.  LINDSEY-   Okay.




 6              MR.  FIELDS-   Ms.  Shewbart.  first  concerns




 7    regarding  your comments on that, that we  have a




 8    generalized  note mechanism, that we allow deviation,




 9    provide  a  deviation from any standard.  It  would  help




10    us  when  you  submit your written comments  if you could




11  I  identify specifically  -- You know, we have  made a




12    decision,  a  conscious  decision, that  certain  standards




13    should  not have a deviation, you know,  in any case.




14    It  would help  us, when you provide your written




15    comments,  that -- if you would indicate to  us for




16    certain  selected standards that we ha\e not allowed  a




17    note  deviation why you feel there should  be situations




18    where generalized deviation is appropriate.




19              MS.  SHEWBART-   All right.




20              MR.  FIELDS:   The other thing  was  that you




21    felt  we  should remain  -- remove the 500-year  floodplain




22    requirement.   It wasn't clear to me as  to whether you




23    were  advocating that we have a different  floodplain




24    requirement,  like a 100-year floodplain,  or did you




25    feel  we  should have no floodplain requirement? I

-------
                                                         758







 1    wasn't  sure what your position was on  that.   You




 2    indicated a 500-year floodplain was too  stringent.




 3              MS.  SHEWBART:   Yes, that's correct.




 4              MR.  FIELDS:  What is your --  I mean  what  is




 5    your  --  what is your position regarding  the  standard




 6  ;  in  that  area9   That wasn't clear to me.  What  is the




 7    alternative you were --




 8              MS.  SHEWBART:   Okay.  The calculation, I




 9    think this has been addressed already  this morning.




10    The most  reliable data that is available for  floodplair




11    calculations has only been around for  about  120  years,




12    and technical  background for a 500-year  floodplain  is




13    extrapolated data,  and I don't think it's technically




14    defensible data for what level you have  to protect  to.




15              So a 100-year  floodplain is  a  more  realistic,




16    we  think,  performance standard.




17              MR.  FIELDS:  All right.  The  next  question




18    is  regarding the destruction efficiency  requirement




19    for incinerators.   Your  recommendation  was that  the




20    agency  develop a realistic number.  I  was wondering




21    in  your  written submission, were you going to  provide




22    a --  some -- what you felt was a realistic number for




23    destruction efficiency for incinerators?  Your comment




24    was that  ours  was too stringent.




25              MS.  SHEWBART:   Yes.  I think  this  was  touchec

-------
                                                         759
 1    on yesterday by Mr. Beale.   I  think you explored this




 2    with him quite a bit, and we  said  it might be 96 per




 3    cent,  it might be 95 per cent,  but  it's got to be




 4    determined realistically what  is  a  realistic per-




 5    formance standard for an incinerator.   It's got to be




 6    based  on a cost-benefit ratio.




 7              MR. FIELDS:  Okay.   That's all I have.




 8              MR. LINDSEY:  One more point  on the incinera-




 9    tion,  or two more points on the  incineration area, if




10    I  might.




11              One of the other points  you made was that




12    halogenated hydrocarbons are  not  inherently as stable




13    as other materials.




14              MS. SHEWBART:  Thermally.




15              MR. LINDSEY:  Pardon me?




16              MS. SHEWBART:  Thermally  stable.




17              MR. LINDSEY:  Thermally  stable.   Do you have




18    information which — You have  incinerators.   Do you




19    have information that -- test  burn  information which




20    shows  destruction efficiencies  and  the  light and




21    emissions and so forth from halogenate_d hydrocarbons




22    that you would be willing to  share  with us?




23              MS. SHEWBART:  I was quoting  from your




24    background document that had  tables listing the




25    thermal  destruction of halogenated  aromatic carbons.

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                                                         760
  That was the data that  I  was  referring to, and


  t emperatures.

            MR. LINDSEY:   Seems to me,  if I remember

  correctly, all the testing  we did was above 1200

  degrees.   Okay.


            In another  --  in  another area on incinera-

  tion,  you indicated that  the  test burn procedure was

  too oporessive,  too stringent or too  -- too much or

  something.  Can you expand  on that?  What is it about

  the test burn, the provision  for running test burns

  to demonstrate equivalent destruction, that gives you

  prob1 ems?


            MS. SHEWBART•   Well,  we do  -- we do consider

  that to have to test  every  waste would be -- would be

  burdensome beyond the benefits  that could be achieved.

            MR. LINDSEY:   All right.   Our concern, I

  guess,  would be that  --  that  test burns be run then

  on the -- I guess on  the  most thermal ly stable waste

  mixture that a company  runs.   Do you  feel that it's

  possible for us to identify what the  most thermally
|
  stable waste or waste mixture would be?  That

  suggestion was made at  another  -- at  another hearing,


  come to think of it,  and  the  question we have is'  Is

  it going to be possible  for us  to identify what the

  most thermally stable mixture is and  then test that

-------
                                                         761
 I    instead of testing  everything?




 2              MS. SHEWBART :   Now,  that's an interesting




 3    notion.  I really can't  comment on that.




 4              MR. LINDSEY:   Okay.




 5              MR. TRASK:  Ms.  She*bart,  you talked about




 6    this Beaumont clay  formation  a couple of times, and




 7    one time you said it was  impermeable and another time




 8    you said it had low permeability.   Do you know what




 9    the permeability of that  is9




10              What I am getting  at here  is is there some




11    number that we ought to  be  looking at where we can




12    change things?




13              MS. SHEWBART-   Yes.   This  is described in




14    the technical guidelines  of  the Texas Department of Water




15    Resources,  and the numbers  that they are using are a




16    permea'b i li t y of a tenth  to  5/10 of a foot per year is




17    the -- the  -- is the groundwater movement,  water




18    movement




19              MR. TRASK:  You  think  then,  that with clay




20    of  that permeability, then perhaps we would have more




21    flexibility in the things we  could do compared to what




22    the standards were suggesting9  Do I understand that




23    to  come out of your comment?




24              MS. SHEWBART:   You  would have more




25    flexibility9

-------
                                                         762
 1              MR.  TRASK :   Well, we are laying  down  some




 2    standards on landfill, construction and  site  location




 3    and that  sort  of thing.   And I sense  that  you are




 4    suggesting that, if you  have a clay with this




 5    permeability,  then we might not need  to  be as stringent




 6    with those standards?




 7              MS.  SHEWBART:   Yes, I think that's  correct.




 8              MR.  TRASK:   Okay.  In another  area, you  also




 9    indicated that old facilities that are located  in




10    regulated floodways should not be forced to close  if




11    they pose no threat to human health or the environment.




12    Do  you  have some --




13              MS.  SHUBART:  That's true.




14              MR.  TRASK:   -- way in which we could  --  that




15    could be  shown?




16              MS.  SHEWBART:   First of all, the floodplain




17    guidelines,  management guidelines, for implementing




18    Executive Order 11-988 address only proposed  actions




19    in  regulatory  floodways, not existing facilities.   And




20    the calculations for  determining regulatory floodways




21    are based on what proposed action --  what  --  what




22    impact  a  proposed action would have.




23              So I think  in  the existing  --  in addressing




24    old sites or existing sites through Executive Order




25    11-988,  it's not really  plain in the  guidelines that

-------
                                                        763
 1    those should be addressed.




 2              MR.  TRASK:  Well, your statement,  though,




 3    said that they should not be forced to  close if  they




 4    pose no threat and --




 5              MS.  SHEWBART:  Yes.




 6              MR.  TRASK:  — I am wondering how  you  would




 7    show that they pose no threat.




 8              MS.  SHEWBART:  Well,  this would be through




 9    the  same  types of things that you could do with




10    hundred-year/five-hundred year floodplains,  dyking




11    requirements,  so that they would not be inundated.




12              MR.  TRASK:  Okay.  That's what you had in




13    mind.   All right.   Thank you.




14              MS.  DARRAH:   I wanted to just question you




15    a  little  bit  on your idea that  the use of notes  be




16    expanded.




17              I  saw both of you smiling as we heard  a




18    previous  speaker who was giving us a diametrically




19    opposed position.   We  also heard an interesting  --




20    Okay.   So the  basis obviously for the previous




21    speaker's suggestion that we include more specific




22    design  and operating requirements was his belief  that




23    I  guess particularly small  companies don't want  to




24    be faced  with  showing  the permit writer or the




25    Regional  Administrator or,  indeed,  headquarters  at

-------
                                                         764
 1   EPA  that  their proposed design somehow  meets  our




 2   human  health and environmental standard  or  meets an




 3   equivalent  degree of performance.  So he  wanted more




 4   design  and  operating requirements.




 5             And you say no, don't give us  design  and




 6   operating requirements; give us performance standards.




 7   And,  indeed,  I guess under either system, under a




 8   design  and  operating or performaace system,  allow us




 9   essentially a variance from anything that you tell us




10   to do.  And I understand all that.




11             I wanted to gel, you to comment  on one




12   suggestion  we heard in another hearing,  which was




13   that,  indeed, we write more design and  operating




14   standards.   But if someone chose to propose a sort of




15   a totally different design for a facility,  thai that




16   be submitted to EPA headquarters.  They  didn't  specify




17   it.   I  assume to the Administrator.  And  then,  you




18   know,  some  person in the office would review  it, so




19   that  we were not leaving it up to each  Regional




20   Administrator or, indeed, to the local  nermit writers




21   to approve  a totally new design, but I  think  this




22   person's  feeling was those people might  not be  willing




23   to do  that; they might not feel that they had the




24   expertise and they would -- they would  tend to  stick




25   too  stringently to our requirements.

-------
                                                         765







 I              What do you  think  of  sort  of this dua]




 2    system idea of design  and  operating1  requirements with




 3    use of notes, either the way  we have it now or more




 4    extensive notes, but a  provision that, with a large




 5    or sort of a new design that  isn't mentioned in the




 6    regulations, that we have  some  sort  of a central




 7    approval system?




 8              MS. SHEWBART :  Again,  I  would say that that's




 9    an interesting idea  that someone's proposing, and I




10    haven't thought about  it enough to make any comments.




11    I really wouldn't want  to  comment  on that.




12              MS  DARRAH :   I realize there is a very short




13    time between now and Friday;  but,  given that we have




14    heard really opposite  reactions to our proposal, if




15    you could expand in  your written comments on your




16    suggestions here, I  think  it  would be useful to us.




17              MS. SHEV.'BART:  Well,  of  course, the main




18    thrust of the comments  here  is  performance, performancd




19    s tandards.




2Q              MS. OARRAH:   Okay.   I guess we have no more




21    questions.   Thank you.




22              Jim Collins,  Cities Service Company, repre-




23    senting the American Petroleum  Institute.




24              MR. JAMES  W.  COLLINS:   Thank you.




25              I was hit  by  a pigeon on the way over this

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25
                                                         766
morning, and I hope everything is  going to go uphill.




          My name  is Jim  Collins.   I  am the Manager of




Environmental Affairs  for Cities  Service Company, and




I am also a member of  the API  Committee on Environ-




mental Conservation in  Production  Operations.  I am




presenting comments for the  Production Committee of




API on EPA's proposed  hazardous waste regulations.




          API believes  the potential  impact of the




proposed hazardous waste  regulations  on oil and gas




drilling and production operations would be catas-




trophic.  Strictly interpreted, the proposed regula-




tions appear certain to have  a major  negative impact




on existing domestic oil  and  gas  production; would




seriously impede drilling for  essential new energy




supplies; would be significantly  inflationary, and




would require an enormous commitment  of resources and




people in an industry  without  any  measurable offsetting




benefits to human  health  or  the environment.




          The proposed  regulations in the first year




would pose an unrealistic cost burden on oil and gas




drilling estimated at  SI0.8  billion.   3.9 of this --




billion dollars would  be  used  to  construct facilities




to comply with the proposed  regulations, and the




remaining 6.9 billion  would  be used to monitor the




facilities for 20  years.

-------
                                                         767
 1              The $10.8 billion requirement  would  be




 2    regenerated every year.




 3              The oil and gas production  industry  would




 4    be forced to spend an additional $34.7 billion.   10.2




 5    billion of the 34.7 billion would be  spent  to  bring




 6    existing facilities into compliance.  The  remaining




 7    24.5  billion would be required  to satisfy  the  future




 8    monitoring requirements of the  proposed  regulations.




 9              The cost burden inevitably  would  impact  all




10    of us as energy consumers,  and  all this  assumes  that




11    the added cost doesn't put such operations  out  of




12    business.




13              The economic impact will have  two major




14    effects on the United States energy supply.




15              First,  it will cause  a tremendous diversion




16    of capital from exploration for new oil  and gas




17    reserves and research and development aimed at




18    increasing oil and gas recovery from  existing




19    reservoirs.




20              Second,  it will cause marginal producing




21    properties to be  closed down prematurely.




22              For example, virtually all  stripper  produc-




23    tion  will  be unable to meet the requirements of  these




24    regulations  due to the economics of operation.   The




25    average production for stripper wells in the United

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                                                         768
States is only  2.9  barrels  of oil per day.  71.5 per




cent of the oil  wells  in  the United States are  strippei




wells.  Stripper  wells  account for -- in  '77 accounted




for about a million  barrels a day of production, which




is equal to about"  12.3  per  cent o^ our total domestic




crude oil production.   A  great lumber of wells  with




producing rates  above  stripper rate production  would




also be closed  down  prematurely because of the  same




economic impact.




          The problem  basically arises because  the




EPA has either  not  correctly interpreted the definitior




of hazardous waste  as  stated in the Act. or the





regulations established by  EPA co define hazardous




wastes are far  too  inclusive.




          Crude  oil  wastes,  for example, are inappro-




priately classified  as  hazardous waste because  they




fail the ignitability  test.   However,  on-site crude




oil wastes do not present  a fire hazard.




          Crude  oil  spill  spill cleanup residue  is




inappropriately  classified  as a hazardous waste




because it contains  trace  amounts of benzene or




toluene.  These  trace  level pollutants pose no  hazard.




          Also,  because of  trace amounts of other




contaminants, the proposed  regulation inappropriately




classifies most  oil  and gas dri ling mud wastes  and

-------
                                                         769
 1    production brine wastes  as  hazardous.   And, again,




 2    these trace level contaminants  present no hazard to




 3    human health or the environment.




 4              Finally, the  final  regulation should only




 5    be concerned with truly  hazardous  wastes and not




 6    classify wastes such as  those  generated in drilling




 7    and production operations as  hazardous.




 °              It is inappropriate  — The  inappropriate




 9    inclusion of these nonhazardous wastes in the hazardous




10    classification places unnecessary  burdens on generators




11    of nonhazardous wastes.  More  importantly, it prevents




12    promulgation of good workable  hazardous  waste regula-




13    tions which really protect  the  human  health and the




14    environment.




15              We believe the EPA understands this problem




16    as seated in their preamble.  They said:




17              "By attempting, initial  coverage of waste,




18         generators,  and disposers  that  is quite broad,




19         the whole program including addressing the




20         problem brought on  by  the  most  hazardous will




21         become bogged down."




22              We agree with  this idea.




23              Site selection criteria  for  surface impound-




24    ments included in the regulations  are  particularly




25    inapplicable to the oil  and gas drilling operations.

-------
                                                         770
 1   The  criteria  specifically excludes areas within  a




 2   500-year  floodplain and faulted areas or in  coastal




 3   high hazard areas.




 4              Oil is  found where it's placed --  where




 5   nature  placed it,  and a great deal of our nation's




 6   potential  onshore  energy resources are in these




 7   prohibited areas.   Inappropriate application  to  our




 8   industry  of site  selection criteria designed  for




 9   facilities with  hazardous wastes would prevent the




10   development of energy reserves vital to our  nation.




11   This would be particularly unfortunate when  one




12   considers  the excellent performance record of our




13   industry  in these  sensitive areas.




14              If  the  regulations are to be effectively




15   managed -~ effective and manageable, the API  recommends




16   they be rewritten  with the following particularly  in




17   mind.   That:




18              1.   Only truly hazardous wastes come under




19   the  purview of the regulation.




20              Naturally occurring crude oil, production




21   brine and  oil and  gas drilling mad wastes should be




22   excluded  from the  hazardous waste regulations.




23              EPA, in  its attempt to be inclusive, has




24   extended  hazardous waste management and disposal




25   practices  to  wastes which only require normal solid

-------
                                                         771
 1   waste management  and  disposal  techniques.  Alleviating




 2   unnecessary impacts by  numerous  notes allowing




 3   administrative discretion  or  by  special categories




 4   granting partial  exemptions  represents a Band-Aid




 5   repair approach in attempting  to make an overall




 6   regulation proposal workable.




 7             This overall  —  this overinclusive technique




 8   jeopardizes the regulation's  goal of protecting human




 9   health and the environment  from  hazardous wastes.




10             RCRA meets  a  real  national need.   And with




11   changes,  the proposed regulations can work;  and




12   without changes,  the  regulations will be unmanageable




13   and ineffective.




14             Thank you.




15             MS.  DARRAH:   Thank you,  Mr. Collins.




16             I compliment  you on  the succinctness 6f your




17   statement to us.




18             MR.  COLLINS:  Less than ten minutes?




19             MS.  DARRAH:    Yes, much less.




20             Will you answer questions for us?




21             MR.  COLLINS:  You bet.




22             MS.  DARRAH:    Okay.




23             MR.  LEHMAN:    Mr. Collins,  two things.




24             You  quoted some very large economic cost




25   burdens as a result of  these regulations.   Are  you

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                                                         772
prepared to provide  us  the background for those




figures, because  we  would  be very much interested  in




the data behind those  estimates as to how you arrived




at those figures.




          MR. COLLINS:   Yeah.   The calcu1 at ions are in




our written statement,  plus the scenario of how  this




was deve]oped.




          MR. LEHMAN:   All right.  Fine.




          The second point I wanted to get  at is  that




you were claiming  in your  statement that virtually




all stripper production wells  will be unable to  meet




the requirements  of  these  regulations due to economics




of operation, and  go on to quote what the production




numbers are.  Could  you expand on that'  It's not  at




all clear to me why  an  existing stripper well, produc-




tion well, would  be  significantly impacted  by these




regulat ions.




          MR. COLLINS    Well --




          MR. LEHMAN:   One that's already in produc-




tion is what  I mean.




          MR. COLLINS:   Well,  every -- virtually  every




impoundment in oil  and  gas production operations  will




be classified as  a  hazardous waste facility because  of




the four things that I  mentioned.  Every lease or




every well  is on  a  lease that  has some type of

-------
                                                         773
 1    impoundment.   If it produces into a  tank  battery,




 2    there  is a dyked area around the tank  battery.   There




 3    could  be an emergency runover pit.   Some  type of —




 4    Some  type of  impoundment is going to be  on  the lease,




 5    whether Jt be a one-well lease or a  50-well  lease.




 6    There  would be some -- there will be a number of




 7    impoundments, and we calculated -- we  submitted that




 8    per  impoundment would cost approximately  $250,000 to




 9    bring  this -- bring the impoundment  into  specifications




10    with  the regulations.




11              MR. LEHMAN:  Excuse me.  What  are  these




12    impoundments  for?  You mean for the  produced crude?




13              MR. COLLINS:  They are contained  -- Some  --




14    There  will be -- One type of impoundment  would be a




15    dyked  area around a tank battery.  Another  might be




16    a  temporary holding impoundment for  emergency overflows




17    It  could be a spill containment area.




18              MR. LEHMAN:  These are production  wells now,




19    right?




20              MR. COLLINS:  That's right.  That's in a




21    production facility.




22              MR. LEHMAN:  What you are  producing is




23    crude  oil, which is not a waste by our definition.




24    That's what I don't understand here.   We  are only




25    talking about waste management, right?

-------
                                                         774
 1              MR. COLLINS:  That's  right.




 2              MR. LEHMAN:  What  is  the  waste from an




 3    existing producing stripper  well?




 4              MR. COLLINS:  Within  a -- Within a dyked




 5    area,  there is crude oil  spill  cleanup  residue that




 6    we would not be able to predict  that, with any one




 7    spillover, any type of frequency, that  there wouldn't




 8    be more than 20, 30 gallons  recovered,  which would be




 9    the — which would fail the  criteria to be exemoted on




10    a low spill within, or a  minimum amount during any —




11    any one month.  And the -- because  of the -- because




12    of trace amounts of benzene  and  toluene,  this -- this




13    automatically classifies  these  impoundments as




14    hazardous waste facilities.




15              MR. LEHMAN:  Excuse ire.   I'm  not seeing --




16    You are talking about a spill is the waste; is that




17    what you are saying?




18              MR. COLLINS:  There is a  part in the regula-




19    tion that addresses spill cleanup residue, oil spill




20    cleanup residue.




21              MR. LEHMAN:  But that's not part of your




22    normal operation,  right?  I  mean you don't have




23    impoundments set aside for spilled  cleanup residue,




24    do you?




25              MR. COLLINS:  We have  impoundments to

-------
                                                         775
 1    contain spill,  and  then  we  wouldn't be able to recover




 2    the total spill.  There  would be some residue in the




 3    impoundment, unrecoverable  residue, which we feel it




 4    would be difficult  to  predict whether the amount of




 5    spilled cleanup  residue  would actually be in such a




 6    small amount that we would  not -- that we would




 7    qualify for the  hundred  kilogram per month exemption.




 8              MR. LEHMAN:  Okay.   I  presume all of this is




 9    part of this is  part of  this  more detailed --




10              MR. COLLINS:   Right.




11              MR. LEHMAN:  -- analysis, what assumptions




12    you have made in determining  --




13              MR. COLLINS:   Yeah.   That's the basic




14    assumption that  we  have  made,  that and then the --




15    that's just --  that's  not in  the special category,




16    special waste category.  This is one of our problems




17    because crude oil,  naturally  occurring crude oil, was




18    not considered with the  --  with  production brine and




19    -- and drilling  mud, that it  was -- this is another --




20    a waste — waste product in production operations,




21    that that made  it more difficult to -- to work with.




22              MR. LEHMAN:  Okay.   Thank you.




23              MR. LINDSEY:   Could I  follow up on that?




24              You gave  these big  numbers,  and the two




25    basic numbers I  remember were 10.8 billion and there

-------
                                                          776







 1   was another  one  that  was 34.7 billion.




 2             To start  off  with,  could you clarify  again




 3   what the difference :s  between those two numbers?




 4             MR.  COLLINS:   Okay.  10.8 billion  is  the




 5   cost that would  --  to bring 48,000 wells, their mud




 6   pits into —  into compliance.




 7             MR.  LINDSEY-   So that's the mud and brine1?




 8             MR.  COLLINS-   Well, there is a 10.8 -- yeah,




 9   10.8 is the  mud.




10             MR.  LINDSEY:   Okay.




11             MR.  COLLINS:   That's the drilling mud.




12             MR.  LINDSEY:   Okay.




13             MR.  COLLINS:   That's the drilling operations




14             MR.  LINDSEY:   Okay.




15             MR.  COLLINS:   We estimated there was  48,000




16   welis drilled  onshore last year.   That's the number of




17   drilling pits.   We  assumed one pit with every well.




18             MR.  LINDSEY:   Okay.  All right.  What's the




19   34.7?




20             MR.  COLLINS:   34.7  is then production opera-




21   tions.   There  is the ongoing  production field that's




22   already been discovered.




23             MR.  LINDSEY:   These are -- These things,  you




24   are just talking about  these  impoundments and whatnot?




25             MR.  COLLINS:   Well, that also includes all

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                                                          777
production  brines,  well-produced water  and  waste  oil.




          MR.  LINDSEY.   Okay.




          MR.  COLLINS-   Waste crude oil.




          MR.  LINDSEY-   But it's 10.8 billion  for the




mud pits, huh7




          MR.  COLLINS:   That was right.




          MR.  LINDSEY-   As I understand  it,  these




particular  materials  are handled as hazardous  wastes




and have to  go to  --  I  think someone mentioned  this




morning have  to  go  to II-I facilities here  in




California.   Are  these  kinds of expenses being




experienced  here?




          MR.  COLLINS:   Well, in California, they --




they take the  fluid portion of the mud  to a  disposal




site.   They  don't  pick  up the cuttings,  and  I  don't --




I think that  they  would be less than or  greater than




20 or a hundred  kilograms of mud left,  actually left




in the -- in  the  pit  when they close the pit.   So we




had to go ahead  and assume that even in  a California




well,  pits would  -- would be covered by  the  regula-




tion;  that because  they are hauling the  --  the  liquid




portion of the mud  system away to some  facility,  that




still  this didn't  exempt them from the  regulation.




          MR.  LINDSEY:   Okay.  What is  it?   How much




did you say  you  estimated per -- per mud pit for  -- to

-------
                                                         778
 1    handle these regulations?




 2              MR. COLLINS:   Well,  the total Impact --




 3              MR. LINDSEY:   You  said 48,000 wells would




 4    have a pit and --




 5              MR. COLLINS:   Yeah,  the total.




 6              MR. LINDSEY:   That would be 48 into 10.8?




 7              MR. COLLINS:   It's about $250,000 per




 8    facility.  Part of  it  dealt  with in the first year,




 9    and then the other  part  -- you know,  portion of it




10    dealt with over a 20-year period.




11              MR. LINDSEY:   And  that would be for what?




12    Fencing and -- and  recordkeeping and  reporting, huh?




13              MR. COLLINS:   And  also for  constructing a




14    leachate monitoring  system and for drilling ground-




15    water observation wells.




16              MR. LINDSEY:   Those  are not required under




17    the special waste regs,  as —  also there has been —




18    I should point out  again --  I  guess Mr. Fields pointed




19    out earlier that 250.43-8, there's been a clarifica-




20    tion recently that  maybe you weren't  aware of in one




21    of the recent Federal  Registers.




22              MR. COLLINS:   We are aware  of that the




23    biggest problem was  in 250.43-8,  which generated




24    monitoring requirements  if you — you were required




25    to monitor for -- you  have to  monitor leachate systems

-------
                                                          779
 1   and monitor  groundwater  systems,  and we have to drill




 2   the groundwater wells  and then we had to drill --




 3   build the  leachate  system,  and we have addressed this




 4   in our regulation or  in  our specific comments and




 5   have a flow  diagram attached to show the -- the areas




 6   that we have had to go to.




 7              MR.  LEHMAN:  Can  I follow up with a little




 8   bit more on  that California experience.




 9              California  has  had a hazardous waste manage-




10   ment program in operation for many years, and one




11   presumes that  the oil  and gas and petroleum drilling




12   and production operations are covered by that program,




13   or at least we have been  led to believe that.




14              MR.  COLLINS:   Yeah, that's right.




15              MR.  LEHMAN:  And  I just find it hard to




16   believe that -- I mean the  California petroleum




17   operations do  represent  a significant portion of the




18   national activity,  as  I  understand it.   I don't know --




19              MR.  COLLINS:   Yeah.




20              MR.  LEHMAN:  -- what the statistics are,  but




21   it's certainly a reasonably large fraction of the




22   national production and  —  and drilling operations.




23   And I just find it  very  difficult to — to reconcile




24   the —  these enormous cost  estimates that you made




25   here with  the  actual experience of the  California

-------
                                                         780
 1    system.




 2              MR.  COLLINS:  Well, the  California system




     requires the -- hauling the  fluid  out  of  a  mud pit to




 "    a --  to  a particular facility.  And  it's  -- what I




 •*    said  before was that — that  from  the  way we read the




     hazardous waste regulation,  that that  portion that's




     hauled to the  facility in California wouldn't --


 o

 0    wouldn't allow, or wouldn't  -- wouldn't  take any




 °    responsibility away from that pit  being  a solid waste




10    disposal facility and would  have to  be constructed and




11    -- and monitored in accordance with  it.




12              Now, there is a number of  areas.   Oklahoma




     City  and Yukon, Oklahoma, and several  areas that




     require  that mud be -- the mud fluid to  be  hauled




     away  from the  location and dumped  in a site, but they



1C                                                   *
1(3    don't try to remove all of the cuttings  and -- and




     whatever, some small portion  of the  — of the mud




     filtrate that  remains.




19              MR.  FIELDS:  Mr. Collins,  on the  same issue,




20    it appears to  me in your presentation  that  your




21    assumptions were that -- that all  --  I'm just calking




22    about the special waste category now.  But  your




23    assumption was that all drilling muds  and brines were




     hazardous.  Was that a basic  assumption  in  your cost




25    analysis?

-------
                                                         781
 1              MR. COLLINS:   Virtually  all  would be




 2    classified a.s hazardous  by  the  regulation.




 3              MR. FIELDS-  Based  on how you read 3001, you




 4    think all drilling muds  and brines are going to be




 5    hazardous?




 6              MR. COLLINS-   Yeah, based on the trace




 7    metals and the toxic  portions that they will be




 8    classified as hazardous.




 9              MR. FIELDS:  Okay.  Another  comment you made




10    was that the $10.8 billion  requirement was -- would be




11    regenerated every year.




12              MR. COLLINS:   That's  right.   We assume




13    48,000 wells drilled  in  '78.  That was the best data




14    we could come up with.   I  understand that now they




15    are thinking it's more in  the range of 51,000 wells




16    were drilled in  '78 because of  a real  heavy last




17    quarter, so that's the cost generation requirements




18    for those 48,000 wells,  and it  looks like now probably




19    next year it might be 50,000  wells, and then the next




20    year.  So that's in the  range of numbers that we are




21    looking at .




22              MR. CORSON:  I  have two  questions, Mr.




23    Collins.




24              One, you addressed  earlier in the comments




25    the idea that we are  defining nonhazardous wastes as

-------
                                                          782
 1    hazardous, and I am wondering  whether you have already




 2    in your written submittal  provided a different working




 3    definition of hazardous wastes for us to consider?




 4              MR. COLLINS:  I  --  I think that just by




 5    evidence of special categories,  by evidence of notes.




 6    that -- that ten times  the drinking water standard,




 '    that these -- these trace  -- we've -- we've got --




 °    we've got a span of wastes from here to here




 9    (indicating), and it's  my  feeling that these are




10    hazardous (indicating), but we are including all the




11    wastes over here (indicating),  and when we try to write




12    regulations to cover  all these wastes, then we're —




13    we're jeopardizing our  chance  to write real good




14    regulations for these real dangerous wastes.




15              This is the point that we are trying to




16    bring across to you.




17              MR. CORSON :   We  have heard previous testi-




18    mony that relates to  degree of hazard where I think




19    you are making a. distinction between hazardous and




20    nonhazardous , and I guess  I would like to know what




21    your thoughts are and these --




22              MR. COLLINS:  Our thoughts are that we are




23    just right on the edge  and that we have just been




24    kicked into the hazardous  -- hazardous zone.  We are




25    just right on the virtual  edge of this thing and that

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                                                          783
we have been  kicked  in  just  right over the edge, and




it's a tremendous  economic impact,  and that's why,




because we have  had  prudent  disposal practices, but




they are not  hazardous  wastes,  disposal practices,




and this is why  we -- we  get such a tremendous




economic impact.




          When you go —  when you take something that's




-- that's a nonhazardous  waste  and -- and have manage-




ment, prudent management  practices for it, and then




say all of a  sudden  now you  are going to have to




establish hazardous  waste disposal and -- and -- and




facility standards,  there is a  tremendous economic




impact.




          MR. CORSON:   Following that up in another




area of your  testimony, which gets us — it seems to




me you are somewhere in the  middle of the two comments




we heard earlier this morning.




          MR. COLLINS:  Yeah.   I will give you another




view of notes.




          MR. CORSON:   With  regard to notes, you




indicate that we are applying these things to every-




thing not required.  On the  one side, we have a




request to go with several distinct definitions of




management techniques.  On the  other hand, a request




to more generally apply notes,  and now we find that th(

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                                                          784
flexibility as  defined  as  representing something




that you call a  Band-Aid repair approach, I'm wonderin




what your feeling  is about  how we should establish




different management techniques for hazards of




different degrees,  if there is such a thing?




          MR. COLLINS:   Well,  this -- the problem we




see here is that --  I have  to  agree with the League




of Women Voters  in  Denver  that, if someone's going  to




put a real hazardous waste  facility in -- in a  recharg




zone,  I don't want  there to be any notes giving any




Administrator ability to establish this facility in a




recharge zone where  I'm drinking the water out  of it.




You knew, I want some things -- if we are going to  be




managing hazardous  wastes,  I want some things hard




and clear that  are  going to be protect me from  a




hazard.




          But when  we start stretching the thing out




where vie get into  areas that we don't really have a




hazardous waste, you know,  the degree of hazard is  so




low, like especially in production operations and




drilling operations  that were  just right over the




edge,  when you  have  to  start designing note systems




and special categories  along that line, you surely




take a chance of --  of  not  really concentrating on  tae




true hazardous  regulations.

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                                                          785
           That's -- That's the objection  that  I  see




for the  --  the  note type of thing or  the  special  cate-




gory type  of  -- type of area of the hazardous  waste




regujat ion .




           MS. DARRAH:   Mr. Collins, you  told us  that,




in some  states  --  And  I guess you mentioned California




and Oklahoma  — that you were required to  remove  the




liquid portion  of  the  —




           MR. COLLINS:   Yeah.   Not only  a  state  re-




quirement.   In  our West Texas operation,  I have  talked




to operating  people, and they said well,  a salt  water




based mud,  they haven't disposed of the  salt water




based mud  on  location  in the last several  years.




That's because  the landowner doesn't  want  the  salt




water base  mud  disposed on his property  and wants  it




hauled", off.




          MS. DARRAH:   How many gallons  per well  of




the salt water  is  there''




          MR. COLLINS:   Well,  approximately -- There




is going to be  comments later from the drilling




companies,  but  I  think  approximately  40  per cent,  40




or 50 per cent  of  all muds are salt based, and 5  per




cent might  be oil  based muds.   The rest  are fresh




water based muds.




          MS. DARRAH:   Okav.   But I don't  --   guess

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                                                         786
I'm not knowledgeable  enough  to know what that means




in terms of what you haul  away  if you say 40 to 50




per cent of the mud is  salt based.




          MR. COLLINS:   If it's salt water based mud,




you would be hauling away  the -- the salt water that




you could suck up with  a vacuum truck.




          MS. DARRAH:   Okay.




          MR. COLLINS:   That  you physically suck out




of the pit into the hopper and  haul it  down the road




to the disposal site and dump it.




          MS. DARRAH:   How many --  If you -- if you




can estimate for me the number  of barrels of mud that




you use in the well, how many -- then what percentage




of that would be hauled away  as water?




          MR. COLLINS:   Well,  the -- the mud system is




a fluid system to begin with.   It's used to — to




drill, to bring cuttings up from the bottom of the




well, and it has certain properties that can suspend




these cuttings and bring them up so that you can keep




on drilling deeper.  And it a^so has lubricating




qualities so that the  drill pipe can turn.




          When it comes to the  surface, it will --




normal operating procedure is to let the mud dehydrate




and -- and then to --  to cover  the  facility, to work




it into the ground.

-------
                                                         787
 1              As  far  as  the  amounts,  the well that was




 2    drilled the record depth in  Oklahoma,  its mud pit was




 3    something like  five  acres large.   That would be it




 4    had, I think, 160,000  barrels in  its -- in its mud




 5    system at one time.




 6              Normally,  in a normal  operation, a pit would




 7    be less than  -- less than a  half  an acre.  It would




 8    be a hundred  by a hundred.




 9              MS. DARRAH :  And  how many barrels of mud




10    would that be?




11              MR. COLLINS:   It  would  be a  hundred by a




12    hundred,  maybe  six feet,  with about three -- three




13    feet possibly of  fluid in the pit.




14              Let me  --  I  can calculate that out for you




15    if you want me  to.




16              MS. DARRAH:  Well,  I will tell you, yesterda




17    we heard testimony that  the  average amount of mud




18    used in drilling was between  400  and 750 barrels,  and




19    I'm just  wondering if  you concur  with  that estimate.




20              MR. COLLINS:   It's  a function -- It's a




21    function of how deep the well goes.  What you have to




22    do is have abilities to  change the  system; and as the




23    deeper the well goes and  how  -- how big the well is,




24    first of  all, it has to  be  completely  full at all




25    times to  -- to have complete  circulation.   So if you

-------
                                                         788
 1    just  figure the volume of a normal well  might  be 8 to




 2    10  inches in diameter, and then  it might be  5,000 to




 3    30,000 feet deep,  then you can figure  the volume




 4    that's required to keep that system  full at  all  times.




 5  ;  And — And then the waste, or the — we  call it  a




 6    reserve pit, but it becomes a waste  pit  when we  are




 7    through.   But the  reserve pit is used  for reserve for




 8  ;  changing the -- the deep well drilled  down to--  that




 9    I mentioned drilled to 14,000 feet with  a fresh  water




10    base  system, and then because of the drilling  problems




11    had to shift to a  salt water based system.   So  the




12    ability to change  the system, the mud  system,  to




13    correspond with the drilling problems  have to  be dealt




14    with  with a reserve type of pit.




15              MS. DARRAH:  Would you care  to disagree with




16    an  estimate of 400 to 700 barrels for  an average?




17    What  was it9  A dry we 1 1 that they were  giving  the




18    estimate for?




19              MR. LINDSEY:   A shallow well.




20              MS. DARRAH:  A shallow well.




21              MR. COLLINS-  I think  that's fine.  That's




22    good.




23              MS. DARRAH:  I wonder  if your  cost calcula-




24    tions -- I think -- And I could  be wrong.  I think you




25    decided that it was about $250,000 per mud pit  that we

-------
                                                         789
 1    ended up with with the monitoring and all that.  Did




 2    you calculate what it would  cost  if you were to take




 3    the mud and haul  it  away  rather  than turning each pit




 4    into a disposal site?




 5              MR. COLLINS:  No,  we  didn't.   We didn't




 6    calculate the hauling of  mud.   We looked -- We looked




 1    at the current practices.  And,  first of all, the




 8    hauling of the mud,  even  in  California and in Oklahoma




 9    City and Yukon, Oklahoma,  and  the hauling of mud that




10    we do out in other parts  of  the  country, I don't feel




11    would be an exemption from this  -- this regulation




12    because, when you haul the mud.  you don't haul the




13    cuttings out of the  disposal,  the waste pit, the




14    reserve pit.  And -- And  there's  got to be more than




15    a hundred kilograms  of residue  mud left in those --




16    those cuttings.   It  would physically take the digging




17    up of maybe three feet down  and  the complete removal




18    of the whole area to get  away  --  to -- really make —




19    say that this is  being an alternative.




20              MS. DARRAH:  What  you  are saying is you do




21    get extensive leaching of these  materials in the pit




22    which would make  you unable  to  adequately remove the




23    materials?




24              MR. COLLINS:  No,  I  don't think it's




25    extensive leaching.  The  mud is  a natural sealant.

-------
                                                         790
 1    That's one of the properties  that  when you drill, the




 2    mud keeps the fluid  from  going  out into porous zones.




 3    This is one of the properties that it's been designed




 4    for.  It plugs the formation.   It  -- It -- The little




 5    pieces of mud particles build up  and they call it a




 6    mud cake, and it's very impermeable.




 '              Now, because a  mud  system, when we lose




 8    circulation, that's  what  happens,  that mud filtrates.




 9    Something's broken down,  either some type of formation




10    is washed out or something  like that.   But it's not




11    the leachate of the  drilling  mud  pit.   It's the fact




12    that,  as you drill a well,  you  end up with cuttings,




13    you end up with pieces of formation that you keep




14    dumping out on the surface  into a  pit operation and




15    you get that out of  your  mud  system and you circulate




16    it and you put clean mud  down in  the hole, and you are




17    continually removing the  cuttings, and these cuttings




18    are put over into the reserve pit, the waste pit.




19              And you are continually  moving those cutting




20    over because you end up with  a  5,000-foot well, 10




21    inch -- you know, that's  a  mile of 10-inch pipe, and




22    you can assume that  you are going  to have -- you have




23    done something with  that  hole,  that you know you have




24    taken  that hole, that 5,000-foot,  hole, and you have




25    stacked it up over here,  and  those are the cuttings

-------
                                                         791
 1    and things.




 2              And the mud  is,  you know,  integrated with




 3    this stuff.  They are  all  wet.   Little pieces, every




 4    little cutting  is wet  with mud,  and it's put  into the




 5    waste pit.  And  --  And it's that -- that inability to




 6    remove all the  little  --  all the mud,  these cuttings,




 7    covering all this,  these  waste  cuttings in the reserve




 8    pit that still  classifies  that  reserve pit as a waste




 9    facility according  to  the  regulation,  regardless of




10    whether you haul the  filtrate,  you know, what's --




11    what's pumpable  away.




12              MS. DARRAH :   So  you are saying if you did




13    barrel the majority of the mud  and then were  to test




14    the cuttings with the  mud  that  remained in it, your




15    belief is that  it is,  using the  extraction procedure,




16    that that soil would  --




17              MR. COLLINS:  Not soil.  I think just what's




18    in that pit, what's left  in that pit.   You know, you




19    are not going to be able  to suck everything out of




20    the pit with, you know, just with a conventional




21    vacuum truck.  There  is going to be a sludge, if you




22    want to call it, made  up  of very tiny pieces  of




23    formation that you  have got cut  up surrounded by a —




24    some type of a -- you  know,  each one of them  coated




25    with this mud filtrate and mud.

-------
                                                          792







 1              MS. DARRAH :   Okay.   Any other questions?




 2              MR. LEHMAN:   No.




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




 4              MR. COLLINS:   Thank  you.




 5              MS. DARRAH-   We  will hear from Jay Snow




 6    next, Texas Department  of  Water Resources.




 7              MR. JAY SNOW:  Thank you  very much.




 8              My name is  Jay Snow.   I'm head of the




 g    Industrial Solid Waste  Unit  oC the  Texas Department of




10    Water Resources.




11              I am a registered  professional engineer in




12    Texas,  and I am speaking today representing the




13    National Governors Association Task Force on Hazardous




14    Waste Management, which is  a  ejroup  of 18 states that




15    have a subcommittee on  waste  Tianagement which was set




15    up some two years ago to assist EPA in developing




17    these hazardous waste rules.




lg              My prepared statement was given to the




19    Reporter on Monday.




20              With regard to Subpart D, the Task Force




21    recognizes EPA's decision  to  rely primarily on design




22    and construction standards  supported with performance




23    standards. Unfortunately,  this approach, coupled with




24    apparent lack of experience  in regulating solid waste




25    disposal activities,  has produced an exceedingly

-------
                                                         793
 1   complicated interrelated  and  interdependent set of




 2   requirements.




 3             We note with  satisfaction the intent to




 4   provide flexibility with  the  use of the so-calJed




 5   note provisions.  Performance  specifications are




 6   scattered throughout  the  rule,  sometimes appearing in




 7   the requirements; other times  appearing in the notes.




 8   Where the performance specifications are not provided




 9   or where they are deficient,  a  corresponding deficiency




10   in the design requirements  is  often present.  Rather




11   than attempt to reconstruct  the rules to emphasize




12   performance, the Task Force elected to address the




13   deficiencies in design  standards where they are




14   apparent and add or revise performance specifications




15   where needed.  We hope  the advantages to both the




16   reg'ulator and facility  operator of  these performance




17   specifications will be  evident  -- self-evident in our




18   recommendations.




19             I think the success  of the note,  use of this




20   note convention to achieve flexibility and effective




21   control, both of those  things  is dependent on an




22   adequate specification  of the  results to be achieved.




23             With regard to  the  financial requirements,




24   the Task Force is concerned that during the interim




25   status period, duplicative financial requirements

-------
                                                         794
 1    could be placed on existing  facility  operators,  and




 2    in some cases, the financial  assurance could be grossl




 3    deficient.  Accordingly, we  have  recommended that EPA




 4    accept closure financial provisions  and enforce under




 5    existing state requirements  during  the interim.   And




 6    that Regional Administrators  impose  the requirements




 7    during the interim period only  after  reviewing and




 8    approving submitted estimates.




 9              Also, we have recommended  that alternative




10    means of providing financial  assurance,  such as surety




11    bonds, be allowed.  Experience  in  state programs




12    indicates that surety contracts can  be written to




13    preclude the possibility of  sudden  cancellation by the




14    surety as discussed in the preamble.




15              In addition, trie states  view the $5 million




16    liability insurance requirement which, according to




17    the preamble, was based on,  quote,  existing damage




18    data from an unregulated industry,  end quote, and,




19    quote, very little actual data  and  minimal experience




20    with a regulated hazardous waste  industry, end of




21    quote.




22              We consider that to be  unprecedented,




23    inappropriately justified, and  will  serve to impede




24    the development of a viable  hazardous waste industry.




25    We have, therefore, recommended  that  the — the

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                                                          795
requirements  for  the  insurance be deleted.  I think




such requirements  would be more appropriately




established by  Congress.




          My  remarks  on the special waste standards




were introduced into  the  record Monday.  And in




supplementing that  prepared statement, I would like  to




review several  of  our comments and recommendations




that were submitted for the docket, I believe you




referred to it.




          In  Section  250.41(b ) (5),  the definition of




aquifer, the  definition is inconsistent with another




definition given  in the preamble to Subpart D, Column




3, Page 58992.  And the definition that is in the




definition section  of the  rule could result in




unnecessary restrictions  being imposed on certain




facilities.   The use  of the definition proposed in




Section 250.41  could  result in certain geologic




formations which yield groundwater only in localized




areas being considered wholly as aquifers under the




meaning of the  definition.   In other areas of these




formations, groundwater is not present or not present




in usable quantities  and  sediments exhibit charac-




teristics fully adequate  for  waste disposal.   Thus




facilities located  in acceptable areas of such




formations could be required  under Section

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                                                         796
  250.45-2(b)(16)  to  construct  unnecessary groundwater




  monitoring  and  leachate  monitoring systems.




             Accordingly, we  have stated our preference




  for the definition  given in  the preamble which would,




  I believe,  resolve  these problems.




             Definition  No.  35,  definition of freeboard,




'  defining freeboard  in  the  manner that has been done




  will render freeboard  requirements and permits legally




  ineffective and  unenforceable.  Permit freeboard




  requirements are  operational  res;rdctions intended to




  result in  maintaining  a  level of impounded wastes at




  a safe level so  as  to  enable  the impoundment to




  contain a  waste  in  the event  of adverse conditions




  such as heavy  rainfall.   The  definition used has  the




  term "average  maximum  level"  which would enable




  operators  to comply with freeboard restrictions




  without maintaining adequate  freeboard, which is  not




  the intended result.  I don't  believe.




             With  regard  to Section 250.43(c) regarding




  the collection  of surface  water runoff, the wording




  of the subsection could  allow discharges of contami-




  nated rain  off  — contaminated runoff — Excuse me —




  during periods  of heavy  rainfall without violating




  the rule seems  to conflict with the general surface




  water protection  standard  in  250.42-2.

-------
                                                         797
 1              Since  the  requirement  does not adequately




 2    specify the performance  of  preventing discharges of




 3    contaminated water,  the  discharges would be legal




 4    under certain circumstances.




 5              Accordingly, we  have recommended a per-




 6    formance specification as  the primary requirement.




 7    As a matter of fact,  contaminated water is not men-




 8    tioned in that requirement.




 9              In Section  250.43-2 regarding security




10    fences, the requirement  is  one of construction rather




11    than performance,  and I  think the provision could




12    result in ineffective access  control to the facility




13    under some circumstances.   In some areas, such as




14    adjacent to a playground,  a six-foot fence could




15    conceivably be inadequate.   Other situations, as we




16    have heard in other  testimony, such as in remote




17    rural areas, a three-strand barbed wire fence would




18    be more than sufficient.




19              In any event,  the facility operator should




20    be responsible for controlling access to the extent




21    necessary to prevent  unauthorized entry.




22              We have, accordingly,  a performance recom-




23    mendation here,  or a  recommended performance require-




24    ment to be relied  upon,  and that the six-foot chain




25    link fence be required  for  facilities with one mile

-------
                                                         798







 1    of urban areas.




 2              Another example,  Section  250.43 regarding




 3    training, the  section, by  requiring: training and




 4    bureaucratic recordkeeping rather  than competence,




 5    could result in incompetent  personnel  being employed




 6    at the facilities, thus  violations  resulting from




 7    competency could not be  enforced  from  the standpoint




 8    of noncomp1iance with  this requirement.




 9              I would — We  believe  the imposition of




10    bureaucratic organizational  structures will not




11    necessarily result in  competency.   Many  facilities,




12    such as smaller operations,  the  requirements would




13    simply be an additional  expense.




14              Also, requirements of  this sort can be




15    dispensed with entirely  if facility performance




16    requirements are adequately  specified  in other areas




17    of the rule.




18              We have got  a  specific  recommendation on




19    the training section,  too,  to make  it  about one-third




20    the length that it is.




21              On Section 250.43-8,  this is another section




22    where construction rather  than  performance is required




23    I think it's conceivable that the  section could




24    result in a monitoring system which fails to detect




25    groundwater, yet complies  with  the  rules.  We have,

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                                                          799
therefore, added  a.  performance recommendation here




which would result  in  an  enforceable violation in the




event groundwater pollution  was not detected by a




facility operator.




          In Section 250.45-2(a),  and the section on




surface impoundments,  let  me look  that up right quick.




It would be 45-3.   The requirements would prevent the




location of secure  landfills over  large areas of the




Atlantic Gulf Coast where  secure landfills can be




safely and effectively operated, or would result in




establishment of  above-grade secure landfills in these




areas which would present  much greater long-term




management problems than  below-grade landfills.




          This — This remark is applicable to surface




impoundment construction  as  well.




          To the  extent that an above-ground landfill




capacity was inadequate,  the provision would increase




hazardous waste management hazards by necessitating




transport of hazardous wastes out  of coastal areas.




          The requirement  that I'm referring to is




the -- that they  may be -- they must be located,




designed and constructed  to  be five foot above the




groundwater, historical high groundwater table, I




believe.  This is the  same issue that Ms. Shewbart,




I believe, addressed earlier this  morning where they

-------
                                                         800







 1    have some complex  formations  in which -- in areas




 2    that are perfectly  suitable for waste disposal, even




 3    though they are  saturated and you have a high ground-




 4    water table.




 5              I think  that  the -- if .strictly interpreted




 6    and if we wound  up  with above-grade landfills and




 7    surface impoundments, we would have a much greater




 8    risk of hazards  to  the  environment.




 9              Also in  Section 250.45-2(c)(l) regarding




10    closure of  landfills, the requirement of a six-inch




11    final clay  cover is  totally inadequate for isolating




12    hazardous wastes from the environment and will result




13    in grossly  ineffective  long-term containment in land-




14    fills.   The potential for cover dessication,




15    mechanical  puncture, disruption by differential




16    subsidence  and thinning during site maintenance




17    operations  with  a  concomitant escape of waste to the




18    surface will significantly be increased with a thin




19    final cover.




20              The potential for infiltration of precipita-




21    tion and subsequent  generation of leachates is also




22    greatly increased.




23              We have  recommended that the minimum amount




24    of clay be  two feet, and we have also added a -- a --




25    recommended that you add performance specifications to

-------
                                                          801
 1   the final cover.




 2             One  other  remark that,  these requirements,




 3   when taken together,  seem to indicate that, in some




 4   of these coastal  areas,  we would  have above-grade




 5   landfills with  a  maximum six-inch final cover and  a




 6   30-per cent --  33  per  cent maximum grade as the final




 7   secure landfill,  which I think is unacceptable.




 8             One  more comment regarding closure of land




 9   farms.  We have some  extensive comments in the land




10   farm section that  I won't go into in detail.  But  one




11   of the requirements  is to — is that the soil of the




12   land farm where waste  has been applied be returned to




13   preexisting soil  conditions on the basis of the testing




14   requirements in a  previous paragraph.  It's unreason-




15   able and will  eliminate  land farming as a means of




16   ultimate disposal  for  hazardous wastes.  Since a land




17   farm may be the final  resting place for hazardous




18   waste, it is unreasonable to return a land farm to its




19   preexisting condition.   Soil that has had hazardous




20   waste applied  to  it cannot be expected to remain in




21   its preexisting condition.




22             Ideally, wastes would be applied to soil at




23   an age which would not  result in  environmental hazard




24   at the time of closure.




25             The proposed  rules will abolish land farming

-------
                                                         802
 1    waste at simple application rates  that  could cause the




 2    soil background to be exceeded,  but  which would pose




 3    no hazard to the human health  or the environment.




 4              I think the -- the root  of this problem is




 5    that you are looking at the contents of the soil




 6    rather than its environmental  properties.




 7              So that concludes my  testimony,  but I would




 8    be happy to answer your questions.




 9              MS. DARRAH:  Okay.   Thank  you.




10              MR. FIELDS:  Jay, one  comment I  didn't quite




11    understand was the one regarding the groundwater




12    monitoring requirements.   I think  you indicated that




13    in certain instances that  would  not  provide for the




14    situation where the operator did not detect contamina-




15    tion of the groundwater.   Maybe  I  missed  a part of




16    that comment.  Could you amplify on  that  a little




17    more?




18              MR. SNOW:  Surely.   It's simply a conceivabl




19    result of failing to require that  the groundwater in




20    the subsurface be monitored.   What you  are requiring




21    is the operator construct  facilities which no one can




22    be assured will work, thus  if  groundwater pollution




23    goes undetected until it impacts an  adjacent landowner




24    say shows up in his well,  for  whatever  reason, you have




25    facility compliance by the  operator  since he has his

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                                                          803
wells dug,  he  has  sampled them.   However incompetent




he may be  or  for whatever the reason, the groundwater




pollution  has  not  been  detected,  so you have required




him to construct a system,  you have directed that he




construct  a system,  but you simply left off the




performance requirement to  require him to monitor




groundwater as  a primary basis for regulating.




           MR.  FIELDS:   What would you put in our regs




in addition to  what  we  have there now?  You know, we




required groundwater — we  required groundwater




monitoring, reporting of that monitoring.  What I'm




not clear  on  is what additionally you would want us to




do than what we have done?




           MR.  SNOW:  Our recommendation -- I believe




I have got the  right one here.   Yeah.  -- is to simply




add the following  sort  of requirement.   The intro-




ductory paragraph  to Section 250.43-8:




           "All  land  treatment,  storage and disposal




     facilities shall be designed and constructed to




     enable monitoring  on a permanent basis of area




     groundwater and subsurface  conditions as necessar;




     to detect any endangerment  to any area ground-




     water resources.   As a minimum,  groundwater and




     leachate monitoring systems  specified in the




     section or equivalent  systems shall  be constructei

-------
                                                          804
 1         and operated."




 2              MR. FIELDS:   Okay.   That would be added  to




 3    our regulations?




 4              MR. SNOW:  Yes.




 5              MR. FIELDS:   .All  right.




 6              MR. SNOW:  Like  I  say,  there are some  areas




 7    of the rule where  performance seems to he your




 8    primary requirement.   We  haven't  addressed some  of




 9    those areas.  Some  --  Some  plac.es, the performance is




10    implied, and some  places  the  performance is required.




11    And we simply went  through  the thing and tried to  give




12    you some consistency on  that.




13              MR. LEHMAN:   Jay,  if I  heard you correctly,




14    I understand that  it is  NGA's recommendation  that  the




15    entire section on  insurance  reouiremerits be deleted;




16    is that correct9




17              MR. SNOW:  That's  correct.




ig              MR. LEHMAN:   Now,  this  is somewhat  surprisin




19    to me in the sense  that,  to  my knowledge, this is  the




20    first time we have  heard  this from NGA.  In other




21    words, your membership is,  as 5-ou, I think, mentioned




22    in the early part  of your presentation day before




23    yesterday, indicated  that you have worked with us  for




24    over two years on  this,  and  this  is the  first  time




25    I have heard this  from the  NGA.

-------
                                                         805
 1              Could you  amplify  a  little bit on that as




 2    to why all of a sudden  NGA has  taken this position?




 3              MR. SNOW   We don't  think that the require-




 4    ment has been adequately  researched.  There is a lot




 5    of concern about the -- the  effect that the premiums




 6    would have on a developing hazardous waste management




 7    industry, for one.




 8              You know,  your  staff  advised us that the




 9    range of premiums could be very small -- from very




10    small for smaller concerns to  very large for very




11    large companies.  But  in  reviewing the requirements,




12    we couldn't think of -- we could think of only two




13    areas where the -- where  the government -- where




14    government has required organizations to insure them-




15    selves for their liabilities,  this being airlines who




16    are required, I believe,  to  insure against baggage




17    loss and loss of life,  and then state governments




18    generally require automobile operators to have




19    insurance against liabilities.




20              So we are  not convinced that the premium




21    rate would be sufficiently small in some cases to be




22    insignificant for — for some  smaller operations, and




23    in some cases, it would be flat out unnecessary as  far




24    as we can -- we can  see.




25              I mean the insurance, the administrative

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                                                         806
cost of — of obtaining  the  insurance and paying for




it, given the risk  that  is  --  the risk that is




conceivable under some situations that will be




regulated under this  rule,  that  the across-the-board




requirement for 5 million was  just inappropriate.




          MR. LINDSEY:   Are  you  saying that the  level




is too high or it should be  varied or something  like




that,  or are you saying  we  shouldn't have anything?




I thought I heard you say we should just drop the




whole shebang.




          MR. SNOW:   Well,  the recommendation at this




time is to drop it.   And it  would certainly be




appropriate to continue  consideration of it and  look




into it a little further, but  it  seems that the $5




million and $10 million  levels were rather hastily




proposed.




          I don't think  that the  cost to the disposal




industry, the generating industry or anyone else, has




been adequately looked into, and  the possibility of




varying the amount  of insurance  necessary seems  to be




-- have some viability that  needs to be looked into.




          MS. DARRAH:  Jay,  do you know whether  the




NGA considered whether our  dropping an insurance -- a




liability insurance requirement  altogether, whether




they compared that  with  our  duty  under RCRA to

-------
                                                         807
 1    promulgate standards that  shall  include  the maintenanc




 2    of operation, continuity of operation,  training and




 3    financial responsibility as may  be  necessary or




 4    desirable?  You are at  this point  saying you don't




 5    believe liability  insurance is  necessary?




 6              MR. SNOW:  That's correct.




 7              MS. DARRAH:   Okay.




 8              MR. LINDSEY:  To move  on  to a couple other




 9    subjects quickly,  Jay,  if  we  might,  you said you felt




10    that surety contracts should  be  allowed.  The problem




11    we have had there  is that  in  --  our  information,




12    anyway, indicates  that  these  surety  contracts can't




13    be guaranteed for  more  than a year-to-year kind of




14    basis;  and that once they  are canceled,  then there is




15    no money available for  insuring  closure, which is what




16    they are used for.




17              Did I hear you correctly?   Did you say you




18    had some information which was  contrary  to that?




19              MR. SNOW:  Well, we know  that  surety




20    contracts can be written to preclude  that possibility




21    of, say, sudden cancellation.   In  other  words, as




22    discussed in the preamble.




23              We know, because in my state,  for instance,




24    we are  writing them, and I think every  facility in




25    Texas,  with the exception  of  one or  two, provide the

-------
                                                         808
 1    assurance with a surety bond  at  this  time.




 2              MR. LINDSEY:  Do you write  --




 3              MR. SNOW:  It can be constructed  such that




 4    it  is a contract between three parties,  whereas before




 5    one party,  namely the surety, can  discontinue coverage




 6    He  has to provide notice to the  other two parties,  and




 7    that would Rive the government adequate  notice, in  our




 8    case three months,  that they  are going to discontinue




 9    this bond on such and such a  date,  thus  you have three




10  '  months to either secure the funds  or  to   initially




11    order closure and then, secondly,  secure the funds  if




12    closure is not undertaken or  alternate financial




13    assurance provided.




14              So — So the point  is  that  they — they have




15  :  been working, they can work.  It doesn't -- it doesn't




16    seem reasonable just to rule  out all  other  mechanisms




17    of  providing financial assurance,  especially since  the




18    Regional Administrator is given  the authority to




19    accept or -- or deny any of them.




20              MR. LINDSEY:  Let me --  So  it's a contract




21    between -- And you require this  now,  right, in Texas?




22              MR. SNOW:  We require  financial assurance.




23    We  don't require the bond.  It just so happens that --




24              MR. LINDSEY-  But you  allow that?




25              MR. SNOW:  -- a bond is  one means that we

-------
                                                          809







 1   wi11  accept.




 2              MR.  LINDSEY:   Okay.




 3              MR.  SNOW:   We have a model contract  that  we




 4   have  provided  to your staff, I believe.




 5              MR.  LINDSEY:   Let me give you a  "what  if."




 6              Suppose — Suppose the company,  a  disposal




 7   firm,  has  this surety bond and goes on making  the




 8   premiums  for two or  three years, and all of  a  sudden




 9   the surety company decides it doesn't want any part




 10   of  this anymore and  it  gives you and the company




 11   three  months'  notice that it's going to stop,  that  the




 12   surety bond is out of existence in three months.  Then




 13   what  happens?   Do you give the -- the company, I




 14   gather, the opportunity to gather -- to -- to  come  up




 15   with  some  other assurance mechanism, right?  If  he




 16   can't,- what happens?




 17              MR.  SNOW:   Well,  he's closed down.   I  mean




 18   the first  --




 19              MR.  LINDSEY:   Pays for closure?




20              MR.  SNOW:   Logically, the first  thing  one




21   would do in a  case like this is order that the




22   facility be closed.




23             MR.  LINDSEY:   Then who pays for  the  closure




24   if that happened?




25             MR.  SNOW:   The  surety.

-------
                                                         810
 1              MR.  LINDSEY:  The surety  bond  company pays




 2    for that"?




 3              MR.  SNOW:   If you go  and  get  the money




 4    before the three months is up.




 5              MR.  LINDSEY:  I see.   And they are willing




 6    to  write contracts like that?




 7              MR.  SNOW:  We have some that  are,  so I




 8    suppose they are.




 9              I would comment further that  surety bonds




10    may -- may have less  applicability  as  time goes on.




11    As  the amounts increase, we are  finding  this, we are




12    finding that closure  costs have  been underestimated in




13    the past, and it remains to be  seen if  surety con-




14    tracts — surety companies are  going to  be able to




15    write bonds in much higher amounts  than  have been




16    required in the past.




17              So the point  is -- is  not the  recommendation




18    once again, is not to require surety bonds,  but just




19    to  allow them as well as any other  means of providing




20    financial assurance that you all will  accept.  I don't




21    see any reason to tie your hands in advance on what




22    sorts of things you will accept.




23              MR.  LINDSEY:  Okay.   One  other point quickly




24              Training, you apparently  didn't like the




25    approach which we have  used, which  is  basically for

-------
                                                         811
 1   the facility  to  come  up  with a site-by-site specific




 2   training program to  insure that its people that are




 3   handling these things know what they are doing.  I'm




 *   -- I'm --  I'm not  sure,  though, whether your recom-




 '   mendation  was -- you  said  what we should do is




 "   specify competency.




 '              MR. SNOW:   Require competency.




 8              MR. LINDSEY:   Pardon me?




 9              MR. SNOW:   Require competency.




10              MR. LINDSEY:   Require competency.  How would




11   we do that?  Through  some  sort of a -- some sort of a




12   certification program, like they do with boiler water




13   operators  -- boiler operators?  You know,  a lot of




14   states have boiler operator certification  programs or




15   what -- Have you thought about that?




16              MR. SNOW:   Well,  our -- I will read our




17   recommendation.




18              MR. LINDSEY:   Okay.




19              MR. SNOW:   You said  how.   This is how.




20              Rewrite  the  Section  250.43-4 on  training as




21   follows.    We have  three  subsections.




22              "(a)   All persons employed at hazardous




23        waste facilities  must  be  qualified by training,




24        education or  experience as necessarily -- as




25        necessary to  effectively  perform their duties in

-------
                                                         8L2
 1         a manner as to achieve continued  compliance with




 2         these rules.




 3              "(b)  Facility operators  shall,  upon request,




 4         make available to the Regional  Administrator a




 5         list of all employees, their duties  and qualifi-




 6         cat ions.




 7              "(c)  Facility operators  shall  assure that




 8         all  employees are aware of  safety procedures and




 9         are  acquainted with facility contingency plans




10         as necessary to insure effective  response to




11         emergencies," period, end of sentence.




12              MR.  LINDSEY:  Okay.




13              MR.  SNOW:  Some of the --  You require some




14    of  the sort of things that are required in this




15    sentence, such as a staffing plan,  and these are thing




16    that  I recognize as being traits  of the bureaucracy




17    because I deal with them myself.  It just stands to




18    reason that a two-man transfer and  storage operation,




19    these requirements are not going to  serve any useful




20    purpose.




21              Also, I found that requirements of this sort




22    are valuable to the regulator  as, shall we say,




23    secondary requirements when -- when  a  regulatory




24    agency wants to take action as a result of some




25    pollution problem.  If it is found  that incompetency

-------
                                                         813
 1    in this case were a cause  of  that  pollution problem,




 2    then you would have two  violations:   one,  the pollutio




 3    problem and, secondly, the  incompetency that caused




 4    it in the first place.




 5              This sort of requirement,  the regulatory




 6    agency can go in and  find  incompetency, but compliance




 7    with a bunch of training requirements that didn't




 8    necessarily result in competency.   There is the guy's




 9    diploma.  There is the guy's  records on how many




10    seminars he's attended and  his  educational qualifica-




11    tions but, nevertheless, he didn't know what the hell




12    he was doing when he  let the  stuff go and caused the




13    problem.




14              So that's their  value,  and I think if you




15    conducted it that way, it  would be more valuable.




16              MR. LINDSEY:   Okay.




17              MR. LEHMAN:  Jay, I was  wondering if you




18    were -- you would be  willing  to answer a question or




19    two that I have concerning  the  Texas hazardous waste




20    management program.




21              In other words,  in  your  capacity as an




22    official of the Texas Department of Water Resources




23    as opposed to your -- as a  -- representing the NGA?




24              MR. SNOW:   I'll  try.




25              MR. LEHMAN:  Well,  the question I have

-------
                                                         814
 1    related to some previous testimony  concerning the




 2    petroleum waste.  And, similarly, as  we  have heard




 3    in  California,  I presume -- this  is what  I  want to




 4    find out.   I presume that at least  certain  kinds of




 5    petroleum-based or petroleum generated waste -- I




 6    mean from the petroleum oil and gas production and




 '    drilling industry, is regulated under --  as a hazardou




 8    waste in the Texas system.  Is that true?




 9              MR. SNOW:  No, it's not true.




10              MR. LEHMAN:  You do not regulate  any of the




11    petroleum-based wastes or related to  the  petroleum




12    industry?




13              MR. SNOW:  Let me describe  what we do




14    under state law, and this will explain my answer, I




15    be 1ieve.




16  i            First of all, my department's  jurisdiction




17    is  limited to regulation of industrial solid waste.




18    This is under the Texas Solid Waste Disposal Act,




19    which assigns jurisdiction to two agencies:  ours and




20    the  Texas Department of Health.




21              Specifically deleted from regulation under




22    this act are wastes resulting from  activities of




23    exploration and production of oil and natural gas,




24    which are arbitrarily deleted from  the Texas Solid




25    Waste Disposal  Act, and their jurisdiction for

-------
                                                         815
 1    controlling environmental  protection  from that -- from




 2    those activities  is  assigned  to  the  Texas Railroad




 3    Commission.




 4              I am only  --  I'm only  familiar with what




 5    they do and not very  familiar,  frankly,  with their




 6    Railroad Commission's rules on  mud disposal, brine




 7    disposal,  this sort  of  thing.   So they  are not regu-




 8    lated by the department under our industrial waste




 9    regulatory program because they  are  not  industrial




10    solid wastes.




11              MR.  LEHMAN:   Okay.  I  can  understand that




12    exemption  from — from  —  for them from  your law for




13    oil and gas exploration and production.   What about




14    oil refining wastes?




15              MR.  SNOW.  Yes,  they  are.




16              MR.  LEHMAN:   They are  covered  by your --




17              MR.  SNOW:  Yes.




18              MR.  LEHMAN:   --  your  regulations?




19              MR.  SNOW:  Yes,  they  are.




20              MR.  LEHMAN:   Now, we  had some  testimony that




21    --  I believe this is accurate -- that — making a




22    distinction now between the oil  and  gas  exploration,




23    drilling and exploration,  that  the production industry




24    would be forced to spend 30 --  roughly $35 billion a




25    year, of course,  to comply  with  our  proposed

-------
                                                         816







 1    regulations.




 2              Now, that's  an  astounding number.  Do you --




 3    Have you had any occasion  to  determine the impact of




 4    the Texas rules and regulations  on the production an




 5    -- not -- not the -- I'm  --  I'm  talking about the




 6    refinery operations now,  not  the drilling operations.




 7    And does that come any  --  I  mean what -- I'm having




 8    trouble reconciling the experience with existing state




 9    programs with the -- these  projections for the




10    national program.




11              MR. SNOW:  Okay.   The  answer to your




12    question is no.  I recall  that back there somewhere




13    I have reviewed a draft of  the American Petroleum




14    Institute's rationale.  I  will not attempt to inter-




15    pret for them other than  to  say  I believe it was




16    talking about production  of  crude oil, which means




17    wells,  pumps, tanks and stuff  that are in the oil




18    field.




19              I believe once  again that your question was




20    what would the impact  of  these rules be on refining,




21    the petroleum refining  industry, which is not




22    production, under my understanding, and the answer




23    to that question is no, I  have not seen any cost




24    evaluations of the impact  of  these rules on the Texas




25    refining industry --

-------
                                                         817
 1             MR.  LEHMAN:   No,  I was talking --




 2             MR.  SNOW:   -- or  waste disposal.




 3             MR.  LEHMAN:   I was talking about the impact




 4   of your rules  on  the  Texas  refining industry.




 5             MR.  SNOW:   Oh.




 6             MR.  LEHMAN.   Do you have any estimates




 7   what that is?




 8             MR.  SNOW:   No,  I  don't.   Cost estimates?




 9             MR.  LEHMAN:   Yes.




10             MR.  SNOW:   No.  Our program has been




11   implemented —  has  been implemented for nearly ten




12   years, and I have only  worked in it for four years,




13   so these cost  things  might  have been issues back in




14   about 1968, but I haven't seen any of them.




15             MR.  LEHMAN:   Thank you.




16             MS.  DARRAH:   Okay.   No more questions.  Than




17   you very much.




18             Is Mr. Dillard here today?




19             MR.  A. W. DILLARD:   Yes.




20 I            MS.  DARRAH•   Okay.   I apologize.   We are




21   going to take  fairly  short  lunch break so that we can




22   try and hear all the  witnesses for this afternoon.




23   Mr. Dillard,  you will be  the  first witness  at the




24   end of the lunch break.




25             We will recess  now  and reconvene  at "i :45

-------
                                                         818
 1    p.m.





 2              (The noon recess was  taken from 12:45 p.m.




 3              to 1:50 p.m.)




 4              MS. DARRAH :  Would  the  people take their




 5    seats ,  please.




 6              Mr. A. W. Dillard,  Permian Basin Petroleum




 7    Associ at ion.




 8              MR. A. W. DILLARD:  Madame Chairman, members




 9    of the  panel:




10              I'm A. W. Dillard,  Jr.,  from Midland  Texas.




11  I  And I will forego all  the qualifications that were




12    stated  yesterday.




13              I'm addressing 3004 today.




14              The 1500  members of the  Permian Basin




15    Petroleum Association, small, independent businessmen




16    and producers of crude oil and  gas in West Texas and




17    Southeastern New Mexico, would  be  among the first to




18    say that it  is important to protect the environment




19    in areas that produce  oil and gas  because this is our




20    home.  This  region  produces almost one-third of the




21    oil and gas  produced  in the United States.




22              However,  it  is our  belief that the standards




23    applicable to owners  or operators  of hazardous waste




24    treatment, storage  or  disposal  facilities, as proposed




25    under Section 3004, are inappropriate, unnecessary,

-------
                                                         819
 1    overly burdensome,  have  infinite cost-benefit ratios,




 2    or cannot be  accomplished  by the industry and the




 3    manpower and  machinery  currently available in the




 4    country.




 5              Site  selection  and design for the drilling




 6    of producing wel Is are dictated by the natural occur-




 7    rence of crude  oil  or gas  in commercial quantities




 8    and many state  regulatory  rules and private con-




 9    tractual obligations.   If  wetlands and 500-year flood-




10    plains are excluded  as potential drill sites, one-




11    fourth to one-half  of this country's potential




12    sedimentary basins  would be left unexplored.




13              We  can  also envision certain technical




14    problems with trying to  rig up a rotary on top of




15    Pike's Peak and tap  a deposit  of oil or gas near




16    Corpus Christi by  directional  drilling.




17              And I personally have participated in




18    drilling 15,000-foot wells within one-half a mile of




19    the Mississippi River.  We have logistic problems.




20    We have problems  of  location of well siting,  but they




21    are taken care of.




22              And I don't think that some of these flood-




23    plain areas that  you all are so interested in have




24    that  big  of a hazard.  There are potentials there,




25    but I think they  can be reasonably accomplished by the

-------
                                                         820
 1    industry  with relaxation of some of the  certain




 2    proposals on these things.




 3              There are strongly differing opinions  as  to




 4    whether the financial requirements are,  in  truth,




 5    removed in the case of drilling muds and brines,  or




 6    what  might be added on at any subsequent time.   These




 7    financial requirements could shut down nearly  all  the




 8    domestic  drilling and producing industry with  no  true




 9    or  proven benefit.




10              Before I  came to San Francisco, I  checked




11    with  my insurance agent with regard to this  $5 million




12    $10 million financial responsibility and the possi-




13    bility  of insurance,  and he told me that no  company




14    in  the  United States  wrote those policies.




15              And I asked him, "Could you give  me  an  idea




16    of  cost?"




17              He says, "No, none whatsoever."




18              In finding  out from previous testimony  today




19    that  a  $90,000 a year premium on a $2 million  or  $4




20    million liability, $90,000 is unaffordable  to  an  awful




21    lot of  independent oil operators for a premium on




22    insurance.   Therefore, if you cannot buy the --  cannot




23    pay the premium, what are you going to do?   Are  you




24    going to  shut your wells down, plug them and walk  off




25    and join  the welfare  rolls, or are you going to  stay i

-------
                                                         821






 1    business and have reasonable  qualifications on




 2    financial responsibility?




 3              Personally, I would love  to  be able to say




 4    I  can say I'm worth $5 million.   I  would love to be




 5    able to say it, but it would  be  a gross lie if I did.




 6              So these things  are unreasonable to an




 7    extent for the small  independent  businessman.  Some




 8    major companies, yes, that's  fine.   But we are not




 9    major oil companies.




10              Of the 600,000 or more  producing oil and




11    gas wells in the United States  today,  probably fewer




12    than 200 have a need  for round-the-clock surveillance




13    or security because of any public health or environ-




14    mental contamination  danger.   The balance of the




15    wells are generally inspected on  daily basis for any




16    problems.  You have your pumpers  that  go by your wells,




17    check, gauge the tanks, visually  supervise those wells




18    every day.  Some wells --  Some  leases  are very auto-




19    mated, but most of them have  pumpers that go by.  But




20    for continued surveillance, if  you  gave one man ten




21    wells and an automobile and a 12-hour  shift just to




22    circle around and check those wells,  you would run




23    two shifts, it would  take  60,000  people to keep the




24    surveillance.




25              And under your stated  propositions, a man,

-------
                                                         822
 1    a person,  must be present on  that  facility at all




 2    times.   So another slightly unreasonable  proposition




 3    for oil field application.




 4              The filing of the SPCC type  plans with all




 5    local and  state agencies would  benefit  only the




 6    manufacturers of paper and file cabinets  and storage




 ?    warehouses.   This volume of reports  would inundate the




 8    recipients to the point that  they  would be valueless




 9    and the recipients would not  have  the  people to even




10    file or compehend them.  Witness the fact that the




11    Texas Railroad Commission has to get an emergency




12    additional appropriation of $500,000 to initiate




13    compliance with the state's portion  of  the NGPA of




14    1978.




15              The oil and gas producing  industry is a




16    capital intensive industry, and they require well-




17    trained workers with above average capabilities.  The




18    training* of  our existing personnel is  a continuous,




19    ongoing job.   We would question again,  however, any




20    reasonable cost-benefit ratio of the proposed training




21    and recordkeeping under Section 3004.




22              The closure and long-term  care  of a variety




23    of facilities that would come under  regulations in




24    the proposed Section 3004 would present significant




25    legal problems that might well  prove unsolvable.  Our

-------
                                                          823
 1    economic impact  statements  address the prohibitive




 2    costs involved.




 3              Most technical  problems can be solved in




 4    this day and  time  if  the  money required does not run




 5    out.  So it is with the  surface water, groundwater




 6    and leachate  monitoring  proposals in Section 3004.  We




 7    would state again  that  no proof has been brought  forth




 8    of any significant contamination of surface or




 9    subsurface waters  by  drilling muds, and only a very




10    few isolated  instances  of contamination from produced




11    brines.




12              Current  practices  by the industry, under




13    existing state or  federal  regulatory agencies, which




14    agencies EPA  seems to have  ignored or not contacted




15    during its previous three years'  work, are producing




16    no known or predictable  hazards,  and so the enormous




17    costs proposed by  Section 3004 produce zero benefits.




18              The storage requirements set forth for




19    ponds,  tanks,  and  containers of hazardous wastes would




20    include  all oil  and gas  production vessels and would




21    necessitate a complete  moving and rebuilding of all




22    facilities currently  in  use.   These requirements




23    would seem to fit  large  chemical  plants rather than




24    isolated wells.




25              The proposals  in  Section 3004 to deal with

-------
                                                         824







 1    the treatment and disposal of  hazardous wastes again




 2    seem defined for stationary plants  or  sanitary land-




 3    fills dealing with highly toxic,  materials or deadly




 4    poisons.   The many requirements  here  that would point




 5    out the wrong classifications  cf  drilling muds and




 6    brines, crude oil or crude oil waste,  or produced




 7    brines under Section 3001, which  we  addressed before.




 8              The Permian Basin Petroleum  Association




 9    would strongly recommend that  no  requirement under




10    Section 3004 be applicable to  drilling muds, crude




11    oil or crude oil wastes or produced  brines unless




12    and until the currently proposed  two-year study has




13    been completed and thoroughly  analyzed in all respects




14              Prior application of these  proposed regula-




15    tions could initiate the shutdown of  a great portion




16    of our industry.  Roughly, that  shutdown would




17    constitute practically ever -- In fact,  it would take




18    care of every stripper well in the  United States and




19    lot of what we would consider  to  be  deep marginal




20    producing wells.  These would  account  for about 50




21    per cent  of our proven reserves  today.




22              And I think that is  something that we cannot




23    put up with in the posture of  our energy situation




24    as it  is  right now.




25              Premature plugging of  hundreds of thousands

-------
                                                         825







 1    of wells which can never  be  redrilled for the




 2    remaining reserves,  and  the  complete  loss of our




 3    national security because of added dependence  on  over-




 4    seas, unreliable sources  of  energy.




 5              The basic  conception  that  all government




 6    regulators should be  free from  any  industry experience




 7    in the area that they  deal with is  laudable to some




 8    degree.   However, this lack  of  industry experience




 9    carries  with it the  very  heavy  burden of the responsi-




10    bility for 24-hour,  7-day-a-week study to become




11    knowledgeable enough,  without bias,  to propose proper




12    regulat ions.




13              The EPA has  been working  in this area for




14    three years,  but from  the presentation of these




15    proposed regulations,  with regard to  oil and gas —




16    oil and  gas operations, we can  conceive of no first-




17    hand knowledge of,  or  any attempt to  learn,  the




18    workings of the oil  field:   drilling,  exploration or




19    production.




20              Thank you  for the  opportunity to present




21    these views,  and I  will answer  any  questions that I




22    may be able to.




23              MS.  DARRAH:  Okay.  Thank you.   And thank




24    you for  staying within the time limit.   We appreciate




25    that.

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                                                          826
          MR. DILLARD:   Thank you.




          MR. LINDSEY:   Mr.  Dillard, you  and  others




have addressed  this  same point before,  that you  felt




that the -- the  special  waste regulations  here would




result in the shutdown  of stripper wells  and  presumabl




some other well  drilling operations and so on.   And if




I -- Let me see  if  I  understand it right.




          It's  mainly because of the monitoring




activities which  would  be associated with  the disposal




of the muds and  the  brines;  is that --  is  that the —




primarily the reason  why the thing that would cause




the closedown,  as  you understand it?




          MR. DILLARD-   All  right.  Let me -- let  me




say this.




          The way  I  --  The way I have read these




regulations, I  have  a tank battery that is a  facility,




and I am required  --




          MR. LINDSEY:   What's in the tanks'?




          MR. DILLARD:   Oil, brine waters.




          MR. LINDSEY:   Brine.  Okay.   Brine.




          MR. DILLARD:   In other words, produced brine




are stored in a  tank  until you can either  transport




them out or you  have  your own disposal  well and  you




pump those on down  into  a formation that  is amenable




to taking them.

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                                                     827







           All  right.   You set up a groundwater




monitoring system,  and you set up your  leachate  sys-




tem.  The  cost  of  that -- Suppose you are only making




maybe — if  you got a one-well lease and that whole




thing is only  netting,  after operating  expenses,  maybe




$1600, $2,000  a year,  your justification for  the  cost




of the four  wells  to  be drilled and monitored after




you have no  income  coning from this, but you  have  got




a 20-year  monitoring  requirement, there is no capital.




There isn't  even enough in there that you could  save




up over a  20-year  period to even begin  to pay for




that .




           MR.  LINDSEY:   Okay.  So it's  your under-




standing,  though,  that  these regulations would require




monitoring well  drilling and monitoring for storage




tanks and  so forth?




           MR.  DILLARD:   Yes,  sir, that's my under-




standing.




           MR.  LINDSEY:   That's not our  intention.




Maybe we haven't worded it correctly enough and will




have to take another  look at that.




           MR. DILLARD:   No,  I have read your regula-




tions  through,   and  my  poor inability to understand




legalese,  but  I  have  read it through three times,  and




I  keep coming up with  the same thing all the time.

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                                                       828
          MR. LINDSEY:  Okay.




          MR. FIELDS:   I  would  just,  you know, add to




what Fred said.   I guess  there  are  some inaccuracies




in the way the regulations  have been  presented, but




it was not our intent to  -- for your  industry's wastes




in terms of muds  and brines --  I'm  not  talking about




the crude oil wastes, but  in terms  of muds and brines,




it was not our intent to  require financial require-




ments for the groundwater  and leachate  monitoring




provisions, for the storage provisions,  i know you





have touched on these in  your presentation, but that's




something -- we appreciate  your comments.  We will hav




to fix that and clarify these things  in the final




regulat ions.




          MR. DILLARD:  Thank you,  Mr.  Fields.  I hope




you do.




          MS. DARRAH •   I  just have  to get a word of




clarification in  here.




          MR. DILLARD:  All right.




          MS. DARRAH:   I  just want  you to know that




these are some of the people that wrote the regulation




and that the lawyers  in our agency  weren't the ones




who wrote them.   We  certainly tried to help as much





as we could.




          MR. DILLARD:  May I do this?  May I extend

-------
                                                        829







 1    an  invitation to West Texas to any of  you  to  come out




 2    and be  our guest,  and we will show you deep-well/




 3    shallow-well operations and let you  see what  is being




 4    done and how the -- how it operates  and the  require-




 5    ments that we go through with our own  state  regulatory




 6    body,  which I have stated before, and  I think Mr. —




 7    one of  the gentlemen was questioning Mr. Snow today




 8    about the Texas regulations.  But we do have  good,




 9    solid regulations  to protect the environment,  and we




10  I  work with our commission becau.se of  it.




11              MS. DARRAH:   Okay.  Did you  have some




12    questions?




13              MR. LEHMAN:   No.




14              MS. DARRAH:   I guess there aren ' t  any more




15    questions.  Thank  you very much.




16              MR. DILLARD:  Thank you very much.




17              MS. DARRAH:   Mr. J. B. Braden , Santa Fe




18    Energy  Company?




19              MS. GWEN SCOTT:  Mv name is  Gwen Scott, and




20    I work  for Santa Fe Energy Company,  and we would like




21    to  request that the time allotted to Santa Fe Energy




22    to  testify be given to -- added to the time  allotted




23    to  the  Western Oil and Gas Association to  testify since




24    we  were in on the  writing of those comments,  and those




25    comments show our  views, and I would like  to  extend

-------
                                                        830






 1    this  in  the name of Mr. Les Clark  from  Belridge Oil




 2    Company  and from Mr. Gallagher of  Getty Oil  Company.




 3              And I thank you.




 4              MS. DARRAH:  Okay.  I will  certainly considei




 5    that.   Thank you.




 6              Mr. Richard Dreith, Shell Oil Company?  Is




 7    Mr. Dreith here?




 8              Mr. Arne Rovick, Phelps-Dodge Corporation?




 9              MR. ARNE ROVICK:  Here.




10              My name  is Arne Rovick.   I'm  an  attorney




11    from  Phoenix, Arizona, appearing on behalf of  Phelps-




12    Dodge  Corporation  this afternoon.




13              Last evening, I gave a short  presentation




14    on  Section 3001 and our interpretation  of  the  Act and




15    the legislative history.  We felt  that  this  program




16    should not apply to the copper mining industry until




17    completion of the  Section 8002 study, which  Congress




18    has directed that  the Administrator conduct  in




19    connection with the mining industry.




20              However  you choose to proceed ahead, then




21    we  would like to offer some other  comments on  the




22    Section  3004 special waste category regulations that




23    have  been set out  in the proposed  regulations.




24              Phelps-Dodge Corporation  mines and discards




25    several  hundred thousand, or several  hundred million

-------
                                                        831







 1    tons  of  material every year in its domestic  mining,




 2    copper mining operations.  These wastes  generally are




 3    no  different from the natural rock material  —  In fact,;




 4    the bulk of it is the natural rock material  that is




 5    picked out  of the mine and dumped near the mine site.




 6              And Phelps-Dodge Corporation does  not




 7    believe  that these wastes constitute  a hazard to the




 8    environment.  In fact, apparently the Environmental




 9    Protection  Agency agrees with us to some  extent, and




10    that  throughout th€?se regulations, those  type of




11    wastes have been categorized as large volume,




12    relatively  low-risk wastes.




13              And with that in mind, and  I think in the




14    legislative history the draft regulations have




15    categorized those as special wastes and  have   exempted)




16    them  from many of the provisions in the  Section 3004




17    regulations.




18              However, even the provisions that  are still




19    applicable  to the copper mining industry, we believe




20    that  some of these should also be given  careful review




21    and reconsideration and deletion.




22              For instance, the -- just the  sampling




23    provisions  that are set forth in these regulations,




24    I think  were devised for containerized wastes,  wastes




25    of  certain  small measurable quantities.   We  are dealing

-------
                                                        832







 1    in  --  with wastes of several hundred thousand   tons




 2    per day,  hundreds of millions of tons over  a year,  and




 3    billions  of tons over the life of the mine.  And  we  are




 4    just perplexed as to getting a representative  sample




 5    of  a billion tons of material.  And I don't think that




 6    these  regulations have addressed that.




 ~l              Additionally,  I'd like to reiterate  our




 8    guest  --  some of the site selection comments by the




 9    petroleum industry.




10              Copper, like petroleum, has to be recovered




11    where  it  is found.   We don't have the liberty  of




12    mining it above a 500-year floodplain.




13              Now,  in fact,  I'm not sure whether our




14    mines  right now are  in or out of a 500-year floodplain,




15    but if they are, that's  where we have to continue




16    mining the ore.  Because of the economics of the




17    dispersal of the wastes, that's also where  we  have  to




18    discard the wastes.




19              Additionally,  where our mines are located  in




20    the Southwest,  Arizona and New Mexico, the  nines,  some




21    of  them are located  in the rugged desert regions  which




22    have gulleys, ravines, arroyos and other naturally




23    occurring flow areas.  And when the -- we have the




24    occasional rain storms in the desert, these naturally




25    occurring drainage areas, of course, fill up with the

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                                                        833
flood waters  that  run  off the desert.




          These  particular areas are tradtitlonal1y




places where  the mine  wastes have been deposited, and




they must continue  to  be in places where the mine




wastes are deposited.




          It  is  physically impossible to pile up




several hundred  millions of tons of material along the




narrow ridges  that  separate these gulleys.  So if —




if these gulleys are considered to be in the floodplain




it is totally  impossible for us to avoid depositing




wastes in those  regions.




          Similarly, I  guess I'm not aware of any one,




of our mines  anyway, being situated near a sole source




aquifer; but  if  that's  where the ore body is discoverec




then, again,  that  is where the mine has to be




situa-ted and  the wastes discarded.




          Now, just the site selection standards, while




they are only  applicable to new mining sites,  we feel




could impose  restrictions on the location and develop-




ment of new ore  bodies,  and these restrictions are




being imposed  when  Congress and the Environmental




Protection Agency  admit they don't  have sufficient




information to determine whether or not the hazards




do exist.




          So  I submit  that,  before  these type of site

-------
                                                        834





 1    selection guidelines be  imposed,  that  there be a




 2    determination there is a  hazard,  and would, therefore,




 3    suggest that they be deleted  with respect to the




 4    mining industry.





 5              Other regulations on  site  selection also




 6    provide for a 60-meter buffer zone around the




 7    facility.   This buffer zone is  to protect against




 8    unexpected discharges or  releases from fires,




 9    explosions, spills and underground leaks.  Those




10    dangers,  to me, indicate  some volatile or liquid




11    materials may be released.  The  g;reat  bulk of our




12    wastes are the rock that  is pulled out of the mine and




13    unchanged in form.  And  I  suggest it does not pose a




14    hazard of  this type which  requires this buffer zone.




15              Additionally,  our mines are  located in




16    rather remote regions of  the  Southwest, certainly no




17    housing adjacent to the  --  the  waste dumps.  And the




18    removal of this 200-foot  buffer  /.one removes a




19    considerable amount of land from use as a waste dump.




20    Every 200 linear feet would be  approximately another




21    acre around our property,  and over several miles,




22    we'd end up with a large  acreage which we have dependec




23    upon as a dump site which  is  now being taken away.




24              Again, without  any  analysis  of the potential




25    risk, and we believe that  just  piling  the rock there

-------
                                                        835







 1    does not pose a risk that  needs  a  buffer zone.




 2              Another provision  that has  been made




 3    applicable by the special  waste  category are the




 4    security provisions, which requires  a six-foot  barrier




 5    and various entry restrictions.  We  have at the




 6    Morenci mine — US Highway 666 actually  passes  directly




 7    over the mine dump.  It has  never  been fenced in,  and




 8    we  are not aware of anybody  having any problems in




 9    driving over that and being  exposed  to any dangers




10    other than perhaps from other automobiles.  So  we




11    would suggest that the --  the mine wastes that  is




12    piled up there is not of a nature  that must be  guarded




13    against physical contact.




14              Cattle graze close to  our mine dumps, and




15    they have not experienced  any hazards from their




16    exposure to that pile of rock.   So I  think that, having




17    a requirement to construct miles and  miles of a six-




18    foot barrier fence around  waste  dumps,  one that offers




19    no  protection to any hazard  and, again,  incurs  a




20    considerable expense,  which  I guess would benefit  the




21    manufacturer of the fencing  material.




22              On the recordkeeping requirements --  And this




23    perhaps comes back and ties  in somewhat  with the




24    analysis -- we don't -- we don't believe that daily




25    records are required,  or daily analysis,  once we have

-------
                                                        836







 1    determined the characteristic of the  —  of  the  rock




 2    waste from the mine, day in and day out.   That  wouldn't




 3    vary significantly.




 4              We are moving probably in the  neighborhood




 5    of 5-600,000 tons of rock a day from  our three




 6    operations in New Mexico and Arizona.   And  it  is a




 7    constant,  movement.  It must be taken  out of the mine




 8    and dumped immediately, and we don't  believe that




 9    daily analysis of that material is necessary and would




10    submit that annual reports as to tonnages  moved would




11    be adequat e.




12              I had some comments here on  the  closure




13    requirements.  However, I have been apprised by Mr.




14    Fields,  in looking at some corrective  amendments to




15    the rules and regulations, that there  was  a typo, and




16    thank you for removing that restriction.




17              On the groundwater monitoring  requirements,




18    these wells are expensive to put down  in Arizona.  We




19    may be operating in areas where it would be several




20    hundred feet to the groundwater.  We  question  the




21    advisabiltiy of requiring, I guess, four wells  at this




22    time to measure.  We would suggest that  perhaps a




23    single well in the downgrading from the  property might




24    indicate  whether a problem does exist;  and  if  problems




25    do occur, perhaps additional monitorinp;  be  imposed

-------
                                                        837







 1    at  that  time.




 2              But  to impose these financial  requirements




 3    or  expenditures at a time when there  is  no  hard




 4    evidence that  there is substantial hazard  here  we




 5    think  is premature.




 6              That concludes my comments.




 7              MS.  DARRAH:   Okay.  Thank you.




 8              Will you respond  to questions?




 9              MR.  ROVICK:   Yes.




10              MR.  FIELDS:   Mr. Rovick, my  comments  are




11    questions regarding your comments on  the  site  selection




12              Your comment basically was  that  we  should




13    remove all these general site selection  standards we




14    have  in  here for the mining category  of  special waste,




15    and your basic comment was that mine  waste  disposal




16    sites  should be located where the ore  is  processed.




17    But I  was just wondering what types of --  there must




18    be  some  sort of site criteria by -- which  the  mining




19    industry has to comply with now.  Are  there any




20    requirements at all regarding selection  of  where you




21    are going to put a mine at all?  Are  you  saying that




22    there  should be no restrictions whatsoever?  Is that




23    your




24              MR.  ROVICK:   In Arizona, I'm not  --  I'm not




25    aware  of any requirements.  Where the  ore  body  is

-------
                                                         838







 1    located,  that's where we mine  it.




 2              The economics are such  that  we  are mining an




 3    ore  that's 5/10 of 1 per cent  copoer.   So at the




 4    Morenci  mine, we are moving 60,000  tons of processible




 5    ore  at  5/30 of 1 per cent.  That  doesn't  work out to




 6    be  too  much copper.




 7              So the -- most of that  process  ore is




 8    discarded on site, plus we have to  move another




 9    120,000  tons of ore and rock material  from the mine




10    just  to  get to that 60,000 tons.  And  all of this




11    removal  of that material, you  are talking in such




12    vast  amounts that our -- our site selection for the




13    disposal  of those wastes is economically  -- has to be




14    very  close to the mine.  We just  cannot afford to




15    shift  t.iat material any great  distance.




16              And, in fact, I guess our -- economically




17    our  major site selection factor is  dumping as close




lg    to  the  mine as we can.   Most of these  mines are




19    situated  :n arid, remote areas, and I  guess we have not




20    had  difficulties.  The major difficulties, in fact,




21    are  in  getting the property upon  which to dump the




22    wastes.   A lot of it's federal  land, Bureau of Land




23    Management, U. S. Forestry, other claims.




24              So, actually acquiring  the real estate to




25    dump  the  waste has been a major problem.

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                                                        839
          MR.  FIELDS:   Right  now there are no require-




ments that you know  that  are  imposed upon you regarding




locating of disposal  sites  whatever in your --




          MR.  ROVICK:   Waste  dumps, no.  It's just the




rock that's there  before  we get there, and we dig it




out of the mine  and  dump  it next to the mine.




          MR.  FIELDS:   Okay.   All right.   Thank you.




          MR.  TRASK:   Are you required to do any




environmental  impact  studies  of any kind on copper




mines that you are aware  of?




          MR.  ROVICK:   Not  that I'm aware of.  Most of




the copper mines have  been  there for a long time,




predate NEPA ,  and  Arizona does not -- does not have




a little NEPA  Act, and I  believe New Mexico repealed




it, finding it too cumbersome to work with.




          MR.  TRASK:   Okay.   There is no national




requirement.   There  may be  state requirements.  Is that




what you are suggesting?




          MR.  ROVICK:   Yeah.   I'm not aware that we are




-- We are not  a  nationally  funded private enterprise.




          MR.  TRASK:   I will  remember that.




          MS.  DARRAH :   Okay.   I guess there aren't




any more questions.   Thank  you.




          Mr.  Greg McClintock, Western Oil and Gas




Association?"

-------
                                                        840







 1              MR. GREG McCLINTOCK:   Madame  Chairperson,




 2    I  discussed with you informally,  I  guess  during an




 3    earlier recess, the possibility  of  getting a few




 4    extra minutes in lieu of the three  oil  companies which




 5    decided not to make present atiors here.   I hope that




 6    we can do that.




 7              MS. DARRAH:   Okay.  You indicated you thought




 8    you could give your presentatior  in  about  15 minutes.




 9              MR. McCLINTOCK:  Yes.   And I  am  timing




10    myself here,  so I will try to be  very religious about




11    that.




12              MS. DARRAH:   Okay.  That  would  be fine.




13    Thank you.




14              MR. McCLINTOCK-  I might  just say for the




15    record that my name is Greg McClintock, and I am




16    appearing here today as counsel  for  the Western Oil




17    and Gas Association.




18              "While the comments I have  to  make will




19    relate primarily to Section 3004, I  would  like to




20    briefly address a couple of the  other sections as




21    well.   But  my comments will be brief.




22              I might say at the outset  that  we see at




23    least five  significant problems  with the  way the




24    proposed regulations are presently  drafted, and I




25    would like  to just very briefly  tick those off for you.

-------
                                                        841







 1              First, with the  exception  of a few special




 2    wastes,  the regulations appear  to  treat  all  hazardous




 3    materials essentially the  same,  basically as though




 4    they were all extremely toxic or highly  poisonous.




 5              I am cognizant of  the  fact  that you've




 6    incorporated a note procedure,  and  I  will address




 7    that in  a moment.  We don't  believe  that really solves




 8    our problem.  We believe approaching  the hazardous





 9    waste problem in this fashion,  basically treating




10    all materials as extremely toxic,  results in overregu-




11    lation with respect to many  of  the materials that




12    would be regulated.




13              The solution,  as has  been  indicated by a




14    number of speakers here today,  we  believe lies in




15    differentiating among wastes based on  relative degree




16    of  r'isk  or relative degree of hazard  and treating the




17    wastes accordingly.




18              Secondly, the burden  of  these  proposed




19    regulations basically falls  on  industry  to  establish,




20    first  of all,  that its -- that  its wastes are not




21    hazardous.   There seems to be a  -- more  or  less of  a




22    presumption that your wastes are hazardous,  and then




23    you need to test to establish that that  is  not the




24    case,  rather than the other  way  around,  with EPA




25    designating those particular wastes which they believe

-------
                                                        842






 1    are troublesome and then one merely  comparing the




 2    wastes that you have to dispose  of  against that list




 3    to ascertain  whether or not you are included.




 4              Basically, you have  to go  both ways rather




 5    than just following the latter course.   So,  as we




 6    see it,  the burden has basically been  placed on




 7    industry to establish that they  are  not  dealing with




 8    a hazardous waste.  And while  this  is  convenient for




 9    the agency, it's very costly to  industry and will




10    enormously increase the amount of testing that needs




11    to be done by industry.




12              We believe for some  companies  it will be




13    economically prohibitive, and  we really  believe that




14    a better approach would be for EPA  to  take the




15    criteria that it's established or other  criteria which




16    it deems appropriate, compile  a  rather comprehensive




17    list of  the wastes that are hazardous,  then rank them




18    according to their hazard or degree  of risk, and then




19    prepare  regulations which regulate  in  accordance with





20    that list.




21              This would leave industry  in the position




22    of, rather than having to go out and test each one of




23    their waste streams, merely looking  at your list and




24    ascertaining, based on their knowledge of what it is




25    they are putting out, whether  or not they are covered.

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                                                   843




We think  this  would  be  a preferable approach.




          Thirdly, the  regulations seem to discriminate




in a rather  arbitrary  fashion between wastes based on




end use.  For  example,  if a waste is being disposed of,




it must be handled with extreme care.  On the other




hand, if  it's  being  recycled, it's exempt.




          We don't really see the relationship here to




the actual risk  posed.   We would think that the handlin




of the waste would,  in  both cases, pose the same




degree of risk.   Yet you have discriminated based on




basically the  end use that -- that -- of the material.




          Fourth, annual testing is required even




where there's  been no change in the waste stream that's




being put out  or  the process by which it's being




produced.  Nothing has  happened,  in essence, that could




alter the waste  stream  in many cases, yet we are still




required to test, to test the stream to establish that




that's  the case.




          We think this results in a great deal of




unnecessary testing, and we believe that testing at the




time there is  a  change  in the process or testing when




you commence a waste stream to establish what its




content is,  coupled with spot checking by the agency




to make sure that no one's cheating,  should be suf-




ficient to take  care of the problem.

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                                                   844






          And, finally,  we  believe the regulations




unnecessarily overlap  into  areas that are already




subject to environmental  regulation.




          An example of  this  is  in the area of air




pollution control  from  combustion operations where it




appears to us at  least  that the  Clean Air Act and state




and local air pollution  regulations should adequately




take care of the  problem.   But,  nonetheless, these




regulations would  attempt  to  regulate that function  as




well .




          Well, moving  now  to the specific requirements




of Section 3004,  there  are  several points I'd like to




briefly touch on.




          First,  as  I  hinted, I  guess in my first




point, we believe  that  everything from site selection




through closure and  post-closure procedures, all




aspects of the treatment  and  disposal function should




be scaled depending  on  the  degree of hazard posed by




the materials actually  being  handled at a facility.




          If you  have  a  facility that handles only




low-risk type materials,  all  of  these various




requirements that  bear  on  that facility should be much




less stringent than  if  they are  handling kepone  or




something that's  extremely  toxic.




          An example of  this  is  that, if you have a

-------
                                                        845
 1    remote  production site where you are  producing crude




 2    oil  and you have some waste crude oil  in  limited




 3    quantities that you need to dispose of,  it  seems that




 4    the  requirements with respect to that  disposal should




 5    be  extremely less stringent than those,  as  I  mentioned




 6    for  a kepone dump or some other  facility  handling




 7    highly  poisonous materials.




 8              As presently written,  we don't  believe the




 9    regulations really make that kind of  distinction.




10  '  While it's true that you have the note  procedure,




11    which appears to be designed to  accommodate some of




12    these things, it wouldn't accommodate  all of  them.




13    And  I think, because the burden  again  is  on industry,




14    we  have to come forward and demonstrate to  you that




15    the  way we propose to handle the problem  will be




16    satisfactory.  We have to convince the  EPA  permit




17    writer  of  that.




18              It can be a. very time  consuming and burden-




19    some process  to do this.  It will be  discouraging,




20    particularly to small companies, to try to  do that,




21    and  I think once you've accomplished  it,  if you are




22    successful, you are stil] faced  with  the  possibility




23    of  litigation by public interest or other environmenta




24    groups  who feel that the permit  writer's  being more




25    lenient than your basic regulation permits.  So we

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                                                        846
  don't  really see the note process as  an  answer  to the
  problem.
            I would like to add that  I  think  a  further
  reason for more relaxed standards  in  the  case  of  low,


  low hazard pollutants or -- or wastes  in  California,


  at  least,  is the fact that, because of  the  numerous


  faults in  California.  If you have ever seen  a map of


  the geology of California, the whole  state  is  literally


  riddled with faults.   And the fact that I think a


  large  part of at least the Central Valley of  California


  is  a 500-year floodplain, the availability  of  sites to


  dispose of hazardous  materials may be  very, very  few.


            So we think this is another  reason  for


  differentiating between degrees of hazard and  having


  different  dump sites  ior less hazardous materials.


            The second  point I would like to  make

|
  regarding  Section 3004 is that, while  we  believe  EPA


  has acted  correctly in designating utility  scrubber


  sludge as  a special waste under your  regulations,


  because of the volume and low-risk characteristics


  of  that type of waste, the same treatment should  be


  accorded to other scrubber sludges.   In other  words,


  it  shouldn't be limited only to utility sludges.   And


  the ones we have specifically in mind  are those that


  are produced by flue  gas desulfurization  units that are

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                                                        847
installed  on  steam  generators used in thermally




enhanced oil  recovery  operations.




           This  is a problem that's somewhat unique to




California, and  more particularly to Kern County, where




most of this  activity  occurs.




           To  give you  some idea,  we are talking about




perhaps as many  as  300 to  500 units, FGD units being




installed  on  steam  generators in  Kern County by 1982.




           Now,  there will  be a huge volume of sludge




produced by these steam generation operations.  It's




been estimated  that, if the double alkali system is




used rather universally,  that we  would be dealing with




as much as 77 20-ton truckloads a day of sludge that




would need to be disposed  of.  And if the nonregenera-




tive or liquid  type of system is  used instead, you




could be talking about as  much as  2700 truckloads of




waste sludge  that would need to be disposed of.




           So, as we see it,  unless some special waste




status is  accorded  to  this sludge from these operations




which really  is  very similar in nature to the utility




sludge, and the  volumes are certainly comparable, you




are going  to  have a very  severe impact on oil produc-




tion in Kern  County.




           Economic  consequences will be very severe,




particularly  for the small companies, many of whom are

-------
                                                        848






 1    right  on  the  edge right now in terms of profitability




 2    in producing  this oil,  and we have some concern  that




 3    much of  it's  going to  be left in the ground  and  shut




 4    in if  they  have  to comply fully with your  regulations.




 5             Now,  the third point I would like  to make  is




 6    -- really goes  to a problem that you have  discussed




 7    several  times here today, and that relates to  facili-




 8    ties which  are  constructed to take care of accidental




 9    spills.   And  what I have in mind are dykes and similar




10    impoundments  —  I guess that's the way to  describe




11    them —  which are constructed around storage tank




12    batteries against the  possibility that there might  at




13  :  some time be  a  spill.




14             Now,  I  guess  I took a little different




15    approach  when I  read your regulations.  You  make  clear




16  I  in there  that these facilities should be subject  to




17  j  the oil  and hazardous  spill requirements of  EPA,  and




18    I took that to  mean that you deemed that adequate.   I




19    think  that  I  can't really believe, after reading  the




20    Act, that it  was  the intent of Congress to include  as




21    a hazardous disposal site a dyked area around  a  storage




22    tank that's put  there  strictly to take care  of a




23    possible  emergency that might aever occur.   This  just




24    doesn't  seem  to  me to  fit within the concept.




25             I can  certainly see it for facilities  that

-------
                                                        849
 1    are intentionally set up  to  handle  hazardous materials




 2    but not — not facilities  that  may  never actually be




 3    used,  but are just there  as  an  emergency precaution.




 4              I think the effect  of  including these type




 5    of facilities within your  definition  would be to




 6    discourage the dyking of  storage  tank areas because




 7    that's how you come within the  Act.   You then become




 8    an impoundment and subject to the Act.   So the simple




 9    solution is don't dyke if  you can avoid it.




10              There are -- There  are, of  course,  conse-




11    quences if you don't dyke.  But  it  just seems that you




12    are working somewhat at cross purposes  here if you




13    include this type of facility.   So  we would hope that,




14    in your regulations -- And there was  some indication




15    that you might do this —  that  you  would clarify that,




16    where".the facilities are constructed  solely to retain




17    an accidental spill  and are not  intentionally designed




18    to handle hazardous materials,  that this was  something




19    that you don't intend to include.




20              Fourth,  we also  feel  it's unfair and somewhat




21    unreasonable to apply the  regs  to facilities  which




22    have been installed solely because  they were  required




23    under  the NPDES provisions of the Clean Water Act.  In




24    other  words,  we have a situation where  you are required




25    by one set  of federal regulations to  install  a

-------
                                                        850







 1    treatment facility and, having done  that,  to comply




 2    with that Act.   It appears now that  we  are coming along




 3    under RCRA and saying, "Oh, yes,  you have  to also




 4    comply with these regulations."   And that  facility,




 5    of  course, never would have been  there  if  it hadn't




 6    been installed to comply with the NPDES  provisions.




 7              So this seems somewhat  unreasonable to us




 8    to  try to catch it under both sets of regulations.




 9              And we also believe that the  facilities are




10    generally built using best available technology and




11    other precautions which should prevent  any significant




12    problems.




13              Fifth, not all disposal of liquids in land-




14    fill sites should be discouraged, at least in our




15    opinion.   There are certain low-risk wastes, such as




16    waste crude oils and some refined oils,  which have




17    been disposed of in California municipal garbage dumps




18    for a number of years, and we have really  experienced




19    no  problem.




20              What we have found is that the garbage acts




21    as  an excellent absorbant for the oil.   It doesn't




22    become a  -- It soon loses its liquid state and actuall}




23    the space is filled up, and actually there is a space-




24    saving aspect to this.




25              It's a low hazardous material  and it can  be

-------
                                                        851
 1   accommodated  very  easily in municipal dump sites.  And




 2   we think where  you are  dealing with that type of low-




 3   hazard material, you  ought  to be able to continue




 4   that practice.




 5             The final point which I wish to make with




 6   respect to Section 3004  is  that the burning of waste




 7   crude or refined crude  oil  as a fuel by utilities or




 8   in other industrial boilers has certain beneficial




 9   aspects.  It's  energy-conservative.  And if it's done




10   in compliance with air  pollution regulations, we reallj




11   don't understand why  you should have a waste, hazardous




12   waste concern.




13             It seems to us that,  if you are meeting the




14   Clean Air Act requirements,  local air pollution




15   regulations and all of  that,  that any concern regarding




16   hazardous wastes should  be  completely taken care of anc




17   that type of thing should be  exempt from these regula-




18   t ions.




19             I see I'm out  of  time,  so I won't go on to '




20   the other sections.   I do have  a set of written com-




21    ments which I will  submit for the record,  which con-




22   tains all of our thoughts on  these proposed regulations




23             The only other thing  I  might add is that I




24   have been authorized by  the California Independent




25    Producers Association to state  that they join in our

-------
                                                        852





 1   comments.   And  I  will make myself available  for  any




 2   questions  which you might want to ask, bearing  in  mind




 3  i that  I'm  an attorney and I'm not technically  as
                        "



 4  : knowledgeable  as  some,  but I will do my very  best.




 5              MS.  DARRAH:  Mr. McCLin took, let me ask  you




 6   how many  more  minutes would you need  to finish  your




 7   scheduled  present at ion"7




 8              MR.  McCLINTOCK:  WelL, I really had two  --




 9   I  think there  were two  or three brief comments  which




10   I  wanted  to make.   Probably two minutes at the  most.




11              MS.  DARRAH:  Okay.  I certainly appreciate




12   your  limiting  yourself, but I haven't cut anybody  else




13   off today,  so  please go ahead.



14              MR.  McCLINTOCK-  All right.  Fine.  Thank




15   you.



16              Well,  I  just  wanted to comment briefly on




17   a  coupLe  of the other sections of the proposed  regula-




18   t ions.



19              One  of  the concerns which we have  is  with




20   the way in which  you are treating waste oil.  It's our




21   view  that  most  waste oils, not all, but most, are




22   relatively innocuous.  Crude oil and most used




23   lubricating oil,  most refined oil wastes are  not really




24   a  significant  hazard in and of themselves.   And we




25   understand really  that  your concern is that  these

-------
                                                        853







 1    oils  might  become potential carriers of other  things




 2    that  could  be quite harmful, such as PCB's.




 3             While we can understand that concern,  I




 4    think that  the rationale here bothers us  a  little  bit




 5    because  it  seems like that rationale could  be  applied




 6    to  almost any liquid.  Water can certainly  become  a




 7    potential carrier of innumerable hazardous  substances




 8    just  as  waste oil can become such a carrier.   And  we




 9    really don't  understand why waste oil has been singled




10    out,  other  than apparently there have been  some




11    incidents where reformer oil, for example,  or




12    transformer oil has been mixed with waste crude  oils.




13             Again, the same thing happens all  the  time




14    with  water.   And we -- we feel that the answer to  that




15    is  proper management techniques with respect  to  the




16    oils  and it is not to treat all oil, irrespective  of




17    its properties, as being hazardous.




18             The second point which I would  like  to make




19    has to do with the monitoring function.   We  understand




20    the regulations to be treating all service  stations




21    which collect used motor oil as a storage  facility




22    under Subpart D if they hold such oil for more than




23    90  days.  We  believe that this could present  some




24    rather major  problems, particularly for those  service




25    stations which are located in remote or rural  areas

-------
                                                        854







 1    and which cannot arrange to have  that  waste  oil that




 2    they are gathering picked up more  often  than once ever$




 3    90 days.




 4              A simple solution to this problem  might be




 5    to say that the 90-day period commence a  to run  at the




 6    time the storage tank is full.  And, obviously, at




 7    that point you can expect that the service station




 8    owner or operator is going to have the oil picked up




 9    within a reasonable period of time, and  we would think




10    within 90 days.




11              If that -- If that definitional  change were




12    made,  I  think that would take care of  a  great  deal of




13    our concern respecting that particular problem.




14              And I think that's really about  all  I had




15    to say.   Thank you.




16              MS. DARRAH:  Okay.  Thank you.




17              Tim?




13              MR. FIELDS:  Go ahead,  John.




19              MR. LEHMAN:  Let me start out  by asking you




20    a  legal  type question since you mentioned  that  you




21    didn't normally handle technical  ones.




22              MR. McCLINTOCK: I'm not  sure whether  I can




23    handle legal ones, either.




24              MR. LEHMAN:  Well, since Ms. Darrah  made it




25    clear that she wasn't -- a bunch  of engineers  hero

-------
                                                        855






 1    wrote  the  regulations earlier, and I'm not a  lawyer,




 2    we  will  see how this works out.




 3              MR.  McCLINTOCK:  Fine.




 4              MR.  LEHMAN:  I wanted to comment on  your  —




 5    or  ask you to  consider what I took to be a suggestion




 6    which  appears  to be at odds with the statute.




 7              You  said that it was your recommendation  of




 8    your association that we ought to, when we're  -- when




 9    we're  -- when  we're going about the business  of




10    defining a hazardous waste, that we should stick to




11    listing  wastes and somehow subdivide those.




12              MR.  McCLINTOCK:  Yes.




13              MR.  LEHMAN:  And that the -- the other side




14    of  it, that is the presumption that all wastes are




15    hazardous  unless proved otherwise, puts a big  testing




16    burden on  everyone.




17              Well,  I would just call your attention to




18    Section  3001(b)  of the statute, which the way  we read




19    it  anyway,  mandates a dual system of both a list and




20    this other set of characteristics which we have done.




21              Now,  how do you rationalize picking  only




22    one-half of the  mandate and ignoring the other half?




23              MR.  McCLINTOCK:  Well,  my reading of that




24    particular section -- And I don't have it in  front  of




25    me, but my recollection is that you are correct in

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                                                        856
that it requires  you  to  establish criteria and to  also




establish a  list.   The thing that I don't think  it




requires you to do  is  to then require that industry




apply that criteria to their individual waste streams




and tell you whether  their  stream is hazardous.




Certainly it requires  you to establish criteria, and




that's why I suggested that  you do establish that




criteria.   You then prepare  a comprehensive list




based on that criteria,  and  on that list, using  the




criteria,  you come  up  with  a very specific categoriza-




tion of those wastes  which  are hazardous which industry




can then look at  and  say,  "Yes,  I come within that,"




or "No, I don't,'' rather than having industry do the




testing.




          I don't read the  statute as saying that




industry is the one that has to do the testing.  I




guess that's where  I  disagree with you.




          MR. LEHMAN:  Well,  we have the statute,  and




it says that we shall  promulgate regulations identifyir




the characteristics of hazardous wastes and listing




particular hazardous  wastes.   That's both, right?




          MR. McCLINTOCK:   Yes.




          MR. LEHMAN-  Tt doesn't say "or list,'1 it





says "and list . "




          MR. McCLINTOCK:   Right.  Again, I don't  see,

-------
                                                         857






 1   though, that  I'm  saying that you should establish




 2   criteria.   I'm  not  telling you not to do that.  What




 3   I am saying is  that  I  don't think you then have to




 4   shift the testing burden to industry to establish




 5   whether they  come within the criteria.   I don't see




 6   that in the statute.




 7             MR. LEHMAN:   Well, okay.  Let's -- Let's




 8   carry this on to  Section 3010,  for example.   This




 9   occurs elsewhere  in  the Act.  But let me just give you




10   a feel for why  we believe  our interpretation is




11   correct .




12             Section 3030,  for example,  uses words like




13   this.  This has to do  with the  notification require-




14   ments.  And it  says:




15             "Not  later than  90 days after promulgation




16        'or revision of  regulations under Section 3001,




17 ,       identifying by  its characteristics or listing any




18        substances as hazardous wastes subject  to this




19        title,  then such  person,"  you know, "must notify.'




20             In other words,  throughout  Subtitle C,  when-




21   ever hazardous wastes  are  referred to,  it is by its




22   characteristics or by  listing.




23             MR.  McCLINTOCK:   Again,  perhaps I'm drawing




24   too  fine  a line.  I  don't  think so.   I  think again




25   that you  can take the  criteria  and establish a list

-------
                                                        858





 1    based  on  that criteria and require people  to  report  to




 2    you  if they have wastes which contain those charac-




 3    teristics or contain -- or are on the list by  reason




 4    of having those characteristics and still  comply  with




 5    the  statute.




 6              I can see how you are reaching the  conclusio




 7    you  do,  but I don't believe mine is at odds with  the




 8    statute,  and it certainly would reduce the burden on




 9    industry.




10              MR. LEHMAN:   Okay.  Let's pursue another




     avenue,  then.




12              These type of characteristics that  we have




13    specified,  like f1ammab11ity,  reactivity,  corrosivity,




14    and  so forth, are identical in many respects,  if  not




15    exactly  identical, to  the same types of characteristics




     that are  specified in  DOT regulations, by  which




     shippers  of hazardous  materials are required  to




lg    determine by testing those materials whether  or not




19    they meet those characteristics.




               Now,  in other words, the onus is on  the




     generator or the shipper of those materials to




22    determine whether or not he meets those characteris-





23    tics




24              MR. McCLINTOCK:  Yes.




25              MR. LEHMAN:   -- and thereby follow  certain

-------
                                                        859





 1   transportation  rules.




 2              Now,  do  you  feel  that -- you know, is your




 3   experience  that  that type of testing requirement that




 4   DOT has is  somehow more  or,  say,  less onerous or more




 5   onerous than  this  would  be?




 6              MR. McCLINTOCK:  Well,  I don't have the




 7   practical  experience to  answer your question.  I'm not




 8   that familiar with how the  DOT statutes and regulation




 9   work in practice.   I would  be very surprised if every




 10   time a shipment  is picked up that  independent testing




 11 I  is done.   I suspect that  they have worked out some




 12   way of doing  it  much more conveniently.  But I frankly




 13   don't know.   I'm just speculating.




 14              I would  say this,  though,  even if I am wrong




 15   on that score and  they do test each shipment, your




 16   regulations would  require that the people who generate




 17   the waste conduct  this kind  of testing, and I think




 18   this expands the burden many,  many-fold when you --




 19   when you spread  it out to all  the  potential sources




 20   from -- which generate wastes,  particularly when there




 21    is basically that  presumption  that  waste is hazardous




 22    until established  otherwise.




 23              So it  seems to  me  we really are increasing




 24    very,  very substantially  the testing burden.   And




25    rather than  one agency,  such  as EPA,  doing the testing

-------
                                                        860







 1   on particular  products,  you may be requiring that




 2   thousands,  or  maybe  even tens of thousands of people




 3   all over  the country each test their own material,




 4   even  if it's identical  to everybody else's, to estab-




 5   lish  whether or  not  it  comes within the regulations.




 6              So I  see  -- what I see is a multiple testing




 7   ramification to  the  way  you are approaching the probleir




 8              MR.  LEHMAN:  All right.   Okay.




 9              MR.  FIELDS:  Mr. McClintock, I just want  to




10   encourage  you,  if  you haven't already done it -- you




11   made  a comment  that  you  felt that  -- and then you  are




12   the second person  to make the same statement that  FGD




13   sludge from oil  recovery steam generation ought to  be




14   a special  waste.




15              MR.  McCLINTOCK-  Yes.




16              MR.  FIELDS:  It would help us in making  some




17   final decisions  in  that  area if you would send us  as




18   much  data  as you could  regarding the waste analyses




19   or what's  in the wastes, how it's  similar to FGD sludge




20   from  a utility,  quantities of that waste that you  know




21   about, and so  forth, how it's managed today and so




22   forth in  your  comments.   Okay?




23              MR.  McCLINTOCK:  Yes.  In our comments,  we




24   do give you some idea as to volumes.  I don't know if




25   the data  is readily  available to tell you the

-------
                                                        861
 1    characteristics,  but I will certainly attempt  to  find




 2    out  and  provide  you with that information as soon  as




 3    we can.




 4              MR.  TRASK:   Mr.  McClintock, in your  comments




 5    about  service  stations,  you suggested that we  ought  to




 6    start  the  90-day  clock ticking when  the tank is  full.




 7    Are  you  suggesting that  a service station would  have




 8    two  tanks?




 9              MR.  McCLINTOCK:   No.  What I'm saying  is




10    that,  when there  -- as I understand  the way these




11    operations work,  they have one cank  into which they




12    dump all used  motor oil.  At some point, this  may  go




13    on for some period of time while the tank is filling




14    up.  And if they  are in  a rural location, there  may




15    not  be a pickup  of that  oil within 90 days.  They  would




16    then become a  Subpart D  facility.




17              So my  solution to the problem is that  you




lg    say  that,  once that tank does become full, then  the




19    onus is  on them  to have  somebody pick it up rather




20    promptly or they  will become a storage facility.   Just




21    a practical attempt to come up with  a practical  solu-




22    tion to  the problem.




23              MR.  TRASK:   I  was just wondering what  the




24    service  station  operator would do with the waste  oil




25    that came  in the  meantime before he  got the tank  empty

-------
                                                        862







 1              MR. McCLINTOCK:  Well,  I  don't  know what thej




 2    do now,  but I would -- I would  hope  they  wouldn't




 3    violate  the regulations.




 4              MR. TRASK:  That was  going to  be  my next




 5    question.




 6              MR. McCLINTOCK:  Yes.




 7              MR. TRASK:  How often  is  waste  oil  picked up




 8    in rural areas?  Do you have any  feel  for that?




 9              MR. McCLINTOCK-  Not  personally.   I have




10    been  told  by people in the marketing end  of the




11    industry that they believe this  would  create  a




12    problem, that it's less frequent  than  90  days in many




13    cases,  and that's the extent of  my  knowledge, unfor-




14    t unately .




15              MR. TRASK:  Would this  subject  be addressed




16    in your  comment letter1?




17              MR. McCLINTOCK:  It's  addressed,  but I don't




18    provide  any more facts, I'm afraid,  because I don't




19    have  them.




20              MR. TRASK:  Is it possible that you could




21    get some?   Could you ask some of  your  people  who had




22    made  these comments to you earlier?




23              MR. McCLINTOCK:  Yes.




24              MR. TRASK:  We would  appreciate anything you




25    have.

-------
                                                        863






 1              MR.  McCLINTOCK:  Yes.   I will  --  I  will




 2    certainly try  to -- to get you more  information on




 3    that.




 4              MR.  TRASK:  Okay.  Thank you.




 5              MS.  DARRAH :   I have one line of questioning




 6    I  want  to pursue,  and I think Jack has another




 7    quest ion.




 8              When you say to us that we  are putting the




 9    presumption on people that their  wastes  are  hazardous,




10    are  you talking about the characteristics or  the lists'




11              MR.  McCLINTOCK:  Well,  I think both,  to  some




12    degree.   I feel your list is not  as  definitive  perhaps




13    as  it  should be.   If it got more  definitive  for,  well,




14    waste  oil, I guess -- I'm not sure that  that's




15    actually listed.   I don't think it is.   Is  it a listed




16    item as waste  oil?




17              MS.  DARRAH:   Yes.




18              MR.  McCLINTOCK:  Okay.  I  think that's  much




19    too  broad a category.   It seems to me that many of




20    the  things that would be trapped  by  that broad  of  a




21    definition would be relatively nonhazardous  and might




22    realy  be entitled  to exemption.   So  it seems  to me you




23    need to in some manner make that  much more  specific.




24    I  think it is  the  -- to address your  other  -- the




25    other  aspect of it, using the criteria,  the

-------
                                                        864







 1    flammability and so on, that this does place  quite a




 2    burden  on  industry




 3              I'm told-- I don't know this  for a fact,




 4    but  I'm told that cement,  for example, would  test  as




 5    highly  hazardous under the criteria which  you have set




 6    up.   And if  cement will test as hazardous, ttns




 7    suggests to  me that anybody who's discarding  almost




 8    anything better test it to make sure they  don't  come




 9    within  the  criteria and find out after the fact  that




10    something  they thought was innocuous and wasn't  covered




11    by the  regulations, in fact, was.




12              MS.  DARRAH:   Okay.  Well, I guess I did  want




13    to clarify  that.  You were saying that the characteris-




14    tics  were  putting a presumption on you.  I mean  I




15    would assume --




16              MR.  McCLINTOCK•   I think that's  the major




17    burden.  yes.




13              MS.  DARRAH:   Okay.  I would assume  that,




19    during  this  comment period -- And we certainly have




20    received comments to this  effect -- that what we are




21    trying  to  do -- Well,  let  me put it this way.




22              If the characteristics were more narrowly




23    defined or,  you know,  you  had sone sort  of degree  of




24    hazard,  would you -- 1 guess I just have a little




25    trouble with your idea that we are shifting or putting

-------
                                                        865







 1    some sort of presumption up.   Indeed,  there is a




 2    burden on industry to test.  However,  if  someone in




 3    good faith has no reason to suspect  that  the company's




 4    waste would meet one of these  characteristics, then,




 5    you  know, I would think that that's  a  fairly good




 6    defense.




 7              MR.  McCLINTOCK:  Well,  I think  you are asking




 8    us  to rely on  prosecutorial discretion  and  the judge's




 9    --  the judge's kind feelings toward  us.   I  think




10    literally we are covered by the regulation.




11              MS.  DARRAH:   Okay.   I just --  I did want  to




12    cJ ari fy that.




13              I think Jack has one more  question.




14              MR.  LEHMAN:   Yeah.   I wanted  to just explore




15    a little  bit more,  if I could, the issue  of  burden




Ig    again on.industry,  burden of proof on  industry.   But




17    in  this -- this one was with respect to  another  point




18    that you  made  concerning our note system.   And if I




19    could paraphrase that.




20              What I thought I heard  you say  was that you




21    were basically suggesting that the note  system doesn't




22    do you a  whole lot  of  good, first of all, because you




23    got  to prove the basis for any variance  and  that's




24    difficult for  small businesses, in particular;  and,




25    furthermore,  that you  are still subject  to  legal

-------
                                                        866







 1    attack over, let's say,  an  abuse  of  discretion charged




 2    by a -- by the permit writer.   I  mean,  you know,  I




 3    guess that --




 4              MR. McCLINTOCK:   Yes.




 5              MR. LEHMAN:  And,  therefore,  here again,




 6    still paraphrasing what  I thought  I  heard you say,




 7    therefore, that the technical  standards  should --




 8    should be written in distinguishing  between various




 9    degrees of hazard rather than  by  this  note system.




10              MR. McCLINTOCK:   You stated  it  better than




11    I  could have.




12              MR. LEHMAN:  Now,  the point  I  was trying to




13    get at is there is certainly a limit to  how many




14    different classes you could  theoretically break down




15    a  set of technical standards.   I mean,  you know,  two,




16    three,  ten,  whatever.




17              MR. McCLINTOCK:   Certainly at  some point  it




18    becomes —




19              MR. LEHMAN:  Some  point.




20              MR. McCLINTOCK:   Yes.




21              MR. LEHMAN:  Now,  how would  you handle




22    variances, or would you say  you don't  want any




23    variances even,  you know, if you had such a -- a




24    degree of hazard sort of distinction here?  I mean  you




25    are still going to have to  have variances,  systems  of

-------
                                                        867






 1    some kind,  and you are still going  to  have  the  same




 2    problem,  it strikes me.  You are  still going to have




 3    to  prove  the basis for that variance.   You  are  still




 4    going to  have the subject of abuse  of  discretion and




 5    so  on,  no matter how many, whether  it's  one class,




 6    like we have got now, or three or four.




 7              MR. McCLINTOCK:  Well,  I  think  you can take




 8    care of a lot of your problems by merely  creating




 9    additional  classes.   I know in California -- I'm not




10    thoroughly  familiar with the scheme, but  I  think there




11    is  at least three different classifications for dump




12    sites.   There may be more than that.   Certainly,  if




13    there were  a broader range, three or four or five




14    different classes of dump sites or  levels of control




15    that were imposed, depending on the degree  of risk,




16    I think this would do a great deal  to  eliminate the




17    need for  a  variance.




18              I might suggest that, if  there  is still a




19    need for  variance, 1 think your special waste pro-




20    cedure, which is a good idea in principle,  can  still




21    be  used.




22              Utility wastes is a great example.  You have




23    got this  tremendous volume of sludge that seems to  be




24    almost  unique in the way it needs to be handled and




25    disposed  of,  and for that, you created a  special  waste

-------
                                                        868







 1    kind of -- not an exemption, but a special waste




 2    category.   Perhaps that's the way to deal with the




 3    variance problem should there still be a need for  one.




 4              MR.  LEHMAN:   Okay.  I just don't want to




 5    let  pass and just clarify, the State of California




 6    has  three  classes of facilities:  Class I, II and  III,




 7    which correspond to three classes of waste.  But those




 8    are  -- for the record,  one,  Class III, which is the




 9    least harmful, is construction debris and, you know,




10    bricks and things like  that.  Class II is municipal




11    waste,  commercial waste and nonhazardous industrial




12    waste.   And Class I would be as close an analog as




13    you  could  get  to what  we call hazardous waste.




14              So,  in fact,  the Class I facilities standards




15    that California has apply only to the analog of what




16    we  are calling hazardous wastes here.




17              MR.  McCLINTOCK:  Well, again, I don't have




18    a great deal of knowledge regarding this, but it's




19    my  understanding that  certain of the materials that




20    you  were categorizing  as hazardous waste in your




21    regulations are currently being disposed of in Class




22    II.I or Class  II-I sites in California with everybody's




23    blessing.   No  one has  any problem with that.  They are




24    not  being  treated as Class I hazardous wastes.  And




25    this is the type of thing we are after.

-------
                                                         869
 1              MR. LEHMAN:   And  that's a variance on a  case-




 2    by-case basis, as  I understand it,  and that is how the




 3    note system is supposed to  work in  our system.  In




 4    other words, where — where certain types of wastes




 5    do not require the full  force  of these regulations,




 6    then that's where  the note  system comes in.  So,




 7    well --




 8              MR. McCLINTOCK:   I  understand what you are




 9    saying.




10              MR. LEHMAN:   Yes.




11              MR. McCLINTOCK:   I  think  -- Just to repeat




12    very quickly, I think the concern that the petroleum




13    industry has with  the note  system is that it -- it




14    doesn't give us firm standards.




15              There was another speaker this morning,  the




16    gentleman from Union Oil, I think,  who indicated this




17    and maybe there was some surprise on your part that




18    we really would want something more clear.  But I




19    think we feel that leaving  —  that's leaving an awful




20    lot to discretion.  It  doesn't really give the small




21    operator in particular  any  clear course as to what's




22    going to be required, and the  burden of going in and




23    establishing that  yes,  this is one  of those situations




24    where a deviation  from  the  rule is  appropriate, may




25    just be too imposing and the  consequences can be rather

-------
                                                       870







1   substant ial.




2             We  feel  that,  if  you won't  do a categoriza—




3   tion of dump  sites based  on degree  of risk,  that you




4   are -- you  are probably  going  to  get  better  results




5   and certainly it's going  to be less costly and burden-




6   some for  industry  to  figure out where they fit in the




7   scheme of things.




8             MR. LEHMAN:  Thank you.




9             MR. McCLINTOCK:   Thank  you.




10             MS. DARRAH:  I  guess that's all.  Thank you




11   very much.




12             Mr. H. L. Hanright,  Petroleum Equipment




13   Suppliers?





14             MR. H. L. HANRIGHT:   Madame Chairperson,




15   ladies and  gentlemen:




16             My  name's H. L. Hanright.  Most people call




17   me Hap.




18             I'm honored and privileged  to be here today.




19             MS. DARRAH:  Thank you.




20             MR. HANRIGHT:   I'm appearing before you in




21   my capacity as Chairman  of  the Service Companies




22   Committee of  the Petroleum  Equipment  Suppliers Associa-




23   tion.  Privately,  I'm President of  Baker Service Tools




24   m Houston, Texas.




25             The Petroleum  Equipment Suppliers Association

-------
                                                        871
 1    is  a trade association comprised of 220 oil  field




 2    equipment manufacturing,  supply and service  companies.




 3    Among our membership are the major companies which




 4    manufacture drilling fluids systems and provide well




 5    site drilling fluids service to the oil and  gas




 6    drilling industry.




 7              The Association is in complete accord with




 8    the  desire of the Environment Protection Agency to




 9    protect  our environment from the baleful effects of




10    hazardous wastes under authority of the Resource




11    Conservation and Recovery Act by proposing regulations




12    to  implement that Act.   Certainly, where substantial




13    evidence exists that a particular kind of waste has




14    in  the past been a source of danger to persons or to




15    the  environment,  that substance should be classified




16    as  a hazardous waste.




U              It is the contention of the Petroleum




18    Equipment Suppliers Association, however, that oil and




19    gas  drilling fluids have  not been shown to pose any




20    danger to persons or the  environment and, therefore,




21    should be exempt  from the proposed hazardous waste




22    regulat ions.




23              The EPA has recognized that special status




24    of drilling fluids, stating that "The Agency has very




25    little information  on the composition, characteristics,

-------
                                                       872
    and the degree  of  hazard posed by these wastes .   .  .,"




    but that  "The  limited  information the Agency does have




    indicates  that  such  waste occurs in very large volume,




    that the;  potential hazards posed by the waste are




    relatively  low,  and  that the waste generally is not




    amenable  to  the control  techniques developed in Subpart




 7




 8              It would seem  to follow from this that




    drilling  fluids would  be completely exempted from the




10   regulations, at least  until there existed sufficient




11   evidence  of  potential  hazard to warrant their inclusion




12   However,  the EPA proceeded to write special standards




13   for these  special wastes,  first making them subject to




14   the haza.rdous waste  identification standards in




15   Section 250.13  and then  subjecting them to limited




    sections  of  Subpart  D  if they were determined to be




17   hazardous.




              The agency apparently felt that drilling muds




19   were being  exempted  from the substantive requirements




20   of Subpart  D.   The background document on special




2i   wastes even  states that  this was done to avoid imposing




22   a substantial economic burden on the economy for




23   little or  no net environment benefit.




24              This  is  not, however, the effect of the




25   regulations  as  currently drafted.  The limited

-------
                                                        873
 1    standards to which drilling muds are  subjected  would,




 2    in fact,  create a tremendous administrative  and




 3    economic  burden for the drilling industry  and




 4    ultimately for the economy as a whole.   Compliance




 5    with these requirements would seriously  impede  the




 6    exploration for and production of our domestic  energy




 '    resources without achieving any environmental benefit




 8    at a time when the danger of our reliance  on foreign




 9    sources of oil is becoming more and more apparent.




10              Section 250.46-6 makes drilling  fluids




11    subject to Section 250.13 which sets  forth testing




12    procedures for all wastes to determine if  these wastes




13    should  be classified as hazardous.   The  requirements




14    under this section do not recognize the  peculiar




15    nature  of drilling fluids or of mud systems  as  used




16    in i ndust ry.




17              When an oil or gas well is being drilled,




18    fluids, commonly  called drilling muds are  pumped  down




19    the  inside of  the hollow drill pipe under  pressure.




20    This  mud  emerges  through jets in the drill bit  at  the




21    bottom  of the  hole.   It then circulates  back up the




22    outside of the drill  pipe and emerges through the




23    blowout preventers on the surface.   It then  passes




24    over  a  shale  shaker  which removes rock and sand




25    cuttings.   These  cuttings and some of the  mud flow into

-------
                                                        874







 1    the reserve pit.   The filtered mud then goes back  into




 2    the well to recirculate.  This circulation of  fluids




 3    is absolutely essential to drilling all but the very




 4    shallowest of wells




 5              It accomplishes several purposes.  Most




 6    obviously, it cools and lubricates the bit and drill




 7    pipe and it washes the cuttings out of the hole.   The




 8    weight  of the mud also allows it to act as a counter-




 9    weight  to pressures from within the wellbore which




10    might cause a blowout of the well.




11              The composition of the mud also allows it




12    to coat the inside of the wellbore, forming an




13    impervious cake so that circulation will not be lost




14    if a highly permeable formation is encountered.  This




15    cake also prevents the wellbore from collapsing.




16              Now,  if you would, please, I'm going to




17    skip about a page and a half now in the interest of




18    time,  and I'll  pick up on about the third paragraph




19    on the  next page.




20              A primary purpose of the Resource Conserva-




21    tion and Recovery Act is to protect surface and ground




22    water from undesirable chemical elements emanating




23  '  from hazardous  wate storage facilities.  The bentonite




24  I  added to drilling muds prevents leaching even  if the




25    reserve pit did contain materials determined to be

-------
                                                       875
 1    hazardous under Section 250.13.  In fact, many states




 2    require that closed-off wellbores contain drilling mud




 3    to prevent collapse of the walls and possible environ-




 4    mental  damage.




 5              Because the current proposed regulations




 6    subject drilling -- subject drilling muds to the




 7    unrealistic testing requirements of Section 250.13 and




 8    proscribe elements such as trivalent chromium ions,




 9    it is possible  that drilling fluids may be classified




10    as hazardous wastes.   They then would be subject to





11    the so-called procedural regulations outlined under




12    Section 250.46-6.




13              And then I  will skip that listing below,




14    please.




15              A careful study of these requirements reveals




16    that, far from  being  only procedural in nature, most




17    of them are quite far-reaching and substantive.  Only




18    the visual inspection requirement can be considered




19    procedural.   It would be extremely difficult, if not




20    impossible,  to  reasonably comply with each of the




21    other requirements.   And the economic burden imposed




22    would,  in direct' contravention of the stated intent




23    of the  EPA,  be  enormous with little or no  environ-




24    mental  benefit.




25              The waste -- The waste analysis requirements

-------
                                                        876







 1    would  be  almost  impossible to comply with  in  a




 2    meaningful  way.   The constituency of drilling fluids




 3    is  constantly changing due to the addition  of new




 4    elements  to the  fluids and cuttings from different




 5    geological  formations being encountered in  the  wellbore




 6    An  analysis made one day could easily be invalidated




 7    the  next.




 8             Furthermore, many well sites are  situated




 9    in  remote areas  which would necessitate transporting




10    the  samples long distances to obtain analyses.   The




11    American  Petroleum Institute recently estimated that




12    the  cost  of performing an extraction procedure  test




13    as  outlined in Section 250.13(d) on a reserve pit




14    sample would be  $750.  Considering that there were




15    approximately 48,000 wells drilled last year  using




16    drilling  muds,  the cost of compliance with  only this




17    one  section of the so-called procedure regulations




18    would  be  $36 million.




19             The general site selection procedures would




20    also apply  to any drilling fluids determined  to be




21    hazardous waste.   They prohibit the location  of a




22    hazardous waste  facility in an active fault zone,  in




23    wetlands  and recharge 7,ones or in 500-year  floodplains.




24    This would  effectively preclude drilling in much of




25    the  Texas and Louisiana Gulf Coast area and in  many

-------
 '    muds,  the absence of dangerous  hexavalent  chromium
 8




 9




10




11




12




13




14




15




16




17




18




19




20




21




22




23




24




25
                                                        877
     parts of California, areas  considered  by geologists




     to be the most promising  locations  for oil  and gas




     reserves.




               The benefit to  the  environment which would




     result from these strictures  is  nonexistent.   The




     sealing properties of the bentonite  added to  drilling
ions in the fluids,  and  the  rapid reduction of high




pH levels mentioned  earlier  obviate any dangers to the




environment caused by  flooding of a former reserve pit




          The security requirements are unnecessary




and cannot reasonably  be  applied to reserve mud pits.




Surrounding the pit  with  a  two-meter fence to keep




out persons and livestock is totally unnecessary since




drilling operations  are  carried on 24 hours a day and




the reserve pit is in  view  and under the supervision




of the drilling crew at  all  times.




          During the drilling of the well,  controlled




access points manned by  a guard or equipped with




electromechanical devices are not only unnecessary,




but would greatly impede  the movement of equipment




and supplies and create  a tremendous financial burden




for the drilling operator.




          The API has  estimated the cost of fencing




each of these 48,000 wells  at $3,200 per well, or

-------
                                                        878






 1   $154 million  industry-wide.   Again, this expense would




 2   be  imposed  with  no  benefit whatsoever accruing to  the




 3   environment as a result.




 4             The manifest  system required of all




 5   operators of  hazardous  waste facilities would be




 6   extremely burdensome,  not only to the drilling




 7   industry, but to the EPA as well. The average depth  of




 8   the 48,000  wells drilled last year with fluids was




 9   only 4,875  feet.  Approximately 23,000 wells of  that




10   depth  were  drilled  in less than one week each.   To




11  ' apply  the manifest  system obviously designed for more




12   permanent facilities to thousands of reserve pits  of




13   such a short  life would result in monumental and




14  I unnecessary paper work for the drilling industry and




15   the EPA alike.   This regulation simply does not




16   recognize the temporary nature of the reserve mud  pit.




17             The closure and post-closure requirements




18   are perhaps the  most burdensome of all the regulations




19   Compliance  with  these requirements could cost in




20   excess of $4  billion according to API estimates.




21   These  costs would result from the necessity for  the




22   drilling operator to negotiate with the landowner  for




23   the right to  monitor the site of the closed reserve




24   pit for 20  years.




25             The API has estimated that the total cost  of

-------
                                                        879






 1    compliance with those procedural  regulations imposed




 2    on oil and gas drilling fluids  and  production brines




 3    would be in excess of $10 billion a year,  which would




 4    almost double the current cost  of drilling.




 5              An often ignored fact  is  that  the  money




 6    available to finance drilling operations is  not




 7    infinite in supply.  When nonproductive  expense", such




 8    as compliance with annecessary  federal  regulations




 9    increase, there is less money available  to drill wells.




10              Besides adding to the  cost  of  energy, such




11    regulations as the EPA is proposing greatly  impede




12    production of our domestic energy reserves.   And at




13    what  benefit to our environment?  Practically none,




14    as the EPA has stated.  Drilling  muds  and  reserve mud




15    pits  pose no danger to persons  or to  the environment




16    under current operating procedures.




17              The Environmental Protection  Agency has




lg    conceded that there is little or  no evidence to




19    indicate that there are hazards  posed  by special




20    wastes such as drilling fluids.   We concur with the




21    wisdom of the EPA in giving drilling  fluids  special




22    treatment.   We fail to see, however,  how the standards




23    as currently proposed afford any  meaningful  regulatory




24    relief to the special waste category.




25              For these reasons, the  Petroleum Equipment

-------
                                                         880







 1   Suppliers Association  respectfully suggests that




 2   drilling fluids be exempted  from the proposed




 3   hazardous waste regulations  until  such time as the




 4   agency has a thorough  understanding of the characteris-




 5   tics of special wastes  and the  degree of environmental




 6   hazard, if any, posed  by  them.




 7             Thank you.




 8             MS. DARRAH:   Thank  you.




 9             MR. HANRIGHT:   I was  trying to read that in




10   ten minutes.   I don't  know if  I  made it or not.




11             MS. DARRAH:   It was  about ten and a half,




12   and it was very much appreciated.




13             I know we have  heard  many of vour comments,




14   but I'm sure there may  be some  questions.   Will  you




15   answer them for us?




16             MR. HANRIGHT:   Yes,  ma'am,  to the best of




17   my ability.




18             MS. DARRAH:   Okay.




19             MR. LEHMAN:   Mr. Hanright,  apparently  we




20   have before us here a  man who  really knows what's  in




21   drilling mud.  We have  asked  that  question of a number




22   of other people, and they always say that  these  are




23   proprietary things and  nobody  really knows what's




24   inside them.




25             MR. HANRIGHT:   I have  to ta"ke the Fifth

-------
                                                        881





 1    Amendment here.   As I stated when  I  opened,  I'm speak-




 2    ing to you as the Chairman of the  Service  Companies




 3    Committee.  However, in private  life,  I'm  president




 4    of  a service tool company.  We have  hardware,  so I'm




 5    not an expert.




 6              MR. LEHMAN-  Okay.  Well,  perhaps  your




 7    testimony to us  might be able to supply  us with the




 8    name of a guy who really does know or, even  better,




 9    supplies us with some data as to what  typical




10    compositions of  drilling muds might  be in  various




11    situations.  That would be very  helpful  to us.




12              MR. HANRIGHT:   Well, I would be  dangerous




13    on  that subject.  I do believe that  we are going to




14    put that,  or some of that information  in our written




15    comments .




16              MR. LEHMAN:  Okay.  That would be  very




17    he Ipf ul .




18              I would like to just correct something that




19    might  be a mis impression.   I believe your  testimony




20    says that  Section 250.46-6,  which  is the special waste




21    facility technical standards for oil drilling,  you




22    say that section makes driling fluids  subject  to




23    Section 250.13,  which sets forth testing procedures.




24              MR. HANRIGHT:   That was our  interpretation.




25              MR. LEHMAN:   And I have got  to say that  it's

-------
                                                         882







 1    the other way around.   In  other  words,  it is only  if




 2    your wastes, when -tested subject to 250.13,  indicates




 3    that it is hazardous that  it  then becomes subject  to




 4    Section 250.46-6.




 5              MR. HANRIGIIT:  Okay,  sir.




 6              MR. LEHMAN:   In  other  words,  you had it




 7    reversed.




 8              MR. HANRIGHT:  All  right.   Well, thank you.




 9              MR. TRASK:  There  is  another  comment, Mr.




10    Hanrigrht .




11              I think that  the special  wastes are not




12    subject to the manifest -- manifesting  part  of 250.22.




13    I  think you might want  to  look  at that.   Your statement




14    indicated otherwise, arid I think that,  at least, it  is




15    not our intent that they would  be.




16              MR. HANRIGHT:  All  right,  sir.   We will  look




17    at  it .




18              MR. TRASK:  That does  not  mean  that you  might




19    not be  subject to DOT shipping  paoer requirements,




20    however.




2i              MR. HANRIGHT:  Okay.




22              MR. FIELDS:   Mr. Hanright, the  question  --




23    I  guess I didn't understand  your -- your  comments  on




24    the Section 250.43, waste  analysis  requirements, 3004.




25    And you indicated that  it  was going to  cost  $36 millior

-------
                                                        883






 I    to  comply with that requirement.  But  your  --  your




 2    statement was based on 3001.  You are  —  You are




 3    assuming that the — the -- the -- each well drilled




 4    would have to sample the waste per the extraction




 5    procedure of 3001 and -- and then you  said  that  you




 6    were  going to multiply it times the number  of  wells




 7    into  36  million,  but there is nothing  in  3004  that




 8    requires that these wastes in the reserve pit  -- that




 9    waste analysis is not necessarily an extraction




10    procedure;  just all it says is you must do  an  analysis




11    sufficient to characterize the waste in order  to




12    dispose  of it properly.




13              MR. HANRIGHT:  Yes, sir.  We may  not have




14    put  it  in that exact language in our comments  here,




15    but  that's what we meant:  that in taking samples of




16    each  reserve pit, and each well drilled has a  reserve




17    pit,  that those were going to cost on  the average of




18    $750  each.




19              MR. FIELDS:  And are --




20              MR. HANRIGHT:  And they will drill about




21    48  to 50,000 wells this year.




22              MR. FIELDS:  And it was -- I mean you  didn't




23    do  that  type of analysis to determine  what  to  do with




24    the wastes?  That's all 3004 requires  you to do.




25              MR. HANRIGHT:  Reserve pit,  you can't  take

-------
                                                        884







 1   an analysis  in  one  spot  in a reserve pit.  A reserve




 2   pit  is,  you  know, many-faceted.




 3              As  an  example,  suppose you were drilling  in




 4   limestone  for a  while  and then went off  into shale.




 5  | Just the things  that  you  are putting in  the reserve




 6  | pit  change.   The fact  that you had changed mud  during




 7   the  life of  the  well  by  adding things and so on,  the




 8   wash water that  comes  off the rigs and what it's




 9   washing  go into  the  reserve pit.  You do special  jobs




10   like cementing  jobs  on casing or squeeze jobs and




11   cement comes  back up  and  is put  in the reserve  pit.




12   Well, where  do  you  take  the sample?  So we felt that




13   you  would  have  to sample  various sections of the




14   reserve pit  to  find  out  what was in it.




15              MR. FIELDS:   Does that $750 consider  all  that




16   in your  estimate?




17              MR. HANRIGHT:   Yes.




18              MR. FIELDS:   Okay.  The second question.  If




19   -- I don't know  if  your  written  statement that  you  gave




20   us contains  this, but  you indicated that several




21   states require  that  these muds be put back into the




22   reserve pits  to  prevent  leaching.  If you could --




23              MR. HANRIGHT:   No.




24              MR. FIELDS:   I  thought that's what you  said.




25              MR. HANRIGHT:   No.  A  well, if it's abandoned

-------
                                                        885






 1    that  --  the wellbore itself contains mud.




 2              MR.  FIELDS:  Oh, how about the  reserve  pits




 3    themselves?




 4              MR.  HANRIGHT:  The reserve pits,  of  course,




 5    they  --  various states have regulations regarding




 6    reserve  pits.   But in most cases, the  reserve  pit is




 7    backfilled after a short period of time,  and that's all




 8    there  is to it.




 9              MR.  FIELDS:  Okay.   Thank you.




10              MS.  DARRAH:  I guess that's  all  our  questions




11    Thank  you.




12              MR.  HANRIGHT:  Thank you.




13              MS.  DARRAH:  George Rhodes from  Texas




14    Coastal  and Marine Council?




15              MR.  GEORGE FRED RHODES:  I would  like to




16    introduce  myself as George Fred Rhodes from Port




17    Lavaca,  Texas.   I am a member of the Texas  Coastal  and




18    Marine Council.




19              The  Texas Coastal and Marine Council is a




20    state  agency directed by the statutes  of the State  of




21    Texas  to assess  and evaluate various activities




22    impacting  the  coastal sector of the state  and  to




23    recommend  to the state legistlature any programs  or




24    policies deemed  appropriate.




25              This  council is made up of 18 members,  6  of

-------
                                                        886







 1    which are appointed by the Governor,  6  by  the




 2    Lieutenant Governor and 6 by  the  Speaker  of  the House.




 3    I happen to be the citizens'  representative  appointed




 4    by the Lieutenant Governor.




 5              I have served on this council for  three




 6    years.  I'm a small town, country  lawyer;  and if you




 7    get to asking me some questions,  I'm  pretty  limited,




 8    so keep that in mind when you start,  Mr.  Chairman.




 9              In that connection, I would like to give  you




10    the benefit of what our studies in Texas  have shown




11    and the studies that we have ma.de  and the  rules and




12    regulations that we have promulgated.   It  is  not so




13    much as to say what you should be  doing,  but  tell you




14    what we have done,  and we have found  that  it's worked




15    for us in Texas.




16              You have heard several  of the speakers




17    earlier testify,  of course, that  various  facets of




18    our industry are exempted from various  phases of our




19    regulations.  They are either regulated by the




20    Railroad Commission or they cone  under  some  other




21    regulatory body.




22              Our primary concern, of  course,  is  with the




23    coast.  And being subject, of course,  to  hurricanes,




24    this is, of course, very important to the  environment




25    and, of course, to the people, and to the  people that

-------
                                                        887




 1    live along the coast, including,  of  course,  industry




 2    that operates there and much of our  industry is




 3    located on the Texas coast.




 4              I might like to add this,  that  the -- we




 5    don't have any 500-year records.  The  crocuses didn't




 6    keep them.  And I guess when the  storms  come along,




 7    they washed this weather station  away  because all we




 8    have is just a hundred or so years.




 9              And I might say that we use  the hundred-year




10    floodplain, and the highest floodplain we have is 18.6




11    tide,  flood tide, which came with Hurricane  Carla in




12    1951.   This is a lot of water.  I you  don't  believe




13    it,  back off and see how high an  18.6  feet  high wave




14    is  coming in.




15              Now, in connection with what we have been




16    doing,  I would like to say that the  Council  has under-




17    taken study of solid waste disposal  practices in the




18    state and focused specifically on the  concept of




19    perpetual care.   Our biggest problem in  Texas so far




20    with our industrial waste has been with  the  perpetual




21    care or the care of it and the lack  of care  of it.




22    And  so  the only problems that we  have  had really that




23    have manifested themselves to any great  extent are in




24    this area, in  the perpetual care  area.




25              Now, we had two University of  Texas law

-------
                                                        888






 1    school professors who were engaged  to  study  the  legal




 2    basis for establishing such a program  and  the  question




 3    of the continuing liability.  >Jow,  that's  — copies




 4    of their reports to the Council are  contained  in the




 5    material that I have submitted to you  today.




 6              Also in the packet submitted for the record




 7    is a copy of the report and recommendations  that the




 8    Council adopted for submission to the  legislature  and




 9    a copy of Senate Bill 499 now under  consideration in




10    the state legislature.   That bill would  implement the




11    recommendations by imposing a fee on the generators




12    and/or disposers of nonradioactive  industrial  solid




13    was te .




14              I might go over the report just  briefly




15    to say that during the 65th legislature, which met




16    two years ago, the Texas Senate adopted  a  resolution




17    pertaining to the assessment for the need  to create




18    a perpetual care fund to insure that industrial  waste




19    disposal sites could be promulgated  in a fashion




20    without placing an undue burden on  the taxpayers of




21    the State of Texas.  The Senate resolution directed




22    that the Texas Coastal Marine Council,  in  cooperation




23    with the Department of Water Resources,  the  Gulf Coast




24    Waste Disposal Authority and other  interested  and




25    knowledgeable parties undertake this assessment  and

-------
                                                        889
 1    present a report to the 66th legistlature  when  it




 2    convenes in 1979.  And, of course, it  is now  in




     session, and the report that I have submitted to  you




     contains the recommendations, and  I will touch  on




     those just briefly without taking  up undue time.




               But to regress just briefly,  I would  like




     to say that direct regulation of  industrial  solid




     waste disposal in Texas began with the  enactment  of




 9    the Texas Solid Waste Disposal Act in  1969.




10              Now, with this Act, the  61st  legislature




11    assigned jurisdiction of solid waste management to




12    the Texas Water Quality Board and  the  Texas  Department




13    of Health.  And we had two types of solid  waste at




14    that time, which they were recognized  by the  Act,  and




15    that was a municipal solid waste,  which included




16    discarded or unwanted materials produced by  municipal




17    sources, such as normal household  refuse and  similar




18    wastes from businesses and commercial  activities.   And




19    the second was the industrial solid waste, which




20    includes all discarded or unwanted materials  from any




21    process of industry, manufacturing or  agriculture.




22    Industrial solid wastes include solids,  slurries  or




23    1iquids.




24              Now, we have a — before this Act,  our




     problems really were not of any great  consequence.  I

-------
                                                        890







 1    mean  we  had -- our rules were very limited,  and  this




 2    is  where our problems began.  It was not very  difficult




 3    to  obtain a disposal site.  There were very  few




 4    regulations and,  consequently, some problems arose




 5    that  really didn't manifest themselves until later.




 6    And we've got some examples of some abandoned  sites




 7    in  Texas,  just as I am sure you have he;ard from  other




 8    states  that they  have.  Fortunately, ours are  not  very




 9    varied  -- not very difficult.  They will be  cleaned  up




10    for about $5 million, which we don't have but  we are  --




11    we  are  attempting to -- to approach this.  And I'm




12    going to explain  to you in a minute how we are going




13    to  atte' •  to raise this money.




14               ut our biggest problem that we have left  is




15    in  the  H.  G. Kelley disposal site in Galveston County,




16    Texas.   This is about six foot above sea level.   During




17    Carla,  it probably had about twelve foot of  water  over




18    it.   So,  to give  you an idea that it's very  susceptible




19    of  course,  to hurricanes, hurricane water.




20              Now, during the Forties and Fifties, it  was




21    used  for disposal of sulfuric acid sludge, and the




22    site  presented an environmental hazard until attempts




23    began in the mid-Sixties to have the site closed.




24              Well, I told you we didn't get the act to




25    protect  all these things until '69.  Due to  the  age  of

-------
                                                        891





     the site, determining primary,  for  example,  liability




     was difficult because the contributing  companies  were




     not known or had changed identity.   After  lengthy




     efforts by the Texas Water Quality  Board,  Galveston




     County, the City of Dickinson  and the  landowner,  a




     successor to the primary generating company,  donated




 7   some $3,000 towards a site closure.




 8             Now, this donation,  believe  it or  not,




 9   enabled the purchase of enough material  to treat  the




 10   acid waste in the pit to reduce  the environmental




 11   hazard.  With additional contributions  of  fill




 12   materials from a contractor employed by  the  Texas




 13   Department of Highways and Transportation,  the  site




 14   has been about 98 per cent closed.   Efforts  continue




 15   to complete the site closure.




 16             Now, other efforts,  we have  had  —  we hid  th




 17   Petro Processors site, again in  the Texas  City  area,




 18   where we had -- subject to storm tide,  probably being




 19   in the eight to not more than  ten foot  level  above




 20   sea level.  This facility was  used  for  the dumping




 21    of styrene tar -- tars and other hazardous waste




 22    materials beginning in '59.  Again,  this was  ten  years




23    before we began to realize we  needed some  regulations




24    in this area.




               At 'least two attempts  to  reclaim the

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                                                        892
estimated 380,000 barrels  of  styrene  tars deposited




at the site have failed.   Now,  efforts by the state to




ascertain and place  liabilities on the suspected




contributors have not been  successful.  Estimates made




by the Texas Department  of  Water Resources staff




indicate that the cost of  complete site closure may




be as high as $5 million.




          Another effort toward closure of another




different disposal site  has lasted approximately four




years.  We had the French  Limited on  a 22-acre site




containing 12 acres  where  petrochemical waste material




were deposited during the  1960's and  early 1970's.




State enforcement action resulted in  a partial site




closure,  permit cancellation,  and transfer of the




property title to the state.   Although some environ-




mental hazards from  the  site  remain,  no state funds




are currently available  to  complete site closure.




          Now, after we  had the study, which we were




charged with by resolution  from the legislature, we




came up with the conclusion that the  current statutory




authority and the Department  of Water, Texas Depart-




ment of Water Resources  regulatory program for




industrial solid waste management appear adequate with




respect to environmental protection from waste manage-




ment activities undertaken  since the  passage of the

-------
                                                        893






 1   Solid Waste Disposal Act of 1969.  However,  state




 2   resources for correcting problems predating  the  Solid




 3   Waste Act and correcting potential problems  from




 4   present and future waste disposal activities  are not




 5   available.  The lack of such resources  has severely




 6   limited the Texas Department of Water Resources'




 7   ability to correct past problems and can  be  expected




 8   to hamper future efforts.




 9             Experience and practicality suggest  that




10   ultimate responsibility for monitoring, control  and




11   future corrective actions rest with the state.   The




12   cost of both post-closure monitoring and  correction




13   of future environmental problems can be borne  by waste




14   generators and/or disposal site operators.




15             Now, I'd like to say in connection  with  this




16   recommendation that, after this study,  the Texas




17   Coastal and Marine Council has submitted  through one




18   of our Senators Senate Bill 499, which  is included  in




19   the packet which I have delivered to the  Reporter  and




20   to the Madame Chairperson.




21             This bill would implement the recommendation




22 !  by imposing a fee on generators and/or  disposers of




23 ;  nonradioactive industrial solid waste.




24             Now, I'll digress to that just  briefly in




25   the sense that we set up -- I might add this  bill, of

-------
                                                       894






 1   course, has not passed.   It's  just  been introduced.




 2   There's been  some  hearings  on  it,  but  it provides for




 3   a  fee  schedule to  provide a fund whereby the fee




 4   schedule will be set  up  after  hearings -- it will be




 5   implemented after  public  hearings  which address at




 6   the minimum the financial responsibility and the




 ^   solvency of generators,  transporters  and disposers of




 8   such nonradioactive  industrial solid  waste.




 9             The Board  shall,  to  the  extent practical in




10   its judgment, vary the  fee  assessed per ton  for various




11   classes, types or  other  categories  of  industrial solid




12   waste, such that the  fee  assessed  bears a reasonable




13   relationship  to the  environmental  hazard posed by the




14   various classes, types  of other categories of waste.




15   In no  case shall the  fee  exceed 50  cents per ton.  The




16   minimum fee may be a  zero cent per  ton.




17             From time  to  time,  as may be appropriate in




18   the opinion of the Board, the  fee  schedule may be




19   altered so as to maintain the  unencumbered fund balance




20   at a level not to  exceed  $5 million.




21             This is  our approach to  alleviating the




22   problem and perhaps  curing the problem that  we know we




23   have to  cure that was  created prior  to the  enactment




24   of the Solid  Waste Disposal Act in  1969.




25             Now, radioactive solid wastes are  treated

-------
                                                       895






 1    separately in Texas law and are not included in the




 2    type of  waste which we are concerned with.  This has




 3    not  been -- a resolution to study this problem has




 4    not  been presented to our Council, and I merely have




 5    included it with -- herein a copy of House Bill 1551




 6    dealing  with radioactive wastes, incorporated in the




 7    packet  for your information just to show you that




 8    Texas is acting in that area.   But I'm not -- I just




 9    read the bill and that's all.




10              The bill would authorize the State Departmenl




11    of Water Resources to assess a fee and to handle that




12    -- that  part of it, of the --  of the disposal.   But




13    the  main purpose of the act is to see that the




14    citizens of the state are not  burdened with the




15    expense  of correcting someone  else's mistake or




16    negligence.




17              There is in the bill a provision authorizin




18    agreement  -- agreements with the Federal Government




19    to assure  compatibility of concept and programs under




20    the  Resource Conservation and  Recovery Act of 1976.  It




21    is our hope and feeling that the Texas program will be




22    complementary to the measures  being discussed here




23    today.   At this point in time,  there are only a few




24    real  problem sites in Texas, and we propose to




25    eliminate  those problems as quickly as possible while

-------
                                                        896






 1   minimizing the chances for new ones.




 2             We just want you to know  that  we  have been




 3   handling our problem.  V/e think we  have  handled it




 4   since  we have enacted the law in  1969,  and  it  has




 5   worked,  and we want you to be aware of  what we are




 6   doing  in Texas.




 7             Now, I will try to answer any  questions.  I ' it




 8   a  hundred miles  from home and I have  a  briefcase, but




 9   I'm not  an expert.  But I will try  to  answer any




10   questions that you have.  And before  you dismiss me,




11   I  do want to thank you for letting  me  appear here.




12             MS. DARRAH:  Okay.  Thank you  very much for




13   coming more than a hundred miles.




14             MR. LINDSEY:  In your statement,  Mr. Rhodes,




15   you indicate that you expect the  fee  to  be  about 50




16   cents  a  ton or something.




17             MR. RHODES:  That's a maximum  fee.




18             MR. LINDSEY:  Okay.  Somebody  else earlier




19   today,  or perhaps possibly yesterday,  was talking




20   about  setting up a fee on a  national  basis, and we've




21   been considering that for post-closure  liability,




22   which  is roughly the same thing you are  talking about




23   here.   And one of the problems that's  been  addressed




24   is the problem of how do you vary  the  fee rather than




25   having it --  In other words, one  option  is  to have a

-------
                                                        897






 1    flat  rate of X number of cents per  ton.   Then what




 2    happens is that the people that  have  very high




 3    quantities of rather low-hazard  wastes  end up paying




 4    a disproportionate amount of the  total  amount of




 5    money that goes into this fee.




 6              How do you expect to handle  that?




 7              MR. RHODES:  Well, as  you noticed in our




 8    bill, it said this price would be determined after




 9    public hearing.  We have -- In the  particular county




10    that  I live, we have two large industries:  the




11    Aluminum Company of America, which  handles bauxite




12    waste and aluminum, and manufactures  aluminum; and,




13    of course, Union Carbide Corporation,  which has a




14    different type of waste.  Both of them  are concerned,




15    Alcoa more than Union Carbide, as to  are you going to




16    charge us — how are you going to charge us.   And




17    those, of course,  that have the  larger  amounts of




18    wastes are concerned that the price be  less to them




19    if their hazard is not great.




20              So these are just rules that  I'm sure will




21    have  to be determined by the --  by  the  public hearings




22    when  they are held.




23              And, of course, this is always a difficulty.




24    No one really wants to pay anything or,  if they want




25    to pay anything, they want to pay a minimum amount.

-------
                                                        898






 1    I'm sure our legislature does not want to overburden




 2    industry.   We have some 14,000 industrial plants  in




 3    Texas,  and they found us attractive and we  hope  they




 4    can continue to be there.




 5              But we all have to live there, and we  do  have




 6    to have rules and regulations by which we can  all  live




 7    together and protect not only the environment  but  in




 8    which they can also make a profit.




 9              So I would think this would be taken into




10    consideration.  As to a magic formula to give  you,  I




11    don't have one.




12              MR. LINDSEY:  Your draft regulation, though,




13    does allow for different rates for different --




14              MR. RHODES:  Yes, sir.  And I would  think




15    particularly that if you had a large amount and  it's




16    not particularly hazardous, I would think that the




17    rate would be less; if you had particularly hazardous




18    material,  even though it may not be very great in




19    amount,  it would be great because the handling of  it




20    would be more difficult.




21              And, of course, the problem would be --  woulc




22    be the closure of the site after abandonment or  in  the




23    event of bankruptcy or whatever else that someone




24    leaves the site for.  That's the problem that  we  have




25    had in the past.  Once you have established financial

-------
                                                        899
 1    responsibility,  then you have no problem with  it.




 2    Most  of  the on site, we started out with our rules  thai)




 3    the  on-site sites did not have to post  any  type  of




 4    bond,  but  presently they are also required  to  show




 5    financial  resonsibility.




 6              MR.  FIELDS:  Mr. Rhodes --




 7              MR.  RHODES:  Yes, sir.




 8              MR.  FIELDS:  -- could you tell us -- you




 9    say   the bill  is currently being discussed  in  the




10    legislature.   What are the prospects?   Does it look




11    like  it's  going to be enacted?  Do you  have any  feel




12    for  that?




13              MR.  RHODES:  You remember Mr. Snow being




14    here  earlier this morning.




15              MR.  FIELDS:  Yeah.




16              MR.  RHODES:  He told me he didn't think  it




17    was  going  to pass.  But I differ with him.  I  think it




18    wil1  pass.




19              MR.  FIELDS:  Okay.




20              MR.  RHODES:  I really do.  I  think that  we




21    do have  the problem along the coast, and because of




22    the  problems we  have, I'm sure there will be some




23    changes,  there will be some amendments.  There always




24    are.    But  I  feel certain that this bill will  be passed




25              But  primarily we want you people  to  understan

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25
                                                        900
that we are not sitting  down  in Texas waiting for you




in Washington to make  our  rules and regulations; that




we are also trying  to  promulgate some rules and regula-




tions.  First of all,  you  guys may be too slow or you




may be too fast.  When 1  say  "you guys," I'm talking




about you two girls  also .




          You know,  Mr.  Lehman, talking about being an




expert, let me tell  you  about the man,  the professor,




that was going -- he went  to  seminars like this and




made comments for industry.   And he was an expert in




a particular field.




          And he was always  chauffered to these




seminars by a chauffer.   And  this chauffer had heard




this speech about eight  or ten times.  And just before




they were about to  make  this  one place where he was




going to make a speech,  he said to him, he said, "You




know, I have heard  you make  this speech so much that




I could make this speech.   I  know I can."




          So he thought  about it a little bit.  And




just before he got  to  the  university where he was going




to give his speech,  he stopped and he said, "Okay.  I




have thought about  what  you  are going to do.  Give me




your uni form."




          He got the chauffer's uniform.  He got out  of




the car and drove up there,  and the chauffer got up and

-------
                                                        901





 1    made the speech.




 2              Well, he did an excellent  job.   He  gave it




 3    just like the professor had been  giving  it the  eight




 4    or ten times he heard it.  But all of  a  sudden,  some




 5    wiseacre in the back over there asked  a  real  technical




 6    question that obviously he couldn't  answer.   And he




 1    stopped for a minute and he said,  "Sir,  just  to  show




 8    you how simple your question is,  I'm going to let my




 9    chauffer there in the back answer  it."




10              Now, I didn't bring my  chauffer  today.




11              MR. TRASK:  Well, Mr. Rhodes,  in the  absence




12    of your chauffer, your statement  indicates that




13    generator,  transporter or disposer should  fully




14    participate in legal compliance with the  law  and state




15    regulations would be immune.  I assume that's after




16    this -- if  the legislature passes  this thing.   Could




17    you explain what you mean?




18              MR. RHODES:  You mean -- You say they  are




19    immune?




20              MR. TRASK:  Would be immune  from any  further




21    liability of the state is the way  you  put  it  here.




22              MR. RHODES:  Well, that's  not  absolutely




23    correct in  the sense that this bill  does not  address




24    the -- The  senate bill,  you will  see after you  read it,




25    does not address the liability or  the  immunity  part.

-------
                                                        902






 1    We  were  wrestling with the question in Texas  as  to




 2    whether  or not a generator loses or -- or  does he  end




 3    his liability when he gives it to a transporter  or




 4    when he  gives it to the site.




 5              At this present time, the law  is  --  is there




 6    is  really no Supreme Court decision in Texas  on  this,




 7    and I  think that they perhaps could under  certain




 8    circumstances.  I doubt seriously if they  could  --  if




 9    it's a. highly toxic or if it's a material  that's very,




10    very dangerous in nature or if they handle  it  in —




11    even though they may dispose of it, if they are  still




12    involved with gross negligence and those kind  — or




13    just intentional negligence of some sort,  I think  the




14    liability would not end.




15              MR. TRASK:   So there could be  some  residual




16    responsibility,  then, for some of the extremely




17    hazardous wastes --




18              MR. RHODES:  Yes, sir.




19              MR. TRASK:   -- or whatever.




20              MR. RHODES:  Yes.  Now, there  has been a




21    movement by industry, of course, to -- to  limit  their




22    liability or to curtail it or to abruptly  end  it once




23    it's given to the transporter or once it's  delivered




24    to  an  acceptable licensed disposal site.   I don't




25    believe  that there has been any -- at least I  believe,

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                                                        903
 if you will  read  the  brief that is enclosed in here,




 1 don't believe there's  been any case in that cite,




 and you are  aware,  of course,  under the federal act




 and the Atomic Act,  they were  not successful, or at




 least it's under  attack  in the Supreme Court, of




' limiting the  liability where you have an incident




 involving atomic  energy  or atomic energy wastes.




           MR. TRASK:   Okay.   Thank you




           MS. DARRAH: Okay.  We thank you very much




 for your comments.




           MR. RHODES:  I appreciate you listening to




 it .




           MS. DARRAH:  If you  want to send your




 chauffer next time,  we will  listen to him, too.




           Let me  read the names of the next — I have




 four more people  who  have registered to speak today.




 I will read  their names  and  the order in which I will




 call them.




           Mr. Brubaker,  Mr.  Gladbach, Mr. Schwegmann




 and Mr. Jopling.




           If  there are any other people who do want to




 offer comments on Section 3004, please contact the




 registration  desk.




           We  will take a short break and reconvene at




 five minutes  of 4:00.

-------
                                                        904
 1              (Short recess.)




 2              MS. DARRAH:  Is Mr. Brubaker  here?




 3              Okay.   Mr. Gladbach, Department  of Water and




 4    Power,  City of Los Angeles.




 5              MR. EDWARD G. GLADBACH:   Yes.   For the




 6    record,  my name is Edward G. Gladbach,  and today I'm




 7    speaking only on behalf of  the Department  of Water and




 8    Power,  at least for now.  It might  change  later.




 9              MR. LINDSEY:  It's going  to  change?




10              MR. GLADBACH:  Yeah.  Okay.




11              Today I would like to express  the concern




12    which the department has regarding  the  proposed 3004




13    regulations which you have  proposed under  RCRA.




14              As I stated Monday, we believe that there is




15    really  only one or two waste streams from  a power plant




16    which is truly hazardous.   We further  belive that you




17    should  not impose the 3000  series of regulations at




18    all  on  the utility industry until you  develop a method




19    of classification which takes into  account the known




20    composition of the material and the experience which




21    has  been obtained from using tha.t material and its




22    waste management in addition to a sound  extraction




23    procedure, which really goes back to 3001.  We believe




24    that it  would then be appropriate to implement a




25    utility  waste category of regulations.   Further, we

-------
                                                        905






 1    recommend that the utility waste category  include  all




 2    utility  wastes which are unique to power plants.




 3              Please recognize that the power  plants




 4    presently meet requirements of several  laws,  both




 5    state  and federal, which protect the same  aspects  of




 6    the  environment as these regulations will  attempt  to




 7    do.  These,  then,  only become another  layer  of




 8    regulation.




 9              We have  several concerns with  the  siting and




10    operating regulations, but our main concern  today  --




11    I'm  just going to  focus on just a very  few.




12              We fear  that we would be expending large




13    sums of  money needlessly to meet the proposed regula-




14    tions.   Much of that expenditure would  be  at our




15    coastal  power plants which undoubtedly  lie within  the




16    500-year floodplain and would probably  overlie  an




17    aquifer,




18              In the regulations, a waste  disposal




19    facility is  precluded from being sited  in  a  500-year




20    floodplain,  over a sole-source aquifer,  and  also  an




21    evacuation plan must be prepared and submitted  to  the




22    state  and local law enforcement agency,  a  security




23    program  must be implemented, you have  got  to have  a




24    training program,  etc.




25              When I presented this to some  of our

-------
                                                        906






 1    management,  they were sure that the people  that  wrote




 2    this  came from the NRC because we had  just  gone  through




 3    the whole thing trying to get a nuclear  plant  put




 4    together.   But I assured them that  I thought  that they




 5    had --  that  you had not.  These latter  items  really




 6    sound,  though, like a nuclear plant operating  require-




 7    ment  rather  than operating a settling  pond,  a  pond




 8    which contains water which we used  to  discharge  to the




 9    ocean and after 20 years of discharging  it  to  the




10    ocean,  we had biological studies run by  marine




11    biologists and oceanographers, and  they  proved,  with




12    20 years of  operating that way, that it  had no




13    significant  effect on the marine environment,  the




14    discharge.




15              As I pointed out in my comments  Monday,




16    these waste  materials from our fossil  fuel  power plant




17    do not  warrant such concern if, indeed  --  if,  indeed,




18    any concern  over what is now performed.




19              And I did mention that, as T  said,  Monday




20    and earlier, that, you know, there  is  probably one or




21    two other waste streams that is, you know,  hazardous,




22    and we  deal  with those in the appropriate  manner.  One




23    of those waste streams is when we have  acid cleanup




24    of the  boiler, that we hire a contractor,  such as Dow




25    Chemical or  IT Corporation to come  in  and  acid-clean

-------
                                                        907






 1   the boiler and then dispose  of  all  that material in




 2   a Class I landfill as part of a single contract.




 3             Regarding the  500-year floodplain,  I would




 4   like to point out that our experience  has been that I




 5   don't think there is any  one agency that has  maps for




 6   all the 500-year floodplains in the country.   This was




 7   discussed earlier in the  week.




 8             And, furthermore,  that it's  very subjective




 9   what the 500-year floodplain is.  Being a licensed




10   civil engineer and having gone  through, again,




11   hydrologic studies for a  nuclear power plant, we went




12   around with NRC for a year just establishing  the




13   factors to be used in determining -- In that  case it




14   was a probable maximum flood.   And  we  had nine feet of




15   water over most of the entire San Joaquin Valley.  And




16   I concurred,  too, that in that  500-year flood that




17   most of the San Joaquin  Valley  would be under water.




18             I think, too,  we have got to recognize that




19   they can plan with numbers and  pretty  soon numbers




20   become so they don't mean anything.  But then we get




21   it back to perspective and,  yeah, a 500-year  flood




22   can occur this year, it  can  occur next yeai,  it can




23   occur the following year, but over  a statistical base,




24   it's going to occur once  in  500 years.




25             And let's recognize that  Columbus  only

-------
                                                        908





 1    discovered America less than 500  years  ago,  so what




 2    we  are  talking about here is one  hell  of  a big flood.




 3              And it's reasonable,  I  think,  to assume that




 4    there are going to be chemical  plants  located within




 5    that 500-year floodplain, as are  many  power  plants,




 6    and in  the event of a 500-year  flood on  such a stream,




 7    the products of the chemical plants  located  in that




 8    floodplain can be washed down the  stream  and mixed




 9    with flood waters.  The only thing that  will be left




10    when the flood recedes is a power  plant's waste




11    disposal facility containing materials  which we contenc




12    are not even hazardous.  And in our  case, those




13    materials which we discharged to  the ocean for 20




14    years without any incident.




15              We recognize the need to have  improved




16    procedures for containing the more hazardous wastes,




17    such as the acid cleaning from  power plants, and to




18    prevent the reoccurrences of the  Love  Canal  incident.




19    However, things must be kept in perspective.  That is,




20    less stringent regulations for  less  hazardous




21    materials.  And keep in mind the  Objective No. 4 of




22    the Act. which states, "...  regulating the treat-




23    ment, storage, transportation,  and disposal  of




24    hazardous wastes which have adverse  effects  on health




25    and the environment."

-------
                                                        909





 I             Also keep  in mind  that  other -- elsewhere in




 2   the Act, where it points  out  that  the  object is to




 3   protect against a substantial  threat  to human health




 4   and the environment.




 5             We recognize that  you  have  provided some




 6   variance on some of  the regulations by way of your




 7   notes provided an applicant  proves that certain




 8   conditions occur.  Based  on  our  past  experience




 9   regarding applications, such  variances are extremely




10   time consuming and expensive  and,  on  occasions, one




11   is obligated to spend the  funds  and meet the regula-




12   tions whether or not it is cost  effective.




13             I would like to  point  out that the Departmenl




14   has just spent millions of dollars for the industrial




15   wastewater treatment systems  at  two of our coastal




16   po-wer plants to meet NPDES permit  conditions.  These




17   plants probably lie  within the 500-year floodplain and




18   are over an aquifer  with  less  than 10,000 milligrams




19   per litre of TDS.  This work  consisted of piping and




20   settling basins.   The settling basins  have been lined




21   with asphalt to make them  more impermeable.   And these




22   settling basins hold -- again  hold the waters which we




23   used to discharge to the  ocean.




24             If these regulations are promulgated as




25   proposed,  we would probably  have  to completely rebuild

-------
                                                        910







 1    these basins to protect them against  a  500-year  flood,




 2    install monitoring wells, fence the basins.   Most  of




 3    this work would be done just to protect  against  a




 4    500-year floodplain,  or a 500-year flood  to  protect




 5    the groundwater because the groundwater  has  less than




 6    10,000 milligrams per litre TDS, yet  this  groundwater




 7    will never be used because it migrates  to  the  ocean




 8    a few hundred feet away.  This  is an  example of  my




 9    discussion on Monday of expenditures  of  large  sums of




10    money without any associated benefits.




11              Based upon this information and  that




12    contained in my statement Monday, we  recommend that




13    you exempt existing power plants from the  siting and




14    operating regulations as has been done  for the




15    publicly owned treatment works; that  you  postpone  the




16    promulgation of any regulations affecting  future




17    power plants until your studies are complete,  and  that




18    you revise the 500-year floodplain to the  25-year




19    floodplain.




20              And I would like to take a  few  moments to




21    discuss some items which have come up during the last,




22    you know,  couple days.




23              And that is speaking of hazardous  wastes,




24    the various  classes,  I  think you've heard  various




25    speakers.   Most speakers -- I wasn't  trying  to keep  a

-------
                                                        911






 1    tally, but seems  like most  speakers were speaking for




 2    having degrees of hazardous waste.   I  think there were




 3    some that felt that you  probably  needed to increase th




 4    requirements that you had on  some of your regulations.




 5              It was  my impression  that, having some, I




 6    guess, assumption as to  what  materials they were




 7    dealing with, certainly  determined what they were




 8    saying, and I think most of those speaking for less




 9    stringent regulations had hazardous wastes  which I




10    think the average person would  not  consider hazardous.




11    And they are only considered  hazardous because of




12    3001 regulations.




13              And I would submit  that,  you know, take a




14    hard look, you know, at  trying  to come up with, I




15    think, more than  one class  of "egulations because I




16    think what you are trying to  do is  that certainly you




17    want to protect the worst materials and make sure that




18    they don't get in the environment,  but in so doing,




19    you are throwing  thousands,  or  hundreds of thousands




20    of times the volume of that waste material into that




21    same category, and I think  you  are  causing undue




22    concern, and I think public unrest  in  the area of




23    hazardous materials.




24              And I think you are going to cause a lot of




25    problems, and I think it may  come back to haunt you,

-------
                                                        912





 1    and I would hate to see that.




 2              On the business  of  standards versus guide-




 3    lines,  and, you know, this  gets  back  to your notes,




 4    I'm one that I guess I'm a  pioneer  in  things, and I




 5    like to be able to be flexible,  to  be  given the




 6    flexibility to come up with innovative systems, and




 7    I personally hate to see regulations  set out that you




 8    can't use your -- you know,  your engineering judgment




 9    or good,  sound experience  in  coming up with what you




10    feel is best.




11              The problem that  I  see with  that and the




12    problem the Department's having  with  that right now




13    is that that's a good principle  if  everybody works the




14    way 1 think we are working  back  and forth together




15    here.  But what happens is  that  it  gets into another




16    branch of EPA, I assume, that  gives out the permits,




17    and somehow I feel that they  don't  feel that they got




18    the authority to work — to do anything other than




19    follow a set of codes that  you could  feed into a




20    computer and it would say  ''yea"  or  "nay."




21              We have the personal experience of having




22    settling ponds, which is a  very  sore  spot to me




23    because we submitted a variance  request two years ago




24    to the Federal Government.   It's been  sitting in




25    Washington, D. C. for two  years.  We  have not heard

-------
                                                         913






 1    anything on that.   We  were forced under the -- under




 2    the threat  of  enforcement to spend millions of




 3    dollars to get  --  to meet the regulations, which we




 4    did with arm-twisting.   And yet there's been no action




 5    under -- on our variance request.  And I only submit




 6    that for background information because I think that,




 7    when you have  flexibility, accompanied with that




 8    flexibility, you got to  have a permit system, a permit




 9    branch that acts,  you  know.  I'm not saying the next




10    day or the next week,  but they act in a time where




11    another branch  of  EPA  doesn't come in and force you  to




12    -- into spending the money while someone else is




13    setting around  ignoring  what you have done.




14              And  excuse my  feelings on that because it's




15    hard -- it's hard  to ignore those.




16              Just  a couple  things for the record, Mr.




17    Trask.  I did  talk to  our office in Washington, D. C.,




18    and they are confident that the information you




19    requested regarding the  volumes, you know, the low




20    volumes of materials as  well as the high volume




21    materials and  costs associated therewith will be




22    included in our comments, which you asked that I




23    give EPA.




24              I would  ask  that, in the event if that's




25    inadequate, I  would appreciate you getting back to us

-------
                                                        914








 1    and we will be glad to furnish  additional  information.




 2              MR. TRASK:  Thank you.




 3              MR. GLADBACH:  I would  like  to  clarify one




 4    thing I heard from someone.   I  thought that someone




 5    said that no manifests -- Oh, they  are referring to




 6    the,  I guess, the petroleum industry.   No  manifests




 7    was required for special wastes.   I  think  that was




 8    under 46-6 or 5 or something.




 9              Does that include for all  special waste




10    categories.  I think, Mr. Trask,  you were  the one




11    that --




12              MR. TRASK:  The reference  there  was to the




13    oil and gas drilling muds.




14              MR. GLADBACH   Right.




15              MR. TRASK:  I don't know  about  all others.




16              MR. GLADBACH   That was  that specifically?




17              MR. TRASK:  And also  in  the  context of the




18    statement that he had given us.




19              MR. GLADBACH:  That's what I was referring




20    to.  I was just wanting  .  .  . Okay.




21              And there was a comment  brought  up yesterday




22    and I think the panel asked a question on  it, whether




23    someone felt that reused material  should  be covered




24    under this -- these regulations.   And  USWAG, and at




25    this point I'm -- Utility Solid Waste  Activities

-------
                                                        915







 1    Group, we are  firmly  convinced that,  in the event




 2    that reused materials or  materials to be reused would




 3    be -- would come  under the  regulations here, that it




 4    would certainly eliminate the -- most all reuses of




 5    power plant waste,  of power plant byproducts, which




 6    would then become wastes  and not be reused.




 7              So I would  request, strongly request, that




 8    if a material  is  to be reused that it not come under




 9    these regulations.




10              And  there was also another question brought




11    up this morning about EPA's authority under other




12    acts to control the water or to protect the water.  I




13    believe that EPA  under the  Clean Water Act and the




14    Safe Drinking  Water Act has adequate protection, or




15    has adequate authority to protect all the waters of




16    the country.




17              MS.  DARRAH:   Are  you speaking for the city




18    or for USWAG?




19              MR.  GLADBACH:   Speaking for the city.




20              And  that  is a request.  I would rather see




21    all air matters being taken care of under the Clean




22    Air Act, even  though  the  Act itself was not intended




23    to set up -- I don't  think  this would stop EPA's air




24    group from setting  regulations for incinerators and,




25    again, to have any  transportation regs.

-------
                                                        916







 I              Okay.   I will  drop  that one.




 2              Okay.   That's  --  that concludes my comments.




 3              MS. DARRAH:  Okay.   Thank you,




 4              Any questions9




 5              MR. LINDSEY:   No.




 6              MR. LEHMAN:  Yes,  I  have one.




 7              MR. GLADBACH    I  am  somewhat  sorry for  the




 8    disjoin ted  .




 g              MR. LEHMAN:  Mr.  Gladbach,  I  wanted to  just




10    explore one statement you made earlier  on in your




11    testimony where you  say  that  power plants presently




12    meet the requirements of several laws which protect




13    the same aspects  of  the  environment that these




14    regulations will  attempt to  do.




15              MR. GLADBACH    Right.




15              MR. LEHMAN:  Now,  it is our understanding




17    that, for example, the Clean  Water Act  under the  NPDES




18    system does not and  cannot  do  the --  make a statute




19    to protect  groundwater supplies, whereas RCRA does.




20              MR. GLADBACH:   That's true.  But let me




2i    take it —  Can  I  take  it one  step further?




22              MR. LEHMAN:  Then  I  don't understand your




23    question -- your  statement.




24              MR. GLADBACH:   Okay.  All right.




25              First of all,  the  other acts  that do protect

-------
                                                         917
 1   -- that  is  NEPA,  and any time you are building a




 2   power plant,  you  are going to have to have a NEPA




 3   statement  and the NEPA statement -- And I'm sure you




 4   are familiar  with NEPA statements for power plants.




 5   There are  several three-inch volume reports that you




 6   go through  and you got to adequately address how you




 7   are protecting the entire environment, and there is




 8   no way you  can get a waste disposal site approved




 9   that's,  you know,  where you are endangering any ground




10   water materials or groundwater aquifers.




11              In  addition, as I understand, the Safe




12   Drinking Water Act has authority -- you have authority




13   under the  Safe Drinking Water Act under the ground-




14   water injection to adequately protect any groundwater.




15              MR.  LEHMAN:   Well, that's true for injec-




16   tion, but  not  for settlement ponds or —




17 |             MR.  GLADBACH:   I understand it also covers




18   settlement  ponds  in  the strictest sense.




19              MR.  LEHMAN:   No, it does not.




20              MR.  GLADBACH:   I stand corrected.  But still




21   NEPA would  apply.




22              MR.  LEHMAN:   Not state programs.




23              MR.  GLADBACH:   What?




24              MR.  LEHMAN:   NEPA applies to federal




25   activities, not state  or commercial activities.

-------
                                                         918
 1              MR.  GLADBACH:   Well,  I know that.   I  don't




 2    know of a power  plant  that can  be built without  a




 3    NEPA statement.   There  is a federal agency in  there




 4    someplace, or  agencies  in most  cases.




 5              MS.  DARRAH:   Okay.   Well, then, you  are




 6    saying that  for  power  --  you are at least making the




 7    assertion that for  power  plants you think there  are




 8    other adequate protections; you are not necessarily




 9    making the assertion  that in all cases --




10              MR.  GLADBACH:   Oh,  no.   I'm --




11              MS.  DARRAH:   -- that  actions under  other




12    statutes would adequately protect groundwater?




13              MR.  GLADBACH:   Would you repeat that?  I was




14    looking at something.




15              MS.  DARRAH:   Are you making the assertion




16    that for any waste  disposal site, that EPA has  other




17    authority than RCRA --




18              MR.  GLADBACH:   No.




19              MS.  DARRAH:   -- to adequately protect




20    groundwater?




21              MR.  GLADBACH:   I thought that's what  you




22    were going to  say,  and  my mind went off.




23              As  I said in  my statement, power --  there




24    is federal law which  adequately protects, so  it's




25    limited to power plants.

-------
                                                        919







 1              MR.  FIELDS:   Mr.  Gladbach, you said earlier




 2   when your  material  wastes are found to be hazardous




 3   that your  normal  practice would be to call a contrac-




 4   tor .




 5              MR.  GLADBACH:   Would be what?




 6              MR.  FIELDS:   Call a contractor and send




 7   them to  a  Class  I  landfill; is that correct?




 8              MR.  GLADBACH:   That's right.




 9              MR.  FIELDS:   So I guess our regulations




10   would only apply  to,  you know, those portions of your




11   utility  wastes which  were hazardous, and the require-




12   ments would  probably  be  less stringent than the — you




13   know, there  are no  real  management techniques in terms




14   of landfill, etc.   So  why are our requirements so




15   much more  burdensome  than your existing practice for




16   that portion of your  wastes which is hazardous?




17 j             MR.  GLADBACH:   Depends on which one we call




18   hazardous.   See,  you  are painting a hazardous picture




19   and you  are  meaning certain things,  and I'm reading




20   hazardous  as meaning  other  things.  Okay.   And I




21    think it depends upon  the difference between what you




22    consider hazardous  and what I would consider hazardous.




23               MR. FIELDS:  So you are saying 3001 versus




24    California's --




25               MR. GLADBACH:   Right.

-------
                                                         920







 1              MR. FIELDS:   --  hazardous waste definition -




 2              MR. GLADBACH:   Right.




 3              MR. FIELDS:   --  is what?




 4              MR. LEHMAN:   Could I  follow up on that a




 5    little bit?




 6              MR. GLADBACH-   Sure.




 7              MR. LEHMAN:   Would you care to tell us what




 8    you consider to be  hazardous coming from a power




 9    plant?  Oh, you did  that  already.




10              MR. GLADBACH:   Well,  I attempted to do it.




11              MR. LEHMAN:   Well,  if  it's already -- I'm




12    sorry if I --




13              MR. GLADBACH-   I  didn't  answer it, so I




14    didn't have -- but,  you know,  ]  have given it a lot of




15    thought, you know,  since  Monday, and certainly the




16    acid material that  we  acid-clean boilers with, and




17    that is so that we  can, you know,  remove all the




18    foreign material  in  there.   I  would consider that




19    hazardous, and I  would consider  that that be taken to




20    an appropriate land  disposal site.  And in our case,




21    you know, with — hire     like  I say, Dow Chemical or




22    IT Corporation, someone  like that  to do the whole





23    pro c ess.




24              The materials that I  --  that we fear are




25    going to be included i ri the hazardous waste category

-------
                                                         921
 I   are those sludges  which  --  you know, from the waste




 2   waters that  are  generated,  you know, in the power




 3   plant as a secondary  effect of producing power, again




 4   which we used  to discharge  to the ocean for 20 years




 5   and we saw no  significant  effect on the environment.




 6             And  I  think that  is a true measure of whethe




 7   it would be  hazardous or not.  There was no change in




 8   the environmental  aspects  of the marine environment




 9   after 20 years'  operation.




JO             Because  of  the NPDES regulations and the




11   failure of EPA to  act upon  our variance request, we




12   have spent millions of dollars now to put that -- put




13   in a settling  pond.   The sludge, you know, left in




14   those settling ponds  I fear is probably going to be




15   classified as  hazardous  under the 3001 regs,  and we




16   are going to have  to  dispose of those someplace else.




17             If --  Again, if  that is considered to be




18   hazardous, then  we  got to  go and completely rebuild




19   those basins.  Again,  it's  just, you know, a never-




20   ending process.




2i             MR.  FIELDS:   Who  imposed the requirement to




22   put those -- to  line  those  basins with asphalt that




23   you are talking  about?




24             MR.  GLADBACH:   That was my own decision to




25   protect the  groundwater  so  that we would contain the

-------
                                                        922






 1    wastes.




 2              MR. FIELDS:  So  it was  initially --




 3              MR. GLADBACH:  Theoretically,  under the




 4    regulations, we didn't have to  line  them.   We never




 5    would have had to discharge anything.   It  would have




 6    come right down.




 7              MR. FIELDS:  Okay.




 8              MR. GLADBACH:  I just hope we  don't have to




 9    build them again.




10              MS. DARRAH:  Okay.  Thank  you  for your




11    comments.




12              Dr. J.  C. Schwegmann  from  Kaiser Aluminum?




13              DR. J.  C. SCHWEGMANN:   Madame  Chairman --




14    Chairperson -- Sorry -- members of the panel:




15              I hope you will  excuse  my  voice.  I suffered




16    a minor injury to my voice box  recently,  and the




17    doctors tell me it's temporary.   I hope  so.




18              MS. DARRAH:  Well, I  think we  can hear you.




19    Thanks.




20              DR. SCHWEGMANN:  If there  is any doubt about




21    what I am saying, please don't  hesitate  to stop me and




22    ask me to repeat it.




23              For the record,  my name is Jack Schwegmann.




24    I'm Director of Environmental Services for Kaiser




25    Aluminum and Chemical  Corporation.

-------
                                                        923







 1              I wish  to  emphasize two points made in the




 2    written testimony  submitted  to the Court Reporter and




 3    to the Chairlady.




 4              First,  Kaiser  Aluminum requests that bauxite




 5    refining waste, variously  known as spent bauxite or




 6    red mud, be classified  as  a  special waste.   This




 7    waste qualifies under the  criteria of:




 8              One.  Occurring  in large volume.




 9              Two.  Being relatively low in hazard;  and




10              Three.   Not being  generally amenable to




11    Subpart D requirements.




12              In excess  of  38  million tons  of bauxite




13    wastes, wet weight,  are  produced in the U.S. annually.




14    Kaiser Aluminum produces 10  million tons per year of




15    this total.   The  solids  are  earthen residues of




16    bauxite, principally iron  and silicon,  with some




17    residual alumina  and all of  the trace elements




18    usally found in soils.




19              The wastes are alkaline because alumina




20    is extracted from  bauxite  through hot alkaline




21    digestion.   Because  of  this  alkalinity, heavy metals




22    are largely tied up  in  the solids.   And, further, the




23    clay matrix complexes metals very tightly and prevents




24    their dissolution.




25              Bec-ause  of the large volume of the waste and

-------
                                                        924






 1    the resultant large size of  impoundments which are




 2    required by effluent guidelines  under the Clean Water




 3    Act,  and because of the pragmatic  location of refining




 4    facilities in coastal or port  areas,  these wastes are




 5    not generally amenable to  Subpart  D  requirements.




 6              The need for coastal or  seaport locations is




 7    due to the fact that there  is  little  native bauxite




 8    of usable quality and quantity in  the United States.




 9    Therefore, most bauxite is  imported  on bulk carriers




10    from the Carribean, the closest  source of bauxite,




11    to Gulf Coast ports.  Virtually  all  bauxite refining




12    operations are either on 500-year  floodplains or




13    subject to hurricanes, or  both.




14              Further, most are  in locations in which the




15    water table is very close  to  the surface and may, in




16    part, be located in wetlands.




17              This brings me to  the  second point, that is,




18    these regulations should not  make  blanket prohibitions




19    in any siting requirements.   To  do so is to prohibit




20    any technological development  for  site utilization in




21    spite of features which are  presently considered a




22    poor risk.  The people who  live  and  work in the lower




23    Mississippi River Basin have  developed engineering and




24    construction techniques to  cope  with  the difficult




25    conditions of that area

-------
                                                        925
 1              As you may  already  know,  that area is




 2    largely at or below sea  level,  lower than the level of




 3    the Mississippi River  during  most of the year,  and




 4    is subject to hurricanes.   Recent technology has




 5    permitted construction of  skyscrapers in New Orleans,




 6    a feat believed impossible 30 years ago.




 7              Kasier Aluminum  has,  within this decade,




 8    constructed red mud impoundments with technology never




 9    before applied on such large  scale.   Management of




10    these waste impoundments  is ecologically secure.  Grounc




11    water monitoring has  demonstrated no migration of any




12    of the constituents of the waste into the groundwater




13    in spite of the fact  that  the bottom of the impound-




14    ment is below the highest  level  of  the water table.




15              The area is  in  the  500-year floodplain of




16    the Mississippi River, but the  levee system built and




17    managed by the U.  S.  Army  Corps  of  Engineers provides




18    proven safety from flooding.   Potential hurricane




19    impacts are routinely  incorporated  into any design and




20    construction of facilities.




21              In conclusion, Kaiser  Aluminum urges that




22    the Agency avoid prohibitions of any type and invites




23    the Agency to visit our facilities  and discuss  any and




24    all concerns they have on  solid  waste management.




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

-------
                                                         926





 1              DR. SCHWEGMANN:   I  will be happy to try  to




 2    answer questions  if  you  have  an>.




 3              MS. DARRAH:  Sure.   Thank you.




 4              DR. SCHWEGMANN:   It doesn't hurt, so don't




 5    worry.




 6              MS. DARRAH:  Okay.




 7              DR. SCHWEGMANN:   It just sounds bad.




 8              MS. DARRAH:  I  have one question just  for




 9    clarification.




10              You indicated  that  you've done groundwater




11    monitoring at this site  and haven't found any migra-




12    tion.  Over what  period  have  you done that monitoring?




13              DR. SCHWEGMANN:   About three years now.




14              MS. DARRAH:  Okay.   Do you have any ques-




15    tions?




16              MR. FIELDS:  No.




17              MS, DARRAH:  Questions?




18              MR. TRASK:   No.




19              MS. DARRAH:  I  guess not.  It was very clear.




20              DR. SCHWEGMANN-   Thank you.




21              MS. DARRAH:  William Jopling, State of




22    California Department  of  Health Services?




23              MR. WILLIAM  F.  JOPLING:  I'm William Jopling




24    with the California  Department of Health Services.




25    We are responsible for carrying out the California

-------
                                                        927
 1    Hazardous Waste Control  Act.




 2              There has  certainly  been  a  lot  of talk here




 3    today about California.   It makes me  a little nervous




 4    to get up here with  everybody  seeming to  know more




 5    about what's going on  than  I do.  But what  I'd like to




 6    direct my comments here  today  is particularly the




 7    approach and the flexibility that is  included in the




 8    present draft of the Subpart D standards.   We had




 9    commented back in November  of  1977  when  there were a




10    number of mandatory  standards  with  no variances at




11    all allowed, and I think  this  note  system has been a




12    big step in the right  direction.  But I  think that




13    there is some more need  for flexibility  in  the




14    standards.




15              The proposed standards will tend  to




16    discourage the continued  use of the variety of




17    hazardous waste facilities which are  presently in




18    use to effectively and efficiently  manage  the broad




19    range of hazardous waste  streams.   The comprehensive




20    coverage of the regulations and the extreme detail




21    provided suggest that  the standards were  developed




22    for application to a regional  off-site hazardous




23    waste facility of significant  size  and resources and




24    one which is capable of handling a  number  of  hazardous




25    wastes.

-------
                                                        928







 1              This may  result  in  somewhat of a self-




 2    fulfilling prophecy in  that  the standards do not fit




 3    well when applied to  a  small,  single waste facility




 4    or a special purpose  facility  and will tend to




 5    discourage the operation  of  such facilities even




 6    though they serve a useful  purpose and provide




 7    adequate protection of  health  and the environment.




 8              I believe it  would  be in the best interests




 9    of all to provide a practical  means to assure that




10    only the necessary  and  appropriate requirements will




11    be applied to each  facility  and to provide a greater




12    degree of flexibility in  allowing alternative control




13    measures.  More  freedom should be given to the




14    regulatory authority  as to  what controls are needed




15    based on a consideration  of  the nature of the opera-




16    tion, the environmental setting and other factors.




17    And I believe this  can  be  done by establishing




18    standards which  clearly identify the objectives to be




19    met by those standards  and  allowing the regulatory




20    agency to set the specific  requirements, the specific




21    numbers, and so  on,  via the  facility permit.




22              I would like  to  briefly describe the




23    regulatory approach in  California.  Several previous




24    speakers have remarked  that  we have a degree of




25    flexibility because we  differentiate between hazardous

-------
                                                        929





 1    wastes and extremely  hazardous  wastes.   I don't think




 2    there is a great degree  of  flexibility in that in




 3    that we are treating  a broad  number of hazardous




 4    wastes in a certain way,  and  we are more restrictive




 5    with this special  group  of  wastes.




 6              I do believe that we  have flexibility into




 7    the system with our approach  as to  how we permit




 8    hazardous waste facilities.




 9              Also, we do have  more than two classes of




10    wastes that we have different standards for and




11    different regulations for,  different policy with and




12    so forth.




13              For example, we have  recently developed




14    standards, regulations for  reclaimable wastes, that




15    are going to attempt  to  get those wastes to be




16    reclaimed rather than disposed  of.   We have a dif-




17    ferent approach with  small  quantities of asbestos




18    waste.  Infectious wastes we  are developing separate




19    regulations on.  We have  a  separate program entirely




20    for low-level radioactive wastes.  So there is a




21    whole number of separate  regulations for different




22    types of wastes.




23              Also, there is  an entirely different program




24    for used oi] in California, reclaiming used oil.




25              At the state level, there is two major

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                                                        930
  agencies  involved  in  the regulation of the hazardous




  waste  facilities:   the  State Water Resources Control




  Board  and  its  regional  boards,  and the Department of




  Health Services.   The regional  boards review and




  approve of  sites for  the disposal  of different types




  of wastes  and  regulate  the disposal of the waste so




  as to  protect  the  quality of the waters of the state,




  both the  surface water  and the  groundwater quality,




  and this  is  accomplished through the application of a




j  lengthy set  of  uniform  regulations.  They do specify




  different  groups of wastes and  different classes of




  sites  that  can  receive  the different types of waste.




I             But,  in  order to establish the specific




  requirements  for a site, the owner/operator of the




  proposed  facility  must  submit a report to the regional




  board  which  includes  information on the geology of the




  site,  hydrogeologic information, type and amounts of




  wastes to  be  received,  the proposed facilities and




  the control  measures.




             The  board will then decide whether the site




  is suitable  to  receive  the intended wastes and will




  establish  requirements  for water quality protection




  for that  particular operation.




             And  I've brought a copy of their regulations




  which  really  isn't very extensive.  We just specified

-------
                                                        931
 1    that a report  has  to  be  submitted and that specific




 2    discharging requirements will  be established.  There




 3    is no particular secret  about  what they are going to




 4    include  in their discharge requirements, and they




 5    published a report  which lists typical waste discharge




 6    requirements that  they may apply to different sites




 7    receiving different types of wastes,  so the industry




 8    does know what  they are  expected to do in pretty




 9    specific terms.




10              The  discharge  requirements  may indicate the




11    "type and amount of  waste that  can be  received and




12    specify  leachate control features, runoff diversion




13    requirements,  groundwater,  surface water and waste-




14    water monitoring facilities and the required moni-




15    toring piogram.  And  so  all of the detailed standards




16    for water quality  protection is in the tailor-made




17    discharge requirements applied to the facility.




18              The  Department of Health Services has




19    developed regulations which cover areas of design and




20    operation for  a facility;  however, these are objective




21    oriented.




22              Again, the  facility  operator must prepare a




23    report which specifies how he  will meet the objectives




24    of the regulations.




25              In the area, of security, this was one of the

-------
                                                        932
 1    examples that was used in  the  federal  preamble to




 2    describe how they approached this  situation.   Our




 3    regulations for security  include  the  statement that:




 4              "The hazardous  waste  facility shall have




 5         posting and fencing  as necessary  to protect




 6         public health and safety,  domestic livestock and




 7         wildlife,"




 8              The specific fencing  requirements will be




 9    established in the operating permit  based on an




10    evaluation of what is needed to accomplish this




11    objective by the regulatory agency.   In the case of a




12    remote facility which ponds and land-spreads oily




13    waste, a four-foot stockproof  fence  was considered




14    adequate.  At a transfer  station  in  an industrial




15    area,  a six-foot cyclone  fence  was required.




16              The permit conditions are  used to supplement




17    and provide specificity to the  more  general regulation




18    and provide controls which are  finely  tuned to the




19    needs for the facility and its  particular operation.




20              Again, we require that  the  operator fill out




21    an operating plan for his  particular  facility, and we




22    pretty clearly indicate what we want  him to address




23    and -- and what we expect.




24              For example, storage  tanks,  it says informa-




25    tion should be provided on tank design to assure that

-------
                                                         933
 1    tank materials  are  compatible with the stored wastes,




 2    tanks are sturdy  and  leakproof,  tanks containing




 3    volatile wastes are  not  vented directly, storage




 4    containers holding  wastes which  are incompatible are




 5    sufficiently  separated  or otherwise protected to




 6    prevent mixing.




 7              So  we tell  them exactly what we want




 8    addressed in  this thing,  but then we review it and




 9    decide whether  the  protection that is going to be




10    afforded according  to this plan  is adequate to meet




11    the objectives  of our regulations.




12              I am  going  to  skip one of these paragraphs




13    here, which sort  of  restates what I have essentially




14    already said.




15              I believe  the  across-the-board application




16    of the large  number  of  detailed  design and operating




17    standards may close  down  some well operated facilities




18    which are adequately  handling the wastes from a single




19    industrial operation.   A  plant manager faced with the




20    financial responsibility  requirements or the require-




21    ments to determine  background groundwater quality




22    level,  the three well monitoring situations, looking




23    forward to identifying  possible  changes in quality




24    as determined by  the  Student's single-tailed test at




25    the 95 per cent confidence level, he may just throw

-------
                                                        934
 1    up his hands and say,  "I'm  going  to use the regional




 2    facility rather than mess with  this."




 3              So essentially  I  believe  the approach as




 4    it is now in EPA regulations  is a bit, too rigid.  This




 5    isn't the way to go  from  a  national economic,  environ-




 6    mental or health and safety viewpoint,  and we recom-




 7    mend that the EPA take  the  approach of specifying




 8    more general objective-oriented requirements and leave




 9    more to the professional  judgment and common sense of




10    the regulatory authority  as to  the  requirements for




11    each specific facility  for  health and environmental




12    protection.




13              I am not going  to go  into the specific




14    comments that I've included in  the  written report




15    here.  What I would  recommend be  done to follow up




16    on what I have suggested  on the overall approach is




17    that, insofar as possible,  the  specific numbers that




18    are in the regulations  be placed  in the notes,  perhaps




19    to stay objective oriented  in the requirements, and




20    then put in the notes  that  this is  a suggested or




21    recommended practice and  limit, or  whatever, to




22    indicate what the ballpark  is that  we are talking




23    abou t .




24              I also would  perhaps  remove the words that




25    the operator must demonstrate to  the satisfaction of

-------
                                                        935






 1    the Regional Administrator  that 60 meters — that he




 2    can control wastes  within  a shorter distance than 60




 3    meters because  I  think  he's faced with proving a




 4    negative.  I don't  even  know how he's going to prove




 5    that he could do  it within  60 meters.  So I would




 6    suggest that the  numbers be moved down as recommended




 7    standards and that  the  statement requiring demonstra-




 8    tion be changed to  the  effect that the Regional




 9    Administrator may accept alternative proposals which,




10    in his judgment,  achieve adequate and equivalent




11    protection of health  and the environment.




12              I am  glad to  answer any questions.




13              MS. DARRAH:  Okay.   Thank you.




14              MR. FIELDS:  Mr.  Jopling,  the approach you




15    are recommending  is an approach we have considered




16    a year or so ago, and some  of our earlier drafts  did




17    have the numbers  and  notes  or data as a subsidiary




18    standard type thing.  But we got comments from various




19    parts of the regulated community that they wanted more




20    specification about what should be — you know, what




21    are -- what standards are you actually imposing upon




22    us.  And we want to be told exactly  what  we should do.




23              I am just wondering what sort of comments




24    are you getting from  the regulated community  in




25    California regarding  the general approach that you hav

-------
                                                        936







 1    in your system where  you  put  all the specifications




 2    in at the time you  write  a  permit?  What types of




 3    reaction are you getting  to that approach?




 4              MR. JOPLING:  Well,  I  think there is -- we




 5    are getting a favorable reaction.   We are working




 6    things out with those  we  are  regulating.  In putting




 7    down a number of magic  numbers,  I  think you are going




 8    to run into two things.   The  regulating agency is




 9    going to say, "That's  it,  folks.  I don't care what




10    you say, this is the  number we  are going to apply,"




11    and trying to come  up  with  a  reasonable alternative




12    or deviation from that  number is -- some of the




13    regulatory agencies are not going  to be responsive




14    to making any substantial  changes, even though it




15    may be appropriate  from a  health and environmental




16    viewpo int.




17              Now. that's  sort  of a strong statement, but




18    I think once you identify  a number, a six-foot fence,




19    trying to put — to say that  a  four-foot fence is




20    equivalent to it just  because you  may not have people




21    around or it's a remote area  or something, it's




22    difficult to argue  those  viewpoints.  I think if you




23    put them in the notes,  everybody has a pretty good




24    idea what you are shooting  at and  -- and what has to




25    be addressed and what  kinds of  figures they may feel

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10




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12




13




14




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16




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18




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20




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22




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25
                                                        937
they can come up with  that  will  satisfy the agency.




          Another  thing,  without the figures -- And  I




may perhaps be making  your  argument — without the




figures, you may feel  that,  "We  will have a wide




variety of different numbers  and different regions




and different states and  so forth."




          MR. FIELDS:   Right.




          MR. JOPLING:   I don't  completely agree with




that.  I think that, as you gradually gain experience




in this field and  — and  see  what's needed, I think




things will settle  down to  a  fairly uniform number of




standard -- types  of standards throughout the nation.




And I do think the  benefit  of  having some flexibility




is that you can consider  the  environmental setting,




the special factors that  may  make one facility only




require one monitoring  well  while another may have to




have three or ten  or something else.




          MR. FIELDS:   Okay.




          MS. DARRAH:   Al?




          MR. CORSON:   No.




          MR. LEHMAN:   Mr.  Jopling, I just want to




follow up a little  bit  on what Tim Fields was mention-




ing .




          We had testimony  earlier in the day from




Mr. McClintock of  the  Western  Oil and Gas Association

-------
                                                        938







 1    and basically he was saying  that  the approach which




 2    we have taken, which is  to have  what we consider to




 3    be fairly distinct standards with the provision of




 4  i  variances via notes, and which  I  take it you would go




 5    even further --




 6              MR. JOPLING:   Yes.




 7  '            MR. LEHMAN:  -- in backing off from in terms




 8    of allowing flexibility, places  a great burden on




 9    industry to prove the basis  for  these variances and,




10    furthermore, subjects them to possible legal attack




11    over abuse of discretion by  permit writers and, in




12    general, the general tone of his  remarks -- I think I




13    am accurately stating it --  is  that this just infuses




14    a great deal of uncertainty  into  the whole situation.




15              This is sort of a  paraphrase of what Tim




16    was saying, is that we got a lot  of commentary saying




17    that everybody wanted to be  more  explicit, wanted us




18    to be more explicit about what  the regs should say.




19              Now, so that leaves us  with a dilemma.  It




20    strikes me that your --  your agency has had a great




21    deal of experience in administering this program.  I'm




22    wondering, though, if one of the  elements to all of




23    this might be that, as I understand it, the California




24    program applied until only recently to off-site




25    facilities only and not  to on-site facilities; is that

-------
                                                        939







 1   correct?




 2             MR. JOPLING:   That's correct.  It changed




 3   January, 1978.




 4             MR. LEHMAN:   Now,  have you begun to issue




 5   permits to on-site  facilities under your program yet?




 6             MR. JOPLING:   Yes.




 7             I might point out  that at the state level,




 8   there is two permits.   At  the local level, there is




 9   at least one permit.   And  --  And so there is a number




10   of different permits  that  regulate a hazardous waste




11   facility, on-site or  off-site.




12             For example,  you have to get a special land




13   use permit from the county.   The Air Resources Board




14   at a regional level may come  in and require certain




15   conditions.  The Regional  Water Quality Control Board




16   is setting their requirements on discharges to protect




17   the surface and groundwater,  and we are applying the




18   operating permit for  the protection of the public,




19   the environment, the  whole thing as far as the opera-




20   tion is concerned.




21             MR. LEHMAN:   Well,  I guess the question I




22   had is are you seeing  any  difference in the response




23   you are getting from  trying  to,  you know, applying




24   this general philosophy that  you espoused any dif-




25   ferent when it comes  to applying this technique to

-------
                                                        940






 1    on-site facilities  as  opposed  to off-site?




 2              MR. JOPLING:   Not  so far.   We haven't done




 3    very many because our  initial  attempts have been to




 4    permit the major off-site  facilities,  and we have




 5    about -- with the Class  I  sites,  about ten of those




 6    and about 72 I sites,  and  then perhaps several




 7    hundred, 250 to 300  off-site facilities.




 8              So we have gotten  to a few major ones, and




 9    we have gone partially down  the road working with




10    them on the permits  and  the  permit conditions.




11              I think I  perhaps  have left  a flavor that




12    our requirements are so  general,  and what I am asking




13    you to be is so general  that nobody  knows, is going




14    to know where we are.  I'm     suggesting that you




15    take a look at those numbers that you  have in there




16    and s'ee whether it  wouldn't  be appropriate to move




17    some of them down to the notes.   Some  of  them, some




18    °f your prohibitions are perhaps eminently necessary




19    for health protection  and  should stand.  Perhaps some




20    of the numbers are  eminently satisfactory as a guide




21    and there is little  question about what they should be,




22              But I would  suggest  taking SL close look and




23    seeing if some of them couldn't be used as guidance




24    kind of numbers and  allow  a  little more to the




25    decision-maker that's  going  to issue that permit.

-------
                                                        941
 1              No, we  haven't  got  a great difference or a




 2    great feel from private versus the -- the on-site




 3    facilities versus  the  off-site.   It -- It does require




 4    a lot of tougher  negotiations, I'm sure,  doing it our




 5    way, but I think  we  are coming up with — we will




 6    have to come up with a system that's at least as




 7    strict as yours,  and I think  we  are doing it.




 8              MR. LEHMAN:  Now, when it comes to enforce-




 9    ment of your program,  is  that generally -- I mean




10    exclusively done  against  permit  conditions,  then?




11              HE. JOPLING:  No.   We  have prohibitions in




12    our regulations.   We have certain things  that are




13    stated in the regulations which  are very  definite and




14    support enforcement  actions such as illegal  dumping,




15    spills, immediate  cleanup of  spill requirements, that




16    sort o f thing.




17              MR. LEHMAN:  Well --




18              MR. JOPLING:  Where we have been a little




19    vaguer is maybe in the training  activity, or the




20    height of fence or things that we think we can




21    negotiate based on the particular setting.




22              MR. LEHMAN:  Okay.   I'm sorry.   I  should




23    have been more explicit.   I was  saying with  respect




24    to a facility,  you know,  I mean  you've — you've




25    negotiated with a  facility, whether it's  on  site or

-------
                                                        942
 1    off site --




 2              MR. JOPLING:   Right.




 3              MR. LEHMAN:   —  and  you have arrived at




 4    certain permit conditions.   Now,  when you enforce —




 5    when it comes time  to  enforce  against the facility —




 6    I'm not talking about  transport  manifests or any of




 7    that; I'm talking about, you know,  do you enforce




 8    against the permit  conditions?




 9              MR. JOPLING:   We  enforce  against both.  We




10    have a series of regulations directed at the facility,




11    how he is to operate in, but it  leaves out the num-




12    bers, perhaps.  We  don't say --  You know, if we say




13    you have to have sufficient  fencing and signs to




14    exclude the public, okay,  if he  has no fencing, why,




15    that's a violation  of  our  basic  regulations.




16              MR. LEHMAN:   Wait  a  minute.   I just -- Let




17    me follow this through,  if  I may,  because I know it's




18    an important point.




19              MR. JOPLING:   Sure.




20              MR. LEHMAN:   You  indicated in your testimony




21    that -- just the fencing as  an example --




22              MR. JOPLING:   Yes, sir.




23              MR. LEHMAN:   --  that, your -- your approach




24    would be, for example,  to  say, "Well,  you got to have




25    a sufficient -- "   Let  me  just find it here.  " --

-------
                                                       943
 1    posting and fencing as necessary to protect  the public




 2    health."




 3              MR. JOPLING:  Right.




 4              MR. LEHMAN:  That's what the regulation says




 5              MR. JOPLING:  Yes.




 6              MR. LEHMAN:  And then you say  t'hat  the way




 7    you administer that or characterize that  is  that you




 8    then sit down and negotiate on a case-by-case basis,




 9    you know,  what is necessary for a particular  facility,




10    and so on.




11  !            MR. JOPLING:  I don't like the  word




12    "negot iate ,'' but go ahead.




13              MR. LEHMAN:  Well, whatever you arrive at,




14    based on the case-by-case situation.




15              MR. JOPLING:  Yes, sir.




16              MR. LEHMAN:  You arrive at an  explicit




17    statement  of what that standard means --




18              MR. JOPLING:  Okay.




19              MR. LEHMAN:  -- basically in terms  of




20    either --  you know, you used the example  of  a four-




21    foot stockproof fence in one case and a  six-foot




22    fence,cyclone fence in another,




23              MR. JOPLING:  Right.




24              MR. LEHMAN:  But I would presume that that




25    goes into  the permit as a permit condition —

-------
                                                         944






 1              MR.  JOPLING:  Exactly.




 2              MR.  LEHMAN:   -- is that right?




 3              MR.  JOPLING:  That's right.   Right.   That's




 4   where  we  would enforce it if he didn't  meet  the




 5   conditions of  the permit for that particular example.




 6   And  --




 7              MR.  LEHMAN:   All right.




 8              MR.  JOPLING:  -- what we are  getting  at  is




 9   we are using the permit conditions as  finely tuned




 10   regulations for each particular facility.




.11              MR.  LEHMAN:   Exactly.  That's exactly what




 12   the  note  system was intended to do is  what  I am




 13   trying to say.




 14              MR.  JOPLING:  Well, I think  it's  reversed,




 15   though.




 16              MR.  LEHMAN-   Well, okay.




 17              MS.  SCHAFFER:  I lust want to ask  one more




 18   question  concerning enforcement, Mr. Jopling.




 19              If you bring an enforcement  action against




 20   a person  who owns or operates a facility, have  you




 21   ever experienced the problem of having  that  owner  or




 22   operator  say that the  conditions that  you've put in




 23   my permit are  not equivalent to the  one --  to the  guy




 24   next door to me; hence, you can't enforce against  me?




 25              MR.  JOPLING:  This is one  thing that  we  are

-------
                                                        945
 1    very careful about.  There  is  an  old  saying  that




 '    inconsistency is the trademark of  a weak  intellect,
 3
     and we don't want to be in that  classification.   So
 *    we are being consistent, and we  are  making sure  that




     there is a reason for, a solid reason  for  a variation,




     and it's documented and -- what  it is,  and we  pin it




 '    down.




 °              So I think that would  be —  I  think  we are




 *    covering ourselves pretty well as far  as  that's




     concerned.




11              MS. SCHAFFER:  Okay.   When you  say "a




12    variation," what is the variation from?   Is it —




13              MR. JOPLING.  Well, the cyclone  fence  down-




     town versus the four-foot fence  out  in the remote




     area.




               Now, someone would say, "Well,  you are —




     you have got two different fencing requirements."




               And I am saying if we  have got  two remote




     areas that are exactly the same, we  better come  up




20    with the same fencing requirement, yes.




21              MS. SCHAFFER:  Okay.




22              MR. JOPLING:  Yes, and I'm sure  we will.




23              MS. DARRAH:  I have another  little enforce-




2*    ment question.




               I wonder if you have ever  had  the experience

-------
                                                        946







 1    of issuing a permit, you know,  given  the procedure




 2    you have described to us, and  then  either had a




 3    citizen complaint or had some  monitoring data which




 4    evidenced to you that your  permit  conditions didn't




 5    appear to be stringent enough  to really carry out the




 6    regulations?  What do you do  in that  case?




 7              MR. JOPLING:  We  can  modify our permit




 8    conditions any time.  So one  example,  which is




 9    exactly opposite of what you  are bringing up, we had




10    a provision in a permit which  stated  that the




11    facility could not receive  --  It wasn't flammable




12    wastes: it was -- well, it  was  a strong acid or




13    something like that.  We didn't put  a limit on it,




14    though, as to what it could or  could  not receive.  We




15    wanted to allow them to accept  a certain kind of weak




16    acid that could be ponded without  any hazardous vapors




17    and so on.  That could cause  environmental problems,




18    so we went back and put a. condition  in the -- changed




19    that particular condition of  that  particular permit to




20    allow waste up to the  10 per  cent  concentration.




21              And we can do this  according to our law.  We




22    can modify the permit as necessary.   We don't have to




23    wait until the term of the  permit  runs out or somethin




24    along that line.




25              MS. DARRAH :  I'm  sure we  can look up the law

-------
                                                        947






 1    but do you  happen  to  know what  standard you need to




 2    use to modify  the  permit?  I  take it if someone has




 3    a permit and  they  are acting  in good faith under their




 4    permit, they  might  have  a complaint if you issued that




 5    permit a month  ago  and you come back a month later and




 6    say, "By the  way,  we  are going  to change this."




 7              MR.  JOPLING:   Okay.




 8              MS.  DARRAH:  Do you know what the standard




 9    is that allows  you  to go in and modify it?




10              MR.  JOPLING:   There is a procedure which




11    allows someone  --  If  we  arbitrarily were modifying




12    permits left  and right,  there is a procedure whereby




13    they appeal up  through the Department, the Department




14    Director, and  hold  hearings and so forth.




15              MS. DARRAH:  Okay.   I guess we don't have




16    any more questions.   Thank you  very much.




17              Is  there  anyone else  who wants to offer




18    comments on Section 3004 today?




19              Okay.  I  will  close this final session of




20    our Subtitle  C  hearings.   Thank everybody  for their




21    attention and their comments,  and I will say that it's




22    been extremely  valuable  to us to have this interchange.




23              Good  afternoon.




24              (The  hearing concluded at 4:56 o'clock p.m.)




25                          	oOo---

-------
                        Attendees—Public Hearing
                 on Proposed Hazardous Waste Regulations
                        San Francisco, California

                            March 12-14, 1979
Glenn Affleck
Environmental Control Coordinator
Hewlett Packard
1501 Page Mill Road
Palo Alto, California  94304

Marc A. Anderson
Assistant Professor
Water Chemistry Program
University of Wisconsin-Madison
660 North Park Street
Madison, Wisconsin  53706

Gary Balzhiser
Union Oil Company of California
Post Office Box 7600
Los Angeles, California  90051

Gary Baucom, Administrator
Environmental Affairs
Southern California Gas Company
810 South Flower Street
Los Angeles, California  90017

John Beale, Manager
Environmental Regulatory Activities
  for Solid Waste
Dow Chemicar.U.S.A.
Environmental Quality
2030 Dow Center
Midland, Michigan  48640

Ralph Becker, Director
Legal Research
Bonneville Associates
747 East South Temple
SLC, Vermont  84103

Joh Bednerik
Director of Government Affairs
tADC
Post Office Box  4287
Houston, Texas  77210
Robert G. Beimer, Ph.D.
Section
Advanced Chemical Instrumentation
  Section
Defense and Space Systems Group
  of TRW Inc.
Building 0-1, Room 2020
1 Space Park
Redondo Beach, California  90278

Anne Bell
Cal-OSHA and Claims Reporters
San Pablo, California  94806

Sy Bensky. Manager
Regulatory Affairs
Post Office Box 1185
Houston, Texas  77450

Kieran D. Bergin, Hazardous Waste Eng.
Solid Waste Management Department
County Sanitation Districts
  of Los Angeles County
1955 Workman Mill Road
Post Office Box 4998
Whittier, California  90607

Truman E. Bolia, Safety Engineer
University of California
Fruink, California  92717

David G. Boltz
Senior Pollution Control Engineer
Rethlehem Steel Corporation
Room B-252 Martin Tower
Bethlehem, Pennsylvania  18016

Warren H. Bossert, Environmental Eng.
U. S. Navy
West Division Code 114A
Post Office Box 727
San Bruno, California  94066

-------
Steve Bradly
Traffic Specialist
Hewlett Packard
333 Logue Avenue
Mt. View, California  94043

GAil L. Brice, Manager
Environmental Quality
Raychem Corporation
300 Constitution Drive
Menlo Park, California  94025

Bruce H. Brubaker, Special Assistant
  to the Director
Safety & Environmental Engineering Dept.
Diamond Shamrock Corporation
1100 Superior Avenue
Cleveland, Ohio  44114

Jay R. Brummer, Chief Chemist
FMC Corporation
Box 3808
Modesto, California  95352

Eric S. Burnett, Director
Energy & Pollution Control
Aratex Services, Inc.
16001 Ventura Boulevard
Encino, California  91436

Ray Butler, President
IADC
Box 1490
Alice, Texas  78332

Bob Burt, Director
Environmental Quality
California Manuf Associates
Post Office Box  1138
Sacramento, California  95805

Russell Bush, P.E.
Assistant Manager - Engineering
Union Sanitary District
4057 Baine Avenue
Fremont, California  94536
Robert B. Cameron, Sanitary Eng.
Environmental Planning Division
United States Air Force
Regional Civil Engineer
  Western Region
630 Sansome Street, Room 1316
San Francisco, California  94111

Tibaldo L. Canez, R.S.
Solid Waste Section
Bureau of Sanitation
Arizona Dept. of Health Services
411 North  24th Street
Phoenix, Arizona  85008

Arlie G. Capps, Sen. Oprts. Analyst
Center for Resource & Environmental
  Systems Studies
SRI International
333 Ravenswood Avenue
Menlo Park, California  94025

John N. Cardall, Staff Engineer
Mobil Oil Corporation
3700 West  190th Street
Torrance, California

Roy F. Carlson, Production Director
American Petroleum Institute
300 Corrigan Tower
Dallas, Texas  75201

Milton G. Carter, Staff Scientist
Woodward-C]yde Consultants
Three Embarcadero Center
Suite 700
San Francisco, California  94111

Thomas G. Casebolt
Supr. Chemical Engineer
Pacific Gas & Electric Company
77 Beale Street
San Francisco, California  94106

-------
 John Chadbourne
 Environmental  Manager
 General  Manager
 12700 Park Central  Lane
 Dallas,  Texas   75221

 Sam Z.  Chamberlain
 Senior Environmental  Engineer
 Monsanto Chemical  Intermediates Co.
 P.O. Box 711
 Alvin, Texas   77511

 Samuel T. Chapin
 Assistant Vice President
 Voigt, Walker, Co.,
 311 California St.
Suite 620
 San Francisco, Ca  94104

 Cheryl Clark
 Staff Writer
 The Sacramento Bee
 21st S Q St.,  Box 15779
 Sacramento, Ca  95813

 Rudolph Clay
 County Councilman
 Lake County Government Center
 Crown Point,  Indiana.

 B.J. Coffia
 Safety, Security, and Environmental
 Control, Grace Petroleum Corporation
 Brosdway Executive Park
 £501 North Broadway
 Oklahoma City, Okla  73116

 Dr. Anne H. Cohen
 Congressional  Science Fellow
 Congressman Albert Gore, Jr.
 4th District-Tennessee
 Washington, D.C. 20515

 James W. Collins
 Cities Service Co.
 Tulsa, Okla for American
 Petroleum  Institute

 Gerald W.  Cook
 Facilities Engineer/Energy Conservation
 Memorex  Corporation
 1200 Memorex  Drive
 Santa Clara,  California  95052
Al Cooksey
P/F Environmental Coordinator
U.S. Steel Corporation
P.O. Box 471
Pittsburg, Cal  94509

Gerald Couch
Manager, Safety and  Industrial
Hygiene, P.O. Box 358
Sunnydale, California  94086

Dennis Cox
Senior Engineer
Southern California  Edison Company
P.O. Box 800
2244 Walnut Grove Avenue
Rosemead, Calif  91770

Audrey Cunningham
Assoc. Engineer
Dept. 843/125
5600 Cottle Road
San Jose, California  95193

Ward Dabney
Utility Maintenance
Specialist
United Airlines
San Francisco International Airport
San Francisco, California  94128

Paul Dana, R.S.
Solid Waste MAnagercent Specialist
San Meteo County Health
590 Hamilton Avenue
Redwood City, California  94063

George I. Davis
President
P.O. Bex 6089
Corner of Orance Avenue
and Springhill Road
Tallahassee,  Florida  32301

William Davis
Solid Waste Supervisor
Solid Waste Division
Department of Sanitation and
Flood Control, 5555 Overland Avenue
San Diego,  California  92123

-------
Ray DiMaio
Plant Manager
Organic Materials Group
Kopper Company, Inc.
5431 District Blvd.
Los Angeles, California

Arthur Dinsmoor
Member, Independent Petroleum
Association of America
P.O. Box 145
Midland, Texas  79702

Robert Doss
Civil Engineer
Pacific Gas and Electric Co.
77 Beale Street
San Francisco, California  94106

Colleen Doyle
Research Associate
Southern Cal. Edison
Global Geochemistry Corporation
Walnut Grove Avenue
Rosemead, Cal.  91770

Steve Dufler
Gimell Bros.
Staff Chemist
326 Phelan Avenue
San Jose, Cal  95112

Jerome E. Earls
Sale Leathers
Plant Engineer
River St
Santa Cruz, California  95060

Bob Edson
Manager, Engineering, Research
and Technical Services
Occidental Chemical Company
P.O. Box 198
Lathrop, Calif  95330
Hal Ehrhardt
Environmental Engineer
IBM Corporation GPD
02F/009-11
Tucson, Ariz  85744

Ernest M. Elssele
Manager, New Business Development
Research Cottrell
P.O. Box 1500
Somerville, New Jersey  08876

Neil Estrada
Vfce President and General Manager
Reichhold Chemicals, Inc.
120 S. Linden Avenue
South San Francisco, Calif 94080

Maerose Evans
Assistant to General Manager
Dept. of Public Utilities
City of Alameda, Cal.  94501

J.I. Feley
General Foremen Utilities & Environmental
U.S. Steel
Pittsburh, California  94565

Yoshiko Findly
Findly Chemical Disposal, Inc.
9680 Primrose Drive
Riverside, California  92503

Burton N. Fleischer
Environmental Specialist
Allied Chemical
Nichols Road
Pittsburg, California  94565

Mike Fonsiller
Hewlett-Pagcard
1501 Page Mill Road
Palo Alto, California  94304

John Fong
PT&T
215 Fremont St

-------
Roger A.  Fontes
California Energy Commission
Assessment Division
1111 Howe Avenue
Sacramento, Cal  95825

L. Russell Freeman
Vice President
Brown and Caldwell
1501 N. Broadway
Walnut Creek, California  94596

Clarence Gieck
Technical Sales
BKK Corporation
3031 E. I. Street
Wilmington, Calif  90744

Edward G. Gladbach, C.E.
Power Design and Construction
Division, Department of
Water and Power, City of
Los Angeles
Room 1034, 111 North Hope St
Los Ange;es, Calif  90012

T.A. Gleason
Principal
Dames and Moore
1150 W. 8th Street
Cincinnati, Ohio  45203

Robert G. Gough, Ph.D.
Manager of Chemical Regulation
Affairs, Cincinnati Milacron
Cincinate, Ohio  45209

Winifred Grant, Bechtel
Environmental Engineering Specialist
P.O. Box  3965
San Francisco, California  94117

Steven Green
Safety Analyst
United Technologies-Chemical Systems
P.O. Box 358
Sunnyvale, California   94086
Alan Grey
Project MAnager
EG&G
P.O Box 1625
Idaho Falls, Idaho
83401
Jake E. Griffin
Intalcc Alum. Corporation
Technical Department Engineer
Ferndale, Wash.  98248

Kathryn Guillou
Intern
Office of Environmental Review
45 Hyde St, #319
San Francisco, Cal

Deborah K. Guinan
Manager, Environmental Services
Association of American Railroads
1920 L Street, N.W.
Washington,D.C.  20036

Ellis T. Hammett
Petroleum Engineer
USGS-CD-Geothermal
2465-E Bayshore Road
Palo Alto, California  94303

H.L. Hanright
President
Baker Service Tools
9100 Emmott Road
Houston, Texas  77040

George Hansen
Senior Projects Engineer
EFSEC
820 E Street
Olympia, Wn  98504

J.R Hanson
Staff Engineer
Shell Oil Co.
Martiez, Cal  94554

-------
 R.W.  Harrington
Environmental  Control Engineer
Pacific Refining Company
P.O. Box 68
Herci'les, Calif  94547

Fred Harris
Western Mud Sales and Service Cc.
Rio Vista, California

Robert Harvey
Technical Director
Intalxo Aluminum Corporation
P.O. Box 937
Derndale, Washington 98248

John Hayes
Consultant
Bay Area League of
Industrial Association
5 Barroilhet Avenue
San Mateo, Cal.  94401

Juergen Heckel
Senior Engineer,IBM
3000 Westchester Avenue
White Plains, N. Y.  10604

J.P. Hellmann
Executive Assistant tc Director
California Trucking Association
P.O. Box 923
Burlingame, California

R.A. Henry, Jr.
Registration and Labeling
Wilbur Ellis Company
191 W. Show Avenue, Suite 107
Fresno, California  93704

R. George Hersh
Division Chief
California Solid Waste
Management Board
P.O. Box 1743
Sacramento, California  95808
Clement M. Higby
Technical Director
Cal-Ink
1404 4th Street
Berkeley, California94710

Mr. Robert Hill
Environment Prot. Spec.
U.S. Army Fort Ore), California  939^-1

William Hill
General Manager Supply Trans.
Ekotek
7901 Oakport
Oakland, California

E. James Houseberg
General Manager
2222 Watt Avenue, Suite B- 7
Sacramento, California  95825

L.G. Hubbard
Director-Hazardous Materials
Transporation, Surface Transportation
Department, Continental Oil Company
5 Greenway Plaza East
Houston, Texas  77046

Ted Hudson
U.S. Geological Survey
Conservation Division
Rm 213, 777 Sonoma Avenue
P.O. Boc 3539
Santa Rosa, California  95402

T. Dean Inokuchi
Assistant Civil Engineer
Public Works Department
6th Floor Admin, Bldg.
Martinez, Calif. 94553

H.S. James
Manager
Kaiser Refractories
300 Lakeside Drive
Oakland, California  94598

-------
Lita Jans
Intern
Environmental Action Clearinghouse
Fort Mason-Bldg. 312
San Francisco, California  94123

Downing B. Jenks.Jr.
Manager Hazardous Materials Control
Santa Fe Railway
80 E. Jackson Blvd
Chicago, 111.  60604

Douglas Johnson
Emergency Planning Coordinator
Caltrans
1120 N. Street
Sacramento, California  95814

Joseph R. Johnson, P.E.
Vice President/ Engineering
BKK
3031 East I Street
Wilmington, California  90744

Robert R. Johnson
Chevron Chemical Company
575 Market Street,
San Francisco, California  94105

Benjamin F. Jones
Staff Scientist
Radian Corporation
8500 Shoal Creel Blvd.
Austin, Texas  78758

Bob Jones
Assistant Firector
IMCO Services
2400 W. Loop South
Houston, Texas  77027

William F. Jopling
Assistant Chief
State of California
Department of Health Services
744 P. Street
Sacramento, California  95814
J.D. Joyce
West Coast Representative
Environmental Affairs
Shell Oil Company
P.O. Box 250
2401 Crow Canyon Road
San Ramon, California  94583

Marvin Jung
State California
Water Resources Control Board
2125 19th Street
Sacramento, California  95818

J.F. Jusess.Jr.
Committee Chairman
I.A.D.C.
P.O. Drawer N
Jena, La  71342

Ken Kazarian
U.P. General Manager
3031 E. I Street
Wilmington, California  90744

Michael Kerran
Double Eagle Refining Company
301 N. Rhode Island
P.O. Box 11257
Oklahoma City, Oklahoma 73136

Duane A. Kilhne
Manager, Industrial Waste
Water Treatment and Deionized
Water Systems
San Jose, California  95193

R.S. Kilpatrick
Engineer, Environmental  and
Mechanical
South Pacific Transportation
Company, One Market Plaza, Rm 1000
San Francisco, California  94105

Meredith Klein
Legal Assistant
Pillsburg, Madison and Sutro
225 Bush Street
San Francisco, California94104

-------
Daryl  Koch
Senior Environmental Quality
Specialist, State of Idaho
Boise, Idaho  83720

Don Kondoleon
Energy Generation Specialist
California Energy Commission
1111 Howe Avenue
Sacramento, California  95825

Bruce Krasker
Assistant Counsel
Defense Property.. Disposal
Service, Federal Ceneter
Battle Creek, Michigan  49015

L.L. Krohn
Union 76 Division
Union Oil Company of California
Los Angeles, California  90017

Brian Lamb
Assistant Chemist
Washington State University
Pullman, Washington  99163

Charles L. Lamoureaux
Senior Field Engineer
24600 S. Main Street
P.O. Box 6200
Carson, California  90749

John E. Law
Captain
Commercial Ve'n'cle  Section
California Highway  Patrol
2555 First Avenue
Sacramento, California  95818

Frank J. Lazzaretto
Safety Supervisor
Pacific  Intermountain Express  Co.
25  North Via Monte
Walnut Creek, California  94598

William W. L. Lee,  Sc.  D.
Woodward-Clyde  Consultants
Three Embarcadero  Center
Suite 700
San Francisco,  California 94in
Ronald Leineke
President
Venada National
3465-B American River Dr.
Saramento, California 95821

Robert Leonard
Environmental Engineer
Ford Motor Company
P.O. Box 1101
San Jose, California  95108

Carl Levi
Champlin
Division Mechanical Engineer
P.O. Box 125
420 Henry Ford Avenue
Wilmington, California  90748

Russell J. Light
At-uornoy
Champlin Petroleum Company
5301 Camp Bowie Boulevard
Fort Worth, Texas  76107

D.D. Lloyd
Area Technical Advisor
IMCO Services
3711 Lomg Beach Boulevard
Long Beach, California 90807

Frances R. Lo
Market Analyst
McKesson Chemical
Crocker Plaza
One Post Street
San Francisco, California 94104

Lyle J. Lofdahl
Senior Vice President
Purex, 5101 Clark Avenue
Lakewood, California 90712

David W. Long
Attorney
Southern Pacific Transportation Co.
Southern Pacific Building
One Market Plaza
San Francisco, California  94105

-------
Julio Loureiro, P.E.
President
Loureiro Engineering Associates
20 Tower Lane
Avon Park, South Avon, Conn 06001

Frank Luchetti
Waste Management Specialist
State of Nevada
201 S. Fall Street
Capitol Complex
Carson City, Nevada 89710

Bruce F. Lupoli
Associate Motor Carrier Operations
Specialist, California Highway
Patrol, Commercial Vehicle Section
2555 First Avenue
Sacramento, California  95818

Randy Marcus
Environmental Specialist
U.S. Army
Facilities Engineeing, Bldg 280
Presidio, S.F., San Francisco
California   94129

J.R. Mastelotto
Director, APR
2856E Olive Hiway
Oroville, California 95965

Sandra Mathias
Program Manager, Solid Waste
Southern California Association
of Governments
600 S. Commonwealth Ave, Suite 1000
Los Angeles, California  90005

Frank Maxwell
Environmental Coordinator
USBLM, Nevada S.D.
Rm. 3008 Federal Building
Reno, Nevada  87509

Ehoy Mazuka
F'eld Assistant
Board of Supervisors
San Joaquin County
222 S Weber
Stockton, California  95202
James McBain
Executive Director
Association of Petroleom
Refiners, Executive Director
Suite 700, 1101 Conn.Avenue
Washington, D.C.  20036

Greg McClintock
Attorney
Western Oil & Gas Association
3435 Wilshire Blvd. 30th Floor
Los Angeles, California  90010

M.N. McCulloch
Supervisor
Hazardous Materials Control
Southern Pacific Transportation
Company, One Market Street
San Francisco, California  94105

Tom Meientry
IT Corporation
4575 Pacheco Blvd.
Martinez, California  94553

Lee  Metcalfe
Regulations Development Branch
Office of tozardous Materials
U.S. Department of Transportation
Office of the Secretary
400 Sixth Street, S.W.
Washington, D.C.  20590

John C. Middleton
Supervisor Product Safety
U.S. Borax Research
412 Crescent Way
Anaheim, California  92801

John Moe
5377 Boyd Avenue
Oakland, California  94618

C.D. Morgan
Pet. Eng. Tech., USGS,
777 Sanoma Avenue
Santa Rosa, California 95401

-------
James Morriss
Attorney
Thompson and Knight
2300 Republic National Bank
Dallas, Texas  75201

D.R. Morrow
General Manager
Agrico Chemical Company
Mining Division
P.O. Box 1110,
Mulberry, Florida 33860

R, Morseley
Manager & Environmental Engineer
Dresser Magcobar
P.O. Box 6504
Houston, Texas  77005

Todd Moyn
Attorney
Brewer, Partridge, and Monis
1209 N. El  Dorado
Stockton, California  95202

David Muntz, P.E.
Project Engineer, Environmental
Continental Forest Industries
Brown System Operations
Highway 56 South
Augusta, Ga 30903

Stephen Mussel 1
Staff Analyst
Citevron USA Inc.
575 Market Street
San francisco, California 94105

Tom Nicolas
Administrative Assistant
Supervisor Yoshikawas Office
Board Of Supervisors, San Joaquin
County, 222 E. Weber
Stockton, California  95202
A. William Nosil
Manager of Technical Compliance
Hexcel Structural Products
10 Trevarno Road,
Livermore, California  94550

T.W. Obert
Staff Engineer
United Air Lines
San Francisco, California94128

Ken 0'Morrow
Technical Director
OSCO
1704 W. First Street
Azusa, California  91702

Chris Olive Ira
Energy Facility Siting Planner
1111 Howe Avenue
Sacramento, California 95825

Roger Olmsted
US Borax
Senior Environmental Engineer
3075 Wilshire Blvd.
Los Angeles, California  90010

Don Osterholt
Safety Engineer
UTC Chemical System Division
1050 E. Arques
Sunnyvale, California  94088

Orton Overman
Assistant Manager Labeling
Stauffer Chemical  Company
Westport, Conn   06906

Charles E. Owens
Engineering
United Airlines
San Francisco International  Airport
San Francisco, California  94128

-------
E.B. Faille
Manager Environmental Technology
Kaiser Aluminum & Chemical Corporation
300 Lakeside Drive
Oakland, California  94643

Richard A. Pentages, R.S.
Program Director
Public Health Service
Division of Environmental
Health, 470 27th St.,
Rm. 325, Oakland, Ca.  94612

William "Bill" Park
President
Environmental Protection
Corporation, 3040 19th St.,
Suite 10, Bakerfield, Ca  93301

A.B. Parker
Senior Conservation Engineer
Atlantic Richfield Company
P.O. Box 2819
Dallas, Texas  75221

Ens. Parker
Marine Environmental Protection
Officer, U.S. Coast Guard
630 Sansome St.
San Francisco, California

Ariel Parkinson
Member California SWM Board

Gerald Pea body
President
Pozzolanic Northwest Inc.
1449 Kent West Mall
Kent, Washington 98033

L. Wayne Pepple
Assistant Engineer, Environmental
and Mechanical, Southern
Pacific Building, One Market
Plaza 1100, San Francisco, Ca94105

J.E. Perry
Assistant Manager, Quality Control
Western Pacific Railroad
526 Mission Street
San Francisco, Ca. 94105
LeRoy Peterson
Environmental Engineer
Sohio Petroleum Company
100 Pine Street
San Francisco, Ca.  94111

Stearns, Conrad and Schmidt
Consulting Engineer, Inc
Tan Phung, Ph.D.
4014 Long Beach Blvd.
Long Beach, Ca  90807

Rod Pieper
Safety & Ind. HGY Engineer
Lockheed
 1111  Lockheed Way
Sunnyvale, Cal.  94086

Barbara K. Polich
Attorney, Parsons, Beble & Lahmer
P.O. Box 11898
SL.CA 84142

Joseph Rafferty
Environmental Engineer
Dresser Industries
P.O. Rox 6504
Houston, Texas 77005

Howard Reiquam, Ph. D.
Manager, Air and Water Program
El Paso Natural  Gas Company
P.O. Box 1492
El Paso, Texas  79978

Albert Rench, P.E.
Environmental/Civil Engineer
U.S. Forest Service
Region 5 630 Sarisome St.
San Francisco, California  94111

Jamie Replogle
Counsel
Independent Petroleum Assoc. of America
1101 16th St, N.W.
Washington, D.C.  20036

George Rhodes
Member,  Texas Coastal & Marine Council
P.O. Box 986
Port Lavaca, Texas   77979

-------
Bruce W. Risley
Vice President
American Waste Container Svc.
11505 Douglas Road
Rancho Cordova, Cal. 95670

Rich Rose
Transportation Manager, Hazardous
Materials, Corporate Traffice and
Distribution Division
International Minerals & Chemical Corp.
421 East Hawley St.
Mundilein, 111. 60060

David Rose.P.E.
Stearns, Conrad and Schmidt
Consulting Engineers, Inc.
4041 Long Beach Blvd.
Long Beach, Cal  90807

Arne Rovick
Attorney
Evans, Kitchel & Jenckers
363 N. First Ave.
Phoenix, Arizona  85003

Stuart Rupp
Vice President
California Environmental
Tech., P.O. Box 7
Richmond, Ca.  94807

Willaim Sallans
Executive Vice President
Petroleum Equipment Suppliers
Association, 9225 Katy Freeway
Suite 401, Houston, Texas  77024

Donald Sanders
Sr, Engineering Geologist
International Engineering Co.
220 Montgomery St.
San Francisco, California  94104

Yvonne Cyr San Jule
Principal Planner
Assocation of Bay Area Governments
Hotel  Claremont,
Berkeley, Ca.  94705
I. Sarkany
Environmental Health Ins.
S.F.H.D.
10V Grave Str. Rm. 217
San Francisco, California  94102

Charles Sawyer
Corp. Env. Engin./Ind. Hygienist
Syntex Inc.
3401  Hillview Ave.
Palo Alto, California  94304

Pat Scanlon
Vice President
Phelps Dodge Corporation
Box 1238
Douglas, Ariz.  85607

H.M.  Schneider
President
ROMIC Chemical Corporation
2081  Bay Road
East Palo Alto, Ca. 94303

Herbert Schott, Ph.D.
Waste Source Control  Supervisor
Union Sanitary District
46525 Landing Road
Fremont, Ca.  94538

Mr. H. Schuyten
Manager Environmental Affairs
Chevron Chemcial  Company
575 Market Street
San Francisco, Ca  94105

J.C.  Schwegmann,  Ph.D.
Director, Environmental Serivfces
Kaiser Aluminum
300 Lakeside Drive
Oakland, Ca  94643

George Seto
Occupational  Health & Safety Specialist
Health Physics, Safety and Health
Roam 67 Encina Hall
Stanford University
Stanford, California   94305

Jim Severns
EPA

-------
Rafat Shahid
Contra Costa County Health
Occ. Health Program Coord.
1111 Ward Street
Martinez, Cal   94553

Joseph E. Shandling
Environmental  Protection Officer
Naval Air Station Alameda
Code ON
NAS Alameda, California

John Sheahan
Oakland Scavenger Company
2601 Peralta Street
Oakland, California  94607

Karen Shewbart
Gr. Leader-Env. Ser.
Dow Chemical Co.
B-1226
Freeport, Texas  77541

Paul Shockely, Jr.
E.I. DuPont
Supervisor-Transportation
P.O. Box 310
Antioch, Cal  94509

John Siegfried
Legal Division
The Procter & Gamble Company
301 East 6th Street, Cincinnati, Oh45202

Bernard Simonsen
Regional Vice President
4575 Pacheco Blvd.
Martinez, Cal.  94553

Daniel Simpson
Manager-Pesticide Marketing
W.R. Grace & Co.
100 N. Main, Box 277
Memphis, Tenn.  38101
Jean Siri
President
West C.C. Conservation League
1015 Leneve Place
Richmond, California  94530

T.J. Smolik
Project Engineer
Placer Amex Inc.
Ore California Bldg., Suite 2500
San Francisco, California  94111

Jay Snow, P.E.
Chairman, Hazardous Waste Management
Task Force
National  Governors  Association
P.O. Box  13087, Capitol  Station
Austin, Texas  78711

Dan Sokol
Princ. Ground Water Geol .
Intern. Engineering Co.
220 Montgomery
San Francisco, California  94104

N.A. Speed
Brown & Caldwell
1501 N. Broadway
Walnut Creek, Cal  94598

Rodger Staha
Environmental  Coordinator
Exxon Co. U.S.A.
3400 E. 2nd Street
Benicia,  Ca  94510

Andrew Stephens
ASTA Contruction Co. Inc.
39 N. Front St.
Rio Visto, California  94571

Robert Stephens, Ph.D.
State of California
Department of Health Services
2151 Berkeley Way
Berkeley, Ca.  94704

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James Stock
Sr. Chemical  Engineer
Chevron USA Inc.
575 Market Street
San Francisco, California
94105
Robert Stone
Assistant Vice President
Baccala & Shoop
Two Century Plaza, Suite 2100
2049 Century Park East
Los Angeles, California  90067

David Storm, Ph.D.
Research Chemist
State Of California
Department of Health Services
2151 Berkeley Way
Berkeley, Ca  94704

F.C. "Jim" Suhrer, P.F.
Consultant
State of California
Department of Health Services
2151 Berkeley Way
Berkeley, California   94704

Guen Swtt
Environmental Analyst
Santa Fe Energy
10737 Shoemaker
Santa Fe Springs,  Ca   90670

James Sykora
Attorney
Cities  Service Company
Box  300
Tulsa,  Oklahoma   74102

John  Tallaksen
Group  Engineer
PUREX  Corporation
24600  S. Main  Street
Carson, Ca   90745

R. Thayer
 Environment*!  Eng.
 EPT Co.
Market  Plaza
 San Francisco,  Ca  94105
James Thompson
Northwest Environmental  Manager
Aluminum Company of America
P.O. Box 221
Wenatchee, Washington 98801

Dick Thompson
Time Magazine
100 Bush
San Francisco, Ca  94104
             Richard Timm
             Operations Manager
             BKK Corporation
             3031 East I Street
             Wilmington, California
                         90744
             Floyd Trill is
             Sr. Operations Engineer
             Consol Nat. Gas
             Four Gateway Ctr.
             Pittsburgh, Pa   15222

             L.J. True
             Chevron  Chemical  Company
             575 Market Street
             San Francisco,  Ca 94105

             Walter  Unterberg, Ph.D.,  P.E.
              Project Officer
              Rockwell International
              2421  West Hillcrest Drive
              Newbury Park,  Ca  91320

              J.P.  Valinsky
              Staff Environmental Engineer
              McDonnell Douglas
              5301  Bolsa Avenue
              Huntington Beach, Ca  92647

              William Van Horn
              Senior  Analyst
              Center  for Planning and  Research,  Inc.
              2483 East Bayshore Road,
              Palo Alto, Ca   94303

              James  Van Sant
              Technical Manager
              326  Phelan Avenue
              Gimelli Liquid Waste
               San  Jose, Ca   95124

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Robert Varfiol
Civil Engineer
Pacific Gas & Electric Co.
3400 Crow Canyon Road
San Ramon, Ca  94583

Charles A. Wagner
Secretary-Treasurer
Poetsch and Peterson
325 S. Maple Avenue
South San Francisco, Ca 94080

William Wagner
Vice President
Poetsch and Peterson
325 S. Maple
South San Francisco, Ca 94080

Francis Wairer
Waste Water Treatment Specialist
IBM Corporation
5600 Cottle Road
San Jose, Ca  95193

Ann Walsh
Public Affairs Administrator
Crown Zellerbach
One Bush Street
San Francisco, Ca  94119

Gary Wai thai!
Environmental Engineer
Union Oil Company of California
Los Angeles, California  90017

Chuch Wassinger
U.S. Geological Survey
Western Region
Room 213
777 Sonoma Avenue
P.O. Box 3539
Santa Rosa, Ca 95402

Albert L. Wellman
Sanitary Engineering Associate
State of California NCRWQCB
1000 Coddingtown Center
Santa Rosa, California  95401
Theodore R. Weller, Sr.
Wine Institute
Professional Engineer, S.F.
Sanitarian R.S.
Safety Engineer, C.S.P.
165 Post Street
San Francisco, Ca  94108

Herbert Wheeler, Jr.
Petroleum Engineer
2775 Cottage Way, Suite 24
Sacramento, Ca  95825

Kenneth Wilkins
Supervisor, Technical Services
Safety Specialists Incorporated
3284 F Edward Avenue
Santa Clara, Ca  95050

Richard Whorrall
Manager of Environmental Services
11400 Burnet Road
Austin, Texas  78758

D.E. Wick
Supt. - Engineering Services
Kaiser Steel
Box 158
Eagle Mountain, Ca  92241

Patrick Wicks
Manager Chemical Disposal and Treatment
Chem Nuclear Systems, Inc.
P.O. Box 1866
Bellevue, Washington  98009

Leon Winters
Partner
Dames & Moore
500 Sansome St
San Francisco, Ca  94111

James Wiseman
Manager
Sfauffer Chemical Company
636 California Street
San Francisco, Ca  94108

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Douglas Yadon
Engineering Geologist
Earth Sciences Associates
701 Welch Road
Palo Alto, Ca  94304

Robert Yelin
Mkt. Manager
Rockwell EMSL
2421 West Hillcreast Dr.
Newbury Park, Ca  91320

Bernard Yurash
Environmental Control Coordinator
Fairchild Semiconductor
464 Ellis Street
Mt. View, California  94042

S.M. Zand
Environmental Engineer
O.S.G.S.
345 Middlefield Rd.
Menlo Park, Ca  94025

Pat Zimmerman
Assistant Engineer
Washington State Univ.
Rm. 310 Dana Hall
Pullman, Washington 99164

Stanley Zwicker
Senior Environmental Engineer
Union (Dil Company
Los Angeles, California 90017

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                         TESTIMONY

                             ON

             REGULATIONS PROPOSED TO  IMPLEMENT

                       SECTION 3004

                          OF THE

      RESOURCE CONSERVATION AND RECOVERY ACT OF 1976

            STANDARDS FOR OWNERS AND  OPERATORS

                             OF

HAZARDOUS WASTE TREATMENT, STORAGE AND DISPOSAL FACILITIES
                             Bernard L. Simonsen
                             Vice President
                             IT Corporation
                             4575 Pacheco Blvd.
                             Martinez, CA
                      March 14, 1979

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     My comments will be directed to the provisions of the
proposed regulations dealing with financial responsibility of
hazardous waste management facilities.  I have been participating
in the submission of comments on this section both as a member of
the National Solid Wastes Management Association and on behalf of
IT Corporation for the past 18 months.
     I would like to preface my comments with a description of the
environmental imparement insurance policy IT Corporation has had
in force for the past two years, and it's strengths and weaknesses.
This policy can potentially meet the requirements of financial
responsibility during site operation.
     The policy is available through various insurance brokers
from the Lloyds group.  The exclusions in the standard form are:
     1.  Occurances outside the United States.
     2.  Liability resulting from acts of war, riot, or
         exercise of public authority.
     3.  Nuclear fuel, wastes or weapons.
     4.  Obligation covered by Workers Compensation, unemployment
         compensation, or disability laws.
     5.  Personal injury to an employee.
     6.  Any loss where an officer,  director, or responsible
         employee was aware of non-compliance.
     7.  Arising from ownership or use of any land motor vehicle,
         vessel, oil or gas drilling platform, deep water port,
         or airport.
     8.  Product liability.
     9.  Sudden unexpected happening.
    10.  Genetic damage.
    11.  Damage to property owned or used by the insured.
    12.  Punitive damages or fines.
    13.  Pre-existing conditions.
    14.  Neutralizing, restoring, cleaning up or inactivating
         any waste disposal site used directly or indirectly by
         the insured.
    15.  Any clean up considered to  be routine and normal in
         connection with the business of the insured.

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     The policy is on a claims-made basis for the term of one
year.  It is issued only after_ the prospective insured agrees
to pay for an engineering survey of the company, its facilities
and equipment by an engineering firm retained by the insured
company.  This survey cost approximately $6,000 in 1977 and
can be applied to up to 10% of the premium.  I have no information
on the criteria utilized by the Insurer in accepting the risk or
how the premium is developed.
     Premiums for our policy are approximately $90,000 per year
for sudden and non-sudden claims, $2 million per occurance, $4
million per year.  This covers all operations of IT Corporation
including vacuum truck hauling, two Class I site operations, tank
cleaning, and chemical/oil spill cleanup.  The quotation for a
$4/8 million policy was approximately $125,000.  No quotation was
offered for higher limits, and material received indicated that
this is currently the highest limits available.
         Potential problems may exist for the following circum-
stances which could make this policy difficult to obtain or more
expensive.
     1)  The existance of other on site storage, manufacturing,
         or processing facilities which would be potential
         emission sources and hence might need to be included
         in the policy coverage.
     2)  Low volume facilities which would be faced with a more
         significant impact on their cost of operation due to
         minimum premiums.
     3)  Sites with ground drinking water under the facility.
     4)  Inadequate assets or history to justify coverage of
         the risk to $10 million.
     The policy we have in force is substantially the one discussed
by the EPA with the Lloyd's brokers and marketed in the U. S.
     The following comments are organized around the four operational
phases of the proposed regulations.
     1.  Operations
         The proposed regulations require evidence of $5 million
         of general liability insurance and $5 million per
         occurance per year up to $10 million per occurance per
         year of Environmental Imparement Insurance for multiple

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         facility operators.
         During site operations, a hazardous waste management
     facility is similar to any other facility handling hazardous
     materials, except that upon ceasing business the potential
     risks from materials in the ground or in storage continue.
         Due to the fact that only insurance will be a realistic
     option to our firm, as well as most of the off-site disposal
     facilities, and many smaller on-site disposers, I will con-
     centrate on that alternative.
     The following issues are unresolved or present problems as
contained in the proposed regulations:
     a.   What action is anticipated or required by the EPA upon
     cancellation or non renewal of the insurance policy?  Since
     the coverage is only offered through the Lloyd's brokers,
     any decision to cancel would be final unless a sale of the
     facility occurred.  Basically this puts the operation in the
     position of guaranteeing the existence of insurance, a reversal
     of  the traditional roles.   This risk of loss of permit would
     have two negative impacts.
         i.  The threat of permit cancellation would eliminate
     many potential investors or developers from expanding or
     creating new disposal facilities.
         ii.  Once cancelled, the facility would be without
     revenue or insurance coverage.  Thus, the EPA would be
     increasing the risk of site bankruptcy or abandonment with
     no  one financially responsible.
     2.   What coverage is intended under the regulations?
     I have listed the standard  exclusions in the available policy
     form.   Which of these,  if  any, are unacceptable?  The expecta-
     tions of the public and the regulatory agencies must be con-
     sistent with the available  or required insurance policies,
     and the limitations must be known.
     3.   What types of claims or liabilities are required to be
     covered?  Under various definitions,  such items as loss of.
     income,  loss of profits, genetic damage,  loss of resources,
     etc.  could be included, but are  currently not available in
     the form of insurance.

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     4.   The limitations of a "claims-made"  policy must be known.
     Upon failure to make premium payments,  site closure,  change
     in ownership, or bankruptcy the policy  may be cancelled re-
     sulting in no coverage for prior operations.
     5.   A specific exclusion of the policy  is as  follows  "liability
     arising from Environmental Impairment in respect or which any
     executive director or any officer of the Insured or any
     employee with specific responsibility for environmental con-
     trol was aware of noncompliance with any applicable statute
     or regulation or instruction relating to Environmental Im-
     pairment issued by competent authority  PROVIDED ALWAYS that
     until next renewal date of this policy  this exclusion shall
     not apply where the Insured is operating under conditions of
     noncompliance under a permit or order of such authority and
     with good faith efforts to comply as soon as  can reasonably
     be expected of the Insured with any applicable statute or
     regulation or instruction issued by that authority."
     The restrictions implied are that upon  issuance of a notice
of violation or commencement of legal action all coverage could
cease for losses resulting from that act or  omission.
     6.   There is no indication as to the basis for either the
     $5 million coverage requirement or the  limitation of self
     insurance to 10% of net equity.  Both of these levels limit
     the resources available to provide adequate Hazardous Waste
     facilities by discouraging or disqualifying participants.
     The $5 million insurance level is above that  currently
     available although higher limits may result after the
     regulations are effective.

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     2.   Site Closure
     The proposed regulations require funding of the engineering
estimate of closure cost prior to issuance of a permit.  Although
the concept of eliminating a public burden in case of site aban-
donment is valid, this sole means of providing for closure is
unduly restrictive.
     Alternates to be considered would include.
     a.   A lien against the land and real improvements.
     b.   Providing for a deposit of only the amount required for
     closure of the facility on each anniversary, based upon the
     initial engineering study.  This could be updated upon change
     in operations or every 5 years to ensure current closure cost
     estimates.
     c.   Posting of other securities or assets to satisfy  (b).
     d.   Phasing the deposit required under  (6) over 5-10 years.

     3.   Post Closure Monitoring and Routine Maintenance
     There are no conceptual problems with the proposed regulations
for this phase.  We concur that the funding occur over the entire
site  life and that a 20 year post closure period be established
for all burial or injection facilities.  Attention may be given
to a much shorter monitoring  (i.e. 1 year) for storage or treat-
ment facilities to ensure no potential liability due to seepage
from tanks or spills.

      4.  Long Term Liability
      We concur with the EPA analysis that there is no acceptable
alternative available for satisfying this objective.  We have
worked extensively with the NSWMA and the EPA on a national
fund to handle claims on a no-fault basis for sites under the
following circumstances:
      a.  The site was permitted under RCRA.
      b.  The site operated substantially within the permit
          conditions.
      c.  The site was closed under RCRA standards.

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     The key elements of the program should include:

         a.   Release from liabiltiy for a generator from
             properly manifested materials sent to a  RCRA
             permitted Hazardous Waste Facility.
         b.   Release from liability for a HWME facility
             operated and closed substantially in compliance
             with RCRA.
         c.   A fund contributed to by producers of hazardous
             waste to pay for claims against sites with
             suitable rules of evidence on a no-fault basis.
         d.   Full liability if it is established that a
             facility or generator acted in a negligent or
             willful manner in violation of the permit to
             cause the damage or claim.

     This provides a positive incentive to comply fully with
the provisions of the Regulations, while providing a  mechanism
to satisfy legitimate claims for pollution damage done by a
closed facility.

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                                   STATEMENT OF
                                                               lie  Ulwtc'L
                                                                            ->
                    INDEPENDENT PETROLEUM ASSOCIATION OF Ai-ERICA
                                        AND
ALASKA INDE=ENCENT PETROLEUM
   ASSOCIATION
ARKCf-A 3ASIM INEE=EMCENT GAS
   PRODUCERS ASSOCIATION
CALIFORNIA INDEPENDENT PRODUCERS
   ASSOCIATION
EASTERN KANSAS OIL AND GAS
   ASSOCIATION, INC.
EASTERN OKLAHOMA OIL PRODUCERS AND
   ROYALTY OWNERS .ASSOCIATION
INDEPENDENT OIL AND GAS ASSOCIATION
   OF WEST VIRGINIA
INDEPENDENT OIL PRODUCERS TRI-
   STATE, INC,
INDEPENDENT PETROLEUM ASSOCIATION
   OF ."CUNTAIN STATES
KANSAS INDEPENDENT OIL AND GAS
   ASSOCIATION
KENTUCKY OIL A;O GAS ASSOCIATION
THE LAND AND ROYALTY OWNERS OF
   LOUISIANA
LIAISON COMMITTEE OF COOPERATING
   OIL AND GAS ASSOCIATIONS
LOUISIANA ASSOCIATION OF  INEE^ENDENT
   PRODUCERS AND ROYALTY  ONERS
yiCiIGAN OIL AfiD GAS ASSOCIATION
NATIONAL STRIPPER ',•£!_ ASSOCIATION
NEW YORK STATE OIL PRODUCERS
   ASSOCIATION
NORTH TEXAS OIL AND GAS ASSOCIATION
OHIO OIL AMD GAS ASSOCIATION
OKLAhOPA INDEPENDENT =ETRCLEU-<
   ASSOCIATION
PAWANDLE PRODUCERS ,-jMD ROYALTY
   CUIERS ASSOCIATION
PENNSYLVANIA GRADE CRLLE  OIL
   ASSCCIATICN
PENNSYLVANIA OIL, GAS AND .'-ilNERALS
   ASSOCIATION
PERMIAN 3ASIM PETRC'^EL^ ASSCCIATICN
TENNESSEE OIL AND GAS ASSOCIATION
TEXAS INDEPENDENT PRODUCERS AND
   ROYALTY CV/NERS ASSCCIATICN
VIRGINIA OIL AND GAS ASSOCIATION
WEST CENTRAL TEXAS OIL AND GAS
   ASSCCIATICN
                                      Before the


                     United  States  Environmental Protection  Agency


                                          on


                   Hazardous  Waste  Proposed Guidelines and  Regulations
                       and  Proposal on Indentification and  Listing


                                 March 12 - 14, 1979


                               San Francisco, California

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Testimony of Francis  C.  Wilson,  II,  Chairman
Environment and Safety Committee
Independent Petroleum Association  of America

Before the United States Environmental
   Protection Agency
RE:  "Hazardous Waste Proposed Guidelines  and
      Regulations and Proposal  on  Identification
      and Listing"  (43 Fed.  Reg.  58946  et seq.,
      December 13, 1978)           	
      I am Francis C.  Wilson,  II,  an  independent  producer of

crude oil  and natural  gas from Santa  Fe,  New Mexico.   I  currently

serve as Chairman of the Environment  and  Safety Committee of the

Independent Petroleum Association  of  America (IPAA).   The IPAA is

a national  association, located in Washington,  D.  C.,  which  repre-

sents approximately 5,000 independent oil  and gas  explorer-producers

who operate in every producing region of  the United States.

      We are joined in these comments by  the twenty-six  unaffiliated

state and regional oil and gas associations  "isted on  the cover page.

The combined membership of these associations includes  virtually

all of the 10,000 to 12,000 independent oil  and gas producers in

the United States.

      The IPAA appreciates this opportunity  to  respond  to the above-

referenced "Hazardous  Waste Guidelines and Regulations", which were

recently proposed by the U.S.  Environmental  Protection  Agency (EPA)

pursuant to Sections 3001, 3002, and  3004 of the  Solid  Waste Disposal

Act, as amended by the Resource Conservation and  Recovery Act of  1976

(RCRA) (P.L. 94-580, October 21, 1976).

      While the IPAA recognizes that  careful  planning  and management

of certain  industrial  wastes are necessary tc protect  the human health

and environment, we believe that the  hazardous  waste  regulatory program

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proposed by EPA is overly broad and burdensome and will  have a

devastating adverse impact on the exploration and production segment

of the oil and gas industry.  We appreciate the Agency's difficult

task of promulgating regulations to implement a statute  (RCRA) that

is all-encompassing in nature yet lacking at times in detailed guidance.

Nevertheless, we believe that EPA's approach of regulating all

wastes - regardless of their degree of hazard - on equal terms is

an unwarranted and exaggerated response to its mandate.


                   HAZARD NOT SHOWN

      Crude oil and natural  gas exploration and production operations

are effected by this extensive regulatory scheme because drilling

muds and oil production brines  (as well  as crude oil wastes) may

be determined to be "hazardous" pursuant  to EPA's criteria.   While

we will defer analysis of these criteria  to those with greater

technical expertise in such matters, the  Association questions whether

muds and brines (and crude oil wastes) pose a serious threat of contami-

nation.  According to Sec. 1004(5) of RCRA,

      The term, 'hazardous waste'  means a  solid waste,
      or combination of solid wastes, which because
      of its quantity, concentration, or  physical,
      chemical, or infectious characteristics may --

           (A) cause, or signi ficantly contribute
               to an increase in mortality or
               an increase in serious irreversible,
               or incapacitating reversible, ill-
               ness ; or

           (B) pose a substantial  present or potential
               hazard to human health or  the environ-
               ment when improperly treated, stored,
               transported,  or disposed of, or other-
               wise managed.   (Emphasis added)

IPAA submits that EPA has failed  to take  into account the  strong

qualifying language in the Congressional  definition of hazardous

waste.   By using such words  as "significantly contribute"  and

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"substantial.  .  .hazard",  the  Congress  clearly  intended  to  emphasize



that only those  wastes actually posing  a  serious  threat  of  risk  to



health and environment were to be  regulated.   Yet EPA has proposed



to regulate all  wastes falling within  its broad interpretation of



hazardous wastes without considering or demonstrating that  all of



these substances pose the  degree of risk  contemplated by the  statute.



Certainly, the Agency has  neglected to  establish  that drilling muds



and oil production brines  are  "hazardous" or  that they present



"significant or substantial "adverse effects to  the human health



or environment.   Until that nexus  has  been shown, EPA cannot  pro-



ceed with its  proposed regulation  of muds and brines  without



exceeding its  legal  boundaries.



      This arm of the industry has a long history that is devoid of



any evidence suggesting that these substances are an  actual  hazard



to the environment.   Undoubtedly,  the  inability of the Agency to



document any examples of contamination  can be attributed primarily to



the facts that any "hazardous" elements present in these substances



are of low risk  and in very low concentrations  and that  state and



federal regulations already provide adequate  safeguards  against  any



dangers that may be present.  In fact,  last year t//o  studies  commis-



sioned by the Interstate Oil Compact Commission showed virtually no



evidence of contamination  of drinking water sources in a five-state



area from reinjection of oil production brires.  The  ri ve states



surveyed (Oklahoma, Texas, New Mexico,  Louisiana, and ArKansas)  have



had more //ells drilled and operated within their boundaries  than any



other region in  the country.






                    RECOMMENDATIONS



I.  Deferral From All Regulation Bending Study




      The IPAA recommends  that EPS, defer regulation of drilling

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muds and oil production brines (and crude oil  wastes)  under the

entire hazardous waste management program until  the Agency has

completed its proposed study of these substances and is able to show

that a serious hazard exists.  The preamble to the regulations, as

well as the Special Waste Background Document  prepared by EPA,

acknowledge that EPA has little information on muds and brines.

In  fact, the Agency, in its Background Document, lists the follow-

ing rationale in support of its decision to designate  certain wastes

as  "special":

      1.  Lack of information on waste characteristics
      2.  Lack of information on the degree of environmental
          hazard posed by disposal
      3.  Lack of information on waste disposal  practices and
          alternatives
      4.  Very large volumes and/or large numbers of facilities
      5.  Limited movement of wastes from point  of generation
      6.  Few, if any, documented damage cases
      7.  Apparent technological difficulty in applying current
          Subpart D regulations to the waste
      8.  Potential high economic impact if current Subpart D
          regulations are imposed

      Because of this paucity of data and "the apparent technological

difficulty in applying current Subpart D regulations"  (i.e.,  Section

3004) to these wastes, EPA has proposed to defer applicability  of

some of the treatment, storage, and disposal standards for selected

"special wastes", such as muds and brines.  Yet  a careful  reading

of the regulatory compliance burden that remains indicates that

owners/operators of facilities storing or disposing of muds and

brines are still  confronted with myriad complex  regulations.  We  will

address  these in greater detail in our comments  on section 3004

below.

      It is our understanding that EPA expects to initiate a  study of

muds and brines in the near future.   IPAA would  welcome the opportunity

to assist those conducting the study in any way  it can.   If the study

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proves that any or all  of these  substances  do  in  fact  present  a



serious threat of contamination  to  human  health  and  environment,



then again IPAA will  be prepared to work  with  the  Agency  in  devising



adequate and workable safeguards.   After  all,  most oil  and  gas well



operators live near drilling and production  sites, and they  too  have



a strong personal interest in protecting  the environment  around  them.



      We believe that the Agency should also include1 crude oil wastes



in the special waste category of muds  and brines.  Crude  oil  in  its



naturally occurring state is biodegradable;  yet  crude  oil  residue



would fall within EPA's hazardous waste criteria.  Unless  similar



consideration is given to crude  oil wastes,  they could trigger com-



pliance with the entire hazardous waste  regulatory program.   In



this event, the relief  ostensibly  extended  the  industry  by  virtue



of the special waste deferral program would  be essentially meaningless.



      We firmly believe it would be more  prudent to  defer all  regulation



of muds, brines, and crude oil  wastes  until  the  EPA  study is completed



and it has been demonstrated that  a clear hazard exists.   Otherwise,



for a substantial period of time,  those  dealing  with these substances



will be locked into a regulatory program  which is  not  founded on a



full and complete understanding or  knowledge of  muds and  brines  and



crude oil wastes - and which may not be  needed at  all.



      In the preamble to this proposal,  EPA  stated:   ".  .  .even



where we have limited data the statute requires  that we establish



standards and controls."  We believe Congress  did  not  intend EPA



to be so inflexible in its approach.  Even  though  a  Conference



Report did not accompany RCRA, the  bill  that was finally  adopted



by both Houses of Congress was essentially  the version sponsored



by the House of Representatives.  In the  House Report  of  its bill,



the Committee on Interstate and Foreign  Commerce,  which was  the

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jurisdictional  House body,  noted  that  it  had  insufficient information



on the potential  danger posed by  certain  wastes  (e.g., mining waste)



to form the basis of legislative  action at  that  time.  Accordingly,



it mandated studies of these  waste  materials.



      The action  of the House in  deferring  regulation until its



need could be substantiated is logical and  reasonable and should be



followed here.   Until  EPA gathers sufficient  information regarding



muds, brines, and crude oil wastes  to  v/arrant subjecting them to



regulatory controls, it should delete  these materials from  its



hazardous waste management  program.






Economic Impact.   If EPA proceeds with its  inclusion of muds and



brines in the regulatory program, the  impact  on  the^oil and gas



exploration and production  industry will  be substantial.  Even



though EPA has  not provided an economic impact analysis of  the



regulations'  effect on these  operations,  we,  nevertheless,  believe



the economic impact will be severe.   The  regulations before us,



even the "modified" version applicable to muds and  brines,  are



monstrous in their compliance demands.  For even the largest



generator or owner/operator,  the  burden will  be  significant; but



for the small business person, they will  be devastating.




      Most independent producers  operate  as small,  unincorporated



businesses.  Their staffs typically are  small, often consisting only



of the producer himself and perhaps some  office  support staff.



Generally, services of technical  personnel  (e.g., a geologist,



petroleum engineer, drilling  contractor,  etc.) are  contracted  for



independently.   Hence, any increase in administrative burdens  is



not easily absorbed or accommodated by these  producers.

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      EPA's concern  that  the  regulations  have  "important  economic



implications for some industries"  and  its  intention  to  conduct  "more



detailed economic studies of  highly  impacted industry  segments" are



encouraging.  Although the Agency's  reading of RCRA  indicates it



is "not clear to what extent  RCRA  allows  economic  impact  to  be  taken



into account", we suggest there  are  other, more  current federal



guidelines that do call  for close  scrutiny of  the  regulations'



economic impact.  For example,  Executive  Order No.  12044  clearly



reflects a continued concern  by the  Executive  that  there  be  some



consideration of cost burdens associated  with  every  major regulatory



proposal.  Moreover, the  inflationary  impact of environmental and other




regulations has received  increasing  attention  from  President Carter



through his recent formation  of the  Regulatory Analysis Review  Group



and the Regulatory Council, the  latter of which  is  headed by EPA



Administrator Douglas Costle.  Because IPAA  firmly  doubts that  the



benefits to be derived from saddling oil  and gas exploration and



production operations with this  regulatory burden  will  justify  the



astronomical costs,  we strongly recommend that EPA perform a cost-



benefit analysis for this business segment.



      To put the magnitude of these  regulations' impact in perspective,



there are approximately 670,000 producing oil  and  gas  wells  in  the




United States today.  World Oil, Vol.  183, No.  3 (Feb.  15, 1979).



Moreover, the IPAA Cost Study Committee estimates  that  about 50.000



new wells will be drilled in  the coming year.   Assuming each new well



drilled will have only one pit  associated with it  (and  there are



usually at least 2 or 3 pits  present at each drill  site), this  means




that thousands of these facilities will come within  the RCRA regula-



tory program.  (Pits would be considered  storage/disposal facilities



since they receive muds and brines.)

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Impact on Energy Development.   A second and related  area  of national
concern is the adverse impact  on the needed exploration and produc-
tion effort to find additional  domestic energy sources.   When
RCRA was drafted, one of its laudable goals was  the  reclamation  and
reuse of wastes into alternate energy sources.  It  is  ironic that  in
practice what the Act, as proposed to be implemented by EPA, may
accomplish is a severe curtailment of the exploration  and develop-
ment of this nation's two primary energy sources:   crude  oil and
natural gas.
      It is not clear that EPA gave adequate attention to this
possibility.  While the Agency did confer with Department of Energy
personnel prior to releasing its proposed rules, the preamble  indicates
these discussions only focused on the utility waste  provisions.
Because the regulations will have a dramatic inhibiting effect  on
the development of these two major energy resources, it is incumbent
on the Agency to take cognizance of this problem.
      In order to understand the important role independent oil  and
gas producers occupy in supplying energy to American households, let
me cite some figures.  Independents account for 90%  of "wildcat"
wells (that is, wells drilled  in areas previously  unexplored and
untested), 80% of all wells drilled, 40% of industry expenditures
on petroleum exploration and field development,  and  about 30%  of
all domestically produced oil  and gas.
      From the above, it is readily apparent that  independents  are
an active and vital  competitive force in the crude  oil  and natural
gas exploration and production industry.  Yet cash  flow is an  especially
acute problem for independents since the successful  ventures must
finance, the unsuccessful  ventures.  Independents depend on revenues

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derived fron the sale of crude  oil  and natural  gas  at  the  wellhead




to provide the capital  necessary to finance  their operations.



However, because of federal  price controls,  crude oil  and  natural  gas



producers (unlike other businessmen)  cannot  pass through additional



cost burdens.  Any regulatory program that  dips  into the independent's



cash flow and manpower resources will  result in  a direct loss  in



revenues and personnel  available to finance  increasingly expensive



exploration, development and production activities.  The "dip"  into



those resources that is envisioned as  a result  of complying  with  the



RCRA regulations is not inconsequential.



      At least for the time  being, the financial  responsibility



requirements that would apply to owners/operators of facilities



storing or disposing of muds and brines have been deferred.  Yet



EPA's current thinking is to require  a cash  deposit of those who  must



fulfill  this obligation.  Given the number  of pits  involved, even  a



modest cash deposit per pit  would tie  up  large  sums of money and



would  amount to a substantial  outlay  by  the industry  when taken



as a whole.



      Independents operate many of their  properties on a marginally



economic basis.  The additional  economic  and administrative  burdens



generated by this new set of regulations  could  provide the final



decisive blow to the continued  operation  of many of these  properties.



We cannot stress strongly enough that  these  additional  burdens  will



drain industry resources that would otherwise be available to  explore



for and produce vitally needed  domestic energy.  The resulting  loss



in terms of production volumes  and ultimate  reserves will, in  turn,



assuredly further strain our fragile  domestic economic posture.



Lost domestic energy supplies will  translate into increased  foreign

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imports, higher unemployment rates at home, and an even more inflated
domestic currency.  It will also mean an additional threat to national
security as we are forced into further dependence on insecure foreign-
produced energy.

II.  If Complete Deferral Not Granted, Minimize Compliance Burden
     If the first recommendation of completely deferring all regula-
tion of muds and brines  (and crude oil wastes) pending the outcome
of EPA's study is not accepted, we believe that certain revisions to
the proposed regulations are essential if they are to be at all work-
able.  We will briefly address the remainder of our comments to some
of the most glaring difficulties found with implementing each of the
three sections of RCRA that are the subject of this rulemaking proceeding.
     A.  Section 3001
     Without conceding in any manner that drilling muds and oil
production brines are in fact hazardous to the environment, the IPAA
will briefly comment on a few practical problems we see with the
proposed regulations promulgated pursuant to Section 3001.
     Under Section 3001, generators of waste who know or have reason
to believe their waste is hazardous must test that waste against the
criteria set forth in this section.  Testing is not required if the
waste is already listed on EPA's hazardous waste list or if the
generator merely elects to declare his waste hazardous ab initio.
     With respect to drilling muds, one normally could assume that
companies manufacturing these products would be responsible for the
initial determination of whether or not the mud meets the hazardous
waste criteria.  However, if for some reason this is not done, the
burden presumably would then rest with the owner/operator, who
possibly could be considered a "generator" for the reasons discussed

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below.  In any event, the oil and gas operator presumably would be
responsible for analyzing brines and other crude oil  wastes to
determine if they are "hazardous."
     Most independent producers simply do not have the technical
expertise available in-house to perform the kinds of tests that EPA
has detailed in the proposed regulations -- for determining either
inclusion or non-inclusion.  Yet the enforcement provisions reveal
dire consequences for the unsuspecting producer who deals with a
waste considered to be hazardous.
     Moreover, provisions allowing for demonstration  of non-inclusion
in the hazardous waste system raise additional questions.  For example,
must this testing be performed at each individual facility where the
subject material is present and by each person utilizing that substance.
We hope EPA will recognize a procedure whereby a given set of test
results could be utilized at other sites and by other persons where
conditions and circumstances similar in degree and nature warrant such
an approach.
     B.  Section 3002
     Section 3002 regulations require that "generators" of hazardous
waste adhere to certain prescribed standards in order to protect human
health and the environment.  Although RCRA does not specifically
define a "generator," EPA's definition encompasses any person "whose
act or process produces hazardous waste."  Furthermore, preambulatory
language elaborates, "... it is important to point out that a person
who accumulates hazardous waste is considered a generator because the
process of accumulation results in a hazardous waste  disposal problem."
(Emphasis added) (43 F.R. 58961)

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     Although drilling muds and oil production brines may not be



produced  (in the sense of being manufactured) at oil and gas drilling



or production sites, they are "accumulated."  Therefore, those dealing



with muds and brines could be considered "generators" for the purposes



of hazardous waste  regulation.



     EPA, in an effort to minimize the burden for those who generate



only small amounts  of waste not posing a substantial environmental



threat, has proposed to exempt from this section those persons who



produce and dispose of less than 100 kilograms of hazardous waste in



any one month (although compliance with § 250.29 is still obligatory).



While we support the concept, we think it should be expanded and



clarified.



     First, it is not clear whether the 100 kilograms refers to the



particular element  in the waste considered to be hazardous or whether



the weight determinant applies to the entire substance containing the



hazardous material, regardless of how small the amount of hazardous



component present within that substance.  Second, is this figure



determined on a "cumulative basis" of total operations or on the basis



of the amount generated at each individual  site location?  Third, a



monthly determination is confusing and unworkable.  Finally, the



exclusion should be reserved only for wastes (e.g., muds and brines)



that have a low degree of hazardous risk; we do not believe wastes



exhibiting a high degree of hazard (e.g., PCBs)  should be exempt from



any stage of regulation.



     Accordingly, we recommend that EPA revise the exclusion cutoff



level  to a higher volume level,  which would be averaged over a twelve-



month  period per facility.   EPA has requested comments on whether an

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exclusion level  of 1,000 kilograms would be more appropriate.   While
this figure would provide necessary and warranted relief to at least
some "generators" in the oil  and gas drilling industry, it still  would
not be sufficient to cover deeper drilling operations which require
much higher volumes of mud.   For these latter situations, an even
higher volume exclusion could be enacted without increasing the threat
of measurable contamination to the environment.
     Even if one qualifies for the volume exclusion, he still  must
comply with § 250.29, which specifies that the waste material  must be
disposed of at a permitted facility.  Therefore, a large volume of
waste presumably will have to be transported off-site to approved
facilities.  This assumes the availability not only of sufficient
transport capacity but also facilities meeting all requisite conditions
and willing to undertake this monumental task.  If this assumption is
correct, we hope the Agency will then clarify questions regarding
ultimate liability for any contamination that should occur at the
final disposal site.
     The proposed regulations also make allowances for those generators
who store hazardous waste on-site prior to shipment for less than 90
days in DOT specification containers or permanent storage tanks.   That
is, a generator falling within this category does not have to comply
with Sections 3004 (standards applicable to owners/operators of
hazardous waste storage, treatment, disposal facilities) and 3005
(permits for treatment, storage, or disposal of hazardous waste).
     IPAA recommends that the cutoff period be extended to at least
180 days.  If this were done, the vast majority of drilling operations
would be relieved from complying with Sections 3004 and 3005, a

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compliance burden that is impractical and of questionable benefit for
these types of activities.  Typically, a well can be drilled and completed
or plugged (depending on such factors as geologic depth, weather, per-
sonnel, equipment conditions) in a time period of a few days to a few
months.  Most wells that are drilled do not find oil or gas in com-
mercial quantities so that they are plugged and not developed.  Because
of the temporary nature of these projects, delays and extra costs
associated with permit applications and compliance requirements will
undoubtedly mean a reduction in the resources available to find and
produce needed domestic energy resources -- an especially disturbing
perception in light of the questionable benefits to be gained.
     For those independent producers who must comply with the entire
list of standards in 3002, the burden will be sizeable.  The reporting,
recordkeeping, and manifest system requirements will be difficult for
most of these small businessmen.
     Certification of reports should be made according to one's best
knowledge.  Under normal working conditions, a producer or his
"authorized representative" may not be able to inspect personally all
information to be certified and to attest in absolute terms to its
accuracy.
     C.  Section 3004
     Section 3004 sets forth the standards that are applicable to owners
and operators of hazardous waste treatment, storage, and disposal
facilities.  It is an especially important part of the hazardous waste
program because it establishes certain performance criteria, and these
will be used by EPA in evaluating applications for facility permits under
Section 3005.  These standards will not be applicable to inactive

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facilities.  Existing facilities, on the other hand, must conform
or close.
     Ostensibly, the Section 3004 compliance burden for explorer-
producers will  be less because drilling muds and oil production brines
have been designated "special wastes" and, therefore, compliance with
parts of 3004 have been deferred pending further analysis.  A close
look at the applicable standards that remain, however, indicates that
any thought that the deferral means significant interim relief is
simply illusory.
     The following comments are offered on those general facility
standards specifically applicable to muds and brines:
     1.  Waste analysis - §250.43 (f)
     In line with earlier comments, this requirement will be extremely
difficult for most, small producers, if the information is not already
supplied by the manufacturer of the drilling mud.  Analysis of brines
should not be required.
     2.  Site selection - §250.43-1
     Our reading of §250.43-1 (General Site Selection) indicates that
many current drilling and production sites would be "off limits" under
the criteria enunciated.  For example, most of the Gulf Coast area, one
of this country's most active and vital oil and gas regions, would come
within the "wetlands" prohibition.  Also, the "active fault zone"
prohibition would pose  a problem for some California producers, as
would the highly restrictive "500 year floodplain" limitation restrict
development of many areas throughout the country.
     3.  Security -§250.43-2
     This section clearly demonstrates the problem of trying to regulate
a drilling or production site on the same basis as a permanent plant

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     or large, well-staffed facility.  Requirements for fences (deviation
     is allowed only upon showing a satisfactory substitute), gates and
     security personnel are not practical at most of these locations.
     Where precautions are needed, they are taken.  Producers have always
     been liable to landowners and others with access to and surface use
     rights to areas surrounding drilling and production sites.
          4.  Manifest System, Recordkeeping and Reporting - §250.43-5(a) ,(b)(l),
                                                          (b)(2)(1),(b)(6), and (c)
          Most independent pr9ducers (i.aL, owners/operators for purposes
     of Section 3004) contract yith independent drilling contractors to
     perform drilling operations\  Myst likely, it would be the latter group
-     that would receive the manifeYt for the drilling mud.  Their failure
     to comply with the manifesy sys\em reporting requirements raises
     complicated legal issues /egardin\ liability.
          Certification of reports should be based on one's best knowledge
     for the reasons previously noticed.  Also, if an emergency does occur,
     it will not be of the kind contemplated in § 250.43-3(c).  For example,
     should a leak or spill occur at a tank or pit site, evacuation of com-
     munities would not be necessary.  Spill prevention control and counter
     measure plans, which are already required under federal law, would
     cover most of these situations.
          Regardless of the legal complexities, the excessive administrative
     burdens inherent in this subsection will be monumental for the average
     independent producer.  As stated repeatedly throughout our comments,
     he generally operates by himself with a small staff and is able to
     succeed in large part because of his ability to move quickly where
     opportunity presents itself.  Needless to say, his movement will be
     greatly impeded if his attention must be devoted to endless paperwork,
     and especially of the detail specified here.

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     5.  Visual  Inspection - §250.43-6
     Since personnel  are not permanently stationed at production sites,
visual inspections on a daily basis are unrealistic.   Most production
facilities are located in unpopulated areas; they are run by automatic
systems and, hence, are left unattended except for periodic visits to
make sure operations are running smoothly.  When drilling operations cease,
the associated facilities might also remain unattended for a period of
time.  Therefore, inspections less frequent than daily should be approved.
     6.  Closure and Post-Closure - §250.43-7 (k)(l)(m)
     Given the type and amount of waste involved and  the extraordinarily
large number of facilities (i.e., pits), it is difficult to justify the
need for certification of proper closure by a registered professional
engineer and recordation of a survey plat certified by a registered
professional land surveyor showing the type and location of hazardous
waste disposed of.
     Twenty years of post-closure care is required for those facilities
from which hazardous waste is not removed; this twenty-year period may be
reduced only upon a satisfactory showing that a shorter period of care
is needed.  Again, lack of evidence of contamination  in the long history
of the oil and gas industry does not justify this excessively long period
of monitoring and reporting.  Also, this requirement  ignores the unique,
temporary nature of drilling operations and the relationship between the
operator and the landowner.  Once drilling (or production) operations
cease, the land (usually including access roads) is reseeded by the
operator, who only holds a mineral interest in the land.  Continued
surveillance and monitoring could raise not only logistical and practical
problems but also significant legal problems if the landowner is unwilling
to extend access to his property.

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     Finally, even though the financial responsibility requirements



have been deferred, we think the catastrophic effects these requirements



would have on the oil and gas exploration and production industry deserve



immediate attention.  Cash deposits of the size contemplated would surely



cripple most independents.  If financial responsibility is ultimately



determined necessary for these operations, it should be managed through



a bonding or letter of credit system rather than a cash deposit system.



There are currently sufficient numbers of state bonding programs in



existence with which producers are familiar (e.g., bonds secured prior to



commencement of drilling and which are secured on either an individual



well basis or a state-wide basis) and from which EPA could draw experience.





                          CONCLUSION





     In conclusion, the IPAA appreciates the magnitude of EPA's mandate



to protect the environment from hazardous waste pollution.  Nevertheless,



we do not believe all hazardous wastes should be regulated with the same



level of intensity.  The hazard should be clearly established and the



degree of hazardous risk then considered in formulating appropriate



hazardous waste manaaement programs.



    We do not believe that there is any evidence of contamination caused



by drilling muds and oil production brines (or crude oil wastes) that



warrants their inclusion in the hazardous waste regulatory program.



Accordingly, we urge the Agency to defer all regulation of these substances



until it has completed its special waste study and until it has demonstrated



the need for regulation.  Otherwise, we fear this nation's ability to



produce vital energy resources and to maintain a stable economy will  have



been greatly undermined, at great cost and with no appreciable benefit to



the environment.

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             STATEMENT OF STANLEY L.  ZWICKER
             UNION OIL COMPANY OF CALIFORNIA

                AT THE EPA PUBLIC HEARING
        ON HAZARDOUS WASTE MANAGEMENT REGULATIONS
                SAN FRANCISCO, CALIFORNIA
                     MARCH 14, 1979
      My name is Stanley Zwicker.  I am a Senior Environmental
Engineer in the Corporate Environmental Sciences Department,
Union Oil Company of California, Los Angeles.

      I am appearing here to highlight some of our concerns
with the RCRA regulations proposed in the Federal Register
on December 18, 1978.  Union has additional detailed written
comments in preparation which will be submitted for the
record.  Before addressing several concerns with the Section
3004 regulations, I will make five general comments on the
regulations as a whole.

1.  Degree of Risk

      EPA's proposed regulations contain a major flaw in that
they fail to-take into account the degree of risk associated
with various hazardous wastes.  By its approach in Section 3001,
EPA has simply made nearly everything hazardous and in
Section 3004 has called for waste management measures that

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far exceed the precautions needed for proper management of



most wastes.  It is interesting to note, however, that the



agency does justify its use of special waste categories



in 3004 using a degree of risk/quantity argument yet refuses



to recognize it on a general basis.





      In adopting this worst case approach to the regulation



of hazardous waste, the agency has in effect developed a



generic approach which fails to acknowledge the need to



analyze on a case-by-case basis particular site locations,



types of wastes to be handled, and the quantities of waste



to be handled.  The proper management of hazardous waste



should be accomplished by providing for a maximum degree



of flexibility which takes into account all of the above



factors.   Failure to provide such flexibility will result



in closure of existing sites and few, if any, new sites



to handle the volume of wastes.  Many operators will simply



not be able to meet, either technically or economically,



all of the requirements to operate a hazardous waste disposal



facility.





      Much hag, been said about the public's resistance to



the location of hazardous waste facilities in their communi-



ties.   Based on recent revelations on several specific past



instances, this fear may have some justification.  Classificatio



of wastes by degree of hazard could help solve this problem.

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Those facilities which would be operated and designated to
receive only the lesser of hazardous wastes would probably
be more acceptable to the public.  Since it is these less
hazardous wastes which make up the majority of the volume
of waste to be disposed of, the wider availability of such
disposal sites that would be possible under the degree of
hazard approach would insure sufficient disposal sites for
most hazardous wastes.

      Degree of hazard approaches already exist in several
state programs for hazardous waste management.  Programs
in California, Texas and Washington should be examined in
this regard.

2.  Overlap of Regulations

      Despite requirements to the contrary, many of the proposed
rules overlap into areas already regulated under other federal
environmental programs.  In regulating activities such as
NPDES permitted treatment facilities and emissions from incin-
eration, RCRA is placing unnecessary additional burdens on
facilities which are already adequately controlled to meet
the RCRA goal of protection of human health and the environment.
The RCRA-imposed burden adds no additional protection and,
therefore, should be eliminated for these and any other facility
similarly regulated.

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3.  Extraction Procedure

      EPA has attempted to develop a simple and inexpensive
test.  However, in many instances,-the proposed procedure
which has been developed does not represent these real
world action of wastes in the environment.  In earlier
testimony given in Denver by Union Oil Company, we provided
an example of this point based on our experiences in mining
activities.  While we cannot, at this time, recommend an
alternative test method, we would support the concept of
a risk assessment approach as outlined by the American
Petroleum Institute.  This approach embodies the much needed
degree of risk philosophy which I mentioned earlier.

4.  Waste Oils

      EPA has singled out waste oils as hazardous because
oil is a potential carrier of other hazardous substances.
Some waste oils, e.g., those from crude oil production
operations have traditionally been used for road resurfacing
and dust suppression.  These waste oil do not contain the
hazardous substances found in other waste oils.  EPA offers

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no evidence why a disposal method which has been proven



environmentally safe should be abandoned.





      EPA has also not extended the retailer exemption to



service stations because of the so-called  waste oil problem.



It must be pointed out that the major problem associated



with improper disposal of waste oil comes  not from the



service station but from the do-it-yourselfers.  Service



stations in fact provide an outlet where individuals can



properly dispose of waste oil.  If the administrative burden



as contained in the proposal is adopted, service station



operators could well become reluctant to accept any outside



waste oils and improper disposal of waste  oils may actually



increase.  We believe the whole approach to waste oil manage-



ment needs re-evaluation with a fresh look at defining



different types of waste oils and also an  evaluation of



the current practices of service stations.







5.  Storage







      The proposed regulation limits the time allowed for



storage by a generator to a maximum of 90  days after which



the facility must comply with the storage  requirements of



Section 3004 and permit regulations.  This time limit simply

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is too short for many operations.  On-site storage by a



generator should be allowed for up to 12 months.  This



would allow the smaller operators to accumulate quantities



which can be economically collected.  It would also allow



collections from generators in rural locations to be



scheduled on a more regular basis than it could be with the



shorter time allowed under the proposed regulation.





        SECTION 3004 TREATMENT, STORAGE AND DISPOSAL





      I will now comment on four specific concerns.





1.  Note System





      In Section 3004, EPA has proposed a series of detailed



design and operating standards which must be met by any and



all facilities handling hazardous waste.  EPA has also created



within the 3004 regulation a "note system" which would permit



variances from the established design and operating standards.



Because of the unnecessarily stringent nature of the standards



and the large volume of wastes included under the system which



are of a minimal hazardous nature, there will be a large number



of facilities seeking relief through the note system.  Each



application under the note system, therefore, will require



case-by-case review resulting in long delays in permitting



and the risk of widely varying interpretations.

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      EPA should abandon the note system and designate
alternative standards within the body of the regulation.
Such an alternative approach within the regulation would
provide an operator with a degree of certainty that the
note system simply cannot provide.   An additional concern
is the possibility that insurance carriers might not be
willing to provide the necessary liability coverages if the
operating permit were based on a note variance rather than
on a specified design standard.

2.  Special Waste Categories

      EPA obviously has recognized the real problems asso-
ciated with high-volume, low-hazard wastes and has created
the special waste concept.  This concept is good but needs
to be expanded in several ways.  For example:

      (a)  The special waste category only applies to
           the waste if it has hazardous characteristics
           under 250.13.  Consideration as a special
           waste should be extended to the list of
           hazardous wastes and process lists ander
           250.14 as well.

      (b)  Another example is the utility waste category
           under 250.46-2.  FGD waste from a utility is
           similar in nature to FGD from tertiary oil

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           recovery steam generators, yet the latter
           sludges are apparently excluded from the
           utility special waste category.  Without
           such a designation, the disposal of these
           sludges would be fully regulated under
           Section 3004 requirements.  Costs for this
           could be so great so as to prevent the
           development of these valuable oil reserves.

      (c)  Mining wastes are another category of special
           wastes regulated under RCRA.  We believe
           regulation of mining wastes under a special  waste
           designation is the proper way to proceed.
           However, any mining waste regulation should
           be delayed until the studies required by the
           statute are completed and the need for such
           regulation is justified.

3.  Miscellaneous Issues

      Time does not permit an in-depth discussion of the many
other concerns we have noted in our  review of Section 3004.
To mention just a few:

      (a)  The use of OSHA workplace standards is inappropriate.
           These were not designed as standards to be applied
           to the ambient air.

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(b)   "No  discharge"  to  the environment  from the
     storage  of  organic wastes is  an impossible
     criterion to  meet.  Emissions consistent with
     regulations under  the Clean Air Act SIP's
     should be allowed.

(c)   The  inclusion of accidental discharges such
     as  oil spills under RCRA requirements is not
     warranted.  RCRA regulations  should appro-
     priately be directed only to  intentional
     disposal.

(d)   The  inclusion of surface impoundments designed
     to  meet  NPDES requirements under RCRA will result
     in  necessitating costly facility upgrading which
     will have little environmental benefit.  On this
     issue we support the API position of not regulating
     these impoundments under RCRA at this time but
     conducting  instead an in-depth study of the number
     of  impoundments involved and  the costs and benefits
     to  be derived.   An alternate  would be to designate
     these type  facilities under the special waste
     category.

(e)   Requirements  to return the soil to its original
     condition may work to discourage landfarming.  The
     only requirement should be that the remaining soil
     not cause environmental harm.

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4.  Financial Aspects





      We believe EPA has grossly underestimated the costs



associated with closure and monitoring of hazardous waste



facilities.  These requirements are designed for large



scale facilities operated by companies in the waste manage-



ment business.  They are applied, however, to all companies



including those for whom waste disposal is an incidental



business.





      The cash deposits that would be required for all of the



small single purpose facilities that we as a company might



operate could seriously affect the amount of capital available



for normal business activity.  We believe EPA should allow



the site liability self-insurance option to be made applicable



to closure and post closure requirements also.





      Union fully recognizes the need for regulating hazardous



waste disposal practices;  however, we believe the current



proposal does not reflect  the best way to accomplish this need.



We hope that these remarks and the written material will help



you to develop a better regulation.





      I will be happy to respond to any questions.

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MR.  CHAIRMV4: 1,;H ^ fr „.,-. _... „•..,,. .7 -, _,- „




O.N BEHALF OF THE SAN DIEGO COUNTY BOARD OF SUPERVISORS I WOULD LIKE TO




PRESENT COMMENTS PERTAINING TO THE ENVIRONMENTAL PROTECTION AGENCY'S




PROPOSED RULE UNDER SECTION 3004, SUBSECTION 250.43.9(b), OF THE SOLID




WASTE DISPOSAL ACT AS SUBSTANTIALLY AMENDED BY THE RESOURCE CONSERVATION




AND RECOVERY ACT OF 1976  (PUB. LAW 94-580).  WE ARE CONCERNED WITH THE




FINANCIAL RESPONSIBILITY RAMIFICATIONS OF THE PROPOSED RULES.







THE COUNTY OF SAN DIEGO IS BOTH OWNER AND OPERATOR OF A SMALL SCALE




HAZARDOUS WASTE, OR CALIFORNIA DESIGNATION CLASS I, DISPOSAL SITE.  THE




FACILITY WAS ESTABLISHED  IN 1961  IN CONJUNCTION KITH THE COUNTY'S OTAY




SANITARY LANDFILL TO SERVE THE ENVIRONMENTAL NEEDS OF  INDUSTRY.  IT IS




ONE OF TEN SUCH SITES PRESENTLY APPROVED BY THE STATE FOR THE CONFINEMENT




OF MOST TYPES OF INDUSTRIAL AND TOXIC CHEMICAL~TvASTES.  TOE SERVICE AREA




INCLUDES SAN DIEGO AND IMPERIAL COUNTIES AND A PORTION OF ORANGE COUNTY.




THE SITE IS UNDERLAIN WITH A THICK LAYER OF LOW PERMEABILITY BENTONITE




CLAY WHICH HAS BEEN DETERMINED BY THE STATE AS SUITABLE FOR THE CONTAIN-




MENT OF ENVIRONMENTALLY DANGEROUS WASTES.  ALSO, GEOLOGICAL STUDIES HAVE




SHOWN THAT CONFINEMENT OF HAZARDOUS WASTES AT THIS LOCATION IS NOT CON-




SIDERED  AN ENDANGERM5NT  TO UNDERGROUND WATER SUPPLIES OR TO THE ENVIRON-




MENT.  THE AREA CLIIUTE IS SEMI-ARID, WITH AN AVERAGE ANNUAL RAINFALL




OF  10 INCHES.

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',','AS'IE TRANSFER STATION IN TilL SAN DIEGO METROPOLITAN" AKE\ FOR [tiAYS-




siiiPME.NT TO ns ;LAJOR IHSPOSU, FACILITY AT V.EST cc\r.-\ IN LOS ANGELFS




COUNTY.







IN REGARD TO THE RECENTLY PUBLISHED ENVIRONMENTAL PROTECTION AGENCY'S




PROPOSED HAZARDOUS WASTE GUIDELINES AND REGULATIONS, THE COUNTY OF SAN




DIEGO BELIEVES THAT THE REQUIREMENT UNDER SUBSECTION 250.43.9(b) ,




"FINANCIAL RESPONSIBILITY," THAT OWNERS/OPERATORS OF HAZARDOUS WASTE




DISPOSAL FACILITIES MAINTAIN FINANCIAL RESPONSIBILITY IN THE ANNUAL




AGGREGATE OF $10 MILLION WOULD BE UNREALISTIC, UNREASONABLE, AND WOULD




BE PROHIBITIVELY EXPENSIVE.  PREMIUM COSTS FOR SUCH LIABILITY INSURANCE,




EVEN IF AVAILABLE, WOULD BE EXTREMELY_CQSTLY, MORE PARTICULARLY UMBRELLA




COVERAGE.  IT IS ESTIMATED BY THE COUNTY'S RISK MANAGER THAT FINANCIAL




RAMIFICATIONS OF THE ANNUAL PREMIUM COSTS WOULD BE $500,000 AND POSSIBLY




MORE.  COSTS OF PROVIDING THE PROPOSED AMOUNT OF LIABILITY INSURANCES




WOULD, OF COURSE, BE PASSED ON IN THE FORM OF HIGHER DISPOSAL FEES.




DURING THE FIRST SIX MONTHS OF FISCAL YEAR 78-79 GROSS REVENUES FROM




THE COUNTY'S HAZARDOUS WASTE DISPOSAL OPERATIONS AMOUNTED TO ONLY




$52,500.  PROJECTED REVENUE FOR THE YEAR WOULD BE ABOUT $100,000.  BECAUSE




OF THIS NARROW REVENUE BASE THE FEES WOULD BE PROHIBITIVELY HIGHER.






FOR YOUR INFORMATION, THE COUNTY OF SAN DIEGO IS PRESENTLY SELF-FUNDED




AND SELF-ADMINISTRATES ITS GENERAL PUBLIC LIABILITY EXPOSURES;  IN  OTHER




WORDS, "SELF-INSURED."  FUNDING FOR EXPOSURES IS BUDGETED FOR EACH FIS-




CAL YEAR BASED UPON ACTUARIAL AND EXPERIENCE  DATA.  CATASTROPHIC  LOSSES

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TriVT MIGHT EXCEED THE FISC-M. BUDGf.l ARE BXCKED EY -\ "RLShR'.r. LI\BILIFY




CONTINGENCY FUND" TRVT IS SPECIK C\LLY RESERVED 10'', i::I3 I'JKPOSE.  IN'




ADDITION TO THAT FUND, THE COUNTY'S "UNALLOCATED RESERVE" WOULD BE A




SOURCE OF FUNDING IN THE EVENT OF AN UNLIKELY CONTINGENCY.  THE COUNTY'S




RESERVE LIABILITY FUND IS CURRENTLY AT A $1 MILLION LEVEL, AND WILL BE




INCREMENTALLY  INCREASED OVER ENSUING YEARS TO REACH A $3 MILLION LEVEL,




WHICH IS BELIEVED MORE THAN ADEQUATE TO MEET ANY UNFORESEEN OR UNSUS-




PECTED JURY VERDICT.  SINCE THE  COUNTY UNDERTAKES ITS OWN CLAIMS ADMIN-




ISTRATION WITH INSURANCE INDUSTRY-TRAINED CLAIMS PERSONNEL AND DEFENSE




ATTORNEYS, THE FINANCIAL BURDEN  OF AN UNEXPECTED CLAIM WOULD BE MINIMIZED.




THIS WOULD BE  PARTICULARLY TRUE  WHEN CONSIDERATION IS GIVEN TO THE FACT




THAT CASES OF.THIS MAGNITUDE WOULD BE IN LITIGATION WHICH PRESENTLY




REQUIRES APPROXIMATELY FIVE YEARS TO RESOLVE THROUGH THE COURTS IN




THIS AREA OF THE COUNTRY.  THIS  WOULD CONSTITUTE A "BUFFER" IN THAT




THERE WOULD BE ADEQUATE ADVANCE  TIME TO PROPERLY RESERVE FUNDS TO




COVER A POTENTIAL LOSS.










IN SUBSTANCE,  IT IS  FELT THAT THE COUNTY OF SAN DIEGO'S SELF-INSURANCE




PROGRAM IS CONSISTENT WITH AND EQUIVALENT IN EFFECT TO EPA'S PROPOSED




REGULATIONS AND WOULD BE ADEQUATE FOR ANY LEGITIMATE DAMAGE CLAIM THAT




MAY ARISE  FROM OPERATIONS OF THE COUNTY'S HAZARDOUS WASTE DISPOSAL SITE.




SUFFICE IT TO  SAY, THE COUNTY WAS ESTABLISHED AS A GOVERNMENTAL  ENTITY  IN




1850 AND  IT IS NOT LIKELY TO CLOSE  ITS DOORS OR SIDESTEP  ITS FINANCIAL




RESPONSIBILITIES AS  COULD BE THE CASE WITH PRIVATE INDUSTRY.   IT  IS A




DISTINCT  POSSIBILITY, HOWEVER, THAT THE COUNTY COULD BE FACED  WITH THE




ALTERNATIVE OF CLOSING THE ONLY  SITE  SOUTH OF LOS ANGELES COUNTY APPROVED

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FOR IHI. DISiMSM, 0. C\'. IRO\''h\ 1 ALl.'i D-VXGPlOlb .', -'.i:'S  I:  i'_y.'r.i">










FISCAL CAPABILITIES.  CLOSURE OF THE SITE COULD RESULT  IN  ILLEGAL




DISPOSAL OF THESE WASTES IN UNAPPROVED AREAS, WITH CONCOMITANT




ADVERSE EFFECTS ON THE  ENVIRONMENT AND PUBLIC HEALTH, AND  IN HARD-




SHIPS TO LOCAL AGENCIES AND TO INDUSTRIES GENERATING  ENVIRONMENTALLY




DANGEROUS WASTES.  FURTHERMORE, RESULTING LONG HAUL DISTANCES AND




LACK OF COMPETITION COULD RESULT IN HIGHER DISPOSAL COSTS  WHICH




WOULD ULTIMATELY BE PASSED ON TO THE CONSUMER.







IN THE ENVIRONMENTAL PROTECTION AGENCY'S OWN WORDS, "EPA MUST TAKE




INTO ACCOUNT THE NEED FOR MORE HAZARDOUS WASTE MANAGEMENT  CAPACITY




AS IT DEVELOPS THE REGULATORY PROGRAM BECAUSE PUBLIC  HEALTH AND THE




ENVIRONMENT WILL NOT BE WELL PROTECTED-IF ONE OF THE  RESULTS OF THE




PROGRAM IS TO SHUT DOWN MOST OF THE FACILITIES CURRENTLY AVAILABLE."




WE ARE JUST AS CONCERNED, AND PERHAPS MORE SO, AS THE ENVIRONMENTAL




PROTECTION AGENCY WITH  RESPECT TO SAFEGUARDING THE PUBLIC  AND THE




ENVIRONMENT FROM THE IMPROPER DISPOSAL OF HAZARDOUS WASTES.  WHILE




IT IS UNDERSTANDABLE AND AGREED THAT SOME FORM OF FINANCIAL RESPONSI-




BILITY IS NECESSARY, IT IS OUR FEELING THAT THE REQUIREMENT OF SUCH




FINANCIAL RESPONSIBILITY IN THE AMOUNT OF $10 MILLION ANNUAL AGGREGATE





UPON A GOVERNMENTAL AGENCY WOULD IMPOSE AN UNDUE FINANCIAL BURDEN




UPON THE COMMUNITY AND  THREATEN CLOSURE OF THE COUNTY'S ONLY HAZARDOUS




WASTE DISPOSAL FACILITY.

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     _- ;v-v.S  St:l r__.  • -  ! 7 '  : r I--, r RQf :l \Y  .,.'",,' T  "   :.'.•. 7 [•'





FOR A.VY LEGITIMATE  CIAIM  V.T-IICH MIGHT ARISE  FROM OPERATION OF ITS




OTAY HAZARDOUS  V.ASTE DISPOSAL SITE.  IT IS  THEREFORE  RESPECTFULLY




REQUESTED THAT  THIS STATEMENT BE TAKEN  INTO CONSIDERATION IN EPA'S




FINAL RULE MAKING.







THANK YOU.

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RESOURCE CONSERVATION AND RECOVERY ACT
      HAZARDOUS WASTE MANAGEMENT
  COMMENTS ON SECTION 3004/SUBPART D

  STANDARDS APPLICABLE TO OWNERS AND
OPERATORS OF HAZARDOUS WASTE TREATMENT,
   STORAGE, AND DISPOSAL FACILITIES
                  BY
          DOW CHEMICAL U.S.A.
                TO THE
 U.S.  ENVIRONMENTAL PROTECTION AGENCY
  HAZARDOUS WASTE MANAGEMENT DIVISION
         OFFICE OF SOLID WASTE
            PUBLIC HEARING
           SAN  FRANCISCO, CA
            MARCH  m,  1979

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MR. CHAIRMAN, I AM KAREN SHEWBART, ENVIRONMENTAL SERVICES
DEPARTMENT,  TEXAS DIVISION OF DOW CHEMICAL U.S.A.

I WISH TO SUMMARIZE SOME OF OUR CONCERNS IN RESPONSE TO THE
AGENCY'S SOLICITATION FOR A COMPREHENSIVE REVIEW OF ALL ISSUES
RAISED BY THE AGENCY IN THE PREAMBLE AND PROPOSED REGULATIONS,
STANDARDS APPLICABLE TO OWNERS AND OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND DISPOSAL FACILITIES (43 FR 58982 -
59022, DECEMBER 18, 1978), AND THE ASSOCIATED BACKGROUND
DOCUMENTS.

WE HAVE WORKED CLOSELY WITH THE AGENCY, AND WITH VARIOUS TRADE
ASSOCIATIONS, PROFESSIONAL SOCIETIES, AND STANDARD SETTING GROUPS,
OVER THE PAST TWO YEARS TO HELP DEVELOP A CONSISTENT SET OF
MEANINGFUL REGULATIONS FOR HAZARDOUS WASTE MANAGEMENT THAT WILL
PROVIDE ADEQUATE BENEFITS IN PROTECTION OF PUBLIC HEALTH AND THE
ENVIRONMENT FROM UNREASONABLE RISKS WHILE DEMANDING REALISTIC
EXPENDITURES OF RESOURCES.  TOWARD THIS GOAL, WE HAVE PROVIDED
COMMENTS PERTAINING TO ALL MAJOR ASPECTS OF THE DRAFT REGULATIONS
AND THOSE PREVIOUSLY PROPOSED.  TODAY, WE WISH TO HIGHLITE OUR
MAJOR CONCERNS REGARDING:  (1) THE GENERAL REGULATORY STRUCTURE
OF 3004, (2) GENERAL FACILITY STANDARDS, AND (3) STANDARDS FOR
TREATMENT AND DISPOSAL.

I.   REGULATORY STRUCTURE
     A.   USE OF SPECIFIC DESIGN AND OPERATING STANDARDS VS.
          PERFORMANCE STANDARDS

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 ONE  MAJOR CONCERN  WITH  THE  PROPOSED  SECTION  3004
 REGULATIONS IS  THE OVERSPECIFICATION  OF  DESIGN  AND
 OPERATING STANDARDS BY  THE  AGENCY.   WE BELIEVE  THAT
 THE  REGULATIONS WOULD BE  GREATLY  STREAMLINED BY PRE-
 SCRIBING  WHAT PERFORMANCE IS  REQUIRED AND  ALLOWING
 FLEXIBILITY IN  WHAT SPECIFIC  PROCEDURE IS  USED.
 OVERSPECIFICATION  OF PROCEDURAL STANDARDS  COMPLICATES
 THE  REGULATIONS AND RESTRICTS FLEXIBILITY  OF CHOICE.
 THE  COMBINED  EFFECT IS  THE  SUPPRESSED DEVELOPMENT OF
 NEW  TECHNOLOGIES AND MORE COST-EFFECTIVE SOLUTIONS.

 THE  USE OF  RIGID DESIGN AND OPERATING STANDARDS IS
 ESPECIALLY  BURDENSOME AND UNREASONABLE WHEN  APPLIED
 EQUALLY TO  NEW  AND EXISTING FACILITIES.  PROPOSED
 STANDARDS SHOULD RECOGNIZE AND PROVIDE A REASONABLE
 MECHANISM FOR ALLOWING THE CONTINUING OPERATION OF
 EXISTING  FACILITIES  WHICH ARE ADEQUATELY PROTECTING
 HUMAN HEALTH AND THE ENVIRONMENT.

 THE  USE OF  "NOTES" AS A MECHANISM TO  MITIGATE THE
 TECHNOLOGY-SUPPRESSING EFFECT OF SPECIFIC DESIGN AND
 OPERATING STANDARDS  IS CERTAINLY A STEP IN THE RIGHT
DIRECTION.  HOWEVER, THE  RELIEF PROVIDED TO THE
 REGULATED COMMUNITY BY THE "NOTES" IS SERIOUSLY
UNDERMINED BY THE AGENCY'S DETERMINATION THAT ALTERNA-
TIVE REQUIREMENTS MAY ONLY BE SUBSTITUTED FOR THOSE
DESIGN AND OPERATING STANDARDS ACCOMPANIED BY "NOTES".

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         WE URGE THE USE OF NOTES BE GENERALIZED TO ALLOW A
         FACILITY TO SUBSTITUTE AN  ALTERNATE REQUIREMENT  FOR
         ALL DESIGN AND OPERATING STANDARDS  IF THE  FACILITY
         CAN DEMONSTRATE THAT THE PROPOSED ALTERNATIVE MEETS
         THE HUMAN HEALTH AND  ENVIRONMENTAL STANDARDS, OR
         THAT  IT PROVIDES THE  SAME DEGREE OF  PERFORMANCE AS
         THE PRESCRIBED STANDARD  FOR WHICH  IT  IS TO BE
         SUBSTITUTED.

[I.   GENERAL FACILITY STANDARDS
     ANOTHER AREA OF CONSIDERABLE CONCERN TO US  IS THE GENERAL
     FACILITY STANDARDS.
     A,   SITE SELECTION
         THE PROPOSED  RESTRICTIONS  FOR GENERAL  SITE SELECTION
         (SECTION 250.43-1) SHOULD  NOT BE APPLIED EQUALLY TO
         ALL HAZARDOUS WASTE MANAGEMENT FACILITIES.

         FOR EXAMPLE,  THERE IS  NO REASON TO PROHIBIT THE
         SITING OF AN  INCINERATOR OR OTHER DESTRUCTIVE DEVICE
         IN A FLOODPLAIN,  FLOODWAY, OR NEAR AN  ACTIVE FAULT,
         WHERE THERE IS  NO RISK OF  THE RELEASE  OF HARMFUL
         AMOUNTS OF HAZARDOUS WASTE.

         IN ADDITION,  THE LOCATION OF STORAGE  AND TREATMENT
         FACILITIES SHOULD BE  BASED ON A CLASSIFICATION  OF
         WASTES BY DEGREE Oc HAZARD,  THIS  WOULD RESULT  IN
         A MORE REALISTIC SITING PROCEDURE  BASED ON PRO-
         TECTION OF HUMAN HEALTH AND THE ENVIRONMENT.

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     WE STRONGLY RECOMMEND THAT THE AGENCY MODIFY ITS
     PROPOSED SITING LOCATION RESTRICTIONS TO FULLY
     RECOGNIZE APPROPRIATE EXEMPTIONS,
B.    500 YEAR FLOODPLAIN
     PROPOSED SECTION 250.43-1(0) PROHIBITS THE LOCATION



     OF A FACILITY IN A 500-YEAR FLOODPLAIN.  THIS PROVI-



     SION IS OVERLY STRINGENT FOR PRACTICALLY ALL WASTE



     DISPOSAL AREAS AND BEARS NO DEMONSTRATABLE RELATIONSHIP



     TO THE PROTECTION OF HUMAN HEALTH OR THE ENVIRONMENT.



     MOREOVER, THE PROPOSED REGULATION IS NOT IN THE PUBLIC



     INTEREST SINCE IT MIGHT REQUIRE MANY WELL DESIGNED



     AND ENVIRONMENTALLY SOUND FACILITIES, SUCH AS IN THE



     GULF COAST AREA, TO CLOSE.








     WE RECOMMEND THAT ALL SITE RESTRICTIONS PREDICATED



     ON THE USE OF THE 500 YEAR FLOODPLAIN BE REMOVED
     FROM THE REGULATION.








C.    REGULATORY FLOODWAY



     BASED ON THE WAY THIS REGULATION IS WRITTEN, RELATING



     TO LOCATING IN A REGULATORY FLOODWAY, NEW FACILITIES



     ARE NOT ALLOWED TO LOCATE IN THE REGULATORY FLOODWAY,



     AND EXISTING FACILITIES MUST BE CLOSED.  IN MANY AREAS



     OF THE COUNTRY THE DESIGNATION OF REGULATORY FLOODWAYS



     IS NOT COMPLETE TODAY AND WAS NOT IN EXISTENCE WHEN



     PRESENT WASTE DISPOSAL FACILITIES WERE BUILT.   THIS



     REQUIREMENT IS UNFAIRLY RIGOROUS FOR EXISTING FACILITIES,

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     AND SOME EXCEPTIONS SHOULD BE ALLOWED.  NOT TO



     ALLOW SOME EXCEPTIONS FOR EXISTING FACILITIES COULtl



     HARM THE OVERALL OBJECTIVE OF RCRA BY CREATING A



     SERIOUS SHORTAGE OF ACCEPTABLE HAZARDOUS WASTE DIS-



     POSAL FACILITIES,








     OLD FACILITIES SHOULD NOT BE FORCED TO CLOSE OR
     RELOCATE IN ORDER TO MEET THE SELECTION CRITERIA
     OUTLINED IN THIS SECTION IF THESE FACILITIES POSE
     NO THREAT TO HUMAN HEALTH OR THE ENVIRONMENT.
D.    GROUNDWATER AND LEACHATE MONITORING



     PROPOSED SECTION 250.43-8(c)(4) STATES THAI  IF AFTER



     THE COMPREHENSIVE ANALYSIS HAS BEEN PERFORMED AND



     BACKGROUND LEVELS FOR GROUNDWATER AND LEACHATE



     MONITORING ARE ESTABLISHED, ANALYSES SHOW THAT THE



     QUALITY OF THE GROUNDWATER OR THE WATER IN THE ZONE



     OF AERATION IS STATISTICALLY DIFFERENT FROM BACK-



     GROUND QUALITY, THE FACILITY MUST DISCONTINUE OPERA-



     TION UNTIL THE REGIONAL ADMINISTRATOR DETERMINES WHAT



     ACTIONS ARE TO BE TAKEN.  IT IS UNREASONABLE TO RE~



  .   QUIRE A FACILITY TO SUSPEND OPERATIONS WITHIN SEVEN



     DAYS OF ANALYSIS, BECAUSE MANY OF THE PARAMETERS



     MEASURED BY THE COMPREHENSIVE ANALYSIS ARE NOT, OF



     THEMSELVES, TOXIC AND WOULD NOT EVIDENCE ANY ENDAN-



     GERMENT TO HUMAN HEALTH OR THE ENVIRONMENT.   ONLY



     IN CASES WHERE HUMAN HEALTH AND THE ENVIRONMENT ARE

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          ENDANGERED SHOULD A FACILITY BE  REQUIRED TO  MODIFY




          OR  SUSPEND OPERATIONS,








          WE  RECOMMEND THAT A STATISTICALLY  SIGNIFICANT
          MONITORING  DEVIATION  FROM BACKGROUND  LEVELS  SHOULD



          CAUSE  ADDITIONAL INVESTIGATIVE  TESTING  AND EVALUATION,



          BUT  THAT  SUCH A CONDITION IN  ITSELF SHOULD NOT  BE
          JUSTIFICATION  FOR  TERMINATION  OF  OPERATIONS,
III.  STANDARDS  FOR  TREATMENT AND DISPOSAL



     A.    INCINERATION



          EFFECTIVE DESTRUCTION  OF  HAZARDOUS  WASTES  WHEREVFR



          VIABLE  IS PREFERRABLE  TO  PERPETUAL  CARE.   THE  OVERLY



          STRINGENT PROPOSED PROCEDURAL  STANDARDS  FOR  INCIN-



          ERATORS,  HOWEVER,  MAY  FORCE  THE  DISPOSAL OF  WASTE



          BY  LESS PREFERRABLE MODES.   WE ARE  CONCERNED ABOUT



          THE EXCESSIVE  SPECIFICATIONS FOR TRIAL BURNS AND



          VARIOUS OPERATING  PARAMETERS,  AS WELL AS THE OVER-



          LAPPING WITH OTHER EJVIRONMENTAL REGULATIONS.








          THE AGENCY,  IN ITS DEVELOPMENT OF SUBTITLE C REGULA-



          TIONS SHOULD ONLY  ADDRESS THE  PROPER DISPOSITION



          OF  HAZARDOUS WASTES.   THUS,  DESTRUCTION  EFFICIENCY  IS



          THE ONLY  MEANINGFUL PARAMETER  FOR ESTABLISHING PER-



          FORMANCE  FOR THE  INCINERATION  OF HAZARDOUS WASTE.








          WE  CONTEND, HOWEVER, THAT THE  PROPOSED DESTRUCTION



          LEVEL OF  99.99%  IS UNREALISTICALLY  HIGH  AND  WILL

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FURTHER DISCOURAGE THE USE OF  INCINERATION.  THE PRO-



POSED 99.99% APPEARS TO BE BASED UPON HIGHLY CONTROLLED



TEST BURNS, SPOT DETERMINATIONS UNDER IDEAL CONDITIONS,



AND IN SOME CASES WITH LESS THAN COST-EFFECTIVE RE-



QUIREMENTS.  FOR EXAMPLE, MOST OF THE REFERENCED TEST



BURNS IN THE INCINERATION BACKGROUND DOCUMENT (BD-25)



INVOLVED A RATIO OP AUXILLARY FUEL TO WASTE



QUANTITIES OF OVER 100:1.   FURTHERMORE THE



99.99% DESTRUCTION EFFICIENCY HAS NOT BEEN DEMONSTRATED



TO BE COST-EFFECTIVE OR TO BE CONSISTENTLY ACHIEVABLE



ON DAY-TO-DAY OPERATIONS, ESPECIALLY FOR THOSE UNITS



EXPERIENCING VARIABLE WASTE LOADS AND FUEL COMPOSITION.








WE PARTICULARLY DISPUTE THE CONCLUSION OF THE AGENCY



THAT HALOGENATED AROMATIC HYDROCARBONS ARE MORE



THERMALLY STABLE AND REQUIRE MORE STRINGENT OPERATING



CONDITIONS FOR THEIR DESTRUCTION,  WE CONTEND THAT



THE TEMPERATURE OF 1200°C SPECIFIED BY THE AGENCY



IS NOT SUPPORTED BY EITHER THE TEMPERATURES FOR



COMPLETE COMBUSTION OF MANY HALOGENATED PESTICIDES



(800-900°C) AND OTHER CASE HISTORIES REPORTED IN THE



BACKGROUND DOCUMENT, OR BY THE LITERATURE CITED IN



THE EIS (APPENDIX M),  FURTHERMORE, IT is READILY



ACCEPTED THAT EXCESSIVELY HIGH TEMPERATURES CAN



ADVERSELY AFFECT INCINERATOR OPERATION BY:  (1) FORMING



NITROGEN OXIDES (NOX) WHICH ARE DESIGNATED POLLUTANTS,



(2) INCREASING CORROSION AND SHORTENING INCINERATOR



LIFE,  (3) INCREASING ENERGY REQUIREMENTS, AND W

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 INCREASING CAPITAL AND OPERATING COSTS.  ANY  SPECIFIED



 COMBUSTION CRITERIA FOR HAZARDOUS WASTE  INCINERATORS



 SHOULD BE ALLOWED IF A FACILITY OWNER/OPERATOR CAN



 DEMONSTRATE ADEQUATE DESTRUCTION EFFICIENCIES.








 WE RECOMMEND THAT THE REGULATIONS FOR  INCINERATION
BE GENERALIZED BY EXCLUDING ALL REFERENCE TO HALO-
GENATED HYDROCARBONS AND BY REQUIRING A REALISTIC
LEVEL OF DESTRUCTION EFFICIENCIES,
LANDFILLS



THE AGENCY STATES THAT THE OWNER/OPERATOR OF A LAND-



FILL MUST DEMONSTRATE THAT NO DIRECT CONTACT WILL



OCCUR BETWEEN THE LANDFILL AND THE WATER TABLE.



THIS STANDARD IS UNNECESSARILY STRINGENT IN MANY CASES



FOR THE PROTECTION OF HUMAN HEALTH AND THE ENVIRONMENT,








THE HUMAN HEALTH AND ENVIRONMENTAL STANDARD STATES



THAT ALL FACILITIES SHALL BE LOCATED, DESIGNED, CON-



STRUCTED, AND OPERATED IN SUCH A MANNER AS TO PREVENT



(A) ENDANGERMENT OF AN UNDERGROUND DRINKING WATER



SOURCE BEYOND THE FACILITY PROPERTY BOUNDARY OR



(B) ENDANGERMENT OF AN AQUIFER WHICH IS DESIGNATED



AS A SOLE OR PRINCIPAL SOURCE AQUIFER.








IT IS NECESSARY TO ASSESS EACH SITUATION ON ITS INDIVIDUAL



MERITS.   FOR EXAMPLE, A UNIQUE SITUATION EXISTS IN THE

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GULF COAST AREA WHICH IS DOCUMENTED IN THE TEXAS



DEPARTMENT OF WATER RESOURCES TECHNICAL GUIDELINES



FOR HAZARDOUS WASTE DISPOSAL.  THE SITUATION IS ONE



OF A LOW PERMEABILITY CLAY AND HIGH WATER TABLE AS



TYPIFIED BY THE BEAUMONT CLAY FORMATION.  FILL



PLACED BELOW THE WATER TABLE COULD CAUSE LOCALIZED



SATURATION OF THE CLAY LINER, BUT EXTREMELY SLOW



MOVEMENT OF THE GROUNDWATER TOGETHER WITH ATTENUATION



AND/OR BIODEGRADATION PRECLUDES HARMFUL DISTRIBUTION



OF MATERIALS FROM THE LANDFILL.








WE DO NOT BELIEVE THAT A LANDFILL BUILT IN THE AREA



DESCRIBED ABOVE SHOULD BE PLACED SEVERAL FEET ABOVE



GROUND.  THE HYDRAULIC HEAD WHICH WOULD DEVELOP WOULD



CAUSE CONSIDERABLY HIGHER RATES OF PERMEATION TO



OCCUR THAN THOSE ASSOCIATED WITH A BELOW GROUND



FACILITY.  THERE IS ALSO THE ADDITIONAL HAZARD DUE



TO THE POTENTIAL FOR SLUMPING AND DISINTEGRATION OF



THE WALLS OF THE FACILITY.  ON BALANCE, THE HAZARDS



ASSOCIATED WITH THIS ABOVE GROUND FACILITY WOULD BE



MUCH GREATER THAN THE HAZARD POTENTIAL OF A FACILITY



CONTACTING GROUNDWATER IN A THICK IMPERMEABLE CLAY



BED.








WE, THEREFORE, MAINTAIN THAT DIRECT CONTACT OF THE



LANDFILL WITH GROUNDWATER BE SELECTIVELY PERMITTED,



WHERE DUE TO UNIQUE SOIL CHARACTERISTICS HARMFUL

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          CONTAMINATION OF GROUNDWATER DOES NOT OCCUR, AND



          THERE IS NO ENDANGERMENT OF HUMAN HEALTH OR THE



          ENVIRONMENT.








          WE RECOMMEND THAT UNIQUE AREA CHARACTERISTICS BE



          RECOGNIZED AND ADDRESSED, AT THE STATE LEVEL, AS



          HAVE PERMAFROST AREAS, CONSISTENT WITH WHAT IS FEASIBLE
          AND NECESSARY TO PROTECT HUMAN HEALTH AND THE
          ENVIRONMENT.








WE WILL BE SUBMITTING DETAILED COMMENTS BY 3-16-79.   THANK



YOU FOR THE OPPORTUNITY TO ADDRESS SOME OF OUR CONCERNS TODAY.

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REFERENCES:  February/March 1979 Oral Statements Regarding



             Sections 3001, 3002, 3003 and 3004 of the RCRA








1.   Beale, John (Dow Chemical U.S.A., Environmental Quality),



     Comments on Section 3002 and Section 3003, to U.S. EPA,



     public hearing, San Francisco, CA, March 13, 1979.








2.   Daniels, S. L., (Dow Chemical U.S.A., Environmental



     Sciences Research Laboratory), General Comments on



     Hazardous Waste Management, to U.S. EPA, public hearing,



     St. Louis, HO, February 14, 1979.








3.   Daniels, S. L., (Dow Chemical U.S.A., Environmental



     Sciences Research Laboratory), Comments on Section 3001,



     to U.S. EPA, public hearing, Washington, D.C.,



     February 22, 1979.








4.   Shewbart, Karen (Dow Chemical U.S.A., Environmental



     Services Department, Texas Division of Dow U.S.A.).



     Comments on Section 3004, to U.S. EPA, public hearing,



     San Francisco, CA, March 14, 1979.

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     MY NAME is JIM COLLINS,   I AM MANAGER OF ENVIRONMENTAL
AFFAIRS FOR THE ENERGY RESOURCES GROUP OF CITIES  SERVICE
COMPANY AND AM ALSO A MEMBER OF THE API  COMMITTEE ON  ENVIRONMENTAL
CONSERVATION IN PRODUCTION OPERATIONS,   I AM PRESENTING
COMMENTS FOR THE PRODUCTION COMMITTEE OF THE API  ON  EPA's
PROPOSED HAZARDOUS WASTE REGULATIONS,
     API BELIEVES THE POTENTIAL  IMPACT OF THE PROPOSED
HAZARDOUS WAaTE REGULATIONS ON OIL AND GAS DRILLING  AND
PRODUCTION OPERATIONS WOULD BE CATASTROPHIC.  STRICT  INTERPRETATION
JF THE PROPOSED REGULATIONS WOULD APPEAR CERTAIN  TO  HAVE  A
 lAJOR NEGATIVE IMPACT ON EXISTING DOMESTIC OIL  AND GAS
 'RODUCTION, WOULD SERIOUSLY IMPEDE DRILLING  FOR ESSENTIAL
NEW ENERGY SUPPLIES, WOULD BE  SIGNIFICANTLY  INFLATIONARY,
AND V.uULD REQUIRE AN ENORMOUS  COMMITMENT OF  RESOURCES AND
PcOPLE IN OU3  INDUSTRY WITHOUT ANY MEASURABLE OFFSETTING
 ,Ei,l ,  • - I    D ,/\ ,  i.-A'-Til Or; i'-iF  CNVIRONMEf; ;,
      THE  >,'jPu-,,-i>  ,-;i.GULAr,oNS WOULD  IN  THE  FIRST YEAR ,.:~OSE AN
 UNREALISTIC COST BURDEN ON OIL  AND  GAS  WELL DRILLING ESTIMATED AT
 $10,3 BILLION OF WHICH  $3,9 BILLION  WOULD  BE  USED TO CONSTRUCT THE
 FACILITIES TO COMPLY WITH  PROPOSED  REGULATIONS AND THE REMAINING
 $6,9 BILLION  WOULD BE USED TO MONITOR  THE  FACILITIES FOR 20 YEARS,
 THIS $10.8 BILLION REQUIREMENT  WILL  BE  REGENERATED EVERY YEAR,  THE
 OIL AND GAS PRODUCTION  INDUSTRY WOULD  BE  FORCED TO SPEND AN ADDITIONAL
 $3'},7 BILLION,  $10.2 BILLION OF THE $34,7  BILLION WILL BE SPENT TO
 BRING EXISTING FACILITIES  INTO  COMPLIANCE  AND  THE REMAINING $2^.5
 BILLION WILL  BE REQUIRED TO SATISFY  THE FUTURE MONITORING REQUIREMENTS
 OF THE PROPOSED REGULATIONS.  THE COST  BURDEN  INEVITABLY WOULD IMPACT
 ALL OF U?  \,  ,-Xrlu.,' fONSUMLRS,  Al. ,.  THIS  ASSUMES Ti-.A f T.,,_ ADI...) -Of"
 . Ot~Sf''T PUT SIK.H OPERATIONS OUT OF  BUSINESS.

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     THE ECONOMIC IMPACT WILL HAVE TWO MAJOR EFFECTS ON THE
UNITED STATES' ENERGY SUPPLY.  FIRST, IT WILL CAUSE TREMENDOUS
DIVERSION OF CAPITAL FROM EXPLORATION FOR NEW OIL AND GAS
RESERVES AND RESEARCH AND DEVELOPMENT AIMED AT INCREASING
OIL AND GAS RECOVERY FROM EXISTING RESERVOIRS; AND, SECOND,
IT WILL CAUSE MARGINAL PRODUCING PROPERTIES TO BE CLOSED
DOWN PREMATURELY, FOR EXAMPLE, VIRTUALLY ALL STRIPPER PRODUCTION
WILL BE UNABLE TO MEET THE REQUIREMENTS OF THESE REGULATIONS
DUE TO ECONOMICS OF OPERATION.  THE AVERAGE PRODUCTION FOR
STRIPPER WELLS IN THE U. S,  WAS ONLY 2,9 BPD (NATIONAL
STRIPPER WELL SURVEY, TOTAL CRUDE OIL PRODUCTION, U. S,
BUREAU OF MINES).  71.5% (368,000) OF THE OIL WELLS IN THE
U. S.  ARE STRIPPER,   THE STRIPPER WELL PRODUCTION FOR THE
UNITED STATES IN 1977 AMOUNTED TO OVER A MILLION BARRELS OF
OIL PER DAY, OR ABOUT 12.'51 OF OUR TOTAL DOMESTIC CRUDE OIL
PRODUCTION.  A GREAT NUMBER OF WELLS WITH PRODUCTION RATES
AROVE STRIPPER PRODUCTION RATES WILL ALSO BE CLOSED DOWN
PREMATURELY BECAUSE OF THE SAME ECONOMIC IMPACT OF THESE
REGULATIONS,
     THE PROBLEMS BASICALLY ARISE BECAUSE EPA HAS EITHER NOT
CORRECTLY INTERPRETED THE DEFINITION OF HAZARDOUS WASTE AS
STATED IN THE ACT, OR THE REGULATIONS ESTABLISHED RY EPA TO
DEFINE HAZARDOUS WASTES ARE FAR TO INCLUSIVE.
     CRUDE OIL WASTES FOR EXAMPLE ARE INAPPROPRIATELY CLASSIFIED
AS A HAZARDOUS WASTE BECAUSE THEY FAIL THE IGNITABILITY
TEST,  HOWEVER, ON SITE CRUDE OIL WASTES DO NOT PRESENT A
FIRE HAZARD,

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     CRUDE OIL SPILL CLEANUP RESIDUE is INAPPROPRIATELY
CLASSIFIED AS A HAZARDOUS WASTE BECAUSE IT CONTAINS TRACE
AMOUNTS OF BENZENE OR TOLUENE,   THESE TRACE LEVEL POLLUTANTS
POSE NO HAZARD,
     ALSO, BECAUSE OF TRACE AMOUNTS OF OTHER CONTAMINANTS
(I.E. HEAVY METALS) THE PROPOSED REGULATIONS INAPPROPRIATELY
CLASSIFY MOST GAS AND OIL DRILLING MUD WASTE AND PRODUCTION
BRINE WASTE AS HAZARDOUS, AND AGAIN THESE TRACE LEVEL CONTAMINANTS
PRESENT NO HAZARD TO HUMAN HEALTH OR ENVIRONMENT,
     FINAL REGULATIONS SHOULD ONLY BE CONCERNED WITH TRULY
HAZARDOUS WASTE AND NOT CLASSIFY WASTES SUCH AS THOSE GENERATED
IN DRILLING AND PRODUCTION OPERATIONS AS HAZARDOUS.
     THE INAPPROPRIATE INCLUSION OF NON-HAZARDOUS WASTE IN
THE HAZARDOUS CLASSIFICATION PLACES UNNECESSARY BURDENS ON
THE GENERATORS OF NON-HAZARDOUS WASTE,   f'IORE IMPORTANTLY IT
PREVENTS PROMULGATION OF GOOD WORKABLE HAZARDOUS WASTE
REGULATIONS WHICH REALLY PROTECT HUMAN HEALTH AND THE ENVIRONMENT.
     1'lE BELIEVE THAT EPA UNDERSTANDS THIS PROBLEM AS STATED
IN THE PREAMBLE AS FOLLOWS:
          "BY ATTEMPTING, INITIAL COVERAGE OF WASTE,
          GENERATORS, AND DISPOSERS THAT IS QUITE BROAD,
          THE WHOLE PROGRAM INCLUDING ADDRESSING THE
          PROBLEMS BROUGHT ON BY THE MOST HAZARDOUS
          (WASTE) WILL BECOME BOGGED DOWN".
     WE AGREE WITH THIS IDEA,
     SITE SELECTION CRITERIA FOR SURFACE IMPOUNDMENTS INCLUDED
IN THE REGULATIONS ARE PARTICULARLY INAPPLICABLE TO OIL AND
GAS WELL DRILLING OPERATIONS.   THE CRITERIA SPECIFICALLY

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EXCLUDES AREAS WITHIN A 500 YEAR FLOOD PLAIN, IN FAULTED
AREAS, OR COASTAL HIGH HAZARD AREAS.
     OlL IS FOUND WHERE NATURE PLACED IT AND A GREAT DEAL OF
OUR NATION'S POTENTIAL ONSHORE ENERGY RESOURCES ARE IN THESE
PROHIBITED AREAS,  INAPPROPRIATE APPLICATION TO OUR INDUSTRY
OF SITE SELECTION CRITERIA DESIGNED FOR FACILITIES WITH
HAZARDOUS WASTE WOULD PREVENT DEVELOPMENT OF ENERGY RESERVES
VITAL TO THE NATION,   THIS WOULD BE PARTICULARLY UNFORTUNATE
WHEN ONE CONSIDERS THE EXCELLENT PERFORMANCE RECORD OF OUR
INDUSTRY IN THESE SENSITIVE AREAS,
     IF THE REGULATIONS ARE TO BE EFFECTIVE AND MANAGEABLE,
API RECOMMENDS THEY BE REWRITTEN WITH THE FOLLOWING PARTICULARLY
IN MIND.
     (1)  ONLY TRULY HAZARDOUS WASTES SHOULD COME UNDER THE
PURVIEW OF THE REGULATIONS,
     (2)  NATURALLY OCCURRING CRUDE OIL, PRODUCTION BRINE
AND GAS AND OIL DRILLING MUD WASTE  SHOULD BE EXCLUDED FROM
THE HAZARDOUS WASTE 'REGULATIONS.
     (3)  EPA IN ITS ATTEMPT TO BE  INCLUSIVE HAS EXTENDED
HAZARDOUS WASTE MANAGEMENT AND DISPOSAL PRACTICES TO WASTES
WHICH ONLY REQUIRE NORMAL SOLID WASTE MANAGEMENT AND DISPOSAL
TECHNIQUES, ALLEVIATING UNNECESSARY IMPACTS BY NUMEROUS
NOTES ALLOWING ADMINISTRATIVE DISCRETION OR BY SPECIAL
CATEGORIES GRANTING PARTIAL EXEMPTIONS REPRESENTS A "BAND-
AID REPAIR" APPROACH UTILIZED IN AN ATTEMPT TO MAKE THE
OVERALL REGULATORY PROPOSAL WORKABLE,
     THIS OVER INCLUSIVE TECHNIQUE  JEOPARDIZES THE REGULATION'S

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oOAL OF PROTECTING HUMAN HEALTH AND THE ENVIRONMENT  FROM




HAZARDOUS WASTES.




     RCRA MEETS A REAL NATIONAL NEED,  WjJLU CHANGE_S.  THE




PROPOSED REGULATIONS CAN WORK, WlIHOUI CHANGES. THE REGULATIONS




WILL BE UNMANAGEABLE AND INEFFECTIVE,

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l n:n,"on'o,'i   AJB   j   Permian  Basin  Petroleum  Association
tan'I afford   I   Q I .   j   pQ Box 132   •   (915)684-6345    •    Midland, Texas 79702
;o run short   N   r ' "   '
                             Statement  of


                                  the


                  PERMIAN  BASIN  PETROLEUM  ASSOCIATION



                              Before the

             United  States Environmental Protection  Agency
                HAZARDOUS  WASTE  PROPOSED  GUIDELINES  and
              REGULATIONS  and  PROPOSAL  on IDENTIFICATION
                              and  LISTING
                           March  12-14,  1979

                       San  Francisco,  California

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 ,  ,;!„;'.;;"„;;  /ia  \  Permian  Basin Petroleum  Association

  am; .11 f of a     g  •      p Q BOX 132   •   (915)684-6345   •   Midland, Texas 79702
  lu iui; shoe,  \  ^ I **  /
     My name is A. W. Dillard, Jr., my business address is 1001 Wilco Building,


Midland, Texas, 79701.  I am president of the Permian Basin Petroleum Association,


located in West Texas and Southeastern New Mexico, and I am representing its


almost 1,500 members in the largest single petroleum producing area in the United


States.  The membership is basically independent, domestic oil and gas operators,


but almost every type of business in the Permian Basin is also represented.  I am


an independent oil and gas operator, with over 32 years of experience in Oklahoma,


Mississippi, New Mexico and Texas.


     We acknowledge that we need rules and regulations to assure both the safe


and orderly conduct of all business operations, as well as the protection of health


and the environment.  However we also believe that the hazardous waste program, as


proposed by the EPA, is unnecessarily broad and burdensome.   If implemented, as


proposed, these regulations will have a shattering pffect on the future discovery


rates and production of oil and gas in the United States.


     We realize that the EPA is required by the RCRA,  as substantially amended,


to promulgate regulations that are all encompassing in nature but which,  by EPA's


own admission,  lack specific guidance in many areas,  particularly drilling muds


and production brines.  Wtih this admission in mind,  we strongly recommend that


gas and oil drilling muds and crude oil production brines be totally exempted


from the EPA Hazardous Waste proposals.  Short of that, that they be exempted


until necessary studies are completed and specific guidance  is achieved.


     In reading the language of the Standards applicable to  Generators,  it is


plain to us that oil and gas operators were not included in  the compliance

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 requirements.  We get the feeling that these regulations .are, in fact, directed





 at  those operation'-' where something is manufactured and a hazardous waste  is





 produced.  The language refers to fixed facility locations and the manufacturing





 process involved.  Mention is made of kilograms and gallons, but nothing is said





 about barrels.   Specifics to proper cantainerization, proper container 1 abe 1 i n;;





 and movement manifests are included.  None of these terms are common to the oil





 and gas industry.





     Compliance, to protect both the health and environment, has  long been under





 way in Texas and New Mexico, as required by state laws and regulations, concerning





 the usage of drilling mud and production brines and their disposal.  We recommend





 that these laws  and regulations be adopted by the EPA and incorporated into the





 EPA Proposed Hazardous Waste Guidelines.





     With the energy problems already facing the domestic consumer, it is  incon-





 ceivable that the Federal Government would want to compound those problems.   But,





 by making it even more difficult for the domestic  operator to look for additional





 oil and gas reserves, you are compounding them.        , each operator is basically





 a small business, and the additional man hours and money required to be in com-




 pliance can only reduce the operators time and finances needed for his drilling




 and producing efforts, you are preventing them from doing their job...finding new





 oil and gas reserves.





     Due to an apparent oversight, we were excluded from those scheduled to speak





 on   Section 3001 yesterday, March 12.  With your permission, we have im luded our





 position on Sec t  n>i   ; )01 at this point and ask that it be make a part of the  rec ore]





We would also appreciate the opportunity to read  this  part  of the statement, hut




will understand  if  it is not permissible.

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                          Permian Basin  Petroleum  Association

can't afford  \    n I A   )  P O Box 132    •    (915)684-6345   •   Midland, Texas 79702
lo run snort  \   r I •*   /
                                  3001




     The 1500 members of the Permian Basin Petroleum Association - could well


be more concerned with the protection of Potable Groundwaters than our friends


in Washington, D.C., since we live in a semi-arid region,  and our living depends


on these groundwaters.  Although our average annual rainfall in the Midland-Odessa,


Texas, area is 14.12" per year,  in 1977 (the last year available) we received only


6.82".



     Drilling operations in search of crude oil and gas have been carried out in


this area since the early 1920's.   The Texas Railroad Commission and the Texas


Department of Water Resources (who oversee drilling and producing operations,


mapping groundwaters and specifying casing, cementing and  plugging programs)  have


no documented records, or complaints, in their files to show any subsurface water


contamination from rotary drilling muds.  Instances of groundwater contamination


from produced brines have occurred in Texas, but these were noted and corrected.


The oil and gas producing industry works closely with the  State Regulatory Agencies


to develop, implement, and continuously monitor improved field practices, so that


there is no predictable hazard to health or land productivity under currently


administered rules and regulations.


     In the definition of Hazardous Wastes in Sec. 3001, no differentiation is


made between 100% pure, known poisons (ie: certain chemicals) and trace amounts of


some metals and other substances that can be found in drilling muds and produced


brines only by some of the most  sophisticated, technical analysis methods currently


available.  It might well be noted that during a typical,  dusty, spring day in

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3001







the Permian Basin, the air we breathe exceeds certain E.P.A.  purity specifications




by  a multiple of 5000 to 1, or more (airborne silicates).




     The proposed definitions under Sec. 3001 would classify  as Hazardous Wastes




the following:




          a)  Crude oil and/or crude oil wastes (although naturally




              biodegradable) because of ignitability tests,  and because




              of trace amounts of materials listed in Appendix (V).




          b)  Well drilling muds - because of trace amounts  of




              contaminents of heavy metals.




          c)  Oil production brines - because of trace amounts of




              contaminents of heavy metals.




     Although the total volumes of drilling muds and produced brines that our




industry deals with is large, the volume at each well site (or production facility)




is small, and the trace amounts of materials classified as objectionable, although




measurable, do not materially affect the quality of the groundwater, or the safe




productivity of the soil.  We would refer the E.P.A. to the  Interstate Oil Compact




Commission Studies on the quality of drinking water in areas  of Oil and Gas




production.




     May I point out, that a major water supply source field  for the city of




Midland, Texas, has 26 producing water wells which were drilled in the late 1950's.




In the past seven years more than this number of oil wells have been drilled in




this water supply field.  The engineer in charge of this water field operation,




Mr. John Lowe, stated to me that they have not detected any  contamination of the




water due to these oil well operationa Also due to the soil  conditions, it is his




opinion that there is no way leaching, of surface contaminates from pits used in




such operations, could even reach the water sand at a depth  of 200 feet.  Also,

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3001







Mr. Lowe stated that the re-charge of this water formation, being the Ogallah




Formation is practically zero.  We're attaching a copy of the Railroad Com-




mission letter to this statement.




     In the Permian Basin, 5,422 wells were drilled in 1978, and because of




what we think is improper classification of -drilling muds as Hazardous Wastes




in the proposed regulations, each of these wells would face an additional first




year cost of $ 75,000 or more, and a long term cost of $135000 or more, for a




total cost in excess of $210,000 per well.  This totals $1,138,620,000 and exceeds




the dry hole cost of the wells drilled in 1978 in the Permian Basin.  The same




drilling budget, in 1979, would produce less  than half as many wells, seriously




jeopardizing the search for domestic oil and  gas supplies so desperately needed




for our country's survival.




     The Permian Basin contains many thousands of "stripper" and 'marginal"




wells which account for 14% and 24.1%, respectively, of our areas current total




production.  These wells are very close to the economic limit of production, and




could by no means bear the estimated per well cost of something in excess of




$65,000 per well (without leachate monitoring) a, .. would have to be plugged and




abandoned prior to the inception date of the  regulations.  How can this nation




afford to throw away potentially 50% or more  of its proven reserves of oil and gas,




and the thousands of jobs that these reserves will support for many years.  We




find nothing in the Federal Register regarding economic impact of these proposed




regulations - a requirement under current law.




     The intent of our Nation's Congress was  to provide protection against known




Hazardous Wastes.  The E.P.A. by its own admission, states that very little is




known about the hazards to groundwater, land  productivity, or human health - if




any hazard actually exists - from drilling muds and produced brines.  The Permian




Basin Petroleum Association strongly recommends that no definition as a Hazardous

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3001
Waste need be applied to drilling muds or oilfield produced brines,  or,  in any




case, not until adequate studies of the industry and its  practices have  been




concluded and thoroughly analyzed.

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JOHN H. POERNER. Chairme
MACK WALLACE, Comm l.tlone
                           RAILROAD  COMMISSION  OF  TEXAS
                                     OIL AND  GAS DIVISION
                                       February 12, 1979
BOB R. HARRIS, P. E.
      Chief Engineer
JAMES E. (JIM) NUGENT, Commi»«!on»r

.<«—*
C€

^\
I
.,••

PHILLIP R. RUSSELL,
Director, Field Op«r
• U T , J
P. E.
ationi

             Mr.  Ed Thompson
             Permian Basin Petroleum Association
             IQlt  Western Unit Life Buildinp
             Midland,  Texas  79701

             Dear Mr.  Thompson:

             A  review of our records on a statewide basis shows but four incidents
             where  there was a possibility of a water sand being affected by the
             drilling of a nearby oil well.

             We have had numerous problems relative to drilling mud escaping from
             reserve pits, but almost nil of fresh water strata being affected by mud
             or salt water during drilling.

             Please advise if additional information is needed.

                                                     Yours v^y truly,
                                                      hillit
                                                     Diredror of Field Operations
            PER: mz

            cc:  Bob  Harris

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                            P«mian Basin Petroleum  Association

   cant afford  \    mTi  /J  P O Box 132    •    (915)684-6345   •   Midland, Texas 79702
   (o run snort
                                     3004



     The 1500 members of the Permian Basin Petroleum Association (small, independent


businessmen and producers of crude oil and gas in West Texas and Southeastern New


Mexico) would be among the first to say that it is importanl; to protect the environ-


ment in areas that produce oil and gas, because that is their home.   This region


produces almost 1/3 of the oil and gas produced in the United States.


     However, it is our belief that the standards applicable to owners, or operators


of Hazardous Waste treatment, storage, or disposal facilities, as proposed under


Section 3004, are inappropriate, unnecessary, overly burdensome, have infinite


cost/benefit ratios, or cannot be accomplished by the industry and the manpower and


machinery currently available in the country.


     Site selection and design for a drilling or producing well are dictated by the


natural occurrence of crude oil or gas in commercial quantities and by many State


Regulatory Rules and private contractual obligations.  If"wetlands" and "500 year


floodplains" are excluded as potential drill sites, 1/4 to \ 12 of this country's


potential sedimentary basins would be left unexplored.  We can also envision certain


technical problems with trying to rig up a rotary on top of Pikes Peak, and tap a


deposit of oil or gas near Corpus Christi by directional drilling.


     There are strongly differing opinions as to whether the financial requirements


are in truth removed in the case of drilling muds and brines, or what might be added


on at any subsequent time.  These financial requirements could shut down nearly all


the domestic drilling and producing industry with no true, or proven benefit.

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 3004
     Of the 600,000 or more producing oil and gas wells in the United States today,




probably fewer than 200 have any need for round the clock surveillance or security




because of any public health or environmental contamination danger.  The balance




of the wells are generally inspected on a daily basis for any problems.  To accomp-




lish site security and around the clock surveillance would require the hiring and




training of a work force of 60,000 complete with transportation vehicles at a cost




that would cause most of these wells to be plugged.




     The filing of SPCC type plans with all local and state agencies would benefit




only the manufacturer's of paper and file cabinets and storage warehouses.  This




volume of reports would inundate the recipients to the point that they would be




valueless and the recipients would not have the people to even file or comprehend




them.  Witness the fact that the Texas Railroad Commission has to get an emergency




additional appropriation of $500,000 to initiate compliance with the State's portion




 of the NGPA of 1978.




     The oil and gas producing industry is a capital intensive industry that requires




well trained workers with above average capabilities   The training of our existing




personnel is a continuous ongoing job.   We would question again,  however, any reason-




able cose/benefit ratio  of the proposed training and record-keeping under Section




3004.




     The closure and long term care of a variety of "facilities" that would come




under regulations in the proposed Section 3004 would present significant legal




problems that might well prove unsolvable.   Our economic impact statements address




the prohibitive costs  involved.




     Most technical problems can be solved,  in this day and time,  if the money




required does not run  out.   So it is with the surface water,  groundwater and leachate




monitoring proposals in Section 3004.   We would state again that  no proof has been

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3004
brought forth of any significant contamination of surface or subsurface waters




by drilling muds and only a very few isolated instances of contaminations from




produced brines.  Current practices by the industry,  under existing State or




Federal Regulatory agencies, (which agencies EPA seems to have ignored or not




contacted during its previous 3 years work), are producing no known or predictable




hazards and so the enormous costs proposed by Section 3004 produce zero benefits.




     The storage requirements set forth for ponds,  tanks, and containers of Hazardous




Wastes would include all oil and gas production vessels and would necessitate a




complete moving and rebuilding of all facilities currently in use.  These requirements




would seem to fit large chemical plants rather than isolated wells.




     The proposals in Section 3004, to deal with the  Treatment and Disposal of




Hazardous Wastes, again seem designed for stationary  plants or sanitary landfills




dealing with highly toxic materials or deadly poisons.   The many requirements here




that would point out the wrong classifications of drilling muds and brines, crude




oil or crude oil waste, or produced brines under Section 3001, -which we addressed




before.




     The Permian Basin Petroleum Association would  strongly recommend that no re-




quirement under Section 3004 be applicable to drilling muds, crude oil or crude oil




wastes, or produced brines unless,  and until, the currently proposed 2 year study




has been completed and thoroughly  analyzed in all  aspects.  Prior application of




these proposed regulations could initiate the shut  down of a great portion of our




industry, the premature plugging of hundreds of thousands of wells, which could




never be redrilled for the remaining reserves, and  the complete loss of our national




security because of added dependence on overseas, unreliable sources of energy.




     The basic conception that all government regulators should be free from any




industry experience in the area that they deal with is laudable to some degree.

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3004
However, this lack of industry experience carries with it the very heavy burden




of the responsibility for 24 hour, 7 day a week study to become knowledgeable




enough, without bias, to propose proper regulation.   The E.P.A. has been working




in this area for  3 years, but from the presentation of these proposed regulations,




with regard to oil field operations, we can conceive no first hand knowledge of, or




any attempt to learn, the workings of the oil field  - drilling, exploration or




production.




     Thank you for this opportunity to publicly express our position on this




proposal.
                                     -30-

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      TESTIMONY OF H,  L.  HANRIGHT

PETROLEUM EQUIPMENT SUPPLIERS ASSOCIATION


                 BEFORE
              ENVIRONMENTAL
            PROTECTION AGENCY
             MARCH W, 1979

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Mr. Chairman, Ladies and Gentlemen:

     My name is H. L. Hanright.  I am most honored and privileged to be

here today.  I am appearing before you in my capacity as chairman of the

Service Companies Committee of the Petroleum Equipment Suppliers Association.

Privately, I am the President of Baker Service Tools of Houston, Texas.

     The Petroleum Equipment Suppliers Association is a trade association com-

prised of 220 oilfield equipment manufacturing, supply, and service companies.

Among our membership are the major companies which manufacture drilling fluilds

systems and provide wellsite drilling fluids service to the oil and gas drilling

industry.

     The Association is in complete accord with the desire of the Environmental

Protection Agency to protect our environment from the baleful effects of

hazardous wastes under authority of the Resource Conservation and Recovery

Act by proposing regulations to implement the act.  Certainly, where substan-

tial evidence exists that a particular kind of waste has in the past been

a source of danger to persons or to the environment, that substance should be

classified as a hazardous waste.  It is the contention of the Petroleum Equipment

Suppliers Association, however, that oil and gas drilling fluids have not been

shown to pose any danger to persons or the environment and therefore should be

exempt from the proposed hazardous waste regulations.

     The EPA has recognized that special status of drilling fluids, stating that

"the Agency has very little information on the composition, characteristics,

and the degree of hazard posed by these wastes...," but that "the limited

information the Agency does have indicates that such waste occurs in very large

volume, that the potential hazards posed by the waste are relatively low, and

that the waste generally is not amenable to the control techniques developed in
                                    *
Subpart D (Sections 250.40-250.46)."   It would seem to follow from this that

drilling fluids would be completely exempted from the regulations, at least until




*Federal Register, Vol.  43, No. 243 - Monday, December 18, 1978, pp. 58991-2.

-------
there existed sufficient evidence of potential hazard to warrant their inclusion.




However, the EPA proceeded to write "special standards" for these special wastes,




first making them subject to the hazardous waste  identification standards in




section 250.13, and then subjecting them to "limited"sections of Subpart D, if




they were determined to be "hazardous."  The Agency apparently felt that drilling




muds were being exempted from the substantive requirements of Subpart D; the




Background Document on special wastes even states that his was done "to avoid




imposing a substantial economic burden on the economy for little or no net




environmental benefit."  This is not, however, the effect of the regulations as




currently drafted.  The "limited" standards to which drilling muds are subjected




would, in fact, create a tremendous administrative and economic burden for the




drilling industry and ultimately for the economy as a whole.  Compliance with




these requirements would seriously impede the exploration for and production of




our domestic energy resources without achieving any environmental benefit at a




time when the danger of our reliance en foreign .sources of oil is becoming more?




and more apparent.




     Section 250.46-6 makes drilling fluids subject to section 250.13 which




sets forth testing procedures for all wastes to determine if these wastes




should be classified as hazardous.  The requirements under this section do not




recognize the peculiar nature of drilling fluids or of mud systems as used




in industry.




     When an oil or gas well is being drilled, fluids commonly called drilling




muds are pumped down the inside of the hollow drill pipe under pressure.  This




mud emerges through jets in the drill bit at the bottom of the hole.  It then




circulates back up the outside of the drill pipe and emerges through the




blowout preventers on the surface.  It then passes over a "shale-shaker" which




removes rock and sand "cuttings."  These cuttings and some of the mud flow into the




reserve pit; the filtered mud then goes back into the well to recirculate.




This circulation of fluids is absolutely essential to drilling all but the very




shallowest of wells.  It accomplishes several purposes.  Host obviously, it cods

-------
and lubricates the drill bit and drill pipe, and it washes the cuttings out



of the hole.  The weight of the mud also allows it to act as a counterweight



to pressures from within the wellbore which might cause a "blowout" of the well.


The composition of the mud also allows it to coat the inside of the wellbore,


forming an impervious cake so that circulation will not be lost if a highly



permeable formation is encountered.  This cake also prevents the wellbore from


collapsing.


     In order to accomplish these purposes effectively, drilling mud must have


certain very precise characteristics;  mud technology has developed over some


70 years and continues to develop toward a more and more exact science.  One


ingredient of almost all drilling mud is barium sulfate or "barite."  This


element gives the mud the weight and viscosity necessary to  provide pressure


control and to lift the cuttings from the wellbore.  Another element is


bentonite which acts as a sealant in forming the wall cake around the wellbore


and also prevents leaching of the reserve pit.  A third important additive to


the mud is chromium lignosulfonates which help the bentonite retain its


sealing properties.


     Section 250.13 specifies testing procedures to determine if certain quan-


tities of proscribed elements are present in the waste sample.   To apply


these procedures to drilling muds,' as the regulations do,  is extremely unreason-

cbk
ftbew* and unrealistic.   One requirement calls for sampling a reserve mud pit


such that "the representative sample"  is "statistically equivalent to the


total waste in composition."  This would be virtually impossible because the


mud may contain cuttings, wash water,  and other solid elements.   Thus, the


composit ion of the reserve pit can vary dramatically at intervals sometimes



less than one foot.  Moreover,  new elements brought up from  the wellbore


and new additives which are frequently used cause the composite on of the fluid


in the reserve pit to change constantly.

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     The proposed acidification analyses in section 250.13 are also unrealistic




with regard to drilling muds.   These procedures would produce soluble metal




contents which are much higher than those that would occur naturally in the




environment.   Almost all drilling muds are so highly alkaline that acidifica-




tion of the remains of a mud pit is unlikely even after nany years of leaching.




     The analytical procedure pertaining to chromium does not distinguish




  " *reen chromium ions of differing valence states.  Hexavalent chromium




  Lch is the undesirable form does not occur in drilling fluids; the




  re benign trivalent chromium ion is used instead in the chrome-treated




  jnosulfonates necessary in drilling muds.




     A primary purpose of the Resource Conservation and Recovery Act is to




protect surface and ground water from undesirable chemical elements emanating




from hazardous waste storage facilities.  The bentonite added to drilling




muds prevents leaching even if the reserve pit did contain materials detertninad




to be hazardous under Section 250.13 criteria.  In fact, many states require




that closed-off wellbores contain drilling mud to prevent, collapse of the walls




and possible environmental damage.




   Because the current proposed regulations subject drilling muds to the unrealistic




testing requirements of section 250.]3 and proscribe elements such as




trivalent chromium ions, it is possible that drilling fluids may be




classified as hazardous wastes.  They then would be subject to the so-called




"procedural regulations" outlined under section 250.46-6:




     1)  General Facility Standards-waste analysis (250.43(f))




     2)  General Site Selection-for new sources only (250.43-1)




     3)  Security  (250.43-6)




     4)  Manifest System, RecordkeepJng, and Reporting  (?50.43-5(a), (b)(l),




                                                  (b) (2) (i) ,  (b) (5) and  (c) )




     5)  Visual Inspections (250.43-6)




     6)  Closure and Post-Closure  (250.43-7(1),  (m), (n))

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A careful study of these requirements reveals that, far from being only





procedural in nature, most of them are quite far-reaching and substantive.  Only




the visual inspection requirement can be considered procedural.  It would be




extremely difficult, if not impossible, to reasonably comply with each of the




other requirements.  And the economic burden imposed would, in direct contraven-




tion of the stated intent of the EPA, be enormous with little or no environmental




benefit.




     The waste analysis requirement would be almost impossible to comply with




in any meaningful way.  As mentioned earlier, the constituency of drilling fluids




is constantly changing due to the additon of new elements to the fluids and




cuttings from different geological formations being encountered in the wellbore.




An analysis made one day could easily be invalidated the next.  Furthermore,




many wellsites are situated in remote areas which would necessitate transporting




the samples long distances to obtain analyses.  The American Petroleum Institute




recently estimated that the cost of performing an extraction procedure text




as outlined in Section 250.13(d)  on a reserve pit sample would be $750.  Consi-




dering that there were approximately 48,000 wells drilled last year using




drilling muds, the cost of compliance with only this one section of the so-




called "procedural regulations" would be $36,000,000.




     The general site selection procedures would also apply to any drilling




fluids determined to be hazardous waste.  They prohibit the location of a




hazardous waste facility in an active fault zone, in wetlands and recharge




zones, or in 500-year floodplains.   This would effectively preclude drilling




in much of the Texas and Louisiana  Gulf Coast area and in many parts of




California—areas considered by geologists to be the most promising locations




for oil and gas reserves.   The benefit to the environment which would result




from these strictures is non-existent.   The sealing properties of the bentonite




added to drilling muds,  the absence of dangerous hexavalent chromium ions in




the fluids,  and the rapid  reduction of high pH Jevels  mentioned earlier

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obviate any dangers to the environment caused by flooding of a former reserve pit.



     The security requirements are unnecessary and cannot reasonably be



applied to reserve mud pits.  Surrounding the pit with a 2-meter fence to keep



out persons and livestock is totally unnecessary since drilling operations



are carried on 24 hours a day and the reserve pit is in view and under the


                                                      ,  -    '  /'     /  '
supervision of the drilling crew at all times^.u«til closure when the'pit is



backfilled.  Controlled access points manned by a guard or equipped with elec-



tromechanical devices are not only unnecessary but would greatly impede the



movement of equipment and supplies and create a tremendous, financial



burden for the drilling operator.  The A.P.I, has estimat€'d the cost of


                             $3,2CQ            $154 MILLION
fencing each of 48,000 wells at c_..i» per well or Szt-^ftStMiC^ industry-



wide.  Again, this expense would be imposed with no benefit whatsoever accruing



to the environment as a result.



     The manifest system required of all operators of hazardous waste facilities



would be extremenly burdensome, not or.lv to the drilling industry, but to the EPA



as well.  The average depth of the 48,000 wells drilled last year with fluids



was 4,875 feet.  Approximately 23,000 wells of that depth were drilled in

          .-ffvr*

less than oaft week.  To apply the manifest system obviously designed for more



permanent facilities to thousandsof reserve pits of such a short life would



result in monumental and unnecessary paperwork for the drilling industry and the



EPA alike.  This regulation simply does not recognize the temporary nature of



the reserve mud pit.



     The closure and post-closure requirements are perhaps the most burden-



some of all the regulations.  Compliance with these requirements could



 cost  in   excess of $4 billion according to API estimates.  These costs would



result from the necessity for the drilling operator to negotiate with the



land-owner for the right to monitor the site of the closed reserve pit for



20 years.

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     The API has estimated that the total cost of compliance with those




"Procedural regulations" imposed on oil and gas drilling fluids and production





brines would be in excess of $10 billion a year, which would almost double




the current cost of drilling.  An often ignored fact is that the money




available to finance drilling operations is not infinite in supply.  When




non-productive expenses such as compliance with unnecessary federal regulations




increase, there is less money available to drill wells.  Besides adding to




the cost of energy, such regulations as the EPA is proposing greatly impede




production of our domestic energy reserves.  And at what benefit to our




environment?  Practically none, as the EPA has itself stated.  Drilling muds




and reserve mud pits pose no danger to persons or to the environment under





current operating procedures.




     The Environmental Protection Agency has conceded that there is little




or no evidence to indicate that there are hazards posed by special wastes such




as drilling fluids.  We concur with the wisdom of the EPA in giving drilling




fluids special treatment.  We fail to see, however, how the standards as




currently proposed afford any meaningful regulatory relief to the special




waste category.  For these reasons, the Petroleum Equipment Suppliers Association




respectfully suggests that drilling fluids be exempted from the proposed




hazardous waste regulations until such time as the Agency has a thorough




understanding of the characteristics of special wastes and the degree of




environmental hazard, if any, posed by them.

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                             STATEMENT OF
                       GEORGE FRED  RHODES FOR
                    TEXAS  COASTAL & MARINE COUNCIL

      I am George Fred Rhodes of Port Lavaca, Texas, appearing here
today as a member of the Texas Coastal and Marine Council.  The Coastal
and Marine Council is a state agency directed by statute to assess and
evaluate various activities impacting the coastal sector of the State
and to recommend to the State Legislature any programs or policies deemed
appropriate.
      In that connection,  the Council has undertaken a study of solid
waste disposal  practices in the State and focused specifically on the
concept of perpetual care.  Two University of Texas law school professors
were engaged in study of the legal  basis for establishing such a program
and the question of continuing liability.  Copies of their reports to
the Council are contained in the material I am submitting here today.
      Also in the packet submitted  for the record is a copy of the
report and recommendations that the Council adopted for submission to
the Legislature and a copy of Senate Bill 499, now under consideration
in the State Legislature.   That bill would implement the recommendations
by imposing a fee on the generators and/or disposers of non-radioactive
industrial sol id waste.
      Radioactive solid wastes are  treated separately in Texas law, and
are not included in the type of wastes with which we are concerned.  A
copy of H.B. 1551 dealing with radioactive wastes is incorporated in
the packet for your information.
      The bill  would authorize the State Department of Water Resources
to assess a fee--not to exceed fifty cents (50
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transporters, or disposers who fully participate in legal compliance
with the law and State regulations would be immune from any further
liability to the State.
      There is in the bill a provision authorizing agreements with the
Federal government to assure compatibility of concept and programs under
the Resource Conservation and Recovery Act of 1976.  It is our hope and
feeling that the Texas program will be complementary to the measures
being discussed here today.   At this point in time, there are only a
few real problem sites in Texas, and we propose to eliminate those
problems as quickly as possible whi~>e minimizing the chances for new
ones.
      I will try to answer any questions you may have regarding this
material.   Thank you for the opportunity to appear.
                                -2-

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    REPORT TO THE 66th  LEGISLATURE ON  SENATE RESOLUTION 471,




LONG-TERM MONITORING OF INDUSTRIAL SOLID WASTF DISPOSAL FACILITIES












                           DECEMBER 11,  1978

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REPORT TO THE  66th LEGISLATURE ON  SENATE  RESOLUTION  471,  LONG-TERM




MONITORING OF  INDUSTRIAL SOLID WASTE DISPOSAL FACILITIES




                               INTRODUCTION








During the 65th Legislature, the Texas Stnte Senate  adopted Resolution




471 pertaining to "an assessment of the need to create a  perpetual care




±und to insure that(industrial waste disposal) sites  can he properlv




maintained in  an equitable  fashion without placing an undue burden on




the tax payers of the State of Texas."  The Senate Resolution directed




that the Texas Coastal and Marine Council, in cooperation with the




Texas Department of Water Resources, the  Gulf Coast  Waste Disposal




Authority, and other interested and knowledgeable parties, undertake




this assessment and present a report to 66th Legislature  when it con-




venes in 1979.  The following report describes the work undertaken and




the conclusions drawn by the three primary agencies  designated to




conduct the assessment.








To initiate the cjssessment, three studies were immediately commenced




to examine three aspects of perpetual care system for industrial solid




waste disposal facilities.  These were a  legal study to examine




liability of waste generators under present Texas law and examine




options for addressing these liabilities  in further  statutory develop-




ment,  a legal study examining similar statutes and constitutionality




of such a system, and an examination of past disposal problems and




waste generation and management practices.  Pertinent results of these




studies are discussed in this report, anc1 a summary  report of each




study is contained in the Appendix.

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I.  HISTORICAL BACKGROUND OF THE REGULATION OF INDUSTRIAL SOLID WASTE




    MANAGEMENT IN TEXAS








Direct regulation of industrial solid waste disposal in Texas began witfi




the enactment of the Texas Solid Waste Disposal Act in 1969.  With this




Act, the 61st Legislature assigned jurisdiction of solid waste management




<-o the Texas Water Quality Board and the Texas Department of Health.




 I.A. TWO TYPES OF SOLID WASTE ARE RKCOGNIZED BY THE ACT




For purposes of assigning jurisdiction, two types of solid waste are




recognized by the statute.  The first is municipal solid waste which




includes discarded or unwanted materials produced by municipal sources,




such as normal household refuse and similar wastes from businesses and




commercial activities.  The second, industrial solid waste, includes all




discarded'or unwanted materials from any process of industry, manufacturing




or agriculture.   Industrial solid wastes include solids, slurrys, or




liquids - a material does not need to be in a solid state to be classified




as an industrial solid waste.  When both industrial and municipal solid




waste are simultaneously involved in any activity subject to regulation,




the Texas Department of Health is arbritrarLly assigned jurisdiction over




the activity.




 I.B.  PERMITS REQUIRED EXCEPT FOR ON-SITE DISPOSAL




The Act authorized the Texas Water Quality Board to require permits for




activities of storage, handling and disposal of industrial solid waste.




However,  the Act prohibited the requirement of permits for disposal




activities undertaken on land which was (I) owned or controlled by the




waste generator, (II) located within 50 miles of point of generation and




(III)  used only for the disposal of that generator's waste.

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    I.C. INITIAL  RULES  IMPLEMENTED  IN  1970




Regulatory implementation of  the Act  by  the Texas Water Quality  Board




commenced in  1970 with^adoption of a  regulation  establishing design




criteria and  permit  requirements for  commercial  disposal operations.




This initial  rule also established the basic policy  that the waste




generator is  responsible for  assuring that waste produced by him is




properly and  safely  disposed  ot regardless of disposal process employed,




Also by rule, the Texas Water Quality Board established requirements




for a certificate of registration whereby each non-commercial facility's




compliance status would be established and regularly  reviewed.




  I.D. ADDITIONAL RULES IN 1975 AFTER PUBLIC 11KARINGS




Subsequent regulatory  development came in 1975.  After lengthy public




hearings Texas Water Quality  Board revised their industrial solid waste




regulations to establish uniform performance standards for all disposal




operations.   The 1975  rule prohibited discharge  to ground water  or




surface water, creation of any nuisance  or public health problems, and




disposal at unauthorized locations.  Also, the rules  called for  the




development of technical guidelines outlining recommended technical




standards for various  methods of industrial waste storage and disposal.




These guidelines were  to be made available to the general public, waste



disposal industry, and waste  generating  industries.




The regulatory piogram operated today by the Texan Department of Water




Resources is  fundamentally the same as that begun with the 1975  Texas




Water Quality Board  regualtions, although several refinements in the



rules have occurred  since that time.








II.   SPECIFIC ASPECTS OF CURRENT REGULATION BY THE T.D.W.R.
  II.A. PERMITS




Controls over storage, processing and disposal facilities are implementec

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two ways.  First, permit requirements are applicable to all facilities




except those located on the generating plant site.  Through the permit




application process of evaluation, public hearing, and issuance/denial,




the Texas Department of Water Resources is able to assure that the



facility will conform to the established technical standards and comply



with the performance requirements.  The permit establishes the site-




specif-ic restrictions necessary to minimize the potential of adverse



environmental impact.  Compliance with the permit requirements is sub-



sequently monitored by Texas Department of Water Resources' field




inspectors.



  II.B. REGISTRATION OF ON-SITE FACILITIES




The second means by^ which facility control is implemented pertains to




on-site disposal facilities.  The Texas Department of Water Resources'




rules require that prior to commencing operation of on-site facilities,




the operators must notify the Texas Department of Water Resources at



which time plans and specifications for the facility may be reviewed




for conformance with established technical standards and for expected




compliance with the performance requirement.   Once the notification has



been filed, the operation may commence.  However, once under way, the



on-site facility is also subject to routine compliance monitoring of



the Texas Department of Water Resources' field inspectors.



  II.C. CONTROLS OVER SHIPPING OF INDUSTRIAL WASTES



Controls over off-site disposal of hazardous wastes are achieved with




requirements applicable to all generators, carriers, and receivers of




such waste.  Texas Department of Water Resources' rules require complianci



with shipping control procedures in which the waste generator originates




a shipping control ticket (trip ticket) designating the disposal site




and the carrier of the waste.  Reports are subsequently collected from

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from the waste generator and the disposal sites thus enabling cross




check verification of compliance with this requirement.








This program emphasizes control over such wastes from their inception




to their ultimate disposal.  This approach to hazardous waste manage-




ment has been termed "cradle to grave" regulatory control and is




designed not only to regulate commercial and on-site disposal but also




to prevent illegal dumping.




  Il.D. FACILITY CLOSURE/SURETY ROMPS:




Two features of the Texas Department of Water Resources' program for




storage, processing and disposal sites are pertinent to the subject of




long-term monitoring and protection.  First, Texas Department of Water




Resources' rules require that the operator of a permitted storage




processing or disposal facility must obtain a surety bond or other




financial assurance to provide, in the event of the facility abandonment,




an amount of money adequate to close the disposal facility in accordance




with the permit at no cost to the taxpayer.








As part of each permit application, a closure plan is submitted by the




applicant.  This plan specifics the actions to be done at the time of




facility closure to minimize potential or future adverse environmental




impact.  As part of the evaluation of the closure plan, the Texas




Department of Water Resources' staff calculate the estimated costs of




executing the closing plan.  The permit, when issued, requires the




estimated cost of closure to be available at all times, usually in the




form of a surety bond, during the period of facility operation.

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This  financial assurance requirement is presently in force for all




permitted industrial sqlid waste sites in Texas.  The Texas Department




of Water Resources roqularly reviews Uio closure bonds for adequacy




and has legal authority to institute proceedings to raise the amount




as necessary.




  II.E. DEED RECORDATION:




Second-, section 156.22.01.007 of the Texas Department of Water Resources'




rules requires that prior to commencing a disposal operation, the




operator must record in the county deed records the following information:




A legal description of the plot of land used for disposal, Texas Depart-




ment of Water Resources' waste classification of the material disposed,




and the name and address of the waste generator(s) where specific




information about the waste can be obtained.








This requirement is to assure that knowledge of the disposal site




existence and character is available to future land owners at the time




of property transaction for purposes of assessing the land's possible




uses.  The deed recordation requirements are applicable to all industrial




disposal facilities in Texas.








III.   OVERVIEW OF THE TYPES OF INDUSTRIAL SOLID WASTE MANAGEMENT IN TEXAS:




Texas enjoys an industrial community consisting of approximately 14,000




manufacturing establishments.  The types of industrial wastes produced




by these operations are as varied as the products manufactured and the




services rendered.  With the exception of enmissions to the atmosphere




and radioactive wastes the Texas Department of Water Resouces is




assigned regulatory jurisdiction for all industrial waste management




activities in accordance with the Texas Water Code, Disposal Well Act,




and Solid Waste Disposal Act.

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   III.A. QUANTITY OFWASTE GENERATED:




 In addition to waste water subject  to  treatment and discharge pursuant
                       ».



 to the Texas Water Code,  some  8.5 million tons of industrial solid waste




 produced annually in Texas presents  significant potential for adverse




 environmental impact due  to chemical characteristics and/or great




 quantity.  An estimated 80% of  the  industrial solid waste materials are




 stored, processed, and disposed of  on-sdte by the generators of the waste




 The balance of some 20% is shipped  off-to permitted commcncal facilities




   III.B. QUALITY OF WASTE GENERATED:




 The characteristics of industrial solid waste vary on a wide spectrum.




 Some are essentially inert and  non-toxic such ,.s insoluble construction




 debris, brick, and rubble.  Other wastes, such as industrial trashes,




 sludges, and .slurries and similar materials present short to intermediate




 term pollution hazards depending on  their quantity and degradability.




 Finally, some are highly dangerous duo to their toxicity, flammability




 or reactive characteristics.   Some  highly toxic waste materials are




 extremely stable compounds which tend  to persist in nature for great




 lengths of time.  Hence,  the range of  solid waste includes materials




 warranting little or no protective measures to those requiring careful




 handling and secure long-term  protection.




  111.C. STORAGE AND TRANSPORTATION OF INDUSTRIAL SOLID WASTES_IN TEXAS:




Methods to store and transport  industrial waste materials are quite




 varied.    Storage and handling methods frequently employ containers as




means of short term containment and conveyance.  Containerized storage




usually include enclosed or secured drum storage areas, "dumpsters",




 small buckets, etc.   Wastes handled  in bulk are usually conveyed by




 tank or vacuum truck if in liquid form, and flat bed or dump truck when




 in solid form or when containerized.   Bulk liquids arc occasionally




conveyed by pipelines.

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  111. D .  PROCESSING AND DT PPOSAL IIETI If) D S_ OF INDU ST^IAL SOLID WASTE IN




         TEXAS:




Under Texas lay, "processing" includes virtually all actions of treat-




ment for recovery of solid wastes, however, regulation of "processing"




does not impede desirable recycling of waste materials.  Some processing




and disposal facilities emphasize resource recovery but the majority




emphasize ultimate disposal.  Typically, industrial solid waste manage-




ment facilities employ both land storage arid ultimeite disposal, and




in several cases utilize wastewater  treatment and discharge, high




temperature incineration, and deep well  injection.  The mo.st common




means of ultimate disposal is the landfill or burial facility.  Opera-




tional life of facilities which utilize  this method is directly related




to their landfill disposal capacity.




  III.E.  LANDFILL AND LANDFARM FACILITIES MAY REPRESENT A LONG-TERM,




         LOCALIZED HAZARD_TO__THE ENVIRONMENT:




During operations, all storage and dispsal facilities present some




degree of hazard to the environment ;   but, after facility closure, only



those portions of a facility used for ultimate disposal present any




continuing hazard potential.






Certain disposal methods, such as wastewater discharge and  incineration,




do not present a continuing, localized potential hazard since their




function consists of removal of hazardous character j.srics and dispersal




within the environment.  However, these  processes generally do produce




residues for ultimate, localized disposal.  Landfill and land farm




facilities present some measure of continuing potenrial hazard within




the environment since their function is  permanent containment.  Texas




Department of Water Resources' regulations are directed at minimizing




potential hazards during and after opi ration.  There are over 300 such




facilities in Texas.

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     III.E.I.  LAMDFARMS;




Landfarms, where wastes  are applied to land, utilize the assimilitive




properties of soil to biograde and chemically stabilize the waste.   If




not properly designed and operated, hazardous waste components subse-




quently can be released  in rainfall run-off or absorbed by plants thereby




possibly entering the food chain.




     III.E.2.  LANDFILLS:




Properly designed, constructed and operated, a secure landfill for




hazardous waste will provide containment and hence protection from




hazardous wastes on a permanent basis.  However, if such facilities  are




improperly located, poorly designed and operated, or not controlled




subsequent to closure, serious problems can develop.  Such problems  are




usually related to the containment function.  Such failures may occur




due to non-compliance with design and operational requirements or un-




intentional damage to barriers relioc] upon for waste containment.








IV.  ABANDONED LANDFILLS PRE-DATING THE SOLID WASTE ACT:




  IV.A. AN EXAMPLE OF A  SEVERE PROBLEM CAUSED RY AN IMPROPER LANDFILL




        OPERATION IN THE STATE OF NEW YORK:






An extreme example of the severity of the problems that can result from




improper landfill operations is currently the subject of study and




remedial action in the State of New York.  An abandoned excavation re-




maining from an incompleted canal construction project was used for




dumping by a corporation.  Disposal of chemical wastes in the excavation




began in the 1940's and continued into the 1950's.  The excavation was




not well suited for use as a secure landfill, and secure landfill




techniques were not employed.  Chemical wastes dumped in the excavation




included some highly toxic pesticide production wastes.  In the early




1950's the excavation was filled and capped with four feet of clay

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 soil.  Later, after the property had been sold to a local municipality,




 and despite reported deed restrictions, the city built a public  school




 and sold a parcel of the land to residential property developers.  During



 the home construction activity, the clay cover over the waste deposit




 was apparently removed.  Responding to unusually high incidents  of




 cancer and birth defects in the area, the State Health Commissioner




 direeted that homes built along the waste disposal site be evacuated.




 Remedial measures are being studied to stabilize and secure  the  waste




 disposal site.




  IV.B. EXAMPLES OF ABANDONED SITES IN TEXAS:




                              H. G. KELLEY






 Fortunat.ely, no problems of a magnitude described above with abandoned




 industrial waste dumps have occurred in Texas.  However, there are




 several industrial waste dumps in this state which were abandoned prior




 to the enactment of the Texas Solid Waste Disposal 7\ct in 1969 and




 which are now environmental hazards and have proven to be difficult to



 have satisfactorily closed.






An example of modest success achieved in clean-up is the H. G. Kelley




disposal site in Galveston County, Texas.  Used during the late  1940's




 and early 1950's for disposal of sulfuric acid sludge, the site  presentee




an environmental hazard until attempts began in the mid 1960's to have




 the site closed.  Due to the age of the site, determining primary




 liability was difficult because the contributing companies were  not knowr




or had changed identity.  After lengthy efforts by the Texas Water Quality




Board,  Galveston County, the City of Dickinson, and the land owner, a




successor to the primary generating company donated some $3,000  toward




site closure.   This donation enabled the purchase of enough material  bo

-------
treat the acid waste in the pit to reduce the environmental hazard.




With additional contributions of fill materials from a contractor em-




ployed by the Texas Department of Highways and Transportation, the




site has been about 98% closed.  Efforts continue to complete the site




closure.



  IV.C.  OTHER EFFORTS TO REMEDY HAZARDS AT ABANDONED SITES HAVE BEEN




        LESS FRUITFUL:






In contrast to the degree of success achieved at the H. G. Xelley site,




efforts to close another abandoned site near Texas City has been less




fruitful.  Formerly known as the "Petro Processors" site, the facility




was used for dumping styrene tars and other hazardous waste materials




beginning in 1959.  At least two attempts to reclaim the estimated




380,000 barrels of styrene tars deposited at the site have failed.




Efforts by the state ascertain and place liabilities on the suspected




contributors have not been successful.  Estimates made by the Texas




Department of Water Resources'  staff indicate that the cost of complete




site closure may be as high as 5 million dollars.






Another  effort toward closure of a different disposal site has lasted




approximately 4 years.  Used for dumping by French Limited, Inc., the



22 acre site contains 12 acres where petrochemical waste materials




were deposited during the 1960's and early 1970's.  State enforcement




action resulted in a partial site closure, permit cancellation, and




transfer of the property title to the State.  Although some environmental




hazards  from the site remain, no state funds are currently available




to complete site closure.

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In summary, state efforts toward closing problem disposal sites started




prior to the Solid Waste Act have met with 1imited success due to




'difficulties in determining liabilities and the unavailability of any




public funds to do the job.  Also, only the most pressing problems




have been addressed.  Smaller, loss visible, and perhaps some unknown




•abandoned and inadequate facilities remain to be dealt with.








V .  DISCUSSION OF THE ADEQUACY OF STATE STATUTES f N_D_JRECULATIONJ3 :






The Solid Waste Disposal Act authorizes the Texas Department of Water




Resources to require a permit Cor all industrial wastes storage, pro-




cessing, and disposal facilities, except for those located on the waste




generators' property.  These "on-site" facilities -ire regulated by




Department rule with essentially the same environmental protection being




afforded as if the site were subject to permitting-the only difference




being the applicability of land use considerations.  The 65th Legisla-




ture amended the-Act to extend the permit requirement to on-site faci-




lities which manage hazardous wastes to conform to federal law.  Imple-



mentation of these further permit requirements will begin upon promul-




gation of Environmental Protection Agency's rules which identify the




hazardous wastes that must be rejulated.  These rules are expected




during 1980.






The Solid Waste Disposal Act also authorizes the Texas Department of




Water Resources to require operators of permitted disposal facilities




to provide financial assurance that their facility will be completely




closed at no cost to the public.  This financial assurance requirement




was implemented by state regulation in 1971, and will be applied to




on-site hazardous industrial waste facilities when permit requirements




for these facilities are implemented.

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 By and  large,  then,  the  Texas  Department  of  Water  Resources'  financial




 assurance  requirements and  statutory  authority  for these  requirements




'appear  adequate  to  protect  the public interests in the  situations




 addressed  by  Senate  Resolution 471  where  adverse conditions develop




 when  facilities  are  abandoned  and/or  operators  experiences financial




 difficulty.   However, existing financial  assurance requirements do not




 address  two issues  raised by Senate Resolution  471.  These issues are




 (1) post-closure monitoring and maintenance,  and (2) proper closure  of




 unauthorized  facilities  and problem facilities.








 VI.   POSSIBLE  SCOPE  OF THE PROPOSED LEGISLATION AND LEGAL ISSUES




      RAISED BY THE  TYPE  OF LEGISLATION  SELECTED:






 Any long-term  monitoring statutory  scheme carries  with  it potential




 conflict between two divergent interests.  On the  one hand, waste




 generating and waste disposing industries want  to  insulate themselves




 from  future liability resulting from  their respective business activi-




 ties; while on the other, members of  public  want to be  assured of the




 right of recourse in the event they suffer harm, prop2rty or  personal,




 as a  result of waste generation and waste disposal.






 The legislation  adopted  should recognize  these  two interests.  The




 scope of the legislation adopted will directly  affect the method of




 responsibly rationalizing the  two points  of  view,  and it  is,  therefore,




 important to initially decide  purposes  for which disbursements may be




made  from the  fund.  As  one of the  attached  legal  studies indicates,




 a list of possible purposes would include:




      (1)  Closure of sites not closed or  not  properly closed;




      (2)  Monitoring of  closed  sites  to detect  harmful  conditions,




 such as assumulation or  escape  of gas, drainage  from the  site of

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liquids  (including water containing leached wastes), and physical  impair-




ment of containment devices by erosion, subsidence, earthquake  or  other




factors;




       (3)  Maintenance of closed sites  in safe condition;




       (4)  Cleanup of harmful substances that escape from a  site and




ot associated debris;




       (5)  Abatement of escape of harmful elements  from a site;




       (6)  Compensation of harms caused by stored wastes.  Types of harms




thdt might be compensated would include:




           (a) Personal injuries;




           (b) Death;




           (c) Injury to property;




           (d) Loss of use of property;




           (e) Loss of profits or impairment to earning capacity;




           (f) Interest paid on loans necessitated  by  the incident;




           (g) Loss of taxes by governmental units; and




           (h) Injury to public resources, including wildlife and



               wildlife habitats; and



       (7)  Costs of administering the program.




  VI.A.  THREE LOGICAL LEVELS OF LEGISLATION SCOPE  ARE POSSIBLE:




A minimum program, addressed solely to the prevention  of harm,  would  in-




clude clean-up and abatement of escaped harmful wastes.  A broader program




could include closure, monitoring and maintenance.  A  still  broader program




would seek to compensate some or all of the losses  suffered  from stored




hazardous waste.




  VI.A.I.  THE MINIMUM PROGRAM:




If the legislation adopted is contoured to the minimum program  discussed




above,  there is limited potential for conflict between the indusbries




and the public, and any issues of i.idustrial tort liability  to  third




persons would remain the domain of the courts.

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Although  Texas  jurisprudence with  respect  to potential  sources of




liability producing doctrines  cujainst  the  generator of  hazardous wastes




is equivocal, it  is probable that  tort  liability  for  the generator




would cease when  the waste  is  properly  transmitted to a permitted dis-



posal facility.   The language  in the  legislation  adopted could bolster




this probability.  Regardless  of the  language  selected, however, it  is




unlikely  that the major  entities involved  in the  production and disposal




of hazardous wastes could escape tort  liability for their own actual




fault.  Likewise, it is  unlikely that  any  legislation adopted could




insulate  any entity from liability  for  willful conduct  or gross negligence






It should perhaps be noted  that concepts of clean-up  of harmful sub-




stances afid abatement of escape of  harmful elements at  the disposal




site are  of particular importance with  respect to remedying problems




currently caused  by abandoned  sites which  pre-date the  Solid Waste




Disposal Act.




  VI.A.2. A BROADER PROGRAM:




If a broader program including monitoring  and maintenance is adopted,




more pressure is  placed  on  the two divergent interests  outlined above,




industry vs. the  general public.  Consequently, any language in the




adopted legislation which either directly  or indirectly insulates




industry  from liability  will be scrutinized carefully for constitution-




ality.   As the attached  report by David W. Robertson  suggests, "there




are a number of reasons  to  believe  that	 there are  no serious ob-




stacles to the constitutionality of a statute that would insulate waste




generators who pay into  a perpetual care fund frop tort liability for




harms caused by hazardous waste aftei  i.t is turned over to a permitted




disposal facility."  (see page 18 of the cited report)

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  VI.A.3.  THE BROADEST PROGRAM:




Implementation of the broadest possible program  which  would  include




compensation of harms such as personal injury, death,  injury to




property, loss of use to property, etc. would  create,  the  most  serious




obstacles to the constitutionality of a statute  that would  insulate




waste generators from tort liability for  harms caused  by  this  //aste




after it was turned over to a disposal facility.   On  that basis alone,




j statute with a less ambitious scope mignt  be preferred;  but,  ,1-3 the




attached legal studies discuss, such a statutory  ,::hs,ie  it  constitu-




tionally possible and has beer successfully  implepicntod  in  the




popularly known Price-Anderson Act, which is  in  amendment  of tne Atomic




Energy Act of 1954, 42 USC. section 2011  e_t  beq_.  (1375)




  VLB.  A FUND FOR LONG-TERM MONITORING  Of  SOLID  WASTE  SI1TS  IS HIGHLY




         DESIRABLE AND Tlir. COST SHOULD ?•", BuHNr  HY_ INDUSTRY  AS  A COST




         OF DOING BUSINESS:




A long-term monitoring fund in the hands  of  government,  one  of  the most




permanent of man's institutions,  is highly desirable  to  insure  that an




ability exist to expeditiously address problems  which  nay presently




exist or  which may arise in the  future from  past  industrial solid waste




disposal.






An arguuent can be made that appropilation of  puhlic money  to  pay the




cost of post-closure momtorinq ar.d correction of  environmental problems




after closare and abandonment would PC an unfair  taxpayer burden.  Botn




waste generation activities and the disposal  Dperations  are  undertaken




in pursuit of profits.  It does seem logical,  then,  thai:  costs  of moni-




toring and corrective action from nuch activities  s:.oald  be  the burden




of those industries.  As the attached reports  indicate tn>re are a




number of regulatory programs for industrial  waste  management  in other  state1

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which are  financed directly by  fees  assessed on private  industry.








                                CONCLUSION






The current statutory authority and  the Texas Department of Water




Resources' regulatory program for jndu&LrJal solid waste management




appear adequate with respect to environmental protection from waste




management activities undertaken since the passage of the Solid Waste



Disposal Act.  However,  state resources for correcting problems pre-




dating the Solid Waste Act, and correcting potential problems from




present and future v/aste disposal activities are not available.  The




lack of such resources has severely  limited the Texas Department of




Water Resources1 ability to correct  past problems and can be expected




to hamper future efforts.  Experience and practicality suggest that




ultimate responsibility  for monitoring, control, and future corrective




actions rest with the State.  The cost of both post-closure monitoring




and correction of future environmental problems can be borne by waste




generators and/or disposal site operators.








                             R E C O MM K N D AT I ON S






The following recommendations detail objectives for legislative action




to establish a fund supported by a fee system to provide for long-term




monitoring of closed sites and  clean-up and containment of exposed




hazardous waste materials.




1.  Establish a fund for industrial  solid waste disposal facilities




    and specify that the fund is to be maintained separate from the




    general revenue fund with accumulated interest being paid to the




    specific fund.

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2.  Provide authority for the Texas Department of Water Resources to



    require and collect fees from operators of industrial solid waste



    facilities and/or from generators of industrial solid waste who



    contribute to the disposal site operation.



3.  Provide that all fines resulting from legal actions by the State



    against industrial solid waste facilities, any gifts, unexpended




    forfeited closure bond funds, and legislative appropriations be



    placed in the fund.




4.  a.  Establish a maximum fee per unit quantity of industrial solid



        waste deposited in a given facility and authorize the Texas



        Department of Water Resources to establish a fee schedule based




        upon waste characteristics and disposal methods.



    b.  The benefits of the fund could be initiated much more quickly




        if an initial appropriation of state funds were provided to



        establish the fund.  Initial appropriations could be repaid



        to the 'general revenue fund after implementation of fee schedule



        and collection of fees by the Texas Department of Water Resources



5.  Establish the purpose of the fund to be paying costs of monitoring



    disposal facilities after final closure and abandonment and for



    correction of present and potential adverse environmental impacts



    from such closed or abandoned facilities.



6.  Limit the applicability of the fund and collection of fees to those



    facilities where industrial solid waste is disposed by means where




    the disposal is considered by the Texas Department of Water Resources




    to be "ultimate disposal" and where the potential for adverse



    environmental impact from the facility will exist after closure and




    abandonment.



7.  Specify when the fund may be accessed by the TDWR for authorized




    purposes:

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     a.  Upon & subsequent to permit cancellation, or



     b.  Upon abandonment by the facility operator, or




     c.  Up'on determination by the TDWR that an imminent threat exists



         to the public or water resources of the state, or



     d.  Upon determination by the TDWR that all legal actions seeking



         civil penalties for correction of adverse environmental impact



         frprn the facility have been exhausted.



 8.  Provide authority for the Texas Department of Water Resources to



     determine whether a future activity undertaken at any closed



     facility site will increase the potential for or result in adverse



     environmental impact from the closed facility, or otherwise inter-



     fere with the Department's monitoring of the closed facility and,



     if so, authorize the Texas Department of Water Resources to exer-



     cise control over the activity.



 9.  Provide authority for the Texas Department of Water Resources to



     enter  into any agreement with the U.S.  Environmental Protection



     Agency which may be necessary and appropriate to assure compatibility



     of the Texas long-term monitoring fund with any similar system



     established pursuant to the Federal Resource Conservation and Recover



     Act of 1976 or any subsequent federal legislation.



10.  Provide that the state shall file suit against any and all respon-



     sible  parties to recover monies spent from the fund.



11.  Provide for a concept of "successor liability" so that purchasers



     of oi,  going waste disposal companies or of land where wastes are



     deposited acquire title subject to liabilities incurred by their



     predecessor (s).

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OPTIONS FOR ESTABLISHING AND ADMINISTERING A PERPETUAL



             CARE FUND FOR HAZARDOUS WASTES
                       A Poport



                          bv



                  Corwln W. Johnson



                         for



         The Texas Coastal and Marino Council
                      May, 1978
                                                       W i •• 1978

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                         TABLE OF CONTENTS

  I.  Introduction

 II.  Statutory Survey
      A.  Perpetual Care Funds for Hazardous  (Non-radioact ivc
          Waste .Disposal Facilities .............   1

      B.  Funds for Radioactive Wastes  ...........   3

      C.  Abatement or Cleanup Funds for Harmful Conditions
          Due to Hazardous Wastes ..............   4

      D.  Funds for Spills of Oil and Hazardous Substances.  .   7

          1.  Texas Oil and Hazardous Substances Spill
              Prevention and Control Act ...........   7

          2.  Funds in Other States for 0:1 and Hazardous
              Substances Spills ................   8
          3.  Funds Created by Congress for Oil and Hazardous
              Substances Spills 	  11

          4.  Proposed National Comprehensive Fund for
              Oil Spills	  13

      E.  Nuclear Incidents - The Price-Anderson Act	15

III.  Disbursements	  18

 IV.  Funding	  24

  V.  Liability	27

 VI.  Financial Responsibility	  31

VII.  Preemption	.,	  36

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I.  Introduction

    If the Texas Legislature undertakes to establish a perpetual

care fund for expenditures incident to the long-term storacje of

hazardous wastes, there are several options available to it.  This

report is intended to identify those options and to provide analy-

sis and information that would be helpful in choosing among those

options.

    This report is based in the main upon study of materials re-

lating to analogous funds established by state legislatures and

by Congress.


II.  Statutory Survey

    A.  Perpetual Care Funds for Hazardous (Non-radioactive)
        Haste Disposal Facilities

        No statute in the United States has been found that

establishes a comprehensive fund for closing, monitoring and

managing hazardous waste disposal facilities and for reimbursing

costs for harms due to malfunctioning of such facilities.  Several

fragmentary programs, addressing only some aspect1? of the problem,

have been found.

        A Kansas statute directs a state official to collect fees

from "permittees operating hazardous waste processing facilities

or areas, sufficient, but not exceeding the amount necessary to

reimburse the state for the costs of monitoring such facilities

and areas during and after operation of such facilities or areas."

These fees are deposited in the state general fund.  Kan. Stat.

65-3406(n)  (Supp. 1977).

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    A Maryland statute established the "Maryland Hazardous

Substa'nce Control Fund," to be used tor cleanup of state waters

and natural resources damaged by designated hazardous substances

and also for "Program development activities designed to identify,

monitor, and control the proper disposal of hazardous substances."

This fund is to consist of fees paid for permits for operation of

facilities.  These fees are site-specific, the fee for a parti-

cular facility to be determined administratively by considering

the following factors:

        "(1)  The threat that the designated hazardous
        substances may present to the environment;
         (2)  The anticipated costs of monitoring and
        regulating the disposal facility;
         (3)  The anticipated costs attributable to the
        removing and properly disposing of all designated
        hazardous substances that may escape from the
        facility; and
         (4)  Anticipated needs for program development
        activities relating to designated hazardous sub-
        stances. "

    An Oregon statute provides for a separate fund for each

facility  upon wastes as they are received, to be composed of fees

"calculated in amounts estimated to produce over the use of the

site for disposal a sum sufficient to provide for any monitoring

or protection of the site after closure."  Or. Rev. Stat. 459.517

(1) (1977).  This fund is in addition to a requirement of a cash

bond,  which may be withdrawn when the fund for a particular site

reaches the amount of the.cash bond.

    One statute has been found that undertakes to provide money

for perpetual management of a specific state-owned facility,

administered by a state department, either directly or by agree-

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ment with the public or private parsons or entities.  This is




a Washington stal.utc authorizing the Department of Ecoloyy to




recover fees from users of the facility to cover "the cost of




administration of this chapter and the cost of development,




operation, maintenance, and perpetual management of the disposal




site."  Wash. Rev. Code 70.105.040 (Supp. 1976)..  The statute does




not expressly authorize use of the fund created by these fees




for cleaning up wastes that escape from the facility, though




this could be implied.  The statute also fails to authorize




use of the fund for compensation of harms caused by wastes stored




at the facility.




    B.  Funds for Radioactive Wastes




        A few statutes establish fund:; for manaqcmcnL of dis-




posal of radioactive wastes.  These are very brief, compared with




the oil spill fund statutes discussed later in this report.




A Washington statute, Wash. Rev. Code 43.31.300 (.Supp. 1976),




directs a state official to assume responsibility for "perpetual




surveil]ance and/or maintenance of radioactive materials held for




waste management purposes at any publicly or privately operated




facility located witnin the state in the event the parties




operating such facilities abandon said responsibility. ..." Col-




lection of fees from such facilities "exclusively for surveillance




and maintenance costs" is. authorized, such fees to constitute a




"perpetual maintenance fund" in the custody of the state- treasurer.

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The South Carolina legislature lias enacted a substantially

identical act.  S.C. Code 13-7-30  (1977).

    Nevada's statute covers not only radioactive wastes, but

also "chemical wastes."  1977 Nov. Stats. 112.  It is applicable

only to state-owned facilities.  Authorized disbursements include,

in addition to payment of "all costs of monitoring, securing

or otherwise regulating the storage or dinposa]" of wastes,

purchase  of land for disposal sites and payment or administra-

tive and regulatory costs.  Determination of the proper size

of the fund is delegated to the state aqency head and the gover-

nor.  Wlven they decide that the fund is sufficiently larqo, fees

thereafter collected are deposited in the general fund of the

state.

    A Kentucky statute levies an excise tax of ten rents per

pound "upon all contaminated waste materials and all radioactive

waste materials delivered in the commonwealth of Kentucky for

processing, packaging, storage, disposal, burial or other

disposition," to-be paid by the "processor."  1976 Ky. Acts 772.

The statute is silent as to disposition of the revenues from

this tax, which evidently is left to the administrative discre-

tion of the state agency involved.

    C.   Abatement or Cleanup Funds for Harmful Conditions Due
        to Hazardous Wastes

    A California statute established the California State Water

Pollution Cleanup and Abatement Account as a unit of the State

Water Quality Control Fund, administered by the State Water Resources

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Control Board.  Cal. Water Code S§ 1 34 40-.1 J442  (Webt 1971).




This board is authorized to disburse money from the fund




to a "public agency with authority to clean up a waste or




abate the effects thereof" for the purpose of assisting it




"in cleaning up the waste or abating i Is effects on the waters




of the state."  Although this statute does not expressly ad-




dress problems of waste disposal sites, it. wouLd be applicable




to abatement and cleanup of condition:; cit such r;itos that arc




harmful to state waters.  Use of the fund for management, closure




or monitoring of disposal sites is not authorized by the statute.




The statute also fails to provide for compensation of harms




caused by wastes.  The fund may receive money from legislative




appropriations, gifts, one-half of certain fines and c/viL




ponalitics, and certain reimbursements of cleanup or abatement




costs from parties responsible for such costs.




     This program proved to be inadequate to deal with the




leaching of   hazardous wastes from a certain quarry that had



been used as a hazardous waste disposal :;ite  (tne Str] mjfellow




site in Riverside County).  A separate statute was enacted  to




deal with this problem, this statute-consistinq chiefly of  an




appropriation of funds solely for ab.itorient of  the leaching




at this site and for  "maintaining and monitoring the site  to




prevent future recurrence of any such condition."  1977-78  Reg.




Sess., Cal. Legis. Serv. Ch. 785  (West).




     Dissatisfaction  with the California State- Water Pollution




Cleanup and Abatement Account as a solution of problem:1;  inci-




dent to hazardous waste disposal sites was also  indicated  by




the introduction in the California Legislature  in 1977 of  a bill,




S.B. 1130, which would authorize a regulatory agency to  require

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that owners or operators of  "environmentally hazardous liquid-




was to disposal sites" provide assurance that such sites will




be closed and maintained in  a satisfactory manner.  Such



assurance could be provided  by any or all of the following,




as required by the agency:   a cash bond in the name of the




state, liability insurance,  and a "separate monetary fund."




This bill was not enacted.




     Funds for abatement and cleanup of hazardous waste condi-




tions were proposed for Michigan in 1977, but were not adopted.




These proposed funds were similar to the California fund in




that they could not be used  for management, closure 01  monitor-




ing of waste disposal sites, or to compensate harms.




     Section 14 of one proposed act, 'State Treatment and Dis-




posal Facilities for Hazardous and Toxic- Wastes Act of 1977,




would establish a hazardous  and toxic waste emergency fund of




$500,000, financed by gifts, federal funds and appropriations,




to be expended by the director of the department of natural




resources for any work related to an emergency in the handling,




transportation, storage or disposal of hazardous or toxic



wastes.   If such wastes are on private property, the owner




of that property shall reimburse such expenditures, which shall




be liens upon the property.




     Section 12(2)  of the other proposed act, the Liquid Waste




Disposal Act of 1977,  would establish a similar fund,  desig-




nated a  "revolving emergency fund from which the department may

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spend up to $50,000.00 per incident ,ib»ting effects of a dis- .

charge or an accumulation of wastes which poses an imminent

threat to the health and safety of the people of the <5tate or

destruction of natural resources, if it is apparent that the

person responsible for the discharge or accumulation cannot

or will not take the corrective action."

     D.  Funds for Spills of Oil and Hazardous Substances

     Many state and1 federal statutes have es< ablished funds to

deal with spills of oil and some of thcoe funds are also ap-

plicable to hazardous materials other than oil.  They have no

application, or only limited application, to waste disposal

sites, but examination of sucn programs may be helpful in under-

standing the range and nature of options available for estab-

lishing and administering a perpetual care fund for ha/ardous

wastes.

        1.  Texas Oil and Hazardous Substances Spill Prevention
            and Control Act.

        The Texas Coastal Protection fund is established by the

Texas Oil and Hazardous Substances Spill Prevention and Con-

trol Act.  Tex. Water Code An i. § 26.?f-l c;t sf |.  (Vornon Supp.

1978).  This is applicable only to a "discharge or spill"  into

"coastal waters" of the state.  However, since  the tern  "dis-

charge or spill" is defined as embracing oil or hazardous  sub-

stances that are "deposited where, unless controlled or  removed,

they may drain, seep, run, or otherwise enter  coastal water  in

this state," the act could have some application  to some hazard-

ous waste disposal sites.

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     This fund consists of money appropri ,Ued by tho legisla-

ture, fines, and reimbursement of cleanup costs by the federal

government and responsible parties.  Its  si-ze is limited to

S5 million, exclusive of fines and penalties.  This fund, admin-

istered by the Department of Water Resources, may be expended

"only for the purpose of obtaining personnel, equipment, and

supplies required in the cleanup of discharges and spills, in-

cluding restoration of beaches and marine resources."  Section

26.267, captioned "Exemptions," consists of two subsect: i oi.s.

Subsection (a) provides:  "No person shall be. held liable under

this subchapter for any accident resulting from an act of

God, act of war, third party negligence, or an act ci govern-

ment."  Subsection  (b) provides:   "Nothing in this >'ubc!iaptei

shall in any way affect or limit the liability of any person

to any other person or to the United States, or to this state

except as specifically provided in Section 26.265 (b) (2) of

this code."    Section 26.265(b)(2) provides that "in the event

that federal reimbursement .is not available, the state shall

seek to recover cleanup costs from the responsible party.  If

the responsible party refuses to pay, the state shall initiate

legal action to collect the actual costs, provided, however,

that such recovery may not exceed $5 million."

     2.  Funds in Other States for Oil and Hazardous Substances
         Spills

     Statutes establishing fundn in some other st ttos for oil

and hazardous substances spills are much more comprehensive  than

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the Texas fund statute.   The most comprehensive are the statutes

of Florida, Fla.  Stat. Ann. § 376.11 ot scq. (Supp. 1978), Maine,
    *
Me. Rev. Stat. tit. 38,  § 541 ot seq. (Supp.. 1977)  and New

Jersey, N.J. Stat.  Ann.  § 58:10-23.11 (West Supp. 1977).  All

of these funds are supported largely by taxes or foes imposed

upon handlers of oil or hazardous substances.  All of these

funds may be expended, not only for cleanup costs,  but also to

compensate  some  harns.              Suits for reimbursement

of these funds may be brought by the state against those res-

ponsible for the spills.  In such suits, the .discharger is

strictly liable,  with certain qualifications.  These qualifica-

tions in each of the three states are not identical.  The

New Jersey statutory provision regarding the scope of liability

are the most detailed and are set forth here:

     58:10-23.llg  Liabilities for cleanup and removal costs and
                     direct and indirect damages
        a.  The fund shall be strictly liable, without re-
     gard to fault, for all cleanup and removal costs and
     for all direct and indirect damages no matter by whom
     sustained, including but not limited to:
        (1)  The cost of restoring, repairing, or replacing
     any real or personal property damaged or destroyed by
     a discharge, any income lost from the time such property
     is damf.cied to the time such property is restored, re-
     paired or replaced, and any reduction in value of such
     property caused by such discharge by comparison with its
     value prior thereto;
        (2)   Tho cost of restoration and replacement, where
     possible, of any natural resource damaged or destroyed by
     a discharge;
        (3)   Loss of income or impanment of earning capacity
     due to damage to real or personal property, including
     natural resources destroyed or damaged by a discharge;
     provided that such loss or impairment exceeds 10% of the

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     amount which claimant derives, based upon jncome or
     business records, exclusive of other sources of
     income, from activities related lo the particular
     real or personal property or natural resources
     damaged or destroyed by such discharge during  the
     week, month or year for which tho claim  is filed;
         (4)  Loss of tax revenue by the State or  local
     governments for a period of 1 year due to damage to
     real or personal property proxin.itely resulting from
     a discharge;
         (5)  Interest on loans obtained or other  obligations
     incurred by a claimant for the purpose of ameliorating
     the adverse effects of a discharge pending the payment
     of a claim in full as provided by this act.
        b.  The damages whicli nay be recovered by the fund,
     without regard to fault, subject to the defenses enu-
     merated in subsection d. of this soctio.i, against
     the owner or operator of a major facility or vessel,
     shall not exceed $50,000,000.00 for eacb major facility
     or $150.00 per gross ton for each vessel, except that
     such maximum limitation shall not apply and  the owner
     or operator shall be liable for the full amount of such
     damages if it can be shown that such discharqe was the
     result of (1) gross negligence or willful misconduct,
     within the knowledge and privity of the owner, opera-
     tor or person in charge, or (2)- a gross or willful viola-
     tion of applicable safety, construction or operating
     standard:; or regulations.  Damages which m.iy be re-
     covered from, or by, any other person shall  be limited
     to those authorized by common or statutory law.
        c.  Any person wiio has discharged a hazardous sub-
     stance shall be strictly liable, without regard to
     fault, for all cleanup an,d removal costs.
        d.  An act or onission caused solely by war,
     sabotage, governmental negligence, God, or a third
     party or a combination thereof shall be the  only
     defenses which may be raised by any owiu?r or operator
     of a major facility or vessel responsible foi  a dis-
     charge in any action arising under the provisions of
     this act.  For the purposes of this act, no  employee
     or agent of sucli owner or operator shall l.e  considered
     as a third party.  Any other person shall have avail-
     able to him any defense authorized by common or
     statutory law.

     Suits challenging the validity of the Florida  and Maine

statutes have failed.   Askew v. American Waterways  Operators,

411 U.S. 325 (1972);  Portland Pipeline Corporation  v._ Environ-

mental Improvement Comm., 307 A.2d 1 (Me. 1973),  appeal dismissed,

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414 U.S. 1035 (1973).

     '3.  Funds Created by Congress for Oil and Hazardous Sub-
         stances Spills

     Several acts of Congress address the oil spill problem.

The act having the broadest application is the Federal Water

Pollution Control Act of 1970, as amended.  33 U.S.C. § 1321

(Supp. V 1975).   It authorizes government removal of oil spills

and recovery of the cost of such removal from the owner or

operator of the vessel or facility involved, subject to certain

defenses and to maximum liability limits of $14 million for

vessels (or $100 per gross ton, if less) and $8 million for

facilities, these limits being inapplicable to spills resulting

from "willful negligence or willful misconduct."  No fund is

established by this act, but evidence of financial responsibility

must be established by insurance, surety bonds or otherwise.

     Pursuant to the Outer Continental Shelf Lands Act, 43 U.S.C.

§ 1331 e_t seq. (Supp.  V 1975), regulations make lessees of the

United States strictly liable without .1 lnutat ion for total

removal of oil discharged by them.  Geological Survey, Oil and

Gas and Sulphur Operations in the Ojter Continental Shelf, 30

C.F.R. § 250.43 (1969).  No fund is established by these regu-

lations.  However, a fund would be established by amendments to

this act proposed by S. 9, now pending in Congress.  Sec Outer

Continental Shelf Land Act Amendments of 1977:  Report of the

Committee on Energy and Natural Resources, S. Rep. 95-284, 95th

Cong., 1st Sess.  (1977).

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     The Deepwator Port Act of  '974, 33 U.S.r. § 1501 ct seq.




(Supp. V 1975), undertakes to donl with oil spills  in the




vicinity of deepwater port.c; beyond the territorial  t.cas and off



the coasts of the United States. It establishes the Deepwater




Port Liability Fund,  a "nonprofit corporate entity which may




sue or be sued in its own name" and which is administered by




the Secretary of Transportation.  This is a "back-up" fund,




.i.e. , it may be used only to satisfy claims in excess of




compensation received fromthe responsible parties.  Subject




to this qualification, the fund is liable without fault for




cleanup costs and "all damages suffered by any person, or in-




volving real or personal property, the natural resources of




the marine environment,  or the coastal environment of any




nation, ..."  The fund is financed by fees imposed  uponthe




handling of oil, such fees to cease when the fund reaches and




maintains S100 million.  If necessary, the fund may borrow




from the U.S. Treasury.  This act also imposes liablity with-




out fault (subject to certain defenses) upon the responsible




parties for cleanup costs and damages, limited to $50 million




for port licensees and $20 million  {or $150 per gross ton)




for vessels in fhe absence of "gross negligence or willful




misconduct" by the responsbile parties.  The fund in some




instances may be subrogated to claims against responsible




parties.




     The Trans-Alaskan Pipeline Act, 43 U.S.C. § 1653 et seq.




(Supp. V 1975), is similar in many respects to the  Deepwater




Port Act of 1974.   It establishes the Trans-Alaska  Pipeline




Liablity Fund to compensate cleanup costs and damages suffered




from discharges of oil from vessels loaded at pipeline facili-

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ties.  This, too, is a "back-up" fund, which is liable only for




claims exceeding $14 million, for which the owner and operator




of tne vessel are jointly and severally liable without fault,




subject to stated defenses.  Unlike the Deepwatcr Port Liability




Fund, the liability of the Trans-Alaska Pipeline Liability




Fund is limited to $100 million for a single incident.  If




claims exceed that figure, they shall be reduced proportionately.




A fee levied upon owners of oil loaded onto vessels finances




the fund to the extent of maintaining it at $100 million.  If




the fund is unable to satisfy an approved claim, it may borrow




from any commercial credit source.




     4.   Proposed National Comprehensive Fund for Oil Spills




     Dissatisfaction with existing state and federal programs




for handling the consequences of oil spills, criticized as a




patchwork of inconsistent and ineffective laws, has led to




introduction in Congress of bills that would establish a single




comprehensive fund that would replace in large part the exist-




ing state and federal laws.  The bil] supported by President




Carter is S. 1187,  95th Cong., 1st Sess. (1977).  Hearings on




tills bill and similar bills (S.  12], S.  182, S. 687 and S. 098)




were held by the Committee on Commerce,  Science, and Transpor-




tation,  U.S. Senate,  on June 9,  10 and 20,  1977.  The report




of these hearings,  Oil Spill Liability and Compensation,




Serial No.  95-27,  contains much information about, and analysis




of,  existing and proposed oil spill fund laws.   This committee




also directed publication of a Committee Print  (94th Cong.,




1st Sess.,  1975) of a Department of Justice study of the problem,

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entitled Methods and Procedures for Implementing a Uniform

Law Providing Liability for Cleanup Costs and Damages Caused
    »          *
by Oil Spills from Ocean Related Sources.

     These bills are generally similar, but are different

from each other in some respects.  All would establish a fund,

financed primarily by fees  (excise taxes) imposed upon certain

handlers of oil.  The funds would ho limited to a stated size,

but approved claims would be paid even though they exceed the

sun of money in the fund.  Money would be borrowed to meet

such claims.  Such debts would be repaid from, fees subsequently

imposed.  All of the bills would authorize payment from the

fund of claims for both cleanup costs and some harms resulting

from spills.  The list of types of compensable harms is broad,

including:  injury to property (real or personal), loss of use

of property, injury to natural resources, loss of use of

natural resources, loss of profits Or impairment of earning

capacity due to injury to property or natural resources

owned by others, and loss of tax revenue due to in]ury to

property owned by others.  None of thn bills would compensate

personal injuries or death.  Claimants for compensation fron

the fund would not be required to establish that the spill

was due to the iault of anyone, but fault (as defined in the

bills) on the part of a claimant would bar his claim to compen-

sation fron the fund.   "The fund proposed by some of these

bills is a "back-up" fund, available only after failure of

claimants to obtain redress from responsible parties, but the

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 fund proposed by other bills is a " fro.it -end" fund, to which




 claims  may  bo presented in the fir.it  i nstance.




      The comprehensive oil spill fund Dills al..o establish




 the  bases and limits of liability of persons ro«,ponsihie  for




 OJ1  spills  in suits brought against thorn by in]utod parties




 or  by the fund for reimbursement.  The owner and operator of




 a  vessel or facility which is the source of oil pollution




 are  made jointly, severally and strictly liablo for all damages




 for  which a claim may be asserted against the fund.  Maximum




 dollar  limits of liability are established for both cleanup




 costs and damagis by some bills, but only for damages by




 other 'bills.   These limitations are not appliahle when




 the  conduct of the defendant was particularly ,-,1 irneworthy,




 such as gross negligence, willful misconduct , willful viola-




 tion of regulations, or refusal of cooperation in cleanup




 operations.   All of the bills pioviele that acts of war and




 negligence  or intentional ~icts by olaimntr aic. deLeiv-.es  to




 liability.   Some bills also recognise the defenses of acts of




 God  and acts  of third parties.




     E.   Nuclear  Incidents - The  Price-Anderson Act




     The Price-Anderson Act, which is an amendment  of  the  Atomic




Energy Act of 1954,  42 U.S.C.  §§  2011 et seq.  (Supp.  V  197r.J,




undertakes to provide protection  from "nuclear  incidents"  by:




 (1)  mandating the Nuclear Pegulatory f'c mini ssion  to  require as




a condition in licenses for nuclear power  plants  that  licensees




maintain financial protection  for payment  of  third  party  liability

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claims, typically by insurance, to the greatest extent possible




for the larger plants; (2)  providing that the commission agree




with licensees to indemnify licensees and other parties liable




for claims arising from a nuclear incident above the amount of




insurance or other private protection required, up to $500 mil-




lion for each incident; and (3) limiting the liability of licen-




sees and others for damages arising from a nuclear incident occur-




ring within the United States to $560 million.   I'hus,  the act




shifts a substantial portion of the cost of compensating vic-




tims of a future nuclear incident from those engaged in the,




nuclear industry to the government and to victims.  This was




said to be necessary in order to effectuate the national policy




of encouraging the development of private nuclear power plants




"in the interest of the general welfare and of the common de-




fense and security," [§ 2012(i)] in view of the asserted reluc-




tance of private industry to engage in the development of nu-




clear power in the face of potential liability far exceeding the




amounts of liability insurance available.  Sec Green,  Nuclear




Power:  Risk, Liability, and Indemnity, 71 Mich. L. Rev. 479




(1973); 1975 U.S. Code Cong. & Ad. News 2251.




     The Price-Anderson Act, first enacted in  1957, was limited




to a ten-year period.   It has been extended twice, and is now




effective until August 1, 1987.  The limited duration feature




of the act stems from an expectation that the  need for some of

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the provisions of the act would diminish with the passage  of




time.'  The amount of private insurainv available was expected




to increase and indeed has done so, r in ing from $60 million  in




1957 to $125 million in 1975.  The 1975 amendments of  the  act




provided added impetus to the trend toward increasing  availability




of private insurance protection by instructing the commission




to consider "private liability insurance available under an




industry retrospective rating plan providing for premium charge




deferred in whole or major part until public li ibiJity from  a




nuclear incident exceeds or appears like'y to e.xceed the level




of the-primary financial protection required of the licer,-;ee




involved in the nuclear incident."  5 2210(b).  ihl-; plan  was




discussed in the report by the Joint -Committoe on Atomic tnerqy,




Senate Report No. 94-454 at pages 9-11.




     Regulations concerning financial protection and indemnity




agreements are at 10 C.F.R. § 140  (1977).




     The limited liability provisions of Price Anderson were




held invalid by a federal district comt on the grounds that




they violate the equal protection and due process requi re-Tents




of the Fifth Amendment of the United State:* Constitution.




Carolina Environmental Study Group, Inc. _v_._ United States  Atomize




Energy Commission, 431 F. Supp. 203 (W.U. N.C. 1977).   This  case




lias been appealed to the United Ft.itcs Supreme Court,  who.,!-'




decision has not yet been announced.  This decision is analyzed




and its implications discussed in a separate report.

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III.  Disbursements

     «          *
      One of the earliest decisions to be made is determination


of the purposes for which disbursements may be made from the


fund.  A list of possible purposes would include the following:


      (1)  Closure of sites not closed or not properly closed;


      (2)  Monitoring of closed sites to detect harmful condi-


tions, such as accumulation or escape of gas, drainage from the


site of liquids (including water contajning leached wastes),


and physical impairment of containment devices by erosion,


subsidence, earthquake or other factors;


      f3)  Maintenance of closed sites in safe condition;


      (4)  Cleanup of harmful substances that escape from a


site and of associated debris;


      (5)  Abatement of escape of haimful element'-, from a site;


      (6)  Compensation of harms caused by stored wastes.  Types


of harms that might be compensated would include:


           (a)   Personal injuries;


           (b)   Death;


           (c)   Injury to property;


           (d)   Loss of use of property;


           (e)   Loss of profits or impairment  of earning capacity;


           (f)   Interest paid on  loans necessitated by the in-


                cident;


           (g)   Loss of taxes by governmental units; and


           (h)   Injury to public resources, including wildlife


                and wildlife habitats;  and

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      (7)  Costs of administering the program.




      A minimum program, adarcssed solely to the prevention ot




ham1, would include the first three items on the above  ! i ;; t




- closure, monitoring and maintenance .  A broader program, ad-




dressed also to mitigation of harm that occurs, would include




cleanup and abatement.  A still broader program would seek to




compensate some or all of the losses suffered from stored hazard-




ous wastes.




      Which of these program objectives should bo adopted?  The




most urgent need appears to be for a harm prevention program.




If it succeeds, there may be no need for mitigation and compen-




sation programs.  What js the probability of success of a harm




prevention program?




      Although assessment of the hazuicls of h
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      If harmful substances escape from a hazardous waste dis-
    V
posal site, the most uigent need is to prevent further harm by


containing the waste, cleaniny it up and stopping the continua-

tion of escape of waste.  The availability of .» furul i.o reimburse

expenses incurred in such activities would tend to assure that

adequate measures are undertaken prompMy.  This is a very per-

suasive reason for including mitigation as a purpose of the

perpetual care fund.

      Whether the hazardous waste perpetual rare fund should

be utilized to compensate losses caused by stored hazardous

wastes is a much more difficult question.  Assuming a decision


is made to compensate losses, determining which losses to com-

pensate, and to what extent, are still more difficult questions.

      It may be useful in this connection to compare the oil

spill and nuclear incident problems with the hazardous waste

disposal site problem.  Both problems - oil spills and nuclear


incidents - involve risk of catastrophic harm that would over-

whelm traditiona'l compensation methods, such as insurance and

tort law.  Hazardous waste disposal sites may not crenU.- a

risk of sudden catastrophic harm, but it appears that such sites

create risks of harm that may be beyond the reach of the tradi-

tional compensation methods for another reason - delay in the


occurrence of harm until-a time when, and under circumstances

in which, it may be difficult or impossible to trace the harm to

a legally and financially responsible party.  There may be even

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some risk of catastrophic harm from disposal sites.  It is not-



inconceivable that underground migration of toxic substances




from a hazardbus waste disposal site could poison the water




supply of a large city, resulting in illness or death for thou-




sands of people.




      On the other hand, it may be observed that the ri.sk of




harm and of failure of traditional compensation moUiods aru




no greater for stored hazardous wastes than for n.any other hazards




to public health and safety for which compensation : unds do




not exist and are not currently being proposed,i such as mi-




gration of harmful substances from oil wells and mine:,, explo-




sion of grain elevators, and escape of hazardous substano.-s during




transportation.




      If losses are to be compensated by the fund, which losses




will be covered, and to what extent?  Personal injuries and




death are not compensated by many of the oil spill funds, but




they are compensated by the Price-Anderson Act, which covers



broadly "any legal liability arising out of or resulting from




a nuclear incident," with some exceptions.  42 U.S.C. § 2014(w)




(Supp. V 1975).   This difference might bo explained on the




ground that the risk of nuclear incident& pose an unusually




serious threat of illness and death, while the ris); of oil




spills is primarily a threat to private and public property,




including coastal environmental interests.  However, oven some

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of the oil spill funds appear to cover personal injuries and




death, an example being the Florida fund, which compensates




"All provable'costs and damages which arc the proximate results




of pollutants covered by this chapter."  Fla. Stnt. Ann. § 376.11




(5)(d) (Supp. 1978).  If hazardous substances escape from storage




sites and do harm, it appears likely that such harm will include




personal injuries and death.  If a fund is established, it v
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factors.  To deny recovery from the fund in such instances



would defeat a major purpose of the fund.  The claimant should




only be required to establish that (1)  he suffered harm of a




type compensable by the fund and (2)  the extent of that harm.




However, if the harm suffered by a claimant resulted from his




own act or failure to act, his claim should be denied.   The




oil spill fund statutes typically so provide.




      Should the size of claims, separately or in the aggregate,




against the fund be limited?  It would seem inadvisable to impose




a ceiling on total liability of the fund for all consequences




of an incident.  This could reduce recovery by each claimant to




an uncertain and possibly meager amount.  This feature of the




Price-Anderson Act, dealing with nuclear incidents, is justifi-




able, if at all, by virtue of the extraordinary catastrophic




consequences that could be caused by a nuclear incident.  More-




over, this feature of the Price-Anderson Act is currently under




attack as unconstitutional.  Assuming rejection of this feature




for a hazardous waste fund program, it follows that some provi-




sion must be made for enlargement or replenishment of the fund




if claims at any time exceed the amount of the fund.  Oi] spill




fund statutes typically authorize the agency managing the fund




to borrow for this purpose, such debts to be repaid by fees




subsequently collected.  .An alternative to authorizing borrow-




ing would be a statement of legislative policy to make up any




deficiency by appropriations, the state to be reimbursed by fees

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subsequently collected.  Still another alternative would be




to defer payment of claims until receipts of fees by the fund




are sufficient, and pay interest on the deferred claim.



      Per claim limitations  (e.g_. , $25,000 for death) are more



likely to be fair and to be upheld than per incident limitations.




Relevant considerations would be the fairness of the speci-




fied ceilings and whether the fund is exclusive, ^.e. , whether




claimants are denied the option of suing tortfeasors in lieu of




proceeding against the fund.  See the discussion of the exclu-




sivity issue in part V, herein.




IV.  Funding




     The principal sources of money for the fund are:   (1) legis-




lative appropriations; (2) fees paid for the storage of hazardous




wastes; (3)  reimbursements of the fund by parties responsible




for losses compensated by the fund; (4) fines and penalties for




violation of laws regulating the handling of hazardous wastes;




and (5) forfeited bonds.   Legislative appropriations could be




relied upon to provide sufficient money during the early stages




of the program pending build-up of the fund from fees and other



sources, but permanent reliance upon legislative appropriations




is subject to the serious criticism that the costs of hazardous




waste disposal should be borne by those who generate such




wastes.  Waste disposal is properly viewed as a cost of doing




business.  No reason is apparent for shifting this cost to the



taxpayers.  Even an initial and limited use of legislative appro-




priations should occur only if absolutely necessary and should be

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conditioned upon subsequent reimbursement of the state.  How-

     V          *
ever, it should be noted that the Texas Oil and Hazardous


Substances Spill Prevention and Control Act relies substan-


tially upon legislative appropriations Cor the Texas Coastal


Protection Fund.


      All of the other sources of money should be relied upon.


Fees for waste disposal, whether payable by the operator of


a waste disposal site or by the depositor of waste at such


sites, will ultimately be borne by the generator of wastes


and passed on to consumers of products whoso creation generated


the wastes.  However, those whose culpable conduct triggers pay-


ments from the fund, whether operators of disposal sites or others,


should not be relieved of responsibility and therefore should


be required to reimburse the fund.  Similarly, those who have


violated laws concerning the handling of hazardous wastc-s may


be required to contribute fines and penalties to the fund in


view of the risks of harm presumably created by their conduct.


To the extent of reimbursements by culpable parties and alloca-


tion of fines and penalties to the fund, the financial burden


on the generators is, of course, reduced.


      Consideration should be given to the feasibility of basing


fees upon the hazardous quality of the waste as well as upon the


quantity of wastes placed in storage.  This not only would pro-


mote fairness in cost allocation, but also would be an incentive


to waste generators to reduce the hazardous characteristics of


waste before disposing of it.

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      There is a possibility that generators of hazardous wastes




may seek to avoid the fees by disposing of such wastes on their




own premises.  This problem could bo net either by forbjddirvj




disposal at other than designated commercial sites or by re-



quiring generators who store waste elsewhere to pay the same




fees to the fund that are assessed operators of storage sites.




Another alternative should be imposition of the fee upon the




generation of hazardous waste rather tb.ui upon its storage.




      Similar considerations indicate that the same fees




should be paid for storruje of. hazardoti'- wastes 'at facilities




owned or operated by local governments.  If this is not done,




the ability of commercial facilities to compete with public




facilities will be handicapped.  Although public facilities may




not be as likely to be abandoned as are commercial facilities,




both types of facilities require monitoring and maintenance af-




ter closure and both are susceptible to malfunctioning.




      Some mechanism is needed to maintain the fund at the desired




size.   The statute could provide for an automatic scaling down




or termination of fees when the fund reaches a stated size.  Another




approach is to delegate to a state official the authority to




determine when the fund has reached its optimum size arid to cur-




tail collection of fees until needed.  The latter approach is more




flexible,  as it would not require amendments of the statute from




time to time, but it would conuitute a delegation of -substantial

-------
power.  One state, as indicated in the i.tatutory  survey,  handled




this problem by delegating the task jointly  to  Hie  :,tate  offi-




cial in charge of the fund program and to  tho governor.   Exces-




sive depletion of the fund by claims of unanticipated magnitude'




could be handled by legislative' appropi i ation-; , :;ub):ct  to  tho




same qualifications recommended for use of legislative appropria-




tions for start-up funds.




V.   Liability




      Liability of the fund for payment of claims against  the




fund has been discussed in part III.  Consideration must  also




be given to the liability of third parties,  particn!nr]\  owners




and operators of waste disposal facilities.  The  .icjency  adminis-




tering the fund should be authorized to sue  such  parties  for




reimbursement of disbursements from tho fund.   There is  also




tne possibility of suits against such parties by  victims.




      This latter possibility assumes that the  f'lnd is not




made the exclusive remedy for victims.  Since the main objective




of the fund piogram is to enlarge the ambit  ot  protection,  riot-




to restrict it, injured parties probably should be  allowed  to




resort to private lawsuits if they prefer.   Administrative  effi-




ciency would seem to require, however, that  victims make  an




irrevocable election within a stated timo.   Sonic  oil spill  fund




programs so provide.

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      A related issue is whether  the  fund will be a  front-end



fund or a back-up fund.  A front-end  fund is one against which




claims may be presented in the  first  instance, without any prior




attempt by the claimant to recover from those whose  acts caused




the harm.  A back-up fund is one  agai.mt which claims may be




presented only after reasonable and futile efforts have been




made to recover from those whose  acts caused the harm.  The




advantages of a front-end fund are that: it may provide more




prompt payment of c'aims and that it  if; sinpl -r to <•  dmi nister.




An argument for the back-up fund  is t'nt it avoid'; unnecessary




intervention by government..  If the fund is a b^ck-up fund, it




of  course would not be exclusive.




      The oil spill fund statutes typically provide  for strict




liability in proceedings against  third parties, subject to




limitations upon the total amount of  liability for each spill




and subject to certain defenses.




      There are several reasons for imposing stiict  liability,




jointly and severally,  upon owners and operators of  waste dis-




posal facilities.   Of prime importance is the incentive thereby




provided for the exercise of the  utmost care in the  management




of such facilities.   In addition, it night appear that since  the




fund is strictly liable, reimbursement of the fund b/ the res-



ponsible parties should be on the same basis.




      Should there be a limitation upon the total liability of




a responsible party for claims arising from a single incident




involving a waste  disposal facility?  If so, what should oe the

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limitation?  The limitations in the oil spill fund statutes

appear to have been imposed because of the potentially huge

sum of claims resulting from an oil spill.  It is not clear

that claims resulting from an incident involving a waste disposal

facility would be of such magnitude that a limitation  of

liability would be indicated.  A relevant consideration is the

amount of liability insurance purchasable for waste disposal

facilities.  Assuming that it is decided that liability should

be limited to a specified sum,  there would be merit in adding

the provision, found in some oil spill fund statutes, that the

limitation be inapplicable to instances where harms or losses

are due to gross negligence 01  wilful misconduct.

      There is also the matter of deciding what defenses, if any,

a waste disposal facility should be permitted to plead.  The

Texas oil spill act recognizes the defenses of "act of God, act

of war, third-party negligence, or an act of government."  Some

other oil spill fund acts recognize fev.er deferses.  for example,

S. 121 and S. 182, two bills currently beinq con.- idered by

Congress for the establishment of a conprehensivo oil spill fund,

recognize only the defenses  of act of war ,ind negTiger.t or in-

tentional act of a claimant.   The following statement was made

in support of the narrow defenses allowed by these bills'

           "However, we urge the committee not to
           include the additional defenses of acts of
           God and of third parties.  Unlike war,
           natural disasters are somewhat avoidable
           by prudent operators.  But given the option

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           of pleading  the act of God defense, oil
           producers and  transporters are more likely
           to take those  calculated risks that time
           .and again lead to catastrophic oil spills.

              The defense for third-party negligence
           offers an even larger loophole by which po-
           tential spillers many, through clever  law-
           yering, avoid  paying for their spills.  The
           third-party defense essentially establishes
           a fault standard of liability, which does
           not create adequate incentives to prevent
           pollution or to clean up those spills  that
           inevitably occur.  The right of subrogation,
           explicitly preserved in S. 1?1 and S.  182,
           will enable spillers in any event to obtain
           reimbursement  from negligent third parties.
           However, requiring the spillor initially to
           assume the liability for such spills' ought
           to instill additional caution in potential
           spillers and thereby reduce the frequency
           of polluting incidents."

Statement by Maxinc LJpolos, Environmental Policy (\ntcr,

Hearings, Senate Committee on Commerce, Science and Transporta-

tion, 95th Cong., 1st Sess., on Oil Spill Liability and Compen-

sation 216 (1977).

      Although the liability of owners and operators is the

major concern, consideration should also be given to the pos-

sible liability of other parties.  Tho;;e who disturb waste

disposal facilities, such as an excavator who digs into a  land-

fill, might be liable to victims by virtue of existing law.

A statute on waste disposal facility funds should provide  that

the fund will be t>ubrogated to any such clams of victims  who

are compensated by the fund.  "'here is also the possibility

of liability under existing law of generators, transporters and

other handlers of hazardous wastes,  as to incidents occurring

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after the waste lias passed from fieir control, even though such




parties had been free from fault d had complied with all laws




and regulations pertaining to such waste.  Whether such parties




would be liable according to Texas Jaw under such circumstances




is the subject of a separate report.   If there is any possibility




of their liability, drafters of a waste  facility fund statute




might wish to bar that possibility, in view of the lack of




control by such parties and also, in the case of generators, in




view of the fact that most of the money  for the fund will come




from generators, directly or indirectly, assuming that waste




disposal fees are relied upon.  The validity of such a bar is also




the subject of a separate report.




v ^ •    Financi a l_Jte_s po usibility




      The contemplated statute should contain provisions requir-




ing owners and operators of hazardous waste disposal facilities




to provide satisfactory evidence that they have the financial




resources or have obtained bonds or insurance to the extent




necessary to reimburse the fund foi disbursements.  The oil




spill fund statutes typically contain such provisions.




      Even in the absence of a fund,  evidence of financial




responsiblity is commonly required.  The Texas Solid Waste Disposal




Act requires that:  "Before a permit i •-.  issued, extended or




renewed, the state agency to which the application is submitted




may require tne permittee to execute a bond or g:ve other finan-




cial assurance conditioned on the permittee's satisfactorily

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closing the disposal site on  ijp.al  .ibandonment. "   Tex.  Rev.




Civ. Stat. Ann. art. 4477-7  (r>)  (Ver;,ori  Supp   1978).




      Bonds arid insurance may  be  used  in  combination,  as  well




as separately.  Indeed, this  nay  be desirable  for  tho  purpose




under consideration, since bonds  are more appropriate  for reimbur-




sement of costs of closure, rioniforing and routtre maintenance,




while insurance is more appropriate i^r  reimbursement  of  costs




of cleanup, abatement, restoration,  ami  liability  '"OT  death,




personal injuries and property lusM-e^.   A third  device,  the  :;inql>~-




facility fund, supported by foes  collected at  the  particular




facility, may also be useful  as  a means  nf allowing the owner




or operator of a facility to  reduce or ternunate  hi:  bond




or insurance protection when  tho  fund  'or hi-,  fac-il.ty reaehe:




a certain size.  This type of  fund  is  entirely  different  ircm




the multiple-facility fund, v/hirh petmits risk-spreading  and




which is the type of fund to  which  the bull; of  tin:, report  is




devoted.




      Assuming that an owner  or operator  of a  facility in not




financially able to be a self-insurer, or that  self-insurance




is not acceptable, how much bonding or insurance  should  he  re-




quired?  Ideally,  the amount  required  should  be  sufficient  to




cover all claims that conceivably could  be paid  in connection




with an incident.   That -figure is somewhat conjectural,  especially




if disbursements from the fund are  to  be  made  for  personal  in^ur-




ies, death or property losses.  The statute could  specify a  figure,

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as the oil spill fund statutes typically do, tins figure usually

being identical to the liability ceilings for handlers of oil.

An alternative would be to leave this to administrative discre-

tion.

      If the required financial responsibility ficjine  is high,

bonds and insurance may not bo available, or ir-ay bo claimed not

to be available.  Financial icsponsib1ity requiCement" should be

realistic, but experience with oil spill and nuclear  incidents

indicates that the availability oi inrnrance IP .TV br; somewhat

greater than is sometimes maintained.  See the 'Statement by

James N. Barnes, representing the Environmental Defense T'-nd

and other groups, Hearings, Senate Conmittoe on Commerce, Science,

and Transportation, 95th Concj., 1st Sees., on Gi] 'Jpili Liability

and Compensation 341 (1977).

      The availability of liability insurance for perpetual care

of hazardous wastes was discussed by Michael Shannon  in a paper

entitled "Tho Dilemma of Liability ai-.d Perpetual Care Issues,"

published in Proceedings of the Filth National Congress on

Waste Management Technology and Resource and Lnerqy Recovery

344  (CPA Publication SW-22p 1977).  IK.- stater;  ,t page 357:

           "Information is pirtJralar 1/ limited re-
           garding the scope of insurance coverage.
           It appears that most irsurancc coverage by
           either the generator or the service  firm in
           the insured peri] coverage and not coverage
           for a civil action to protect against law-
           suits based on serious hazardous waste oc-
           currence.  The average liability coverage

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           under the NSWMA group policy war, $100,000
           per occurrence Cor bodily and personal  in-
           jury and $300,000 per occurrence for property
           damage.  The insurer would 'iffnr whatever a
           company wan tod to buy with some policies
           having coverage as high as $S , 000,000/$10,000,000.
           One hazardous waste service firm (not iinder
           the NSWMA policy) has coverage of $'300,000 bodily,
           $500,000 personal and $3,000,000 for property
           for each occurrence.  The firm's annual  insurance
           cost is estimated at about $10,000 or less than
           a penny per gallon.  However, this policy is  for
           insured peril coverage and does not address the
           accidental and long-tern occurrences.   Other
           than nuclear insurance, the closest experience
           to hazardous waste is for damage from water and
           air pollution whereby it costs $50,000  per year
           foi $1,000,000 of liability insurance to  cover
           exclusions from a general liability policy.

                When areas of new coverage are offered,
           insurance underwriters rely heavily on  punitive
           technical aspects of an operation such  as
           chemical processing or detoxification which
           reduces the potential hazard.  They also  re-
           quire compliance with applicable standards.
           Because of a lack of actuarial experience,
           rates are set artificially high with the  service
           firm reliant upon insurance company competition
           and credit rebates to reduce the cost of  insur-
           ance.  A high risk situation may require  an
           insurance company to reinsure the activity
           with a specialty insurance company.  This
           allows the insurance company to share or  to
           spread its risk and gain added experience and
           a second judgment.  Most importantly it means
           insurance coverage is provided."

      Difficulties envisioned by the California Water Resource Con-

trol Hoard with bonds, liability insurance and single-facility funds

which would have been authorized by :;n 1130, introduced  in the

California legislature in 1977 to assist in establishment of  a

hazardous waste closure and maintenance program, v,'ere discussed

ois follows by Bob Connelly,  consultant to the California Senate

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Comnittee on Finance, in a letter to Joe C. Moseley,  II,  dated

December 2. 1977:

           "The bill contemplates paying for  the
           cost of closure and mai nt.rna:<-, in  bonding
           these sites because of the  number  of unknown
           elements in the problem.

           Another concern is that the bonds  for  winch
           an annual premium is normally requuod, could
           become an ineffective safegiuud  device  in
           the event that the site was transferred to a
           new owner or the iresent owni'r detTmi nod  t-o
           bail out and simply stop paying the.: premiums.
           This might not cive the state time  to  res-
           pond even if they had required the  insurance
           company or the bonding .-omp.iry to  notifv
           them immediately of dereliction  of  pre.'M urn
           payment."

      Up to this point, it h,v? been assumed  thai financial res-

ponsibility requirements would supplement a porpetiia] care fund,

rather than be a substitute for such a  fund.   However,  a vi ry

important question pertaining to the need  for a fund  is whether

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financial responsibility  requirements  alone would meet  t-ho




needs of tho situation.   The concerns  mentioned  above abour  the




adequacy of bonds,  insurance and  single-faci1ity  funds  would  be




even more critical, of course,  if  sole reliance  is  placed upon



them.  Another  serious shortcoming of  a program  relying solely




upon financial  responsibility requirements is  that  such a program




would not addresr, the problems  incident to sites  abandoned or




closed prior to the effective date of  the  legislation.   A




perpetual care  fund program, on the other  hand,  could provide




rioney to deal with problems of  al ]  hazardous  w.vste  disposal




facilities, whenever they were  abandoned or closed.




VII.  Preemption




      In view of recently increased concern by Congress in the




subject of disposal of hazardous wastes, as manifested  by enact-




ment of the Resource Conservation  and  Recovery Act  of 1976,




42 U.S.C.A. §'6901 e_t secj.  (1977),  it  is necessary  to consider




whether a state fund for  perpetual  care of hazardous wastes




would be precluded, restricted or  duplicated  by  Congressional



action or administrative  action author i ze-d by  Congress.




      There is  no   mention of such a fund in the  Resource:




Conservation and Recovery Act of  1976,  but section  6924 of tins




act directs the administrator of the Environmental  Protection




Agency to establish such,  performance standards for  ha/ardous




waste treatment, storage  and disposal  facilities  "as may be

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necessary to protect public health and the environment.  Fol- •




lowing this mandate is a declaration that "such standards shall




include, but'need not be limited to, requirements respecting"




seven items.  One item on this list is:  "the /naintonanco of




operation of such facilities and requiring such additional




qualifications as to ownership, continuity of operation, train-




ing for personnel, and finane Lai responsibility as may be neces-




sary or desirable."




      The act mandates enforcement hy the administrator of the




Environmental Protection Agency, except  in state:, authorized  to




administer approved programs Ln lieu of  the Pectoral program.




A state program will be approved unlef.5  the ,-tcIiuni:;traLor Euids




that "(1) such State program is not equivalent to the Federal




program under this subchapter,  (2) such  pioyran is not cousin-




tent with the Federal or State  programs applicable in other




States, or  (3) such program do^s not provide adequate enforce-




ment of compliance with the requirements of this sabchapter. "




      Although the act fails to mention  a perpetual care fund




as one of the subjects with respect to which the administrator




is directed to promulgate performance standards, this  list is




declazed to be non-exclusive, and th-' niorul language of the




act could be construed a^ authorizing  the administrator to




require perpetual care funds and to specify ihe nature of such




funds.  He has not yet done  so.

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      If the administrator's regulations remain silent as to




perpetual care  funds, one might reasonably predict that a




state program'providing  for a perpetual care fund would be



approved.  The  requirement th.it thr state program be  "equivalent"




to the Federal  program does not mean that the state program




must be identical to the Federal program.  Support for this




conclusion is found in section 6929, providing that upon the




"effective date of regulations under this subchapter  no State




or political subdivision may impose any requirements  less




stringent than  those authorized under this subchapter ...."




[underlining added]  Similarly, it seems unlikely that the re-




quirement that  a state program be "consistent" with programs




of other states would preclude creation of a perpetual care




fund.  The apparent purpose of this consistency requirement is




to preclude a state program that would adversely impact another




state.  It seems unlikely that a perpetual care fund would have




such impact.




      It is clear, however, that the administrator of the En-




vironmental Protection Agency is authorized, if not mandated,




to promulgate standards concerning financial rosponsiblity




of handlers of hazardous waste.  Conceivably, an approved state




program could contain provisions deviating from the Federal




financial responsibility.standards,  but a state seeking approval




of its program would track the administrator's standards on this




matter.

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                  THE UNIVERSITY Or TEXAS AT AUSTIN
                              SCHOOL  OF  LAW
                                .2.500 ReJ River
                            AUSTIN, TEXAS  78705

                                May 25, 1978
Mr. Howard Lee
Executive Director
Texas Coastal and Marine Council
P. 0. Box 13407
Austin, Texas  78711

Dear Mr. Lee:

     I enclose a report, concerning the tort liability of generators of
hazardous wastes in long-term storage.  This is the report I promised to
deliver by June 1, 1978, in my response to Ms. Hanson's letter of Octo-
ber 21, 1977.

                                          Sincerely,
                                          David W. Robertson
                                          Baker f, Botts Professor of Law
DKR/bm

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TEXAS GENERATORS OF HAZARDOUS WASTES:  TORT LIABILITY




          UNDER PRESENT LAW AND VALIDITY OF




   SUGGESTED STATUTE INSULATING FROM TORT LIABILITY
                       A Report




                          By




                  David W.  Robertson







                         for







         The Texas Coastal  and Marine Council
                      May,  1978

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                             TABLE OF CONT'jKIS


  I.   Tort  Liability of  Generator of Hazardous Waste in Texas 	    1

      A.   Injuries While Waste In Generator's Custody 	    1

      B.   Injuries After Waste Turned Over to Disposal Company—
          Liability of One Who Employs Independent Contractor 	    2

          1.   Employer's own tortious conduct 	    3

          2.   Inherently dangerous work	    It

          3.   Non-delegable duties  	 	    5

          4.   Trespass to land	    5

          5.   Nuisance	    7

          6.   "Collateral negligence" 	    7

      C.   Injuries After Waste Turned Over to Disposal Company—
          Analogy to Situation When Waste Generator Puts Waste Into
          City Sewage System	    8

      D.   Injuries After Waste Turned Over to Disposal Company:
          Other Questions	   12

      E.   Summary	   15
 II.   Constitutionality of Proposed Statute Thnt Would Insulate
      Waste Generator Who Pays Into Perpetual Care Fund From Tort
      Liability For Harms Occurring After Waste Entrusted To
      Disposal Company  	  16
III.   Footnotes	25

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        I.  TORT LIABILITY OF GENERATOR OF HAZARDOUS WASTK IN TEXAS
A.  INJURIES WI'ILE WASTE IN GENERATOR'S CUSTODY


     hazardous waste is capable of causing a wide range of harms to persons and


property.   Whi}e no reported Texas decision squarely confronts the problem of


Lhe tort liability of the solid waste generator, ' it neems clear that several


distinct tort theories could result In liability for injuries caused while the


Waste is still in the custody ol or in the process of being disposed of by the


generator.  An actionable trespass to land occurs when the defendant intention-


ally acts so as to cause direct unauthorized interference with plaintiff's right


to the possession of realty; causing substances to Invade plaintiff'.'; land can


amount to trespass.   Nuisance doctrine would make the generator liable for any


conduct amounting to an unreasonable interference with the plaintiff's use and


enjoyment of land.   Originators of pollution damage have been held liable in


a wide variety of circumstances for harms to adjacent landowners and others on


the basis of negligence.   Frequently plaintiff's case is materially aided by


the doctrine that breach of a relevant statute by defendant can amount to negli-


gence per se.   A distinct theory in Texas provides for liability ag.iinst one


who intentionally causes an unreasonable interference with another's right to


land by substantially interfering with the flow of surface water.   (Evidently


the theory is that such an Invasion is non-trespassory because not directly


produced by defendant's actions.)


     A major theory available in many other states is inapplicable in Tex.ns.


The English doctrine of Rylands v. Fl£jLllh££  imposed strict liability against


one who allowed an injurious substance to escape from his custody and cause harm.


Many American states adopted that doctrine by name, while others achieved the

                                                      I                       8
same result under the rubric of strict liability for utrahnzardous activites.
                                                      A
                                                                     9
Texas courts, originally followed the doctrine of Rjljinds v. FU'tclier,  but it

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wa8 definitively repudiated In Turner v, Big Ln kc Oil Co.     The Turner case

has meant that there is no general doctrine of strict liability for ultraha-

zardous activities in Texas.
B.  INJURIES AFTER WASTE TURNED OVER TO DISPOSAL COMPANY - LIABILITY OF ONE WHO
    EMPLOYS INDEPENDENT CONTRACTOR

     Hazardous waste retains its capability for causing many kinds of serious

harms for lengthy periods after It is turned over to a disposal company and
                                12
stored or otherwise disposed of.    Whether the generator of the waste would

still be subject to tort liability for some of these harir.-, is a highly debatable

question.  There are no Texas decisions In point.  The available analogies are

equivocal.  The general category into which such problems fall is the liability

of one who employs an independent contractor for harms caused by that contrac-

tor's acts or omissions.  It is assumed in tU" following discussion that the

waste disposal entity would not be a:  agent or employee of the waf.te generator.

In the event of an agency or employment relationship, the waste generator would

be vicariously liable for the tortious acts of the disposal facility.  '   The

difficult problems arise in the abserce of an agency or employment relationship.

     The American law governing the liability of the employer of an independent

contractor is highly confusing.  The basic structure of that body of law in the

United States has been well summarized:

          "The general rule [is that] the employer of an independent
          contractor is not liable ioi physical ham caused to another
          by an act or emission of the contractor or his servants.
          * * *  [This] was the original corran.m law rule.  'Jhe explana-
          tion for it most commonly given is th it, since the enployer
          has no power of control over the manner in which the work is
          to be d3ne by the contractor, it is to be regarded as the con-
          tractor's own enterprise, and he, rather than tie employer,
          is the proper party to he charged vith the responsibility of
          preventing the risk,  and bearing and (listributi ag }' .
               The first departute from the old common law rule was in
          Bower v. I'eate, 1 Q.B.D. 321 (1876), in which an employer was
          held liable when the foundation of t IIP plaintiff's building
          was undermined by the contractor' ; excavation.    Since that

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          decision,  the law has progressed by  the recognition of a
          large number of  'exceptions'  to the  genera' rule.  These
          exceptions  .  .  . are so numerous, and  they have  so fnr
          eroded the  'general rule,'  that It can now be said to be
          'general*  only  in the sense  that it  is applied where no
          good reason 1s  found for departing from It.  * * *  'In-
          deed it would be proper to  say that  the rule is  now pri-
          marily important as a preamble to the catalog of  Its excep-
          tions. '
               The exceptions have developed, and have tended to be
          stated, very largely as particular detailed rules for par-
          ticular situations, which are difficult to list  completely,
          and £ew courts have attempted to state any broad principles
          governing  them, or any very  satisfactory summaries.  In
          general, the exceptions may  be saiil  to fall into three very
          broad categories:
               (1) Negligence of the employer  in selecting, instruc-
                   ting, or supervising the contractor.
               (2) Non-delegable duties of tin1 employer, arising out
                   of some relation toward the publir or the particu-
                   lar plaintiff.
               (3) Work which is spe<  i.illy, peculiarly, or 'inherently'
                   diingerous . i 4

     Texas,  like most other states, starts with the general principle  chat ordi-

narily one who employs an independent  contractor is not  liable for the contrac-

tor's torts.  As elsewhere, there are  a number of important exceptions.  1 hu

Texas jurisprudence  is wonderfully confused and internally Inconsistent as to

the reach and breadth of the various exceptions.   The following discussion indi-

cates so^e of the major categories wherein employers of contractors have been

held liable.    However, it should be noted that there are countervailing deci-

sions on many of the propositions adduced.   About all that can be said with con-

fidence is that the cases so holding can be grouped  into loose broad categories;

and that the Texas decisions applying the general rule,  non-liability of the

employer for the independent contractor's torts,  substantially outnar.her those

imposing liability,


1.   Employer's own tort Ions conduct

     While it is not  technically  an  ox
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     The judge In the Carol in_n_KnviroiimciHai[ _SUid_y__ ('iinip rase fonn
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         does not vary with the number of people injured, the ri-covcriea must


         be simply proportions of the fund, bearing more relationship to the


         number of people injured than to the severity of the injury of the
                  V
                     97
         individual."


     (d) "A further problem with Price-Anderson is that the Limit is absolute


         and applies to nuclear c.itastrophe even though It may be the result of

                                              9H
         willful conduct or gross nogl igem e .t-


     The Carolina Environmental Study Croup cast  also held that the Price-Ander-


son Act offends the equal protection clause of the Fifth Amendment because it


gives all of society a benefit, but puts the co;,ts of thar benefit on an arbi-


trarily chosen small  segment of the pablic--thoue injured by a nuclear catastro-


phe.  No rational basis was shown, in the judge's view, for singling out those


who happen to live in the areas touched by radioactive debris as the clas^ to


bear the costs of nuclear power.  Nor did he find it rational to treat persons


damaged by nuclear accidents differently from victims of other kinds of accidents.


     Until the Supreme Court disposes of the Carolina Environmental Study Group


case, discussion of its possible effects upon the constitutionality of a statute


of the sort contemplated in this study will be highly speculative.  However,


there are a number of reasons for believing that the arguments ventured by the


judge in that case do not present serious obstacles to the constitutionality of


a statute that vould insulate waste generators who pay into a perpetual iare


fund from tort liability for han.is caused by hazardous waf.te after it  is turned


over to a disposal facility.  The nub of the Carolina judp.e's objections to


Price-Anderson seemed to be the absence of a quij p£p 
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covery--but he gains  something—coitain  romp*, nsation benefits.  Ah; out  such  an




exchange,  Che judge in Carolina Environmental  Study Crp''p was disposed  to  find




that Price-Anderson quite unconscionably  (and  therefore unconstitutionally)  took




away from  potential victims o£ nuclear cata^tiophe without giving  anything in




return.




     The kind of statute under study  in  this  report would not be plausibly .sub-




ject to that argument.  In the first  place,  it would prol>,ib1y be structured  to




provide for recovery  from the perpetual  care  fund on behalf of persons  who sus-




tain property damage  or personal  injuries  from hazardous wastes, up to  a stated




ceiling, with the ceiling limitation  being tailored to e u li vii rim, rather than




simply to  an occurrence as In Price-Anderson.  Thus, victim-, of hazardous waste




under this (hypothesized) statute would be gaining someclihu; significant--c.er.tain




recovery'in a significant amount.  In the Carolina judge's view, Price-Anderson




lacked any such promise because of the per incident feature.




     More  significantly, if the hypothesized statute gave victims of hazardous




waste certain recovery against the fund in exchange Cor losing their tort rights




against waste generators, they would, on the present state of the  law,  probably




have come  out ahead.  As indicated in Part I of this report, in the present  state




of Texas tort law the prospects for a hazardous waste generator remaining liable




in tort after he has  complied with his statutory and other duties  and turned the



                                                               101
waste over to a disposal company are not overwhelmingly strong.     Hence, any




proposal that dispensed with tort liability of waste generator in  return for




recovery from the fund would certainly have given the victims of hazardous waste



                                                                    102
a quid pro jjuo, making the workmen's compensation analogy quite apt.




     The other objections raised by the ^udgo in tiie Carolina Environmental  Study




Group case can be met  by sensible structuring of the statute under consideration




in this report.   The argument that recovery under Price-Anderson is not rationally

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related to the potential losses will  ho avoided If the proposed matures sets




up a fund from which victims of hazardous waste can recover,  up to a stated




per victim ceiling.  The Carolina judge's main worry was thnt $560 million would




not come close to adequately compensating all the victims of  a major nuclear




accident.  A fund with a sensible per victim limit would meet that objection.




     The argument that tort law's potential for deterrence is lost by the limited




liability provisions of Price-Anderson is not applicable against the proposed




statute under study in this report.   Disposal facilities and  others—those im-




mediately responsible for maintaining the hazardous waste—would remain sus-




ceptible to tort liability.  Generators who were substandard  in their choice of




a disposal facility, or in other respects concerning their initial disposition




of the waste—either by violating relevant statutory provisions or under general




negligence law—could remain susceptible to tort liability.  Tort liability




would cease when the waste was properly transmitted to a disposal facility.  The




thrust of the proposed statute would  be to remove the threat  of vicarious l_ia_^




billty—liability ot the generator for the disposal facility's torts.  Tort




law's deterrent function is adequately served if the major entities involved in




the production and disposal of hazardous waste remain subject to tort liability




for their own actual fault.  Similarly, there would be nothing in the proposal




under study that would insulate any  entity from liability for "personal" willful




conduct or gross negligence.




     The Carolina Study Croup court's equal protection arguments would probably




not be persuasive against the proposal under study here.  The appropriate equal




protection test against a statute of  this kind is the rational basis test.




It seems evident that the legislature could rationally decide that the ha/.ardous




waste pollution problem can best be  handled by establishing a fund to handle




policing, clean-up costs, and injuries, and that the fund can best be constructed

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 by  extracting  payments  from waste  generators  in exchange  for relief from lia-



 bility  in  tort  for  damages occurring after  the waste  Is transmitted to a dis-



 posal  facility.   The  decisions  stress  that  the rational basis test is applied



 against  a  presumption that every legislative  enactment is constitutional,



 and  that the legislative ends pursued  need  not be wise, nor the means chosen



 the  best available.



     The decisions  upholding the constitutionality of state statutes setting up



 no-fault systems  for  dealing with  traffic  injuries provide a useful vehicle for



 speculation about the constitutionality 01  the hypothesized statute under study.



 The  core idea of a  no-fault system for traffic injuries is the same m with the



 hypothesized statute  under study in this report:  the victim loses .some tort



 law  rights in exchange  for certain recovery from a fund, and the potential tort-



 feasor escapes some tort liability In exchange for payment into the fund.   All



 of the state supreme  courts which have considered broad constitutional attacks



 on no-fault legislation have sustained the  statutes.     The reasoning employed



 in these cases is strikingly similar.  The  New York decision In Montgomery v.



 Daniels    is typical:  (1) The test for validity of a statute against substan-



 tive due process challenges—is there a fair,  just, and reasonable connection



 between the enactment and the promotion of  the health, comfort,  safety,  and


                    1 Oft
welfare of society.      (2) This test is applied against a presumption that


                                                     109
every legislative enactment is deemed constitutional.      (3)  No-fault systems



 for  traffic injuries certainly pursue permissible state objectives via rational



means.   The ends need not be wise,  nor the means the best available.      (4) If



substantive due process requires that an existing tort right not be abolished



without leaving an adequate substitute remedy, it Is evident that no-fault



first-party insurance benefits (rights against the "fund"),  suffice.



 (5)  Equal protection challenges to  legislation of this type are  judged on  a

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rational basis test.  The strict scrutiny test argued ror by those challenging



the law la Inapplicable; it applies only where a challenged law creates classi-



fications drawn along suspect lines or that invade some fundamental constitu-


             112
tional right.     (6) Under the rational basis test,  it is evident that all the



classifications necessitated by the no-fault law are  sustainable.



     The no-fault decisions are also useful "X.implos  of the potential  effect of



state constitutional provisions on the validity of statutes of the kind under



study here.  In the first place, general state constitutional provisions to the



effect that "all persons, for injuries suffered in person, reputation, or pro-



perty shall have rtiiedy by due couise of l.iw" have been held to impose no greater



limit on the power of the legislature to alter tort rights than the due process



clause of the 14th Amendment to the Urited States Constitution.     The compar-



able Texas Constitution provision 1s Article I, sec.  19:   "No citizen of this



State shall be deprived of life, liberty, property, privilege's or  immunities,



in any manner disfranchised, except by the due course of  the law of the land."



Several Texas decisions sustain the general thrust of the state's  workmen's



compensation law,    and specific provisions thereof,    as valid  under that



provision of the Texas Constitution, taking the general view that  "no person



has a property right or vested interest in the common-law defenses nor in any



rule of the common law."     It should he noted th.it  the  early decisions sus-



taining the Texas workmen's compensation statute against  constitutional attack



by employers saw it as essential to the statute's validity that the employer can



choose to come into the compensation system or be liable  iu tort without the



defenses of contributory negligence, assumption of risk,  and fellow servant.



On the other hand, the employee had no choice other than  tD quit working for a



subscribing employer, and that feature did not invalidate the compensation  law.



It is doubtful that the kind of statute under consideration in this report would

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be doomed a dun Lai of clue process of law because the waste generators were com-



pelled to pay into the fund.  Implied consent by conduct on the part of employ-



ees saved the workmen's compensation statute from constitutional attack by the


          119
employees,    and employer arguments against certain punitive features ot the



law have likewise been met by a finding that, through his conduct, the employer




consented to the provisions of the Jaw in question.     If a provision requiring



waste generators to pay Into a perpetual care fund was otherwise reasonable and




lacking in arbitrariness,    it would not fall  bec.nise generators wishing to




dispose of their waste through contracts with disposal companies had no choice



but to make payments to the fund,



                                                                               122
     The Texas Constitution also contains a general equal protection provision.




This provision, like the due process section, impose.1, no greater limit;, 01, state




legislation than the comparable clause of the Fourteenth Amendment to the United


                    123
States Constitution.     It would certainly not  be offended by the kinds oi



classifications necessitated by a statute of the sort under considers ion in




this report.  The general strictures of both due process and equal protection



were summarized by the Texas Supreme Coutt:




          "(Legislative action withdrawing common-law remedies for well




          established common-law causes of action  ... is sustained . .



            when it is reasonable in substituting other remedies, or when



          it is a reasonable exercise of the police power in the inteiest




          of the general welfare.  Legislative action of this type is not


                                                          1J It
          sustained when it is arbitrary or unreasonable."




     The only other Texas constitutional provision  which seems to call for sep-




arate treatment is the portion of Article 1, sec. 13 which states:  "All courts




shall be open, and every person for an injury done him, in his lands, gocc.-i,




person or reputation, shall have a remedv by due course of law."  In l'e
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decisions this provision hns been trcMtPil ns Imposing no additional  limits to



those of the due process provision on the power of the legislature to alter cot


                    125
mon-law tort rights.      Several recent decisions uphold automobile no-fnult



statutes against attack under similar provisions of state constitutions.

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                              TU.  FOOTNOTES







 1.   See Shannon, The Dilemma of Liability and Perpetual Care Issues, PROCEED-




     INGS Of I'HK FIFTH NATIONAL CONCKI'SS:  WASTK MANAGEMENT '! KU1NOLOGY AND RE-




     SOURCE ANB ENERGY RECOVERY 344 (EPA Pub. No. SW-22p, 1977).




la.   The Texas' Solid Waste Disposal Act, Tex Rev. ft v. St. Ann.  nrt . 44 77-7,  i-c. 2(5)




     (Supp.  1978) defines "solid w.ihte" very bio.idly, hut nxrludes "industrial




     discharges subject to regulation by permit issued pursuant to tltc Texas




     Water Quality Act."  Such an industrial discharge lud to tort liability




     on the theory of trespass to Lind in AtJa.s Chemical Industries, Inc. v.




     Anderson,  524 S,W.2d 681 (Tex.  1975).




 2.   See,  e.g., Glade v.  Dietert, 156 Tex.  382, 295 S.W.2d 642  (1956).




 3.   See,  .e.g., Meat Producers,  Inc. v. McFarland, 476 S.W.2d 406 (Tex.Civ.App. -




     Dallas  - 1972,  writ  ref'd.  n.r.e.).  Because of a very tiehtrequirement that




     plaintiff  suffer an  injury  different in ktnd from others harmed by the




     defendants conduct  or condition, the doctrine of public nuisance has




     rarely been used on  behalf  of private persons in Texas.   Roe San Antonio




     Conservation Society v.  City of S'in Antonio, 250 S.W.2d  259 (Tex. C tv. App. -




     Austin  - 1952,  writ  ref'd.).  SUM? generally, Osborne, Judicial Protection




     of Water Resources:   Private Action, the F ub_li£_ Jj~ust _Do r_t r i ne , _ a nd Ad minls-




     trative Review, 48 Tex.  L.Rev.  1169 (1970).




 4-   See,  e.g., Brown v.  Lundell, 162 Tex.  84, 344 S.W.2d 863 (1961); General




     Crude Oil  Co.  v. Aiken,  162 Tex.  104,  344 S.W.2d 668 (1961), American Cyan-




     amid  Co.  v.  Sparto,  267  F.2d 425 (5th Cir. 1959).




 5.   See Langford v. Kraft, 21 Tex.S.Ct. J.  302 (Tex. 1978);  Atlas Chemical In-




     dustries,  Inc.  v.  Anderson,  524 R.W.2d  681 (Tex. 1975);  Pickcns v. Harrison,




     151 Tex.  562,  252 S.W.2d 575 (1952).

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  6.  Langford v. Kraft, 55] S.W.2d 392  (Tex.Civ.App. - Beaumont -  1977),  rev'd




      in part In other grounds 21 Tex. S.Ct. .1.  302  (1978); Ford Motor Co.  v.




      Dallas Power & Light Co., 499 F.2d 400 (5th Cir. 1974).




  7.  L.R.  3 H.L. 330 (1868).




  8.  See Restatement (Second) of lorts, sera. 519 and 520.




  9.  Texas & Pacific Ry. v. O'Mahoney,  24 Tex.Civ.App. 631, 60  S.W.  902  (1900,




      writ  ref.); Anderson v. Highland Lake Co., 258  S.W.  213  (Tex.Civ.App.




      1924, no writ).




 10.  128 Tex. 155, 96 S.W.2d 221 (1936).




 11.  See,  e.g. ,  Sun ripe Line Co. v. Kirkpatrick, 514 S.W.2d 789 (Tex.Civ.App.  -




      Beaumont -  1974, writ ref'd. n.r.e.); Vr.izel v. filer i, 294 S.W.2d  148  (Tex.




      Civ.App. -  Galveston - 1956, no writ).  But^ SM Central Telephone  Co.  v.




      Bi-Co favers. Inc. 514 S.W.2d 168, 171-74  (Tex.Civ.App. -  Dallas - 1474,




      no writ).




 12.  See Pacey,  ]ong-'!erm Site Maintenance Problems and t lie Potential for  Lia-




      bility, PROCEEDINGS OF THE KII'TI! NATIONAL  CONGRESS:  WASTK MANAOKMLNI' TECH-




      NOLOGY ANP  LNI'.RGY RECOVERY 360  t'EPA Pub. NT. SW-22p, 1977).




12a.  j,ee_ Humble  Oil & Ref. Co. v. M.irrin, 14R Tux.  175, '.22 S.W.2d 995  (1949).




 13.  McDaniel Bros. v.  Wilson, 70 S.W.2d 618  (lex.Civ.App. - Beaumont - 1934,




      writ  ret'd.) is identical in facts and outcome.




 14.  Restatement (Second) of Torts --i-c. 409 and comments.




 15.  The following discussion will not  treat < ,T,CS  Involving;  injuries to  the




      independent contractor's employees.  Principal compile ition&  here  include




      holdings that the "inherently dangerous" exception to the  rule that  the




      employer is not liable for the  contractor'=; torts dres not obtain  in favor




      of the contractor's employees,  s,ee_ Humphreys v. ioxas Power & Light  Co.,




      427 S.W.2d  324 (Tex.Civ.App. -  Dallas - 1963,  writ ref'd.  n.r.e.); Perez

-------
     v. Hernandez,  317  S.W.?d  81  (Tfx.Clv.App.  - San Antonio - 1958, writ ref'd.

     n.r.e.); Nance  Expiration Co.  v.  Texan  Employers'  Ins. AJSII.,  305 S.W.Zd

     621  (Tex.Civ.App.  -  El  Paso  -  1957,  writ ref'd.  n.r.e.), cert,  denied
     \            *
     358  U.S. 908 (1958);  Texas Electric  Seivice Co.  v.  IloJt, 249 S.W.2d 662

     (Tex.Civ.App.  - Ft.  Worth -  1952,  writ  ref'd.  n.r.e.);  Sword v. Gulf Oil

     Corp., 251 F.2d 829  (5th  dr.),  rorl. drilled 358 U.S.  824 (1958).   Addi-

     tionally, the  employer's  duty  has  been  limited by the  rule that he dis-

     charges it by  warning the contractor of  latent dangers, ju;e Abalos v. Oil

     Development Co., 544  S.W.2d  627  (Tex.  1976); Cull" oil  Corp. v.  Wright, 236

     F.2d 46 (5th Cir.  1956):  C.idy  v.  C.l. Dupont DC  Ntmours & Co.,  4j; F.Supo.

     1030 (S.D. Tex. 1977).  The  Litter doctrine may  have been alttred  by the

     recent Texas Supreme  Court decision  in  Parker  v.  Hi j-'hl ai,d Park, int., 21

     Tex. S.Ct. .1.  188  (1978).  See  d l->i u:,- ton  of thai point in Bui 1 in;'/on v.

     Texas Electric Service  Co.,  570  F.2d 1272  (5lh Cir.  1"7M)

16.  See  Restatement (Second)  of  Torts  sec.  409, ro'nment  1..

17.  See Webb v. Just Lee  Life  Ins.  Co., 563  S.W.2d  347 (Tex.Civ.App. -  Dallas -

     1978).

18.  Houston _Belt 8, Terminal Ry.  Co. v. Scheppolman,  203   S.W.  167  (Tex.Civ.

     App. - Beaumont -  1918),  aff d  235   S.W.   206  (Te:-.  Comm'n App. 1921,

     judgment adopted).

19.  514 S.W.2d 789 (Tex.Civ.App. -  Beaiimcnt  -  1974,  writ ref'd. n.r.e.).

20.  See discussion at note  41, infra.

21.  Cases treating blasting work as  inherently  dangerous include H. I..  Butler

     &  Son v.  Walpole,   239 S.W.2d 653  (IVx.Civ.App.  - Austin - 1951, writ ref'd.

     n.r.e.);  Cisco & N.E. Ky. Co. v. Texas  Pipeline  Co., 240 S.W.  990  (Tex.

     Civ.App.  - Ft.  Worth  -  1922, writ  ref'd,).   Cases re! , -: ng to  clas-oify

     blasting as inherently  dangerous include  Seismit  Explora L ir
-------
     169 S.W.2d 739 (Tex.Civ.App. - Calveston - 1943, writ ref'd. w.o.m.);




     Holt v. Texas-New Mexico Pipeline Co., 145 F.2d 862 (5th Clr. 1944).




22.  Baker v. Knight, 205 S.W.2d 65 (Tex.Civ.App.  - Waco - 1947, no writ).




23.  Kampmann v. Rothman, 101 Tex. 5)35, 109  8.W.   1089 (1908); Cage v. Croed,




     308  S.W.  78 (Tex.Civ.App. - Waco - 1957, no writ); Randle v. Naugle,




     229  S.W.  297 (Tex.Civ.App. - El Paso - L927, no writ); Moore & Savage




     v.  Kopplin, 135  S.W.  1033 (Tex.Civ.App. 1911,  writ ref.).  Contra:




     Dix v. Robinson, 276  S.W.   770  (Tex.Civ.App. - Amarillo - 1925, no writ.)




24.  Harris v. Atcheson, T. i S.F. P.y. Co., 538 F.2d 682 (5th Clr. 1976).




25.  Gregg v. Allen, 481 S.W.2d 452 (Tex.Civ.App.  - Waco - 197?, writ disra'd);




     Leonard v. Abbott, 357 S.W.2d 778 (Tex.Civ.App. - I'exnrkann - 1962), rev'd




     on other grounds 366 S.W.2d 925  (Tex. 1963).




26.  Pitchfork Land & Cattle Co. v. King, 346 S.W.2d 598 (Tex. 1961).




27.  Taylor, B. & H. Ry. Co. v.  Warner, 88 Tex. 642, 32  S.W.  868 (1895);




     H.  & C. N. Ry. v. Meador, 50 Tex. 77 (1878);  City of fort Worth v. Miller,




     336 S.W.2d 296 (Tex.Civ.App. - rt. Wortli - 1960, writ ref. n.r.e.); Texas




     & P. Ry. Co. v. Price, 61 S.W.2d 195 (Tex.Civ.App. - Kl Paso - 1933, rev'd




     without opinion); City of Polytechnic v. Rfdmon, 217  S.W.  730 (Tfx.Civ.




     App. - Ft. -Worth - 1919), rev'd  in part 236  S.W.  73 (Tex. Coram1 n. App.




     1922, holding adopted); Steptienville N. & S.  T. Ry. Co. v. Couch, 121




     S.W.  189  (Tex.Civ.App. 1909, no writ).




28.  I1MR Constr. Co. v. Wolco of Houston, Inc., 422 S.W.'d 214  (Tex. Civ. App.  -




     Houston - 1967, writ ref'd. n.r.e.).




29.  McDaniel Bros. v. Wilson, 70 S.rf.2d 618 (Tex.Civ.App. - Beaumont - 1934,




     writ ref.).




30.  Marks v. F.W. Woolworth Co., 32  F.2d 145 (5th Clr. 1929).




31.  Bond v. Otis Elevator Co., 388 S.W.2d 681  (Tex. 1965).

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  32.   Dupree  v.  Piggly  Wiggly  Shop  R.'te  l-'oods,  542  S.W.2d  882  (Tex. Ci v. App.  -

       Corpus  ChtUti  -  1976, writ rcf. n.r.-O,  noted  9  St.  M.L.J.  153  (1977).

  33.   196   S.W.   255  (Tex.Civ.App.  -  Calve.<;ton  - 1917, writ  rei'd.).

  34.   Id.  at  256.
       \
  35.   See  Annotation, 33  ALR 2d  at  118.

  36.   70 S.W.2d  618  (Tex.Civ.App. - Beaumont  -  1934, writ  rcf.).

  37.   Id_^  at  621.

  38.   Id_._

  39.   50 Tex.  77  (1878).

  40.   514  S.W.2d  789  (Tex. Civ .App. -  Beaun-ont -  1974, writ  ref'd. u.r.e.).

  41.   Whether  inadvertently permitting the  spiay to escape  and  enter plaintiff's

       property would  constitute  a trespass  depends upon  the  view  tint  is  taken  of

       the  intent  element  of this  tort  in Texas.   It is clear that the actor  need

       not  intend  to damage plaintiff  or even  to  make an  unauthorized entry.  But

       some of  the Texas decisions seem to support the proposition that  the actor

       must intend (desire or know to  a substantial certiinty the result  is bound

       to follow)  the  physical  consequences  that amount in law to a tresuassory

       entry.  See Mountain States Telephone & Telegraph Co.  v. Vowell Const. Co.,

       341 S.W.2d  148  (Tex. 1960); General Telephone Co. v.  Bi-Co Pavers,  Inc.,

       514 S.W.2d  168  (Tex.Civ.App. - Dallas - 1974, no writ).  Others hold that

       it is sufficient  that the  actor committed a voluntary act that led imme-

      diately and directly to  the trespas-5ory entry.  See Ruiz v. Foreman, 514

       S.W.2d 817  (Tex.Civ.App.  - El Paso, 1974,  writ dism'd  w.o.j.); First City

      National Bank v. Japhet,  390 S.W.2d 70  (Tex.Civ.App.  - Houston -  1965,

      writ dism'd w.o.j.).  On the latter view,  the contractor would have com-

      mitted a trespass in Sun Pipe.

41a.  21 Tex.  S.Ct.  J. 302 (1978).

41b.  The case centered  on the  contractor's liability, not  the employer's.

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42.  72  S.W.  868 (Tex.Civ.App. 1903, writ rcf.).




43.  Id. at 869.




44.  Missouri Valley Bridge 6. Iron Co. v. Ballard, 116  S W.  93  (Tex.Civ.App.




     1909, writ ref.).




45.  Loyd v. Herrington, 182 S.W.2d 1003 (Tex. 1944).




46.  See Annotation, "Liability of Piivate Persons cr Corporations Draining into




     Sewer Maintained by Municipality or Other Puhlic Bodv for Damages to Riparian




     Owners or Others," 107 A.L.R. 1192  (1937).




47.  Carmichael v. Texa'-kana,  116 Fed. 845, 849  (8th Cir. 1902).




48.  See, e.g., Johnson v. Kraft-Ptu-nix Cheese Corp., 94 S.W.2d 54 (Tenn.App.




     1935).




49.  See Clinard v. Town of Kernersville, 215 N.C. 745, 3  S.F..   267  (1939);




     Hampton v. Town of Spindale, 210 N.C. 546, 187  S.E.  775 (1936); Athey v.




     Tennessee Iron & R. Co., 191 Ala. 646, 68 So. 154 (1915); Kramer v. Smith,




     164 Ky. 674, 177  S.W.  286 (1915); MorrK Canal 6, Balking Co. v. Diamond




     Mills Paper Co., 71 N.J.E. 481, 64 Atl. 746  (1906).




50.  26 S.W.2d 161 (Tex.Comm'n.Apr. 1930, holding approved.).




51.  Boyle v. Pure Oil Co., 16 S.W.2d 146, 149 (Tex.Civ.Ap i. - Waco - 1929).




52.  Pure Oil Co. v. Boyle, supra note 50.




53.  Strakos v. Gehring, 360 S.W.2d 787  (Tex. 1962).




54.  Id. at 792-93.




55.  See discussion at notes 6-11, s_upra.




56.  Klassen v. Central Kansas CooperativeCteampry,I'0 Kan. 697,  165  P.?d 601




     (1946); Berrv v. Shell Petrolerm "o. , 140 Kan.  94,33''.2d 953 (1934).




     See also State Highway Commission v. Empire Oil & Refining Co.,  141 Kan.




     161, 40 P.2d 355 (1935) (oil company «ihich let  oil escape liable when




     waste caught fire through action of highway commission employees burning

-------
     weeds).




57.  See discussion at notes fa-11, suprru




58.  See People v. City of Los Angel fs, 189 P.2d 489 (Cal.App.), cert, denied




     335 U.S. 852 (1948); Weingand v. City of North Platte, 108 Neb. 17, 187




     N.W. 90 (1922); Brady v. Detroit Steel & Spring Co., 102 Mich. 277, 60




     N.W. 687 (1894).




59.  Sef- People v. City of Los Angeles, 189 P.2d 489, 498 (Cal.App.), cert.




     denied 335 U.S. 852 (1948).




60.  510 F.2d 468 (4th Cir. 1975).




61.  Id. at 472.




62.  _IJ_._ at 475.




63.  Id. at 475 n.17.  B.O.D. is biochemical oxygen demand.  it is a measure




     of the ability o f decomposing sewage to remove di:. solved oxyj;en from the




     water.




64.  That is  the view of the case taken In Note, "Environmental Law - i-Iunicipal




     Immunity," 53 N.f.L.Rev. 1064 (1^75).




65.  250 Ark. 1003, 468 S.W.2d 239 (1971).




66.  See Note,  3 Tex. Tech L.Rev. 385 (1972); Note, 26 Ark. L.Rev. '.08  (1972).




67.  Note, 3  Texas Tech L.Rev. 385, 389 (1972) quoting Udal1, Waster Use - A




     Symposium, 9 B.C. Ind. & Com. L. Rev. 5't', 533  (196S) .  It is quite possible




     that courts confronted with la;go-sealf damages caused by waste  in  the cus-




     tody of  a  facility might be impatient with generators' attempts to char-




     acterize the facility as an independent .-out ractor.  As stated by  the




     federal  court in a Fair Labor Standards Act case, "The term, 'independent




     contractor,  'employee,' and  'employer' are not to be construed in their




     common-law sense when used in federal social welfare legislation."




     Mednick  v. Albert Enterprises, Inc., 508 F.2d 297, 299 (5th  Cir. 1975).




     The sentiment may be appealing in the pollution context.

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          The independent contractor rule is under perennial attack.  See, e.g.,

     Comment, Risk Administration in the Marketplace:  A Reappraisal of the In-

     dependent Contractor Rule, 40 U. Ch. I,.Rev. 661 (1973).
       \
68.  See Shannon, "The Dilemma of Liability and Perpetual Care Issues," PRO-

     CEEDINGS OF THE FIFTH NATIONAL CONGRESS: WASTE MANAGEMENT TECHNOLOGY AND

     RESOURCE AND ENERGY RECOVERY 344, 357 (EPA Pub. No.  RW-22p. 1977) (genera-

     tors will normally insist on title - transfer provision in contract with

     facility).   See also report of March, 1977, Conference of National  Solid

     Wastes Management Association, 7 Env. Rotr. (BNA) 1873, 1874 (1977)  -

     (industry spokemen  recommend  that "liahility, responsibility, and owner-

     ship of hazardous wastes should be transferred togetl.rr from generator to

     disposer.")

69.  Se_e United  States v.  Inraon, 205 i-.2d 681, 684 (5th Cir. 1953);  Annotation,

     48 A.L.R. 3d 1027 (1973).

70.  430 S.W.2d  906 (Tex.Civ.App.  - Amarillo - 1968, writ dism'd).

71.  Quoted, id.,  at 908.

72.  Restatement (Second)  of Torts sec. 352.

73.  Id., sec 353.

74.  £ee Rourke  v.  Carza,  530 S.W.?d 794 (Tex. 1976); Hovenden v. Tenbush, 529

     S.W.2d 302  (Tex.Civ.App. - San Antonio - 1975 - no writ); Challoner v. Day

     Zimmerman,  Inc., 512  F.2d 77 (3th Cir.  1975).  See aj.so_ Armstrong, Rubber

     Co. v. Urquidez, 560 S.W.2d 781, 783 (Tex.Civ.App. - El Paso - 1977, writs

     granted 21  Tex. S.Ct. J. 331 (1978): "[T]he meaning of 'sellers' [fur

     strict products liability] lias undergone a substantial amount of metamor-

     phosis, 'sellers' having been extended in some cases to include sellers

     of used products, bailors, lessors, and homebuilders.  * *  *'[S]trict 1ia-

     b 111ty rests on foresreabl1itv^ and not on esoteric innrrpts relating to

-------
      transfer or dc]ivory of  possession.'   *  *  *   Here,  the  manufacturer  under




      the bailment  furnished the  tire, on  the from  wheel  of the  truck which was




      to be used by the driver while driving at  high  speeds testing  the  tires  on




      tlib rear of the  truck."  (emphasis  added.)




75.   See Darryl v. Ford Motor Co., 440 S.W.2d 630  (Tex.  1969).




76.   Nobility Homes of Texas, Inc. v. Shivers,  557 S.W.2d  77  (Tex.  1977).




77.   Henderson v.  Ford Motor  Co., 519 S.W.2d 87  (Tex.  1974).




78.   General Motors v. Hopkins, 548 S.W.2d  344 (Tex.  1977).




79.   Darryl, supra note 75.




80.   Challoner v.  Day & Zimmerman, Inc., 512 K.2d  77,  82 (5th (,ir.  1975).




81.   See General Motors v. Hopkins,^nij>ra note 78;  Henderson,  sujvra  note  77.





82.   See Crocker v. Winthrop Lab, 514 S.W.2d 429  (Tex.  1974).




83.   Com£s.re_ Darryl v. Ford Motor Co., 440  S.W.2d  630  (Tex.  196il) and  East Texas




      Theatres, Inc. v. Rutledge, 453 S.W.2d 466  (Tex.  1970).




84.   Atlas Chemical Industries,  Inc. v.  Anderson,  514  S.W.2d  309, 317  (Tux.Civ.




      App. - Tcxarkana - 1974) afi'd in part and  rrv'r  in p.n t 5'J'i S.W./M  681




      (Tex.  1975).




85.   See, e.g., the Texas Solid  Waste Disposal  Act,  Tex.Rev.Civ.St.Ann.  art.




      4477-7 (Supp.  1978).




86.  W. Prosser, Law of Torts sec. '69, p. 471 (4th ed.  1971):   "It  is  difficult




      to suggest any criterion by which the non-dclegable character  of  such duties




     may be determined, other than the conclusion  of the courts  that the  respon-




     sibility is so Important to the community  that  the  employer should  not be




     permitted to transfer it to another."




87.   "(T]he independent contractor doctrine is  falling  into  disfavor as  an





     anachronism in the modern economic  sphere.   * * *   There are 14 exceptions




      to the general rule that an employer is not vicariously  liable for  the




     torts  of an Independent contractor."  Note, 5 Hofstrn [,.Re\. 413,  421  (1977).

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 88.  On the other hand, a recent decision holds  rliat the  EPA .Attempt  to  impose




      vicarious liability against oil companies who'ie Independent  station-




      contaminate lead-free gasoline with leaded  ^as was invalid as  too  far  ex-




      ceeding the traditional boundaries of vicarious liability.   Amoco  Oil  Co.




      v. EPA, 543 F.2d 270 (U.C. Ctr. ' <>76) , noted 5 Hofstra L.Rev.  413  (1977).




      See also Geller, Vicarious I.iabi'ity of Oil Refiners  lor Copt.imi n it ion of




      Unleaded Gasoline Under the f] ran A1r Act,  6 Fnv. Aff . 249 (1977).




 89.  42 U.S.C. §§ 2011 et.  seq. (Supp.  v . l'J75).




 90.  431 F.Supp. 203 (W.D.  N.C. 1977)




 91.  The proposed state legislation under consideration in  this report  would be




      tested by the due process and equal protec t ion provi1- urns of  the  iourteenth




      Amendment, rather than the Fifth   It is  believed thjt the relevant  con-




      stitutional limits do not differ in substance between  t lie two  amendments.




 92.  Probable jurisdiction noted, No. 77-373,  4f> D.S.I..W.  3106, Nov.  7,  1977, the




      case was argued on March 20, 1978.  46 U.S  I..W. 3600.




92a.  431 F.Supp. at 222.




 93.  Id. at 223.




 94.  Id.




 95.  Id.




 96.  L.R. 3 H.L. 330 (1868).  5>££ discussion,  sup^a, at notes 6-11.




 97.  431 F.Supp. at 224.




 98.  Id.




 99.  New York Central R. Co. v. While, 243 U.S.  188 (111?;'.




100.  Crowell v. Benson, 285 U.S. 22 (1932).




101.  The specific argument made by the .C2.rol_ljy_ FJIV iron men rj l_S_tiid_y^_Cjrmi£ court,




      to the effect that the North Carolina version of  Ryl.mds v.  Fletcher imposed




      a strict liability doctrine against one who caused a nuclear disaster whereby

-------
      none of the' waived tort. defcn.ses would have i-.eon available,  is of eonnu-




      wholly inapplicable to Texas lau, which larks the Rylnnds v.  Fletcher doc-




      trine and is without any general doctrine of strict liability for ultra-




      hazardous activities.   See discussion £upra at notes 6-11.




102.   Moreover, it is not true that legislatures must always J;ive  a quid pro ruio




      when they abolish tort rights.   In several of the state supreme court de-




      cisions upholding no-fault systems for deal ing with traffic  injuries, it




      has been pointed out that legislatures have often validly done away with




      existing tort remedies without  leaving anything in their pl.ice.  See, e.g.,




      Montgomery v. Daniels, 340 N.R.  2d 444,  454 (N.Y. 1975);  Shavers v.  Attorney




      General,  237 N.W.2d 325,  334n (Mich.  1975).




           One example of such state  legislation Is the automobile  guest passen-




      ger statute, which takes  away the guest  passenger's right to  sue in tort —




      unless the driver's conduct  met  some  variant of a gross nrgligeroe,  will-




      ful,  wanton, reckless, or intentional standard—without giving him anything




      in  return.   Several recent decisions  have held automobile guest statutes




      unconstitutional,  but  on  grounds not  plausibly related to the question of




      the validity of the proposed statute  undrr study in this  report.   The




      typical basis for  holding guest  statutes invalid has been the equal  pro-




      tection clause.   In brief,  the  courts which have struck guest statutes have




      considered that  the patent  inequality established by ihe  statute,  between





      the  class  of affected  tort plaintiffs and others who sue  in tort,  is not




      reasonably related  to  the  presumed legislative goals of protecting hospi-




      tality and  eliminating collusive lawsuits.   Se_e_> ej_g_. , Schwa] be v.  Jones,




      534  P.2d  73  (Calif.  1976); Brown v. Merlo,  506 P.2d  212 (Calif.  1973).




           Several recent  decisions uphold  automobile guest  passenger statutes.




      See,  e.g.,  Sidle v.  Majors,  341  N.E.2d  763 (Tnd.  1976);  Pehrns v.  Burke,




      229 N.W.2d  86  (S.D.  1975); Keasling v. Thompson,  217 N.W.2d 687 (Jowa 1974).

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103.  The decisions upholding no-fault systems for dealing with traffic iniuries

      are uniform in rejecting the strict scrutiny test in favor of the rational

      basis test.  The strict scrutiny test is applied only when a challenged
       \             "
      law creates classifications drawn along suspect lines or invades sc Tie fun-

      damental constitutional right.   Sec, e.g., Montgomery v. Daniels, 340 N.E.2d

      444, 453-4 (N.Y. 1975).

104.  See, e.g., Pinnick v. Cleary, 271 N.K.2d 592, 601 (Mass. 1971).

105.  See, e.g., Lasky v. State Farm Insurance Co., 296 So.2d 9, 15-16 (Fla. 1974).

106.  S_ee_ Montgomery v. Daniels,  340 N.F..2d 444 (N.Y. 197f>) ; Shavers v. Attorney

      General, 237 N.W.2d 325 (Mich.  1975); Singer v. Sheppard, 346 A.2d 897

      (Pa. 1975); Manzanares v.  Bell, 522 P.2d 1291 (Kan.  1974~> ; Lasky v.  State

      Farm Ins.  Co., 296 So.2d 9  (Fl.i. 1974); Opinion of the Justices, 304 A. 2d

      88l'(N.H.  1973); Pinnick v. Cleary, 271 N.K.2d 592 (Mass. 1971).

107.  340 N.E.2d 444 (N.Y. 1975).

108.  Id. at 451.

109.  Id.

110.  Id. at 453.

111.  Id. at 453-54.

112.  Id. at 455.

113.  Manzanares v. Bell, 522 P.2d 1291 (Kan. l'J74) ; Opinion of the Justices,  304

      A.2d 881 (N.ll. 1973).

114.  Mlddleton v. Texas Power t,  Light Co., 108 lex. 96, 185 S.W. 556  (1916),

      aff'd 249 U.S. 152 (1919);  Consumers' Lignite Co. v. Grant, 181  S.W. 202

      (Tex.Civ.App. - Dallas - 1915, writ ref.).

115.  Big Mack Trucking Co. v. Dirkcrson, 432 S.W.2d 1 (Tex.Civ.App. - Houston

      (1st Dist.) - 1972), rev'd  on other grounds 497 S.W.2d 283  (1973); Houston

      Pipe Line Co. v. Beasley, 49 S.W.2d 950 (Tex.Civ.App. - Calveston - 1932,

      no  writ).

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116.  Consmers1 Lignite Co. v. Grant, 181 S.W. 202  (Tex.Civ.App. - Dallas -




      1915, writ ref.).




117.  Middleton v. Texas Power & Light Co., 108 Tex. 96, 135 S.W. 556, 559 (1916).




118.  Houston Pipe Line Co. v. Beaslc-y, 49 S.U.2d 950 (Tex.Civ.App. - Galveston -




      1932, no writ).




119.  Id.




120.  Big Mack Trucking Co. v. Dickerson, 482 S.W.2d 1  (Tex.Civ.App. - Houston




      (1st Dist.) - 1972), rev'd on other grounds 497 S.W.2d 283 (197J)•




121.  See Lebohm v. City of Calveston, 275 S.W.2d 951,  954  (Tex. 19?5).




122.  Tex.  Const,  art. I, § 3.




123.  Lestrr v.  County of Terry,  Texas, <491 F.2d 975 (5th Ctr. 1974).




124.  Lrbohm v.  City of Galveston, 275 S.W.2d 951, 955  (Tex. 1935).




125.  Lebohm v.  City of Galveston, 275 S.W.2d 951 (Tex.  1955), Houston Pipe Line




      Co. v. Beasley, 49 S.W.2d 950 flex.Civ.App.  - Galveston - 1932, no writ).




126.  Gentile v.  Altermatt, 44 U.S.L.W. 2076 (Conn.  8/5/75); Singer v. Sheppard,




      346 A.2d 897 (P.i. 1975).




           Other  state constitutions have provisions that have been construed to




      mean a common-law tort action cannot be  abrogated  without consent of po-




      tential tort victims.  Workmen's compens.il ion statutes often satisfy such




      constitutional provisions by providing th.it  a workman Impltedly consents




      to compensation coverage rather than tort unless he rejects compensation




      coverage in writing.   See,  e ._g_. , Wells v.  lefferson City, 255 S.W.2d 462




      (Ky. 1953).   No-fault statutes permitting motorists to opt out of the bene-




      fits and responsibilities of the law by  filing a written rejection have




      been upheld  on similar reasoning.   Farm  v.  McCuffey,  44 U.S.L.W. 2028




      (Ky.App.  1975).

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 TEXAS LEGISLATIVE SERVICE               Senate Cfinmi rfpp .Substitute
 3/8/79                                       for s- p- "9

                          A BILL TO RE  ENTITLED

                                 AN ACT

 relating  to  the creation and administration  of  "he  Non - rad i oac t ive

 Industrial  Perpetual Care Solid Waste  Fund,  amending  Section  8(1)

 of  the Solid  Haste Disposal Act, TEX.  REV  CIV   ST'"   ANN.  art

 4477-7 (1977),  as amended, adding Subsections  (15).  (16), and (17)  to

 Section  ?  snd addinc l'ection 12 to the SoJid haste  Pisposal Act,

 •;E.X   RT.V  civ.  STAT  ANN.  art  4477-7  (1977)


       El  IT T;N,tCn=r BY  THE LEI. I! ..M HPF OE T U. SiA'IE C!:  IfcKAS:

       SICTTN 1.   Subjection (i).  Section 8,  Solid  haste  Disposal

 Ac',  .>? anended,  1EX  PEV  CIV. STA1    \N"'.  i r t.  4477-7  (19771,

 is amended to read as follows

       (i)  All  civil  penalties rf J^a_ter  Resources ;

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            "board" neans the "'exas V. a tej^Development Board;




       f 1.")  "iion-rsdioactive , _in_d\jsj/r_;_a_l	sojid  waste" means that



 i nd j; t.: i .11  1,0 1 i d uaste which does not	emit  radiation spon t a ncous 1)'.



       SICT10N  3.  The Solid Waste Disposal  Act,  FhX.  REV. CIV. STAT.



ANN.  art.  4477-7 (1977), is amended by  adding  Section 12 to read as



follows




      §££ii°n  12.   There is hereby establ ished  in  the 3t z_tc Treasury



a_ sji_e£i al  fund ,	vhich shall_hc known as  the N' o n - r a d i oac t i \j?,  I iHus -



tiial, Perpetual Care Solid Waste Fund,  and which  shall be funded



thiouph  and administered by the department _?f_ wju e_r	resources .



Interest accruing  from this	Fund shalj_be _credited  to the Fund ann-



u a 11 y bj^_t_he Conp troll er of Public A'" count s .



       ' a)  N'on i e s  to  e sjt_a_b _! i_sh_ an d_ i rip 1 e_m e ru_ _th_e__£i]_rp o s_es_ of  such



Perpetual Care F u n d can be  ob':i)^ie_d ^nd_r!'.il]	b_e_ji_rr-ropijr.i a t ed f:om



the	foljowing  sources-



       (1)  Fees.   The department of	i^arer resources,  acting through



the board, is directed tn establish, not  Idler	than_ o_ne year  fi on the



date  of pas sage  of  this bill,  a fee s^hedu]e and  to  collect such fees



from  pel sons who generate,  collect,  handle, store,  process, or dispose



of industrial solid waste.  Such fee schedule shall be  Implemented



after public hearinRS which address at a minimum the financial responsi-



bilities and solvency of generators,  transporters and disposers of such



non-radioactive, Industrial solid waste.  The board shall  to the extent




practical in Its judgment vary the fee  assessed  per  ton for var ious



classes, types or  other category of industrial  sol id ivaste such that



the fee assessed bears a reasonable relationship  to  the environmental



hazard posed by  the various classes, types  or  other  category  of waste.



In no case shall the  fee exceed fifty cents (SOQ  per ton.  The mini-



mum fee may be  zero  cents (OQ per ton.   From  time to time as may be



appropriate in  the  opinion  of the board,  the  fee schedule may be

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altered  so  as  to "naintain  the  uruMicuribercd fund balance  at  a  level




"_° t  to _cxce_ed  f iv e mil lj_on_ d_£.Il?£l ii S.OPP J10 0) .
       (3)   Civil  suit settlements  or  judgments.  Onc-ia]f  of  any



poi t ion of  js_ny  settlement or judgement  designated for  the  General



Rex enue Fund  of th e State o f Texa s_ by_S ec_t_i_o_n_ _fi_(j_) o f  this  Act  shall



b_e_p_aj d to  t his Fund .



       (4 )   For f e 1 1 ed _ bonds or deposits'   Any bonds ,  escrow  monies,



or  other monies which are p 1 ^jgj^d  or  required pursn ant  to  p e r m i t s ,



orders , or  rules  of the department  of water resources  and  which  are



subsequently jorfeiteJ shall be pa id  in full to this Fund  unlesj^



otherwise _prjo^i_ded in bond covenan ts .



       (5)   Legislative appropriation-   The Legislature may  approp-




riate monies ^to th is Fund .   However,  any ^sujL]!--!!0-" J_e_!_s o_a ppropr iated



by  the Legislature jjia^l be __re imbnr sed  to  the_ General  Revenue  Fund



unless the  legislative a p r r^p r i a t ion  specifically states this  repay-



ment to the General Fund is not inquired.   ,\rty  such  re ii?bui sement  is



to  occur wilhin 100 days f qnomnj'  the  £lj^t_e pj_ Jhc_s tat_e_ b i ennium  and



onlv after  ttic__u_rg«_cinnbc_reJ Fuml ^ij?a
-------
 is  authorized  to  obtain  monies  for  this  Fund  from any other sources
 not prohibited by  the  laws  of  this  state.
      (b)  The  executive  director  is  authorized  to expend monies  from
 thijs  Fund u^ take  whatever  action j.hi ch  in  his  judgment,  is necessary
 to  prevent or mitigate adverse  impacts  from non-radioactive,industrial
 solid waste activities upon public  health,  welfare an'd-physical
 property.  The executive director is  authorized to expend monies
 from  this Fund for the purposes of  investigation to ascertain  if
 there are present  or potential  adverse impacts  to the public
 'filth, welfare,  and  physical property  from non-radioactive Industrial
 solid waste facilities, active  and  Inactive, permitted  and  unpermitce
The purposes for which the  executive  director is  authorized to
 expend funds to investigate or correct adverse  impacts may  include,
but are not limited to, Inspecting structures,  obtaining  samples,
 drilling  to investigate  subsurface  conditions,  constructing barriers
 or  monitoring  devices, excavating and removing  deposited wastes.
 The executive  director may  enter  into contracts to accomplish
 these purposes.
      (c)  The  department of waier resources nay require a person
 who proposes to use an active or  forraer  industrial solid waste
 disposal  facility, for any  purpose,  to submit to the department of
 water resources such information  as  may  be  reasonably required to
 enable the executive director to  determine  whether in his judgment
 the activities proposed will increase  the likelihood of adverse
 environmental impact.  The  department  of water  resources  is
authorized to exercise control  over  such activities  by  permits,
orders, rules or other regulations  to  carry out its  functions
under this act and to assure that such activities will  not  increase
 the likelihood of  adverse environmental  impact.

-------
       (d )   I'he department of water  res out ce? rn ty  i_-\ ^ r-r  into  any_




 agreements  as mny be  necessary and ^^pjopi ' n'.e  with tne _Un-M:e_d




 Slates  or  any of its  agencies thei eof to assure  _cc:Tpa_t ilkiH ty of




 this Fond  wi th any  similar system    t1-'^0'* JLV th£_l.n  tj^cJ  Stat
 or its agencies pursuant to the  Resource Cotv-erva t i_on_  ind  Rpcpv_ery_




 Ac t of 1976  or any  subs equent fedi ral l_e|^i s 1is ]__£ 1 a I




 solid waste  condition  which violates this act,  or i ul_e:3 , permi ts_2




 or orders  Issued pursuant to this  Act,  and which  re^m_re_s  _'~be




 expendi t uire  of monies  f rcni this'  Fund for t-he  corr ec * ion  of the




 unsatis factory condition ^hall be  responsible  for reimbursing,




 tne Fund  for monies expended,   Wlie never rronies  csre expended




 " r °*L- *- 'n IS yu n d ,  the execut i ve__d ir_(' -_t o r  s_h a 1 1  take _a| 1 reasonab le



 . ea ', ', ir*.1? necessary  to  recover f rotn  the  resr ;n s i ble parties  the




 iTionics spn-nt f r o m t h is _F un d .  including  vhrn neces_sary _tht




 initiation of a  la w suit.   The  Atto rney  General  shall x t j, Miservt



 the df pa T t m ent of j\ater^resources __J n __ an\  such 1 era 1  arrion.  All  such




 re >- cw e r e_d _ f un As , _ inc Ijjd iji£  ^°^__r_? ^-lllJrJ *'£  '"r°JIL I'JLL'- s  f L 1 ec i>ur ^uan t



 t_o th is subs- ect_i__ori ,  shall  be Jejpos i t ed  in  t i,e Fund .




       _( f )__ _ An^^en £ja_t o r ,_  rra n 5j)_o r t e r or  ch s r '' ^ e •   of  i, n - i a d i o 3 •  * : \ e




 ind\i!>t r i a 1 i-^ol id  v ist e vhn  pqrticipTtes_in  f -j ] 1_ i f  r {."Mi  , ?r' _ in th_e




 ^.^P-PjL^L^'L1!!^^^-0 ^ 'Jped under  Section J_2_f s)_[lj a_hovc_ anJ_wiu)__r;a 111 f ajns



 any bond  or bonds  if required  b_y  the  dpji.irTrrer.t of vptei  m -'ourc n ^




 un do:  authority  o f  T h i s Act  i s _^_nt i t J_ed _J_o _£n__o_ff set _f ^  i a 1_ t o  T h •*




 aTioujjt  of fees it has  paid  into  the Non-radicact i_ve_, __I »J 'J s_t_r a d 1 ,_




 Perpetual Care Solid Wa_ste  Fund  plu^ __ t^£__^£CP J^°unr  of"  lti; bond pay -




^_Ve  .^or  such damage from any  financial  l_ijib i^_ij_y  to  t > r _s_t j t e a r i s i ng




 from  its  generation, transportation or disposa 1 of non  rad lo-ictive ,




jjdus_tija_l  solid waste so long as the participating  genera to i ,



J^-illRP-1 tei- •  or  disposer  complies w^i th  all  applicable  state

-------
 1 t'i *JS ,  oenni '  ,  dep ,1 r t nic*n t of wa t or  resource".'  T u 1 1 " ,  .* nd




 ' ei ns  of appl ict" b 1 e  bonds .




      (_£2_ Air/ person who arquj rus  li t Ic to an  opening waste




 disposal  company or  o,n r a f i < n , or who  of- 1 n i ns  I. lu-  r i ,-h r  to oj>f rar c




 an ongoi HH vas ce d: sposa^^ facility  cons i_3j_ ent wi l_h  !v'._( e_J ( /_)_of _t Ins




 Ac C ,  t .ikp'S  ,'ich title  01 iiU--: fs L Stibjoc t  to 1 i.ibi 1 i E i r_^ incurred




 by_i_t s  prodecf ssor^)  in_ in: p '" o s t .  Thi«:__soct i on_  shn 1 1 _no_r  0£
      (h)   Any person who  a cq in res  title  to the land  on  which  an




industrial solid waste  disposal facility  is located,  or has  been




located,  or anv person  who obtains,  by  lease or otherwise,  the




legal  right to use and /or develop  svich  land,  tdkes such title or




right  subject to liabilities incurred by  its preuecessor(s)  in




interest.   ''"his section shall not  be construed so as  to Believe




any predecessor(s) in  interest from  liabilities i ncui r ed_.^




      (i)   Any person is fxtrnpL from  ront L i but i on to  this  Fund for




wastes  disposed for which fees aie actvially paid to  a similar lund if




           (1)  he is requiied to coritri bu» e to a similar  fund which




is in  existenc_e as of January 3_0 ,   1979 L  and




           ( 2 )  the board  d e r e r mi ne_s_t hn t. _s u_ch _p_r ?j£2il^A!l£^uI1A--i^.

-------
the functional  and  actuarial equivalent to the \on-radioactive
Industrial, Perpetual  Care Solid I'.'aste Fund herein  created.
      The Board nav  consider any fees paid by a rerson  to  a  nre-
existing fund which  is  determined by the board rot  to oc  tne func-
tional or actuarial  equivalent  of the TIT,,' nc'eu. ci r .11 cd  ;<'ioQuired to tontinue
to contribute to the pre-existing fund
       (j)   A  utility company generating and selling electric power
to the general public which generates  industrial ^.olid waste from
the residence  produced  by  the use  of coal or lignite in that process
is exempt  from any  fees  imposed  by this Act,
       (k)   Nothing  in  this Act  vests  in  the department of water
resources  any  power  with respect to any radioactive material subject
to Che jurisdiction  of the department  under TEX. REV.  CIV. STAT.
ANN,  art.  4590(f)  (1971).
       SECTION 4.   The importance  of this legislation  and the
crowded condition of the calendars in  both houses create  an
emergency and  an imperative public necessity  that the  constitutional
rule requiring bills to be read  on three  several days  in  each  house
be suspended,  and this rule is hereby  suspended, and  that thi<- Act
take effect and be In force from and after  its  passage and  it  is  so
enacted.

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      TEXAS LEGISLATIVE SERVICE                            H.B.  1551
      3/7/79
      Filed by Martin

      6-15-18-20-32--600     A BILL TO BE ENTITLED

 1                                  AN ACT

 2    relating to the regulation of  permanent  storage  or  disposal  of

 3    radioactive materials.

 4          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 5          SECTION 1.   Section  4(d),  Chapter  72,   Acts  of  the 57th

 6    Legislature, Regular Session,  19fal,  as  amended  (Article  4590f,

 7    Vernon's Texas Civil Statutes), is amended to read as follows:

 8          (d)  The  Agency shall for the protection of the occupational

 9    and public health and safety:

10          (1}  Develop programs for evaluation  of  hazards  associated

11    with use of sources of radiation;

12          (2)  Develop  programs with due legard for compatibility with

13    federal programs for regulation or souices of radiation,

14          (3)  Formulate,  adopt, promulgate and repeal codes,  rules and

15    regulations, which may  piovide  for  licensing  and  registration,

16    relating  to  control  of  sources of radiation with due regard for

17    compatibility  with  the  regulatory  programs   of   the   Federal

18    Government.   Rules and regulations shall not become effective until

19    ninety (90)  days after adoption  by  the  State  Radiation  Control

20    Agency;

21          (4)  Issue  such  orders  of  modifications thereof as may be

22    necessary in connection with proceedings under Section  6  of  this

23    Act;

24          (5)  Advise,   consult,  and  cooperate with other agencies of



      66R4063 MMH-F

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 1     the state, the Federal   Gove, iiment,   other  states  and   interstate



 2     tiqencies,   politica]   subdivisions,   and with groups concerned with




 3     control ot source.;  of  radiati.cn;




 4           (6)   Have  t he  authoi it,y  to  accept  and  administer   loans,




 5     qiants  or  uthei   fund .   or   gifts,   conditional  01  otherwise,  in




 b     fur the ranee 01 > ITS  f uric t ions ,  11 cm the Federal Government and  from



 /     otn^r sources, public  or private;




 8           (7)   Encourage,    participate   in,   or   conduct    studies,




 9     investigations,  training,  research,  and demonstrations relating  to




10     control of sources  of  radiation;  [an4]




11           (8)   Collect  and  disseminate infouution lelating  to  control



! T     ol  sources cl  radiation,  including




13           A j  a j    Maintenance of  a file of  all  license   applications,




14     issuances, denials, amendments,  tlansfers, renewals, modifications,




Lb     suspensions arid  i eirocations,




16           B 'b |    Mfiint ena'ice  ot  a  file  of  registrants   possess ing



17     :ioui ^et) ot i adi at icjii  i equ i r liiq regi btrti t ion ur.Jer  the  pi ov is ions of




IB     tnit. Act  and   ar,y  administrative  oz  judicial  action   pertaining




19     thPielo;  and



20           C i  e j.   Maintenance  of  a  file of  all  rules  and  regulations




21     ieldting   to   icaul ition  of  sources  ot  radiation,  pending   or



22     promulgated,  and proceedings theieon;_




23            (9^_	Have _^ the  .-uthority to acquire, by  purchase or..gift,, fee



24     si""^ J-' _t_i_tl_e _in_any_JLj_nds_, buildings^, o^ grounds where	ijadioactive



25     matei_aj._s	_pt oduced    _fcy	i ndustrial ,   medical,	  aqri cul tur a j.,




-fc    S*rl^[jt\ll^j	?-i- otht:r  organization are being or can be  concentrated,



^    st_ii f".d ,___v^__ oth_e_iw_ise  disposed  in	a  manner	cQnsjis_tgnt^ _wi th  the
      66R40h3  MMH-P

-------
L c  he a , 1 th   and^
                                    __ Property  acqm red  pursuarrt to this
 2    S^e c t. . i o n shall  b e_  de d i cjjt tid  to   sue h _purpose __ untii_  the  Agency




 3    detei"jnijiejj^ thg t  otht r_ ih;eb would  not _ enddiicjei  the  health, s a f e ty ,




 4    or general welfare  of the_publ ic.   Ai 1 t ignt^, title,  and  interest




 •>    in,  of.   and  to   i d d i o a c live material ;3  ^icce^Led^ _cy_the^ Agency _f_or_




 6    storage or disposal  at   -uch  facil ities   sha 1 }__,__  M3On_  dccepiance,




 7    bec^ome _ Jthe_ p rope 1 1 y  g^ __ _t _he  G t ale __a n d__ 3 h a j. 1 __ D e _ admi iiijstered,




 fi    controlled, and otherwise _dj_s_£0_sed^_^t^ ^y^Jj}^ Ageiicy__^n the name  _of



 9    this State,




10          JJIOJ ^ Have    the   -l^H1^ J ty   to  lease p: operties  ac^qu i red




H    pui&^Udnt  to this St^ct ion to a ffr i vate 1 i rm or f i . tjns _j"oi  tne puLpo^s_e




1 2    of operating such _o^a Le^b_f gi _ _the__ccmcent ^dj,i on, ^storage^,  o L~ dispob^^




^--*    of ^dd^Qfi^t Lve nate: j. J.LL 01 loi any ot her puipose not  contrary _ to




14    the  public  intei ijsLb  01 at ate  U.w.  Such bite  operation shdll  be




±b    undei the  direct   super vis ion  of   the  Ac;ei'c-Y- __ a nd_ _ sh^ll _ be_ _i_n




16    accordance ^'j_th__MLcju.l itj_of_i'^ j ]:^_1lLl-_1J_2.(He(:-  "'iL^H''?-!^1!^^ j.^ie_:Agenry ,



17    and




18           ( 11 )  Adiranistet  the _ K^d i_d t_i_o n _ Unj_  Peipetaal Caic  Fund  in




i<3    accordance with Sections _6_an_d_ 1 bA of this Act.




20          SECTION 2     Section  6,  Chaptel  7?,   Acts  of   the    S/th




21    Legislature,  Regi.lai  Session,   1961 ,  as  anended  (Aiticle 4b90f,




22    Ver non ' s Texas Civil  Statutes ), is amended  by  ado: nq  SUD sect ions




23    (e)-(k) to reaa ai:  follows:




24           (e )  Each licensee , as a condition of  its  1 icense, shal 1 *



2 5          . ^ 1 j^ Arrange   for   and  PaY_ a 1 1 _ of t h e c o s t s_ o f^ m a n a g e m e n t _,_



2 ^    control,  stabilization , a nd disposal _g f^ radiodct: z_vt-_ mat_er_i_a_ls  ^nd




27    for the decommissioning of  the licensed activity;
       66R4063 MMI1-F

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 1          ±2)  Before  the  termination  of  all  licensed  activities,



 ?    convey to Lias State all right, title,	and  interest  held  by  the



 3    licensee  to  the lands, buildings, and grounds designated as sites



 4    fp_£_	the  concentration,  storage,  or  disposal   of   radioactive



 'J    materials  lesulting from the licensed activity pursuant to Section



 6    4 of this Act,  together  with  requisite  rights  of  ingress  and



 7    egiess,   and  all  rights,  title,  and interest in, of, and to all



 8    ladioactive materials  situated  on  such  properties  or,  at  the



 ^    election  of the licensee, to otherwise make safe or dispose of any



i0    radioactive matetials in its possession on the termination  of  all



11    licensed  activities  in  accordance  with  the  regulations of the



12    Agency



13          (f)  Each applicant t'oi a license or any renewal of a license



14    shall demonstiate and the Agency shall, prior to  issuance^of  any



15    license  or  lenewal  of  a  license,  find  that such applicant is



10    financially qualified to conduct the  licensed  activity,  including



^ "^    any  required decommissioning and disposal of radi oactive material.



18    The licensee shall submit  to  the  Agency  current  proof	of	i_ts



19    financial  qualifications  at  such   intervals as the Agency may by



20    regulation 01 license require.



21          (g)  Each licensee  shall post  financial  security   acceptable



22    to  the  Agency  to  assure  performance  by	the   licensee  of its



23    obligations under this  Act.  Such  acceptable  financial  security may



24    include one or more  of  the following:



25          (1)  A  bqnd__executed__by__a__5iirety— _corapjiny  or   companies



26    authorized  to  do   business   in   this  state  which   shall   not be



27    teiiignable during the term ol  the  license^
      66R4063 MMH-F

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 1          (2)  A letter of credit issued  by  a  financial  institution



 2    authorized to do business in this state;



 3          (3)  A cash bond; o_:



 4          (4)  The	guarantee 	o_f	a  ^1 lessee   whose   financial



 b    qualifications meet the requirements of the Agency or who furnisties



 6    collateral satisfactory to the Agency, which coUateial may  be  in



 7    the  form of a suitable guarantee by any person, if such pei'son has



 8    financial qualif>cat]ons that meet the requirements of the  Agency



 9          (h)  The amount of the financial security shall be determined



10    by the Agency in accordance with en ten a established by regulation



11    which shall include:



12          (1)  Consideration   of   the  need  for  and  scope  of  any



13    decommissioning activity reasonably lequired to protect the  health



14    and safety of the public;



15          (2)  Reasonable    estimates	of    the   costs   of   such



16    decommissioning as provided in Section_15A of this Act; and



17          (3)  The net worth o f the  sum  required _ for	the  perpetual



18    maintenance and surveillance of any radioactive materidIs resulting



19    from the licensed activity.



20          (1)  All  sums  accrued	01  paid  by  a  licensee under this



21    Section shall be deposited in  the  Radiation  and  Perpetual  Care



22    Fund.



23          (])  Upon  the  satisfaction  by  a  licensee  of  all of its



'24    obligations under Subsection (e) of  this  Section,  the  financial



25    security furnished under this Section shall be released.



26          (k>  All  money  received  by  the  Agency as a result of any



27    forfeiture or  enforcement  of  any  financial  security  furnished
      66R4063 HMH-F

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1 8




19
2 i




24



2b
PiiLf>_11 i on,  19bl ,  as amended   (Article   4500 f,   Vernor, ' s   Tex. L   Civil




Statutes ),  is  amended  by adding  Section IS.0  to  read ai, follows.




       Sec.  15A.   RADIATION  ^^L^RZA^yAL^CAR^^UST^   (a)  A special




i HI1 umjr,__3nd__co_l 1 ateraj  received by




' t pursuant  to  this  Sect jon _airf_ $>±c t_ion_ *S _o_f_ th_i_-3  Act   which   shall



be held  in  ^ rust  tot  caj_i_y i ^g_ ^ut t hf- j^uzp-o^s^.  of * hio Set'tion.




       { hj   AJJ. __ ^H^rL _tO ^de^osi_ted in^  t lie_ tund__sh i_lj_be invert -jd  and




Lp_1Il>jCi'J--£^_lil  ?i^e _si?inV nidnn. ;  an t lie_gen_e_r_al _fuiid_,__ er,a__ai 1 _edrnim/s




-UKJ  3 nt ei oa_t. _ ij:i:;il^ulill— l'lve - ^^il'  t;na ^ _'ib_.ii^PjJ; "- f-ed to_ijie  _C£_edo. t



c l  I he J;4!u:l__tmd  bhcij. l_tH-_av n  iJ^iUjl-j ior ^tt: __ j^a_'i o   ll'ul j^°-ul!;-_ (1''   a-^ ^~




" t Jje i  '-lUn.s  depo'i i t ed  j n U:-: fund




       ( c j   All J£-iijt__y  and co I l^vtei a 1  ir_thr ij^'^d^re1 appro|)L_i_at_ed_ t f>




di d ________ may  _ be __ i-Kpt-noVa  _ _by J-L'^—^'il if-iJL-..- ''r   ±(£iliii1a- -I ° r ___ t'ilr




ae _u . oin''^ s ^ ^ o r 1 1 r KJ_, _ ^tj^bj li^'^L?11 • —l11^ !l*_^.nciru:i1 ' _'il!J ve l ]-L'-}*}£r'j  C5in^_£9^



^l_9J_5'9e_!_ Q-i _dj_sposal   c_l _  j. id o d c_t : ve_ jr^i* ei \_al_b  ac: jjjjnred __ by __ uhe




Agency ___ tot  the  pi ot*jct ion ^t_L^l'_ puM H' Ji'-'jJ.U!  '[id^^fet^^piu ju_rtnt



 to  tins  Act



       ]_dj __ "^oney  and col l=i_t'3_ra_;_ i_ii_ _the_ j[uiid ^hal 1 not __be  ^'bed   for




 i-v - iih>_i_ _51Ee_i_at ij^tj   exp< uses  ^C>A^ ^I-l1^- ^(l?J"'f:i'_ artd ai> exe^nipt f i om a J 1



pi n\ i jiions i el at i ng _tp_ _ lap i-, IJK^ o_l appr op^'-ajij-^uni. ._




        (_^i_ If theze xs  a  possibility  t_hat __ iny __ Jj^f^^Jlsed  _a£tivi££



 wi 11  j.'^oult  in   ra_d^i.QdCti /e ^^wdste  mate_i  lals  which  wil 1 reqxiire




 jTic-. i n t on_ance_,_ _survej.]LIanjr ^.^   01   otht-i __c_
-------
 6
 *'
 8
 9
10
1 1
12
13
LS
1 9
20
21
22
23
2 4
^^
2 6
2 7
pgjrpetual  basis   a fte i  _ teirnina tj_on  _o_L _tho_ J _i ceru.ed __act,ivity,  t h_e
Agency  may require the licensee at such  activity  t'; j?ay annually to
the Agency for  deposit i .1 the_Pad Cation  and Perpetual Care Fund,  an
amoun tv  cqu_dl to the sum of_:_
       ( JLI  T h e  n e t__w o r t h  o i jt h e ^ujld_r e_cju 1 i ed to ^produce ji nyustment
earnings suf fie lent to pay th e cost of r,]a i ntenance  and s_a rveillance
of the  lands ,  buildings ,gj ovmds_,_ and^ radioactive materi a Is   to   be
conveyed  to  the  state pursuant to this_Act^_ less _the_ net worth of
all payments previously madf  by the licensee to_ the  Agency for  i,ach
purposes .  d^yj-ded_^y_tho jiumber of years  the 1 icensed __ 5jcr ivi_ty __i_s
reasonably ejtpected to cont i nu o_; _ \_n d
      ^2J _ With respect  to  ^_ waste  disposal dctivit^,  tne cobt of
any decommissioning activity,  efatiraleij  ^ of Of;^.oMbt.r  31  _o|_  the
y ^ a r _ p r e c e djjiy pa c^ri anriu_a_l __ r ^m_e^ t ,__l_ess__t he tot a_J_ of __g JJ __ payrnet^ t_s
previously __ made   to  th<- __ A3e_ncy _ bl' _  the _ 1 Lc^I^-l!.l __ /?I1 ___ y?Jr
Sl^£5I!H_^_^ "* P1} L ^9 act x v i ty ,  d_i y_i_rfe5l _ DJ/  _the ___ rio_mbej^  oj'  year &  _U ""*
licenced aL.L_ivit3r  JLS i^-^-jfin^Dly expected  to cojntijiue_
      ^£ )  Any  es t_i_ma tes  of costs or  aotiv  ' tj.es  i ^qu^ed t,o be jndde
pursuant to this Section  shall b e subj ec t_ to cha n ges  a no leviev;  ^by_
the  Agency  according  to _t_h^_ ne_ed ,   r^-u^? i_  ^r^ _ ^?JJJ ___° •   any
d*e coinm^s^s . i. oru ng a ct i v i ty  ar^d  the_ ^yitendnce _ ai_ia__ su i •>' f L 1 J _-. uc e  _qi
radioactive  matei ia_ls __ ^requj. i ed for pub_l iC hd-i 1th  and -2^^''^____^y,
             o s eji   _foj;_ JH^i.L''-_ r'^ir1^-  -ait_£.^i3Ji-^ _ -~- ' - „ ^h
      charges
                                                                             be
      e s t ab j^i j. h e d_ ^  at __ the__ _lo we^st __ I^y^e 1 ____ cons^ii> I •;• n t  _wi th   exist i ncf
      teclmology .  Any change  that results  in ariy  increa^se^-in  such  CTC)£ t_s
      shall  not be  applied  let.roactively,  but ouch  changes may  result in
      i nc r e a se : s^ i _n__ _s u b segue ri^t _an nual payment j^
      66R4063 MMH-F

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 1           (g)   In comp.iting the new worth ot any fund or  payments  for



 2     the  purpose of this Section or Section 6 of this Act,  the interest



 3     rate t»nall be equal  to  the  average  annual  rate  of  investment



 -»     earnings,   including  investment appreciation,  of the state general



 E)     fund over  the five (5) state fiscal years preceding any  net  worth



 6     determination  and  the  term  shall  be  the  riumber_	of years the



 7     licensed activity is expected to continue after such determination.



 8           (h)   At such time as any licensee has satisfied all  or  part



 9     of  its  obligation  under	Section 6 of this Act, the Agency shall



10     promptly refund to such licensee from the radiation  and  perpetual



11     care  fund  am	excess  of  the  amount  of  I sragraph  1  of this



12     subsection over the amount of Paragraph 2 of this subsection:



13           (1)   The sum of Subparagraphs	[A) and (B) of this  paragraph:



14           (A)   All payments made by the Ijcensee to the Agency pursuant



15     to this aiticle;



16           (B)   All investment earnings on SVK:h_ payments;



17           (2)   The  amount  then  determined  to  be  required   for the



18     continuing maintenance and suiveillance of  the  lands,  buildings,



19     grounds,  and  radioactive materials conveyed^to the state puisuant



20     to Section 4 of this Act.



21           SECTION 4.   Tne  importance  oi  this  legislation  and  the



?2     crowded  condition  of  the  caJendars  in  both  houses  create an



?3     emergency   and   an   imperative   public   necessity   that   the



24     constitutional  rule  requiring  bills  to be read on three  several



25     days in each house be suspended, and this rule is hereby suspended,



26     and that this Act take effect and be in force from  and  after  its



27    passage, and it is so enacted.
      66R4063 MMH-F

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                  Statement of Edward  G. Gladbach



                           on behalf  of



                   Department of Water and Power



                       City of Los Angeles



                          Public Hearing



          Proposed Regulations to Implement Section 3004



          Resource Conservation and Recovery Act of 1976



               U.S. Environmental Protection Agency



                          March 11, 1979



                    San Francisco, California
          My name is Edward G. Gladbach.  I am employed as a



Civil Engineer by the Department of Water and Power of the City of



Los Angeles.  There I am responsible for the Power System's



programs for water quality and solid waste matters.  Today, I will



express the general concern, which the Department has, regarding



your proposed regulations for implementing Section 3001 of the



Resource Conservation and Recovery Act of 1976.








          As I stated on Monday, we believe that only one or two



utility wastes could be hazardous.  We further believe that you



should not impose the 3000 series of the regulations on the



utility industry until you have developed a method of



classification which takes into account the known composition of

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material and the experience which is available in addition to a



sound Extraction Procedure.  We believe it would then be



appropriate to implement a "utility waste" category of



regulations.  Further, that the "utility waste" category include



all utility wastes which are unique to power plants.








          Please recognize that power plants presently meet the



requirements of several laws which protect the same aspects of the



environment as these regulations will attempt to do.  These then



only become another layer of regulation.








          Our main concern regarding the siting and operating



regulations is that we fear we would have to expend large sums of



money needlessly to meet these proposed regulations.  Much of that



jxpenriiture would be at our coastal power plants which undoubtedly



lie within the 500-year floodplain.








          In your regulations, a waste disposal facility is



precluded from being sited in a 500-year floodplain, an evacuation



plan must be prepared and submitted to the state and local lav;



enforcement agency, a security program must be implemented, etc.



The latter items have the sounding of operating procedures for a



nuclear plant rather than a settling pond.  As I pointed out in my



comments Monday, the waste materials from a fossil  fueled power



plant do not warrant such concern, if indeed any concern over what



is performed now.

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          Regarding the 500-year floodplain, it should be



recognized that Columbus discovered America less than 500 years



ago.








          It is reasonable to assume that chemical plants are



located within the 500-year floodplain, as are many power plants.



In the event of a 500-year flood on such a stream, the products of



the chemical plants, located in the floodplain, will be washed



downstream and mixed with the flood waters.  The only thing



remaining after the flood would be a power plant's waste disposal



facility containing materials which we contend are not even



hazardous.  We recognize the need to have improved procedures for



containing the more hazardous waste and to prevent reoccurrences



of the Love Canal incident.  However, things must be kept in



perspective; i.e., less stringent regulations for less hazardous



materials.  We must keep the No. 
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          I would like to point out that the Department has just



spent millions of dollars for the industrial waste water treatment



systems at two coastal power plants, which are probably within the



500-year floodplain.  This work consisted of piping and settling



basins.  The settling basins have been lined with asphalt to make



them more impermeable.  If these regulations ares promulgated as



proposed, we would probably have to completely rebuild these



basins, install monitoring wells, and fence the basins, etc.  Most



of this would be done to protect the groundwater because the



groundwater has less than 10,000 mg/1 total dissolved solids.  Yet



this groundwater will never be used because it migrates to the



ocean a few hundred feet away.  This is an example of my



discussion, on Monday, of expenditures of large sums of money



without any associated benefits.








          Based upon this information and that contained in my



statement Monday, we recommend that you exempt existing power



plants from the siting and operating regulations (as has been don.e



for the Publicly Owned Treatment Works), that you postpone the



promulgation of any regulations affecting future power plants



until your studies are complete, and that you revise the 500-year



floodplain to the 25-year floodplain.








          I appreciate the opportunity to comment on the



regulations this week.








                                Thank you

-------
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-------

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               ALUMINUM
                                                 March 9,  1979
Mr. John P. Lehman, Director
Hazardous Waste Management Division
Office of Solid Waste  (WH-565)
U.S. Environmental Protection Agency
Washington, D.C.  20460

Dear Mr. Lehman:

Kaiser Aluminum & Chemical Corporation  (Kaiser  Aluminum)  wishes to
comment on the proposed regulations to  implement  Sections 3001,
3002, and 3004 of the  Resource  Conservation  and Recovery  Act
(40 CFR, Part 250, Subparts A,  B,  and D),  published  in  the Federal
Register on December 18,  1978,  pages 58946 through 59028.

Attached are specific  comments  prepared  solely  by Kaiser  Aluminum.
As a member in good standing of the Manufacturing Chemists Associa-
tion and The Fertilizer Institute, Kaiser  Aluminum wishes to include
as part of its comments the comments which those  organizations
prepared and submitted separately  on behalf  of  their respective
memberships.
                            Very truly yours,
                            J, V.  Day, Manager
                            Corporate Environmental  Affairs
JVD/ra
Attch.
                                                        300 LAKESIDE DRIVE,OAKLAND, CALIFORNIA 94643

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            COMMENTS ON THE RESOURCE CONSERVATION AND RECOVERY  ACT
                   BY KAISER ALUMINUM & CHEMICAL CORPORATION
                                 March 9,  1979
A.  40 CFR, Part 250, Subpart A - Identification of Hazardous  Wastes
    1.  Waste Oils
        Waste oils, including those which are to be burned  as  fuel,  are specifi-
        cally identified as "other discarded material"  in  Subpart A,  250.10,  even
        though the oil itself will not be disposed of in the environment and
        even through the contamination is entirely presumptive,  that  is,
        "...because it is a potential  carrier for other hazardous wastes and
        substances" (pg. 58969, underline added).

        If it is the contaminant,  not the oil, which is the object  of the
        regulation, consideration of all  oil as presumptively contaminated is
        inappropriate and unnecessary.  PCB's are regulated under TOSCA with
        adequate penalties for violation  of disposal requirements; thus,
        regulation of "potential" PCB content under the Resource Conservation
        and Recovery Act (RCRA) is redundant.  Other contaminants emitted
        from combustion could and would be controlled under existing  regulatory
        authority in the Clean Air Act if they are, in  fact, hazardous; thus,
        regulation of other "potential" contaminants under RCRA is also
        redundant.

        If regulations under RCRA are deemed necessary in spite of redundancy,
        which Congress specifically directed against in Section 1006 of the
        Act, then they should be applied only to oils known to be contaminated,
        or which the operator has reason to believe may be contaminated.  In

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A.  40 CFR. Part 250. Subpart A - Identification of  Hazardous  Wastes  (Continued)
    1.   Waste  Oils  (Continued)
        other  words,  apply a  test which  is  consistent with  the determination
        that any other waste  is hazardous under  Subpart  A,§250.13,   Hazardous
        Waste  Characteristics.

        Risk of  PCB contamination should be decreasing at a rapid rate as
        these  compounds are removed  from service.  All operators of significant
        sources  of  such materials are  aware of TOSCA regulations for  disposal
        of  these materials.   If such persons  intend  to violate the TOSCA
        regulations,  it is unlikely  that the  existence of RCRA regulations will
        alter  that  intent.

        Thus,  little, if any, environmental benefit  will be derived from con-
        sidering all  waste oil  to be presumptively contaminated.  Rather,
        such presumption imposes unnecessary  administrative, technical, and
        economic penalties on operators of  facilities which can use internally
        generated waste oils  so as to  recover the energy values.  This is
        especially  true where recycling of  the oils  is either  technically or
        economically  infeasible or where the  source  and  chemical makeup of oils
        is  known and  potential  contamination  can be  avoided.

        This is  an  example of the failure to  provide flexibility where it
        could  be provided without loss of enforcement capability or threat to
        the environment.

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A.  40 CFR, Part 250. Subpart A - Identification of Hazardous Hastes (Continued)
    2.  Reuse of "Hazardous" Materials
        The position that placing a material  into or onto the soil  constitutes
        disposal is unreasonable and arbitrary.  Many commercial  products which
        are added to soils in normal activities of construction,  road building,
        agriculture, etc. have characteristics which, if a waste, would be
        regarded to be "hazardous" under this regulation.  Any by-product
        stream which can be used in commercial application to replace another
        product or by-product should not be regarded as a waste to be regulated
        under RCRA.  For instance, lime, which would be "hazardous" under the
        criteria used in this regulation, is commonly used in a number of
        applications as a soil additive.  It is frequently used in stabilization
        of roadbeds for road construction and in agriculture to modify acidity
        of soils.  By-product streams of a number of manufacturing processes
        can be used for either application because they contain residual
        alkalinity or otherwise are a desirable soil conditioner.  Such a by-
        product is no different from pure lime and, therefore, should not be
        regarded to be a "hazardous waste."  In no sense is this material
        being "discarded" as suggested in the proposed regulation.

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A.  40 CFR. Part 250. Subpart A - Identification of Hazardous Wastes (Continued)
    3.  Extraction Procedure
        The "worst-case" assumptions declared by the Agency in adopting the
        extraction procedure in 250.13(d) are fundamental  to all  of the
        following subparts since it is the basis for determining  whether or
        not a waste is subject to those subparts.
        The extraction procedures are so rigorous  as to produce a worst-case
        evaluation of any waste.  The intense physical  and chemical treatment
        of the sample does not simulate actual or  even  representative conditions
        of handling, storage or disposal of materials.
        Although the Agency acknowledges that proper management techniques would
        Droduce lesser degrees of hazard, the worst-case idenitfication leads
        only to worst-case design, construction and operation requirements.
        So-called "flexibility" now provided in the footnote leads only to
        equivalency to worst-case requirements.

        Some additional flexibility in both the identification procedures for
        hazardous wastes and the design, construction,  and operation standards
        should be provided to avoid unnecessary administrative, technical,
        engineering, and operating costs for both  the Agency and  the facility
        operator.  There may be more cost-effective methods of waste management,
        for instance, segregation of alkaline or neutral wastes to preclude
        acidic extraction of heavy metals or other hazardous contaminants.
        If the hazardous components are "fixed" or stable  and will not readily
        enter the environment, much less rigorous  conditions for  containment

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A.  40 CFR, Part 250. Subpart A - Identification of Hazardous  Hastes (Continued)
    3.  Extraction Procedure (Continued)
        are available for safe management of such wastes than those required
        by Subpart D.  The requirements for proper management, including
        prohibition of mixing which might release fixed hazardous components,
        could be included in the permit as readily as the v/orst-case require-
        ments of  Subpart D.   It should also be recognized that mixing of
        wastes may be desirable to bring about cost-effective fixation of
        hazardous components; therefore, mixing of wastes should not be
        arbitrarily prohibited,

    4.  Limit of Concentration Allowed in Extract
        In the preamble to Subpart A  (pg. 58953), EPA indicates that is is
        considering use of Water Quality Criteria as the basis for considering
        the leachate from a waste as being hazardous.

        Such a proposal is objectionable for several reasons:

            First, these "criteria" are not subject to public review and
            comment, nor are they necessarily subject to peer review by
            competent toxicologists outside the Agency.

            Second, these "criteria" have been developed with excessive
            safety factors which are not demonstrably appropriate for ground-
            water contamination.

            Third, most of the "criteria" are applicable to aquatic organisms
            not found in groundwaters.  Protection of surface water is
            inappropriate since  hazardous waste releases to surface waters are
            covered  by various regulations which  implement the Clean Water Act.

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B.  40 CFR, Part 250, Subpart B - Standards Applicable to Generators
    of Hazardous Hastes
    1.  Waste Oils
        See discussion in A. above.

    2.  Applicability
        In 250.20 and 250.29, persons generating less than 100 kg per month
        of a hazardous waste are permitted to dispose of such waste in a non-
        hazardous waste landfill.  Whereas relief from paperwork and reporting
        may be justified, this practice could lead to highly inconsistent
        environmental protection since the regulations fail to discern between
        and among varying degrees of hazard.  For example, the generator of
        1000 kg of a waste which may barely exceed the extract procedure limits
        must meet the worst-case requirements for storage or disposal of such
        a waste, whereas a generator of 99 kg of a waste which may be hundreds
        of times more toxic may simply dispose of the waste on a sanitary land-
        fill.
        The problem exemplifies the need for considering the degree of hazard
        in wastes and the cost effectiveness of dealing with the hazard.  Other-
        wise, worst-case standards will certainly cost far more than necessary
        for waste of low hazard and exemptions for "small" amounts for very
        toxic wastes may lead to severe environmental degradation.  In other
        words, it would be more cost effective to rigorously control any
        amount of all very hazardous wastes than to impose worst-case require-
        ments for all wastes that exceed the worst-case screening test.

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C.  40 CFR, Part 250. Subpart D -  Standards  Applicable  to  Owners  or  Operators
    of Hazardous Waste Treatment,  Storage and  Disposal  Facilities
    1.  Inclusion of Regulations Under Other Statutes
        The incorporation of standards under the Clean  Air Act,  the  Clean Water
        Act, the Safe Drinking Water Act, and  OSHA as standards  in this  regu-
        lation violates the admonition of Section 1006  or  RCRA not to  duplicate
        administration or enforcement under  those statutes.   In  addition, such
        incorporation establishes  double jeopardy for violations  of  those other
        statutes, a condition which the courts found unacceptable in the
        recent litigation on hazardous spill regulations under Section 311  of
        the Clean Water Act (MCA vs. Costle, et al, U.S. District Court,
        Western District of Louisiana, No. 780578,  June 8, 1978).

        RCRA does not authorize enforcement  of regulations which implement  other
        statutes.  EPA and State personnel responsible  for RCRA  enforcement
        may well be unaware of, or inconsistent with, the  intent of  those laws,
        regulations and policies which implement other  statutes.  Whereas RCRA
        must clearly be integrated with other  environmental  statutes,  the
        objective should be avoidance of conflict,  not  duality of enforcement.

    2.  Standards More Appropriate to Other  Statutes
        It is also clear from Section 1006 of  RCRA that Congress did not
        intend that new and separate atmospheric emission  limitations, effluent
        guidelines or standards, workplace standards, and  the like be  established
        under RCRA.

        Wherever such limitations  are needed for solid  waste disposal  sites,
        they should be adopted through the administrative  procedures and
        policies called for under  the appropriate statute  and enforced by

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C.  40 CFR, Part 250, Subpart D - Standards Applicable to Owners  or Operators
    of Hazardous Waste Treatment, Storage and Disposal Facilities (Continued)
    2.  Standards More Appropriate to Other Statutes  (Continued)
        the appropriate agency.  Safeguards for adequacy of review are provided
        by other statutes in the procedural requirements for standard setting.
        These safeguards are not restated by RCRA;  thus, there is great risk
        that the intent of the other Acts and policy  of other branches of EPA
        and state agencies would be circumvented.

    3.  Coverage of NPDES Facilities
        These proposed regulations incorporate design and operational standards
        for facilities required under NPDES permits,  including "impoundments,"
        "basins" and "treatment facilities."  As noted above, RCRA regulation
        should not duplicate Clean Water Act requirements which deal  with
        permitted discharges from such facilities  or  for spills of hazardous
        substances which may be discharged through  such facilities.  Addition-
        ally, RCRA Section 1004 (27) specifically  excludes solids and dis-
        solved materials in industrial discharges  subject to Section 402 permits
        in the Clean Water Act from the definition  of "solid waste."
    4.  General Site Selection
        The site selection proposals in Paragraph  250.43-1, some  of which are
        not provided with "notes," are likely to preclude continued operation
        of, or new siting of, facilities in many areas.
        Additional flexibility needs to be provided so as to permit facilities
        to locate in areas protected by structures  outside the facility and
        not built or controlled by the operator.  For instance, levees built

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C.  40 CFR, Part 250, Subpart D - Standards Applicable to Owners or Operators
    of Hazardous Haste Treatment, Storage and Disposal Facilities (Continued)
    4.  General  Site Selection (Continued)
        and maintained by the Corps of Engineers or levee boards in the Lower
        Mississippi River Basin have provided adequate protection against
        flooding although the area would be regularly inundated without them.

        The definition of an "active fault zone" is so broad  that no facility
        could be located in any area which has historically had a damaging
        earthquake.  This would cover many areas of the United States not
        generally considered to be high earthquake risks.   More reasonable
        criteria can be drawn up based on quantitative information and likely
        risk.  For instance, the State of California has specific criteria for
        structures to resist earthquake movements of reasonably expected
        magnitudes.  To provide for the largest possible earthquake is
        unreasonable in that it would be prohibitively expensive to build a
        facility to withstand such an earthquake or to transport wastes from
        the state to a "safe" location if, in fact, such a location exists.
        Californians recognize that if the ultimate quake occurs, the risks
        from the quake itself and from those things in the normal environment,
        i.e., fire, flooding, disruption of water supplies and sewage waste
        systems, release of flammable, explosive, corrosive,  reactive and
        toxic materials used in normal commerce, etc., are far greater than
        those which might escape from hazardous waste treatment, storage or
        disposal sites.  Thus, reasonable requirements can and must be accept-
        able whereas absolute safety is not attainable.

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C.  40 CFR, Part 250, Subpart D - Standards Applicable to Owners or Operators
    of Hazardous Maste Treatment. Storage and Disposal Facilities (Continued)
    5.  Contingency Plan and Emergency Procedures
        Although it would be desirable to attempt to inform local agencies and
        institutions and to develop programs as a contingency against
        catastrophic events, owners or operators of facilities have no legal
        authority to require their cooperation in this matter.  Thus, the
        requirements of 250.43-3(a)(2) and 250.43-3(a)(3) should be modified
        to require only that the facility inform these agencies and institu-
        tions, and where possible, make arrangement to coordinate emergency
        services.
        All of the provisions of 250.43(a)(4) through 250.43-3(b)(a) should
        be footnoted to allow the owner or operator of the facility to demon-
        strate that these requirements are not appropriate to the facility.
        Many industrial wastes which will be classified as hazardous will
        present little, if any, potential risk to the community even if an
        accidental release or discharge occurs.
        The provisions of 250.43-3(c) appear to impose an inordinate personal
        responsibility on the emergency coordinator who may not have the
        unqualified authority or qualifications to make all of the required
        decisions.  The emergnecy coordinator would have to be a physician,
        an explosives expert, an engineer, a public relations man, a police-
        man, a logistics expert, a chemists, and facility manager to personally
        carry out the specific assignments given him  by this part of the
        regulation.  There is likely to be a shortage of such individuals
        available on the job market.

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C.  40 CFR, Part 250, Subpart D - Standards Applicable to Owners or Operators
    of Hazardous Haste Treatment, Storage and Disposal Facilities (Continued)
    6.  Security
        The requirements of 250.43-2 are obviously intended to cover a
        commercial  dump site apart from any other business activity.  These
        provisions  are unnecessary for facilities located within manufacturing
        plant sites where access is limited and security provisions already
        exist.  Additional fences, gates, locks, signs, etc.  are redundant,
        and requirements for these should be footnoted to provide relief
        for such sites.

    7.  Training
        The requirements of 250.43-4 are unreasonable.  This  section is
        written for the worst-case situation in the commercial dump category
        of waste management.  It will create an artificial and false level
        of concern on the part of employees in waste management situations
        which present little, if any, hazard to employees or  to the community.
        Many industrial wastes will exceed the extraction test limits, but
        because of physical or chemical conditions, or because of management
        practices,  will not be hazardous to employees who handle them or to the
        community.   Job descriptions and training should not distort low-
        hazard or non-hazard jobs so as to create unjustified "hazard" classi-
        fications and unnecessary demands for "hazard" pay.  The require-
        ments of this section should be modified so as to avoid creating
        problems in collective bargaining in manufacturing activities.

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C.  40 CFR, Part 250. Subpart D -  Standards  Applicable  to  Owners  or  Operators
    of Hazardous Waste Treatment,  Storage and  Disposal  Facilities (Continued)
    8.  Visual  Inspections
        The requirement of 250.43-6 that the owner  or operator  include
        observations of vegetation for damage  during daily inspections
        implies that the owner or  his employee is capable  of identifying
        damage  attributable to discharges or release of wastes  from  the
        facility.  This task is not within the competence  of personnel
        available for employment at waste management facilities.   The iden-
        tification of such injury  requires the competence  of persons with
        graduate degrees in botany (physiology or phytopathology), and con-
        siderable experience with  the effects  of the particular pollutant
        causing damage.  A lay person would  be unable to discern  any subtle
        effects, and other much more obvious signs  of release would  likely
        be apparent before vegetation injury was recognized.
        This requirement is so unlikely to prove functional that it  should
        be deleted.  It is likely  to result  in either a failure to recognize
        a problem or in a high number of false alarms,  and will therefore
        prove an unreliable audit  procedure.
    9.  Groundviater and Leachate Monitoring
        The requirement in 250.43-8 that background monitoring  include a
        minimum list of elements,  compounds  or soil characteristics, even
        though these materials or  characteristics will  not be present in or
        result from wastes, is unreasonable.  Such  sampling will  provide no
        useful  data for managing the facility  or for determining whether or
        not wastes are escaping from the facility.  Background  sampling should
        be limited to those elements, compounds or  characteristics expected  or
        known to result from the wastes, or  combination of the  wastes,
        managed at the facility.

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C.  40 CFR. Part 250, Subpart D - Standards Applicable to Owners  or Operators
    of Hazardous Haste Treatment, Storage and Disposal  Facilities (Continued)
    JO.  Financial Responsibility
         It appears obvious that the requirements of 250.43-9 are intended
         for the commercial waste facility which is operated as a business
         separate and apart from any other business, which is unlikely to
         have significant assets beyond the land and/or equipment on the
         facility, and which is likely to liquidate at the end of the useful
         life of the site.  A trust fund may be appropriate for such a
         facility.  However, a trust fund is not appropriate for a large
         industrial firm with obvious assets and which operates a number of
         waste facilities as minor, incidental parts of its manufacturing busi-
         ness.  Such a firm is capable of establishing other forms of
         financial responsibility, i.e., surety bonds, letters of credit or
         other financial instruments.  Further, even if a plant site is
         closed, a large firm is not likely to go  out of business or other-
         wise liquidate without assets and, therefore, is able to maintain
         ongoing financial responsibility.  The confidence in continued
         responsibility of large business firms is at least as good as an
         expected 2% actual real interest rate on trust investments.
    11.  Standards for Storage
         The requirement for storage containment in 250.44(a) is unreasonable.
         Many industrial wastes are generated in large volumes or in physical
         dimensions unsuitable for containerization in tanks or portable
         enclosures.  It should be sufficient to require storage so as to
         prevent discharge of hazardous waste, permitting use of impoundments
         with suitable management, spiT! prevention and, if appropriate,
         treatment prior to discharge.

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C.   40 CFR. Part 250,  Subpart D - Standards Applicable  to  Owners  or  Operators
    of Hazardous Waste Treatment, Storage and  Disposal  Facilities (Continued)
    11.  Standards for Storage (Continued)
         The additional requirement of 250,44(g)  that all  containers or tanks
         meet OSHA regulations for storage of  flammable and combustible
         liquids is also unreasonable since not all  wastes are either flam-
         mable or combustible.

    12.  Landfills
         The limitation in 25Q,45-Z(b)(19) is  arbitrary and should be modified
         to allow a facility operator to demonstrate that no hazard to the
         environment will result in soils of greater permiability.

         The requirement in 250.45-2(c)(l) is  unreasonable since  the operator
         of a site within an industrial plant site riidy have good  and valid
         reasons for a surface which will not  support any vegetation.  The
         further requirement that it support "indigenous" vegetation is
         arbitrary since any ground cover which is suitable to the purpose,
         i.e., prevent erosion, should be acceptable to the Agency.

    13.  Basins
         The inclusion of basins (250.45-4) encroaches into the area of NPDES
         permit requirements and care must be exercised by the Agency so as
         to not preclude practical implementation of waste water treatment
         requirements  by RCRA regulations.

         This inclusion  also  encroaches  on some process steps, i.e.,  thickeners
         or  treatment vessels, which are not  entirely  waste facilities, but
         which  consitutute  final  steps  in  separation of waste from  process
         streams.   It is not  believed  to be the intent of the Congress that
         RCRA "back up"  into  process steps.

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C.  40 CFR, Part 250, Subpart D -  Standards Applicable to  Owners  or Operators
    of Hazardous Haste Treatment,  Storage and  Disposal  Facilities^ (Continued)
    14.  Landfarms
         The requirements of 250.45-5 are largely arbitrary and are sometimes
         inconsistent.

         Limitations on vertical penetration are arbitrary and unreasonable
         as long as it can be demonstrated that such penetration  will  not
         cause or threaten to cause adverse environmental  impacts.   Further,
         the limitation of three times the depth of incorporation or 12 inches,
         whichever is greater, is  arbitrary and unreasonable.  A  material
         applied to the surface should not be  more limited in  penetration
         than one plowed into the top 12 inches; under the proposed rule,
         the former would be limited to less than 12 inches, the  latter to
         36 inches.  These limitations should  be based on  case-by-case
         conditions and should allow the applicant to demonstrate that no
         threat to groundwater exists.
         The prohibition of all landfarming on land which  is periodically
         flooded is arbitrary.  If landfarming practices can be  shown to be
         capable of management which prevents  loss of "hazardous" materials
         into surface or groundwaters, it should not be prohibited.  If such
         practices are prohibited in final promulgation, adequate time needs
         to be provided for currently permitted landfarming in such locations
         to be moved without violating NPDES limitations.

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C.  40 CFR, Part 250, Subpart D - Standards Applicable to Owners _or Operators
    of Hazardous Haste Treatment, Storage and Disposal Facilities  (Continued)
    14.  Landfarms
         The prevention of anaerobic conditions by grading should  be replaced
         by limiting application rates to the infiltration capacity of the
         soil so as to avoid soil saturation.  Runoff induced by grading
         would be a less desirable result than anaerobic conditions.  Both
         can be avoided by observing infiltration capacity.

         The prohibition of food-chain crops on landfarms is arbitrary and
         unreasonable.  This assumes that all landfarming crops would be in
         some way contaminated with the wastes being applied to the landfarm.
         Since this is an arbitrary assumption based on the behavior of a few
         wastes, it should be footnoted to provide that an owner or operator
         may grow such crops on a demonstration that no food-chain hazard will
         result.

         The closure requirements for landfarms are unreasonable.   No such
         requirements should be imposed because the "background" or similar
         local soils are not necessarily an indication of unacceptable
         "contamination," even if there is a "significant" change  in the
         concentration of elements or compounds contained in the land-
         farmed wastes.  Demonstrated presence is not necessarily synonymous
         with availability to roots of plants or to vertical movement into
         groundwaters.  If subjected to this scheme, many natural  areas
         would have to be dug up and placed into hazardous waste facilities
         since they contain extractable (with acid) heavy metals or other
         contaminants.  This requirement should either be modified or foot-
         noted to allow the operator to demonstrate that no real hazard
         exists or is likely to occur.

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C.  40 CFR, Part 250, Subpart D - Standards Applicable to Owners or Operators
    of Hazardous Waste Treatment, Storage and Disposal Facilities (Continued)
    15.  Special Haste Standards
         In addition to the wastes already included as special  wastes in
         250.46, Bauxite Refining Waste (spent bauxite, red mud) should be
         included.  Bauxite Refining Waste meets the criteria of being very
         large in volume, presenting relatively low hazard and  not being
         amenable to the control techniques in Subpart D.  Specific informa-
         tion relative to spent bauxite facilities of Kaiser Aluminum is
         already available to EPA in Region VI (Dallas) offices; we would
         be pleased to meet with RCRA personnel to review and discuss any
         and all aspects of spent bauxite management.

         We believe that the prohibition of an impoundment in contact with
         a water table is unreasonable.  We currently operate such impound-
         ments with monitoring wells and can demonstrate no contamination.

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                    CALIFORNIA DEPARTMENT OF HEALTH SERVICES

                         COMMENTS ON PROPOSED PART 250

                       FEDERAL HAZARDOUS WASTE GUIDELINES
                                AND REGULATIONS

                      Federal Register, December  18, 1978
SUBPART D - STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE AND DISPOSAL FACILITIES
General Comment
The proposed standards will tend to discourage the continued use of the
variety of hazardous waste facilities to effectively and efficiently manage
the broad range of ha?ardous waste streams.  The comprehensive coverage of
the regulations and tht extreme detail provided, suggest that the standards
were developed for application to a regional off-site hazardous waste
facility of sign1fleant sl^e and resources, and one which  is capable of
handling a number of hazardous wastes.  This may result  in somewhat of a
self-fulfilling prophecy  In that the standards do not fit well when applied
to a small, single waste  facility or a special purpose facility and will
tend to discourage the operation of such facilities even though they serve
a useful purpose and provide adequate protection of health and the environ-
ment.   It would be In the best Interests of all to provide a practical means
to assure that only the necessary and appropriate requirements will be
applied to each facility, and to provide a greater degree of flexibility in
allowing alternative control measures than now exists in the standards.
More freedom should Be gKer to the regulatory authority as to what controls
are needed based on a consideration of the nature of the operation, the
environmental setting, and other factors.  This can be done by establishing
standards which clearly Identify the objectives to be met and allowing the
regulatory agency to set  the specific requirements.

Let me briefly describe the, regulatory approach in California.  At the State
level, two major agencies are involved In the regulation of a hazardous
waste facility ~- the State Water Resources Control Board and its regional
boards, and the Department of Health Services.  The regional boards review
and approve of sites for  the disposal of different types of wastes and regu-
late the disposal of the waste so as to protect the quality of the waters
of the State.  This is not accompl ished through the appl icatlon of a lenqthly
set of uniform regulations   Rather, the owner/operator of a proposed facility
must submit a report to the regional board which includes  information on the
geology of the site,  hydrogeo'log ic  information, type and amounts of wastes
to be received,  the proposed facilities and control  measures,  etc.   The
board will decide whether the site  is suitable to receive the  intended
wastes and will  establish requirements for water quality protection at that
specific site and for  that particular operation.   These requirements may list

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the types and amounts of wastes which can be received, and specify leachate
control features, runoff diversion requirements, groundwafer, surface water a
and wastewater monitoring facilities and the required monitoring program.
All of the detailed standards for water quality protection is in the tailor-
made discharge requirements applied to the facility.

The Department of Health Services has developed regulations which cover
areas of design and operation for a facility; however, these are objective
oriented.  Again, the facility operator must prepare a report which
specified how he will meet the objectives of the regulations.   In the
area of security, for example, the regulations state that   ''The hazardous
waste facility shall have posting and fencing as necessary to protect
public health and safety, domestic livestock and wildlife".  The specific
fencing requirements will be established in the operating permit based on
an evaluation of what is needed to accomplish this objective by the regu-
latory agency.   In  the case of a remote facility which ponds and land-
spreads oily waste, a 't-foot stockproof fence was considered adequate.
At a transfer station in an industrial area, a 6-foot "cyclone" fence was
required.  The permit conditions are used to supplement arid provide speci-
ficity to the more genera! regulations and provide controls which are
finely tuned to the needs for the facility and  its particular operation.

In the preamble to  the proposed federal regulations, it is pointed out that
the Environmental Protection Agency recognized that most of the design and
operating standards prescribe very specific requirements and that these
standards da not a I low enough flexibility to cope with different situations.
EPA has utilized "notes" after many of the standards to describe the
circumstances under which a deviation  Is allowed.   In the real world of
regulation,  the notes are not going to provide any significant degree of
flexibility.  The applicant, according the preamble, is going to have to
demonstrate  that an alternate to the standard will achieve at least an
equivalent degree of containment, destruction or environmental protection.
In most cases, this will be difficult to accomplish.  It would be difficult
to demonstrate that a A-foot fence and a notable lack of p>eople in the
surrounding  area is equivalent to a 6-foot fence -- or that two downstream
monitoring wells are equivalent to three -- or  that unexpected  releases,
discharges,  fires and leaks can be controlled  In less than 60 meters.  The
applicant  Is going  to be faced with proving a negative and the  regulatory
agency will  most likely  resist any substantial alternatives to  the specified
standards.

The across-the-board application of the large number of detailed design  and
operation standards may  close down some well operated facilities which are
adequately handling the  wastes from a single  industrial operation.  A plant
manager  faced with  the  financial  responsibility  requiremerts or the require-
ments  of determining background groundwater quality  Including the levels of
all constituents In the  federal primary and secondary drinking water stand-
ards and  looking forward  to  identifying possible changes  in quality as
determined by  the Student's,  single-tailed  test  at  the 95 percent confidence

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  level, might well consider doing away with the lined pond which receives
  the plant's asbestos waste or caustic material.

 The approach which EPA has selected is too rigid.  This  is not the way to
 go from a national economic, environmental or health and safety viewpoint.
 We recommend that the Environmental Protection Agency take the approach of
 specifying more general objective oriented requirements and leave more to
 the professional judgement and common sense of the regulatory authority as
 to the requirements for each specific facility for health and environmental
 protection.

 Specific Comments

      Sectton 250. 42,  A general health, safety and environmental standard
 could be Included which would state that the facility shall be located
designed constructed and operated in a manner which minimizes any discharges,
spills, emissions reactions or fires which might peril the safety of workers
or the public, or which could adversely affect the environment.
      Section 250. ^(d).  The note under open burning of hazardous wastes
should also stlpllfy that it must be demonstrated that the open burning will
not result In nuisances safety hazards or health hazards.

      Section 250.A3(f).  The provision for detailed  information on waste
composition should be applied to the generator and should be required to be
included on the manifest-  The generator Is in a better position to know the
composition of his wastes.  Requiring this specific information on the
manifest will provide essential Information in case of a spill  during
transport and will assist the facility operator In determining proper
treatment, storage or disposal practices for the waste.

      Section 250.
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     Section 250.^3-5(2).  If the 30 days  Is allowed  for  submission  of  the
manifest to the generator, an auth:H.jed State agency certainly  can  not
meet the 30 day proposed time schedule for quarterly  report  submission  to
EPA which Is presently specified  In the proposed  requirements  for  an
approval State program.

     Section 250.')3"5-  The total reporting requirements, with no  exemptions
or notes, impose a significant load on the operator.  Flexibility  should  be
provided.  Some reporting requirements are not exactly clear  --  i.e., "the
units of volume of each quantity of hazardous waste" and  "r^a re (hod of
treatment, storage or disposal for each hazardous waste"   Taken literally,
this would require documentation of :he disposition of e<;ch  small  container
in each waste load.

     Section 250.^3-8.  The State Wa~er Resources Control Board  will  provide
comments on current water quality protect/on aspect;,.

     Section 250. ^3-9.  The Departnc1'' cf >f:a,tn  3-.v\. ic.;- c,oe-i 'ict ua.-e tiie
experience to comment on specific financial responsibility requirements but
15 apposed to requirements which wou ' d cause IncrcL^^d h-i!:h and  safety
hazards due to the closure or abandonment of facilities  resulting  solely
from the Imposition of such requirement-,.   it v/Tj'd nf.pt, ' that  the  conso-
quences of financial  responsibility -standards should  be  caiefully  considered.
     Section 250. M(g)'  Should tanks for  storage of acids  or  alkalies  be
required to meet OSHA standards for flammable and cornbus' abl e  liquids?   The
proposed wording would appear to  require this.

     Section 250.Vi-l.  The venting standard  based on  capacity appears
somewhat arbitrary.

     Section 250. k$-2 (b) (6) .  It wou'd appear that  Ignitable,  reactive  and
volatile wastes may be restricted from landfills, surface impoundments,
basins or landfarrns.   It may he desirable  to  ccnside-  tht  national  resources
that arc available and which may  be needed  to manage these  wastes  by
alternative methods.

     Section 250. 45-2 (d) (2) .  The restriction regarding  t hi- construction of
habitations on sites  receiving radioactive  wastes should  be broadened to
restrict the construction of human dwelling places on  arv hazardous  wjsto
d i sposa 1 site.
caves
     Section 250-^5-5-  The distances to ground.vater, public  water  supplies,
~u.~.,, etc., should be determined b" the Regional Adm ir I ;.t rator  or  authorized
State agency and not be a r ingle nat r>na! standard.

In regard to the 1 andspreac i nq of PO ~\l ',,'uJqu, xe do  not  agree  ,vlth the
statement i r, the preamble that F.PA "c.an deveh^p  rules for  landfarming  POT',v
sludge v/hlch will allow grough of food chain crops on Si'c ii  land...".   Past
attempts to develop sucii  rules,  trie  confl'cting  view:, expressed, and the
present  lack of  rules would tend to  contradict this  clai'i.

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      I am Ken O'Morrow,  a past president and a member of the



Board of Directors of the Los Angeles Society for Coatings



Technology.   This is a group with about 600 members,  who are



employed by companies affiliated with the coatings industry.



Coatings include paints,  shellacs, varnishes, lacquers,  and



any other product which is sold to beautify and/or protect a



surface.








      The Los Angeles Society is a member of an international



Federation of Societies.   Many of these individual and company



members are also members  of local paint and coatings  associations



and the National Paint and Coating Association.








      We would like to be on the record as supporting the



testimony given by the National Paint and Coating Association.








      We would especially point out that many coating manu-



factures and suppliers are small businesses.  We believe it is



imperative that all possible consideration be given to the



economic impact of the proposed regulations on these  companies.








      We also believe that the very nature of a typical small



business works a hardship on these companies in dealing with



regulations.   They do not have the personnel to evaluate proposed



regulations and to lobb)*1 for their point of view during the



process of formulation, which often involves several  drafts

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before the final rule is adopted.  Therefore,  we believe that



the EPA should be certain that it can be responsive to any



changes required in the adopted rule if it proves to be an



undue hardship on small businesses. Thank you.

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  ICS  IPMRNCZ  CSP                           '   '
   4153881302  NL TDRN MILL VALLEY CA  100 03-12 1122P EST
  PMS  HEARING  OFFICER MATHEW WALKER                           r p /^'^°
  UNITED  STATES ENVIRONMENTAL PROTECTION AGENCY RESOURCE CONSERVATION"^^''
  AND  RECOVERING ACT AND HEARING 215  FREMONT AT^HOWARD ST  rt7rti|b'v I
  SAN  FRANCISCO CA
  RCRA DRAFT SHOULD:

  UPDATE  MINING REGULATIONS BEFORE PERMITS  (CHROME AND NICKEL
  EXTRACTION,  SIX RIVER- NATIONAL FOREST CALIFORNIA--STEEP TERRAIN,
  SHALLOW SOILS, SLIDES, SUMMER IRRIGATION  REOUIRED--REOUIRED POSTING
  IOND, ONGOING MONITORING OF REPLANTING, SLAG CONTROLS PROTECTING
  TRIBUTARIES—SALMON SPAWNING CREEKS OF SMITH RIVER). DENIED PERMITS
  SOME VULNERABLE SITES  (DEATH VALLEY—MINING VIEWED FEBRUARY TRAVESTY
  TO NATIONAL  MONUMENT).

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                                      1979 HAR 12  Fll 8  30

ADD RECLAIMED EFFLUENT  IRRIGATION VATER STANDARDS —CHEMICALS}
CONTAMINANTS FOR ANIMALS/PLANTS  SAFETY TO PRESENT (PUBLIC HEALTH
COLIFORM IN PUBLIC USE  AREAS.)
REQUIRED ON POINT RUN OFF  CONTAINMENT AND RECYCLING WATER BEFORE
DRAINING INTO WATERCOURSES,  (RICHARDSON BAYS DEVELOPMENT, MARIN
COUNTY).
  MARGARET ZEGART MILL  VALLEY CA
NNNN
va 1809e
SW-752
                               &US GOVERNMENT PRINTING OFFICE'1979-281 14771

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